# Duvall v. State > Court of Criminal Appeals of Oklahoma · May 28, 1991 · 62 O.B.A.J. 1791 URL: https://www.frixlaw.com/law-library/cases/9794419 ## Case - **Full name:** John Wayne DUVALL, Appellant, v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** May 28, 1991 - **Citations:** 62 O.B.A.J. 1791; 825 P.2d 621; 1991 OK CR 64; 1991 Okla. Crim. App. LEXIS 70; 1991 WL 92346 - **Precedential status:** Published - **Opinion:** Concurrence by Parks - **Judges:** Brett, Johnson, Lane, Parks, Lumpkin - **Cited by:** 63 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/9794419 ## Opinion text PARKS, Judge, specially concurring: For the reasons stated in my separate opinion in Fox v. State, 779 P.2d 562, 579 (Okl.Cr.1989), I continue to view the so-called “anti-sympathy” instruction in the second stage of trial unnecessary and confusing to the jury where mitigating evidence has been introduced. I also reiterate my opinion that the “especially heinous, atrocious or cruel” aggravating circumstance is unconstitutionally vague both on its face and as applied. See Foster v. State, 779 P.2d 591, 594 (Okl.Cr.1989) (Parks, P.J., specially concurring). As a matter of stare decisis, however, I must yield my view to that of the majority of this Court. As such, I concur in the af-firmance of appellant’s conviction and sentence of death. ORDER DENYING MOTION FOR EVI-DENTIARY HEARING AND PETITION FOR REHEARING — DIRECTING ISSUANCE OF MANDATE On June 17,1991, Appellant, John Wayne Duvall, filed a petition for rehearing in the above cause. On July 23, 1991, Appellant, filed a motion for an evidentiary hearing and to stay the issuance of the mandate. A motion for an evidentiary hearing was also filed on February 2, 1990, and subsequently on August 10, 1990, along with a request for appointment of local counsel and an investigator. Because these motions are interrelated, we combine them for review. A rehearing is allowed pursuant to 22 O.S.Supp.1990, Ch. 18 App., Rules of the Court of Criminal Appeals, Rule 3.14. Rule 3.14(B) limits the conditions upon which a rehearing may be had to those situations where a question decisive of the case which was raised by the attorney of record has been overlooked or where the decision is in conflict with an express statute or controlling decision that was not called to the attention of this Court in the briefs. K.V.F. v. State, 805 P.2d 106 (Okl.Cr.1991). In our review of the petition for rehearing, we were unable to find the petition to be based upon any of the foregoing conditions, except the request for an evidentiary hearing. In effect, Appellant seeks to raise a new proposition of error through the Petition For Rehearing which appears to be a request for post-conviction relief prior to the issuance of the mandate in this case. Our rules do not provide for this method of raising additional allegations of error. In the motions for an evidentiary hearing, Appellant contends he received ineffective assistance of counsel at trial. Part of this motion also requested the appointment of local counsel and an investigator. It is Appellant’s contention that his trial counsel failed to secure testimony of a number of witnesses who would have testified at both the guilt and punishment stages of his trial, and that these witnesses would have testified regarding the many mitigating circumstances involving both the crime and the Appellant’s character and personality. Appellant alleges that because of his counsel’s failure to present evidence of mitigation in the sentencing phase of the trial, his right to effective assistance of counsel was denied. We note that Appellant failed to raise this issue in his petition in error, or brief, on direct appeal. In addition, even though Appellant filed a motion for evidentiary hearing, he never requested leave to amend his pleadings or brief. His failure to raise the issue in his direct appeal waives the issue for appellate review. Even if the issue was properly raised, appellate review of an ineffective assistance of counsel claim begins with a presumption of competence, and the burden is upon the defendant to demonstrate both a deficient performance and resulting prejudice. Blake v. State, 765 P.2d 1224 (Okl.Cr.1988), citing Strickland v. Washington, 466 U.S. 668, 687-89 , 104 S.Ct. 2052, 2064-65 , 80 L.Ed.2d 674 (1984). If such a claim can be disposed of on the ground of lack of prejudice, an appellate court need not determine whether trial court’s performance was deficient. Id. Thus, unless the appel *638 lant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown of the adversary process that renders the result unreliable. Strickland at 686 , 104 S.Ct. at 2064 . Moreover, the Appellant must overcome a presumption that, under the circumstances, the challenged action, “might be considered sound trial strategy.” Michel v. Louisiana, 350 U.S. 91, 101 , 76 S.Ct. 158, 164 , 100 L.Ed. 83 (1955). In the instant case, the evidence against the Appellant was overwhelming. After examination of the record, it appears that Appellant’s family’s testimony, as set forth in the affidavit filed with Appellant’s motion, would not have had any likely effect on the sentencing phase of appellant’s trial. The failure of Appellant’s counsel to call witnesses who assertedly could testify favorably in mitigation of death penalty was a tactical decision made by Appellant’s counsel. Brooks v. Estelle, 697 F.2d 586, 588-589 (5th Cir.1982). Under the facts presented in this case, that choice was a viable decision for trial strategy. Absent a showing of incompetence, the Appellant is bound by the decision of his counsel, and mistakes in tactics and trial strategy do not provide grounds for subsequent attack. Davis v. State, 759 P.2d 1033 (Okl.Cr.1988), citing United States v. Nolan, 571 F.2d 528 (10th Cir.1978). Therefore, this proposition is without merit and would not have changed the decision of this Court had it been properly raised. The Motion for Evi-dentiary Hearing is DENIED. Accordingly, Appellant’s requests for motion for rehearing, to stay issuance of mandate and for evidentiary hearing are DENIED. The Clerk of this Court is ordered to issue the mandate forthwith. IT IS SO ORDERED. 7s/ James F. Lane JAMES F. LANE, Presiding Judge /s/ Gary L. Lumpkin GARY L. LUMPKIN, Vice Presiding Judge /s/ Tom Rrett TOM BRETT, Judge /s/ Ed Parks ED PARKS, Judge /s/ Charles A. Johnson CHARLES A. JOHNSON, Judge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9794419. Public record. Not legal advice.