Smallwood v. State

LUMPKIN, Judge,

concurring in result.

I agree that Petitioner’s convictions should be affirmed. I write separately to address concerns I have regarding the syntax utilized in the Court’s opinion.

I.

On page three of the opinion is the following language: “As noted above, jurors were available for interview at the time of direct appeal, as was the trial court record which contained all of trial counsel’s objections.” I write separately on this point to correct any misinterpretation as to the meaning of this sentence. Taken at face value, this language would seem to imply that, if counsel had in fact interviewed jurors about their deliberative processes on direct appeal, this Court would have considered the proposition. This is simply not true. This Court has since statehood adhered to the general rule that a defendant cannot impeach a jury’s finding with testimony (evidence) of what transpired in the jury room. Indeed, the Supreme Court of the United States has spoken on the very same subject. In McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915), the Court explained why impeachment of a jury’s verdict after the fact by a member of the panel is improper:

[A]ll verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.

Id. at 267, 35 S.Ct. at 784. See also Tanner v. United States, 483 U.S. 107, 122, 107 S.Ct. 2739, 2748-49, 97 L.Ed.2d 90 (1987) (quoting Congressional comments, court notes that “[sjtrong policy considerations continue to support the rule that jurors should not be permitted to testify about what occurred during the course of their deliberations”). This Court has adhered to the same philosophy. Hall v. State, 762 P.2d 264, 266-67 (Okl.Cr.1988); Lee v. State, 738 P.2d 173, 176-77 (Okl.Cr.1987); Weatherly v. State, 733 P.2d 1331, 1335 (Okl.Cr.1987); DeRonde v. State, 715 P.2d 84, 86-87 (Okl.Cr.1986); Wacoche v. State, 644 P.2d 568, 572-73 (Okl.Cr.1982); West v. State, 617 P.2d 1362, 1370 (Okl.Cr.1980); Killough v. State, 94 Okl.Cr. 131, 135-36, 231 P.2d 381, 387-88 (1951); Ex parte Lewis, 92 Okl.Cr. 334, 336, 223 P.2d 143, 143-44 (1950); Martin v. State, 92 Okl.Cr. 182, 218, 222 P.2d 534, 552 (1950); Williams v. State, 92 Okl.Cr. 70, 78-80, 220 P.2d 836, 841-42 (1950); Harrell v. State, 85 Okl.Cr. 293, 296, 187 P.2d 676, 677 (1947). And lest we forget, such impeachment is also prohibited by statute. 12 O.S.1991, § 2606(B).

I mention this because this appears to be a recurring argument among capital post-conviction petitioners. It is hoped that by mentioning it here, petitioners will adhere to the established holdings by this Court and the United States Supreme Court, together with enacted statutory imperatives.

II.

In footnote 3 (op. p. 115), the opinion makes the following statement: “Moreover, Petitioner’s claim of ineffective assistance if not barred by the provisions of 22 O.S.Supp. 1995, § 1089(D)(4)(b)(l), is also proeedurally barred by res judicata in that the same argument was presented in Petitioner’s direct appeal.[citations].” I interpret that as stating that it is the argument which is res judicata, and not the contents of the argument. If the argument made on direct appeal fits a general category (e.g., ineffective trial counsel), that general category cannot be raised on post-conviction, even though the basis is different. See Hooks v. State, 902 P.2d 1120, 1122 (Okl.Cr.1995).

III.

Concerning the claim of ineffective appellate counsel: I note that the opinion disposes of the argument based on the first of the three prongs enunciated in Walker v. State, 933 P.2d 327, 333-35 (Okl.Cr.1997), i.e., that Petitioner has faded to prove appellate counsel committed the conduct which gives rise to the allegation. I realize that even though I disagree with the procedure, See Walker, 933 P.2d at 341-44 (Lumpkin, J., Concurring in Result), I am now bound by stare decisis on this three-pronged test. I mention this here only to point out that, even under the traditional Strickland test, any petitioner would have to make a threshold showing that counsel actually committed (or failed to commit) the act complained of on appeal. Therefore, whichever test this Court would chose to use, the result here would be the same, and this Court need not address either the second or third prong of the test enunciated in Walker. As a result, this Court has yet to reach the third Walker prong.

IV.

The Court correctly denies the request for an evidentiary hearing here, but does not cite the correct rule in arriving at its decision. As we have made clear by recent modifications, Rule 9.7 governs such requests. Here, Petitioner failed to meet the threshold showing, and has failed to show by clear and convincing evidence that such a hearing was necessary.

V.

The Court does not consider Petitioner’s claim of ineffective trial counsel dealing with the first proposition of error, noting that the claim was raised “as an aside.” To ensure a clear understanding of this ruling based on the record, the opinion should read: the claim technically and legally was not raised at all, as it was not included in the Application for Post-Conviction Relief.⁵ Any claim that is raised in the brief in support of the Application which is not raised in the Application itself is not properly before this Court.

See Rogers v. State, 934 P.2d 1093, 1098, (OM.Cr.1997).

5 . The closest thing to an allegation of ineffective counsel appears in the explanation as to why the claim could not or was not raised before. It reads: “Both the trial and appeal lawyer were in the same office and the post-conviction appeal lawyer declined to raise a general (but see Propo-sitíon I) ineffective assistance of counsel claim based on the information in Mr. Smallwood's statement.” I do not know what this means, but am fairly certain it does not raise the claim of ineffective appellate counsel.