Charles Troy Coleman v. James L. Saffle, Warden, Oklahoma State Penitentiary, McAlester Oklahoma , 912 F.2d 1217 ( 1990 )

TACHA, Circuit Judge,

concurring.

I agree fully with the majority, but I write separately for the limited purpose of making clear I do not agree with any possible inference that the hospital notations and reports the defendant seeks in this case are subject to disclosure under the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Brady rule applies to exculpatory and impeachment information known to and subject to the control of the prosecution, and without which the defendant would be deprived of a fair trial. In this case the prosecution, as well as the defense, was unaware of the additional hospital records at the time of the trial so neither side relied on this additional information in preparing for trial or in cross-examining witnesses. Further, there is no indication in the record that Eastern State Hospital would have refused to turn its records and reports over to both sides if such information had been requested. Clearly, as we have found, additional psychological records were not considered material to the conduct of the trial at the time so no request was made. The requirements of Brady simply are not implicated in this case because the prosecution had no actual or imputed knowledge of, and took no part in withholding, exculpatory or impeachment evidence.

Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1986), presents an entirely different question. In that case, both the prosecution and the defense were aware of the subpoenaed records, which if made available would have been equally available to both sides. The question the Court confronted there was whether the asserted privilege could block disclosure of information that might have been material to the defendant’s due process right to be tried fairly. The Supreme Court did not decide in that case whether the Brady rule did or did not apply but rather that the assertion of the privilege by the protective service agency could not stand as an absolute bar to disclosure of material that might be subject to the Brady rule. Further, the Court did not decide that the protective service agency was an arm of the prosecution for Brady purposes.

I agree with the majority that because of the underlying due process concerns, the question whether the information is subject to the Brady rule and the question whether the information was material are so closely intertwined that it is difficult to determine which should be answered first. I would hold, however, that the newly-discovered hospital records in this case were not Brady material because they were not known to the prosecution nor were they subject to the control of the prosecution and no request was made for them. These factors are touchstones to invoking the Brady requirements.

APPENDIX A

In the Court of Criminal Appeals of the State of Oklahoma

Charles Troy Coleman, Petitioner, v. State of Oklahoma, Respondent.

ORDER AFFIRMING DENIAL OF POST-CONVICTION RELIEF

On August 15, 1988, Charles Troy Coleman filed his appeal from denial of post-conviction relief in Muskogee County District Court, Case No. CRF-79-76.

Appellant was found guilty of First Degree Murder and was sentenced to suffer the death penalty. That conviction was appealed to this Court and was affirmed July 11, 1983. See Coleman v. State, 668 P.2d 1126 (Okl.Cr.1983). Petition for Cer-tiorari was filed with the United States Supreme Court, which was denied January 16, 1984. See Coleman v. Oklahoma, 464 U.S. 1073, 104 S.Ct. 986, 79 L.Ed.2d 222 (1984). Post Conviction Application was filed in Muskogee County District Court February 6, 1984, which was denied May 24, 1984. The appeal was lodged in this Court, and denial of relief was affirmed on November 30, 1984. See Coleman v. State, 693 P.2d 4 (Okl.Cr.1984).

January 16, 1985, Coleman filed for a writ of habeas corpus in the United States District Court for the Eastern District of Oklahoma. January 18, 1985, the District Court denied the writ of habeas corpus. An appeal was lodged with the United States Court of Appeals, Tenth Circuit.

September 30, 1986, the appeal was denied. See Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986). A second petition for Writ of Certiorari was filed with the United States Supreme Court in Case No. 86-6750. The petition was denied June 1, 1987. Rehearing was denied June 26, 1987.

July 6, 1987, Coleman filed a second application for post-conviction relief in the Muskogee County District Court, which was denied on July 9, 1987. This Court affirmed that denial on July 15, 1987, in Case No. H-79-508.

July 7, 1987, Coleman filed a petition for writ of habeas corpus in the United States District Court, Case No. 87-351-C. July 15, 1987, the petition was denied by the United States District Court for the Eastern District of Oklahoma. July 20, 1987, an appeal was lodged with the United States Court of Appeals, Tenth Circuit. July 20, 1987, the United States Court of Appeals entered a stay of execution in Coleman’s case. Subsequently, on March 6, 1989, the petition was denied in Case No. 87-2011.

October 15, 1987, Coleman filed a third application for post-conviction relief in the Muskogee County District Court. February 8, 1988, the District Court denied Coleman’s post-conviction relief. From that denial, this appeal has been lodged.

The statement of facts concerned in Coleman’s case may be found in Coleman v. State, 668 P.2d 1126 (Okl.Cr.1983).

In this appeal, Coleman argues two assignments of error in support thereof:

A. That Mr. Coleman was deprived of a constitutionally adequate determination of his competency to stand trial; and,

B. The State’s failure to disclose the records of Eastern State Hospital’s court ordered examination of Mr. Coleman’s sanity deprived him a fair and adequate determination of his competency to stand trial and also deprived him of his right to a fair trial and an individualized sentencing determination in violation of the Eighth and Fourteenth Amendments.

Included in the records filed with this appeal are: the Original Record filed June 2, 1988; the Transcript of Testimony filed May 10, 1988, on the hearing held December 17 and 18, 1987, and January 22, 1988; a Supplement to Record on Appeal, consisting of the records admitted into evidence, filed August 25, 1988. Coleman’s brief was filed August 15, 1988, and the State’s brief was filed September 9, 1988.

On February 8, 1988, the Honorable Lyle Burris, District Judge for Muskogee County, Oklahoma, entered the following order denying post-conviction relief:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

NOW on this 8th day of February, 1988, being fully advised in the premises, this Court issues the following Findings of Fact and Conclusions of Law in the above styled cause:

STATEMENT OF THE CASE

On October 19, 1987, Petitioner filed an Application for Post-Conviction Relief and various Motions accompanying said Application. The Application for Post-Conviction Relief alleged three specific claims:

1. That Petitioner was deprived of a fair and adequate proceeding for determining his ability to assist counsel and his competency to stand trial in violation of the due process clause of the Fourteenth Amendment.

2. That Petitioner was denied a fair trial with regard to a determination of his criminal responsibility in violation of the due process clause of the Fourteenth Amendment.

3. That Petitioner was denied his right to a full and fair determination of the appropriate sentence when the State misrepresented and withheld material evidence concerning his mental condition in violation of the Eighth and Fourteenth Amendments of the Constitution.

On November 24, 1987, following the State’s Response to the said Application, this Court granted Petitioner’s Motion for Counsel, granted Petitioner’s Motion for Expert Assistance, granted Petitioner’s Motion to Produce, and granted Petitioner’s Motion for Evidentiary Hearing, which Hearing was set for the 17th day of December, 1987. Hearing was held on the 17th and 18th days of December, 1987, with final arguments and briefs set and held on the 22nd of January, 1988, the petitioner appearing at all times by Mandy Welch, Deputy Appellate Public Defender, and the State appearing by W.A. Drew Edmondson, District Attorney.

During the hearings of December 17th and 18th, 1987, Petitioner’s request to be personally present in court was taken and kept under advisement. On the 22nd of January, 1988, Petitioner’s request to be present and testify was withdrawn, although Petitioner maintained his request to be present to assist counsel. At no time during the hearings did this court find that Petitioner’s presence in court would be necessary for testimony or required for a presentation of the legal issues herein.

This court, in the process of this Application for Post-Conviction Relief and in previous court proceedings, has become thoroughly familiar with the records of the above styled cause. In reviewing this application, the court has reviewed all of the records of the ease, has had available and reviewed where necessary the transcripts of all proceedings before the district courts of Muskogee County, has listened to and noted the testimony of witnesses for the petitioner and the state, both expert and lay, has reviewed on several occasions the records of Eastern State Hospital in their entirety as they pertain to petitioner, has listened to the arguments of counsel for both parties and reviewed the legal authority cited by each, as well as additional applicable case law and statutes. Based upon all of the above, this Court makes the following Findings of Fact and Conclusions of Law as to each of the Claims raised by Petitioner:

A. THAT PETITIONER WAS DEPRIVED OF A FAIR AND ADEQUATE PROCEEDING FOR DETERMINING HIS ABILITY TO ASSIST COUNSEL AND HIS COMPETENCY TO STAND TRIAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

FINDINGS OF FACT

1. Petitioner was tried and convicted of murder in the first degree and sentenced to death in 1979, at which time the procedure for determination of competency was located at Title 22 O.S.A., sections 1171-1174. Those procedures provided for a period of observation and examination at a hospital within the Department of Mental Health, during which time criminal proceedings were suspended, and a report to the court by the Mental Health doctors as to the competence of the defendant.

2. Upon motion of defense counsel, petitioner was sent to Eastern State Hospital for such an evaluation prior to his preliminary hearing in the above styled cause. Approximately thirty (30) days later, the Court received a report from Dr. R.D. Garcia, Chief Forensic Psychiatrist, Eastern State Hospital, which stated that petitioner “does have sufficient ability to consult with an attorney and he does have a rational as well as actual understanding of the proceedings.”

3. At no other time during the trial proceedings was petitioner's competency or sanity raised as an issue.

4. Petitioner’s trial attorney, Mr. Don Pearson, testified under oath that his motion for commitment was primarily to obtain additional time and also to determine whether his client might have a mental problem; that at no time did he have reason to believe that his client was not competent. In fact, Mr. Pearson testified that in his opinion his client, petitioner herein, was competent, did understand the nature and consequences of the proceedings, and was able to assist him in his own defense.

5. That the records compiled by Eastern State Hospital during petitioner’s period of observation, were not in the possession of the District Attorney or any agent of the District Attorney until 1987 and were, in 1979, equally available to the State or Defense by discovery motion or subpoena.

6. That the State, by and through the Office of District Attorney, including any member of the District Attorney’s staff or any investigative agent or arm of said office, did not withhold or conceal any of the records of Eastern State Hospital from the petitioner at any stage of the proceedings against him.

7. That the records compiled by Eastern State Hospital together with the testimony of Dr. Walter Quijano, the psychologist who participated in the examinations and evaluation of petitioner in 1979, support the report tendered the Court by Dr. Garcia that petitioner was, in fact, able to assist counsel and competent to stand trial.

CONCLUSIONS OF LAW

1. That the procedures utilized for determining petitioner’s competency and ability to assist counsel in 1979 did not, per se, violate the due process clause of the Fourteenth Amendment. Colbert v. State, 654 P.2d 624 (Okl.Cr.1982).

2. That the procedures utilized in 1979 for determining competency were known to petitioner and were available to be raised on direct appeal and thus are barred in an application for post-conviction relief. Coleman v. State, 693 P.2d 4 (Okl.Cr.1984).

3. That neither the procedure utilized nor the records which have subsequently come to light concerning the medical and psychological history of petitioner are sufficient to raise a reasonable doubt as to petitioner’s competence in 1979. Chaney v. Brown, 730 F.2d 1334, 1340 (10th Cir.1984).

Wherefore, premises considered, post-conviction relief as to petitioner’s first claim should be and is hereby DENIED.

B. THAT PETITIONER WAS DENIED A FAIR TRIAL WITH REGARD TO A DETERMINATION OF HIS CRIMINAL RESPONSIBILITY IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

FINDINGS OF FACT

1.The court restates each of its findings of fact above.

2. That the petitioner gave a lengthy and detailed statement to District Attorney Investigator Gary Sturm immediately after his arrest in 1979 and, consistent with that statement, interposed the defense at trial that his whereabouts at the time of the murder was accounted for and any period of absence was insufficient for him to have accomplished the offense. This defense was inconsistent with and antagonistic to any defense based upon lack of criminal responsibility or lack of sanity.

3. Petitioner’s trial attorney, Mr. Don Pearson, testified that, upon his review of the medical records in question, he would not have utilized them in the first (guilt) stage of the trial even if he had had them in 1979.

4. That the evidence of petitioner’s guilt at trial was “overwhelming.”

CONCLUSIONS OF LAW

1. That, with the evidence in question being equally available to the state and the defense at the time of trial, the failure of the defense to obtain the evidence is not a violation of the due process clause of the Fourteenth Amendment. Chaney v. Brown, 730 F.2d 1334 (10th Cir.1984).

2. That the evidence in question, had it been available to the defense at time of trial, would have been insufficient to create a reasonable doubt as to the guilt of the accused, his sanity or his criminal responsibility and, thus, is insufficient to warrant relief. Chaney, supra. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, Castleberry v. State, 590 P.2d 697 (Okl.Cr.1979).

Wherefore, premises considered, post-conviction relief as to petitioner’s second claim should be and is hereby DENIED.

C. THAT PETITIONER WAS DENIED HIS RIGHT TO A FULL AND FAIR DETERMINATION OF THE APPROPRIATE SENTENCE WHEN THE STATE MISREPRESENTED AND WITHHELD MATERIAL EVIDENCE CONCERNING HIS MENTAL CONDITION IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION.

FINDINGS OF FACT

1. The court restates each of its findings of fact above.

2. In the second (punishment) stage of the trial, the jury found the following aggravating circumstances beyond a reasonable doubt:

a. The Defendant was previously convicted of a felony involving the use or threat of violence to the person.

b. The Defendant knowingly created a great risk of death to more than one person.

c. The murder was especially heinous, atrocious or cruel.

d. The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution.

e. There exists a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society.

4. The jury unanimously recommended a death penalty.

5. That matters of social history contained within the records was equally available to the defense through the testimony of the defendant himself or members of the defendant’s family.

6. That some matters relating to the petitioner’s psychological history would have been of benefit to the state in the punishment stage had the records been in the possession of the parties at the time of trial.

CONCLUSIONS OF LAW

1. That, with the evidence in question being equally available to the state and the defense at the time of trial, the failure of the defense to obtain the evidence is not a violation of the Eighth or Fourteenth Amendments. Chaney v. Brown, 730 F.2d 1334 (10th Cir.1984).

2. That the evidence in question, had it been available to the defense at time of trial, would have been insufficient to create a reasonable doubt as to any of the aggravating circumstances found by the jury and would have been insufficient to have affected the outcome of the punishment stage of the proceedings, beyond a reasonable doubt, and, as such, said evidence is insufficient to warrant relief. Chaney, supra. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342. Castleberry v. State, 590 P.2d 697 (Okl.Cr.1979).

Wherefore, premises considered, post-conviction relief as to petitioner’s third claim should be and is hereby DENIED.

CONCLUSION

This is petitioner’s third application for post-conviction relief and his third eviden-tiary hearing in this Court. In addition, the record reflects that the petitioner has completed a direct appeal and has entered the federal courts twice on writs of habeas corpus. Issues raised by petitioner’s counsel in briefs or oral argument, while not directly relating to the three claims for relief, have been considered. Additionally, the court has searched the medical records in question on any construction of the issues.

It is the Order of this Court that Post-Conviction Relief upon the issues raised in petitioner’s Application and upon an and all issues raised by petitioner attendant to said Application, upon each such Claim, should be and is hereby DENIED.

/s/Lyle Burris District Judge

NOW THEREFORE, after considering the records on file with this Court in the above-styled and numbered post-conviction appeal, and being fully advised in the premises, this Court finds that the Order of the District Court of Muskogee County in Case No. CRF-79-76, should be affirmed.

IT IS SO ORDERED.

CHARLES TROY COLEMAN is further advised that he has exhausted his State Remedies.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 6th day of April 1989.

/s/Tom Brett TOM BRETT, PRESIDING JUDGE

/s/Ed Parks ED PARKS, VICE PRESIDING JUDGE, Concur in Results.

/s/Hez J. Bussey HEZ J. BUSSEY, JUDGE, Concur in Results.

7s7 James F. Lane JAMES F. LANE, JUDGE /s/Gary L. Lumpkin GARY L. LUMPKIN, JUDGE

ATTEST:

/s/James Patterson Clerk

APPENDIX B

In the District Court for Muskogee County, State of Oklahoma

Charles Troy Coleman, Petitioner, -vs-State of Oklahoma, Respondent.

No. CRF-79-76

Feb. 26, 1990.

ORDER

Now on this 26th day of February, on petitioner’s motion, the order of this court entered on February 5, 1990, is hereby vacated for the reason that petitioner did not receive timely notice thereof, and judgment is hereby entered on this date denying petitioner’s application for post-conviction relief in accordance with the findings of the February 5, 1990 order, which findings are incorporated herein.

/s/Lyle Burris JUDGE OF THE DISTRICT COURT

In the District Court in and for Muskogee County, State of Oklahoma

Charles Troy Coleman, Petitioner, -vs-State of Oklahoma, Respondent.

Case No. CRF-79-76

Feb. 5, 1990.

ORDER

NOW on this 5th day of February, 1990, this Court having reviewed Petitioner’s Application for Post-Conviction Relief, Motion for Approval of Reasonable Expenditure of Funds for Expert, Motion for Discovery and For Evidentiary Hearing, and Appendix to Application for Post-Conviction Relief; the State’s Response to Application for Post-Conviction Relief; and the Petitioner’s Reply to State’s Response and Supplement to Application for Post-Conviction (Relief), and Supplemental Appendix to Application for Post-Conviction Relief, together with Petitioner’s Second and Third Supplements to Application for Post-Conviction Relief; and, further, this Court being familiar with and having available for review the entire file of the case of State vs. Charles Troy Coleman, including the record and exhibits of Petitioner’s last Application for Post-Conviction Relief, upon which this Court ruled on February 8th, 1988; and, further, this Court having reviewed the case law cited by both Petitioner and the State, including the pronouncements of various appellate courts in decisions involving Petitioner herein, it is the Finding and Order of this Court as follows:

1. That the issue of due process involved in the procedures for determination of competency utilized in the case of Petitioner has been raised and dealt with in prior post-conviction relief proceedings and thus is barred as a matter of law. Coleman v. State, 693 P.2d 4 (Okl.Cr.1984).

2. That the factual issue of the competence of Petitioner to stand trial in 1979 was raised and dealt with in prior post-conviction relief proceedings and thus is barred as a matter of law. Findings of Fact and Conclusions of Law, Coleman v. State, CRF-79-76, February 8, 1988; affirmed, Coleman v. State, PC-88-159, April 6, 1989.

3. That the issues now raised by Petitioner, if true, are insufficient to challenge the due process of the procedures utilized to determine the competence of Petitioner in 1979.

4. That the Petitioner offers no new evidence, much less any material evidence, as to the competence of Petitioner in 1979. The evidence offered, which might, in its best light, raise a question as to the competence of Dr. Garcia, is irrelevant when considered in view of the fact that Petitioner’s competence was established and remains established by sufficient evidence outside and beyond the conclusion reached by Dr. Garcia. This evidence includes the testimony under oath of Dr. Quijano, who also examined Petitioner in 1979, the sworn testimony of Don Pearson, who represented Petitioner in 1979, and the testimony of other individuals who dealt with Petitioner in and since 1979, as well as the entirety of the records of Eastern State Hospital compiled in 1979. No affidavit submitted by Petitioner raises any doubt as to his own competence at time of trial.

5. That this Court, while cognizant of the unanimous finding of the Court of Criminal Appeals in April, 1989, that: “CHARLES TROY COLEMAN is further advised that he has exhausted his State Remedies”, thoroughly reviewed all pleadings and affidavits submitted by Petitioner and finds no issue or ground which would justify further hearing or delay in the due course of this case.

WHEREFORE, premises considered, Post-Conviction Relief on all grounds and issues raised by Petitioner herein shall be and is hereby DENIED; further, Petitioner’s Motion for Approval of Reasonable Expenditure of Funds for Expert is DENIED since such funds have not been shown to be either reasonable or necessary in light of the rulings herein; further, Petitioner’s Motion for Discovery and for Evi-dentiary Hearing is DENIED; and, further, that Petitioner’s request for an additional thirty days to explore alternatives and to supplement the record is DENIED.

/s/Lyle Burris JUDGE OF THE DISTRICT COURT

APPENDIX C

In the Court of Criminal Appeals of the State of Oklahoma

Charles Troy Coleman, Petitioner, v. State of Oklahoma, Respondent.

No. PC-90-326

ORDER AFFIRMING DENIAL OF POST-CONVICTION RELIEF

The petitioner has appealed to this Court from an order of the District Court of Muskogee County, denying his application for post-conviction relief in Case No. CRF-79-76.

This is petitioner’s fourth application for post-conviction relief; therefore, he is barred from asserting any claims not raised in his first petition. (See 22 O.S. 1981, § 1086). The petitioner is further advised that he has EXHAUSTED his State remedies in Muskogee County Case No. CRF-79-76, and the clerk of this Court is directed NOT to accept any further petitions in said case for filing. The order of the District Court is AFFIRMED.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 11th day of April, 1990.

/s/James F. Lane JAMES F. LANE, VICE PRESIDING JUDGE

/s/Tom Brett TOM BRETT, JUDGE

/s/Gary L. Lumpkin GARY L. LUMPKIN, JUDGE

/s/Charles A. Johnson CHARLES A. JOHNSON, JUDGE

ATTEST:

/s/James Patterson Clerk