# Wallace v. State

> Court of Criminal Appeals of Oklahoma · March 27, 1995 · 66 O.B.A.J. 1150

URL: https://www.frixlaw.com/law-library/cases/9617432

## Case

- **Full name:** George Kent WALLACE, Appellant, v. the STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** March 27, 1995
- **Citations:** 66 O.B.A.J. 1150; 893 P.2d 504; 1995 OK CR 19; 1995 Okla. Crim. App. LEXIS 24; 1995 WL 131336
- **Precedential status:** Published
- **Opinion:** Concurrence by Chapel
- **Judges:** Lumpkin, Johnson, Lane, Chapel, Strubhar
- **Cited by:** 53 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9617432

## How later opinions describe it (automated extraction)

- holding that a defendant who sought to receive the death penalty had the right to refuse to present mitigation evidence

## Opinion text

CHAPEL, Vice Presiding Judge,
specially concurring:
I believe a competent defendant in a capital case can waive his right to direct appeal. 1 However, I cannot agree with the majority’s reliance on Cooper v. State 2 and the discussion regarding due process which is contained in dicta in the Cooper opinion. In Cooper I concurred in result without writing because of the analysis of the Due Process Clause. I now find Cooper cited here for that purpose, and I must write to state my disagreement with the analysis in Cooper.
This issue is not before us; this Court need not attempt to precisely delineate the boundaries of due process in order to determine the validity of our competency statutes. Nevertheless, the majority correctly notes the difficulty in defining “due process” precisely but provides an unnecessarily narrow view of the principle.
The United States Supreme Court has said:
Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and *518 public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitutional — of whatever race, creed or persuasion.” 3
It is in this context that the Supreme Court declared that the Due Process Clause of the Fourteenth Amendment was “intended to guarantee procedural standards adequate and appropriate, then and thereafter, to protect, at all times, people charged with or suspected of crime by those holding positions of power and authority.” 4 Due process is “a summarized constitutional guarantee of respect for those personal immunities which ... are so rooted in the traditions and conscience of our people as to be ranked as fundamental, or are implicit in the concept of ordered liberty.” [citations omitted] 5
The Supreme Court has “very narrowly” defined the “category of infractions that violate fundamental fairness” and thus violate due process. 6 However, within those parameters, the Court’s scope of review must “ascertain whether [proceedings] offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.” 7 “The Due Process Clause places upon this Court the duty of exercising a judgment, within the narrow confines of judicial power in reviewing State convictions, upon interests of society pushing in opposite directions.” 8
This Court has referred to due process as “that fundamental fairness essential to every concept of justice.” 9 “A fair and impartial administration of justice is one of the most sacred rights of the citizen, and it is the duty of the courts to see that the constitutional rights of the accused shall not be violated; however guilty he may be, he is entitled to a fair trial according to the due and orderly course of law.” 10
In various contexts, due process has been held to require: 1) that invasive or brutal procedures cannot extract evidence from a prisoner to support his conviction; 11 2) in the context of involuntary confessions, that a confession may not be coerced but must be the unconstrained product of free choice; 12 3) that, upon arrest, a person must be brought before a magistrate within a reasonable time; 13 4) that a statute be explicit enough to inform those subject to it what conduct will render them liable to its penalties, and couched in terms not so vague that persons of common intelligence must necessarily guess at its meaning and differ as to *519 its application; 14 5) that, upon arrest or conviction, any proceedings for revocation of bond shall at the least afford notice and an opportunity for a hearing, and orders shall not issue ex parte; 15 6) in criminal proceedings, that a defendant have competent counsel (or validly waive counsel), have an opportunity to confront all witnesses against him and to testify and bring witnesses on his own behalf, be advised of the charges against him, have a right to a public trial by jury in the locality in which the exime was committed, have the jury properly instructed, and have the assistance of experts necessary for his defense (upon showing of need); 16 7) that a defendant should not be tried before the jury in shackles or bonds; 17 8) that, in a criminal prosecution, the State shall provide the defense exculpatory material; 18 9) that, at trial, co-defendants with mutually antagonistic defenses shall not be forced to participate in a joint trial; 19 10) that the State refrain from engaging in egregious and overzealous prosecution which may affect a jury verdict and thus deprive a defendant of his right to a fair trial; 20 11) that the State’s knowing use of perjured testimony to convict a defendant result in a negation of the process normally afforded by notice and hearing; 21 12) that where a case is submitted to a jury on alternative theories and one of those theories is infirm, the conviction must be set aside; 22 13) in juvenile proceedings, that juveniles receive protection of appropriate procedures in both juvenile court and reverse certification proceedings; 23 14) in mental incompetency proceedings, that, at a minimum, the ward receive written notice and a hearing in which the rights afforded a defendant at trial apply. 24
This list is illustrative only and does not begin to exhaust the myriad forms which due process may take. It clearly shows that while, at a minimum, due process requires both notice and an opportunity for a hearing according to established procedures, these elements cannot satisfy or even accurately describe the parameters of the Due Process Clause 25 This Court has held:
[W]e are not unmindful that sustaining procedural rules that [sic] give form and symmetry to the law, but quite frankly we *520 are inclined to the principle that these are but means to the end of overall justice, and where procedural rules become an obstacle to the administration of justice or the attainment of its end in a case, we would not hesitate to sweep them under the rug to reach the heart of the matter_” [citations omitted] 26
Although I concur in the result reached by the majority, I am unable to join in the narrow view of the Due Process Clause as set forth in Cooper.
. A defendant cannot waive his mandatory sentence review, which remains a statutory obligation of this Court. Grasso v. State, 857 P.2d 802 (Okl.Cr.1993).
. 889 P.2d 293 , 66 O.B.J. 166, 170 (Okl.Cr.1995).
. Chambers v. Florida, 309 U.S. 227, 241 , 60 S.Ct. 472, 479 , 84 L.Ed. 716 (1940).
. Chambers, 309 U.S. at 236 , 60 S.Ct. at 476-77 .
. Rochin v. California, 342 U.S. 165, 169 , 72 S.Ct. 205, 208 , 96 L.Ed. 183 (1952); Snyder v. Massachusetts, 291 U.S. 97, 105 , 54 S.Ct. 330, 332 , 78 L.Ed. 674 (1934); Palko v. Connecticut, 302 U.S. 319, 325 , 58 S.Ct. 149, 152 , 82 L.Ed. 288 (1937).
. Medina v. California, 505 U.S. -, -, 112 S.Ct. 2572, 2576 , 120 L.Ed.2d 353 (1992); Dowling v. United States, 493 U.S. 342, 352 , 110 S.Ct. 668, 674 , 107 L.Ed.2d 708 (1990).
. Rochin, 342 U.S. at 169 , 72 S.Ct. at 208 .
. Id., 342 U.S. at 171 , 72 S.Ct. at 209 .
. Mann v. State, 856 P.2d 992, 995 (Okl.Cr.1993), cert. denied, 488 U.S. 877 , 109 S.Ct. 193 , 102 L.Ed.2d 163 (1988); In re Pate’s Petition, 371 P.2d 500, 505 (Okl.Cr.1962), cert denied, 373 U.S. 915 , 83 S.Ct. 1304 , 10 L.Ed.2d 415 (1963); Lisenba v. California, 314 U.S. 219, 236 , 62 S.Ct. 280 , 86 L.Ed. 166 (1941).
. Ex parte Hollins, 54 Okl.Cr. 70 , 14 P.2d 243, 246 (1932).
. Rochin, 342 U.S. at 173 , 72 S.Ct. at 210 .
. See, e.g., Culombe v. Connecticut, 367 U.S. 568, 581-84 , 81 S.Ct. 1860, 1867-69 , 6 L.Ed.2d 1037 (1961); Malinski v. New York, 324 U.S. 401, 404 , 65 S.Ct. 781, 783 , 89 L.Ed. 1029 (1945); Brown v. Mississippi, 297 U.S. 278, 286 , 56 S.Ct. 461, 465 , 80 L.Ed. 682 (1936); In re Pate, 371 P.2d at 505 ; Lyons v. State, 77 Okl.Cr. 197 , 138 P.2d 142 (1943), aff'd, 322 U.S. 596 , 64 S.Ct. 1208 , 88 L.Ed. 1481 (1944).
. Culombe, 367 U.S. at 584 , 81 S.Ct. at 1869 .
. May v. State, 788 P.2d 408 (Okl.Cr.1990); Whitney v. California, 274 U.S. 357, 368 , 47 S.Ct. 641, 645-46 , 71 L.Ed. 1095 (1926) (criminal syndicalism). Whitney also holds that the Due Process Clause is not violated where the state punishes speech which menaces the peace and welfare of the state. 274 U.S. at 371 , 47 S.Ct. at 646-47 . This Court cited Whitney when upholding a similar Oklahoma criminal syndicalism statute in Shaw v. State, 76 Okl.Cr. 271 , 134 P.2d 999 (1943). Although the syllabus in Shaw suggests that due process is satisfied by legal procedures which operate on all alike without subjecting an individual to the arbitrary, unrestrained exercise of the powers of government, the opinion does not discuss due process beyond quoting the syllabus in Whitney .
. Nauni v. Cannon, 628 P.2d 372 (Okl.Cr.1981); Petition of Humphrey, 601 P.2d 103 , 107 (Okl.Cr.1979).
. Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985); Brown, 297 U.S. at 286 , 56 S.Ct. at 465 ; Powell v. Alabama, 287 U.S. 45, 71 , 53 S.Ct. 55, 65 , 77 L.Ed. 158 (1932); Rogers v. State, 890 P.2d 959 (Okl.Cr.1995); Green v. State, 881 P.2d 751, 752 (Okl.Cr.1994); Ward v. State, 444 P.2d 255, 261 (Okl.Cr.1968), cert. denied, 393 U.S. 1040 , 89 S.Ct. 665 , 21 L.Ed.2d 588 (1969); Hollins, 14 P.2d at 245-6 .
. French v. State, 377 P.2d 501, 502-3, 505 (Okl.Cr. 1962), overruled in part, Peters v. State, 516 P.2d 1372, 1374 (Okl.Cr.1973) (majority opinion and Bussey, J., concurring).
. Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963); Sadler v. State, 846 P.2d 377 (Okl.Cr.1993).
. Neill v. State, 827 P.2d 884 (Okl.Cr.1992).
. McCarty v. State, 765 P.2d 1215, 1222 (Okl.Cr.1988); Mooney v. Holohan, 294 U.S. 103, 112 , 55 S.Ct. 340, 342 , 79 L.Ed. 791 (1935) (use of perjured testimony).
. Hysler v. Florida, 315 U.S. 411, 413 , 62 S.Ct. 688 , 86 L.Ed. 932 (1942); Mooney, 294 U.S. at 112 , 55 S.Ct. at 342 .
. Stromberg v. California, 283 U.S. 359 , 51 S.Ct. 532 , 75 L.Ed. 1117 (1931); Tibbs v. State, 819 P.2d 1372, 1373 (Okl.Cr.1991) (alternative theories of guilt).
. In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970); M.L.R. v. State, 740 P.2d 1201 (Okl.Cr.1987); Edwards v. State, 591 P.2d 313, 321-22 (Okl.Cr.1979).
. In re Guardianship of Deere, 708 P.2d 1123, 1126 (Okl.Cr.1985).
. Powell, 287 U.S. at 68 , 53 S.Ct. at 64 .
. In re Pate, 371 P.2d at 518 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9617432. Public record. Not legal advice.