Thornburg v. State

LUMPKIN, Vice-Presiding Judge:

concurs in results.

¶ 1 I concur in the affirmance of the judgment and sentence in this case but write separately to address the following issues.

¶ 2 Initially, applying my analysis in Jackson v. State, 964 P.2d 875, 900-902 (Okl.Cr. 1998) to the facts in this case, the evidence was insufficient to warrant a jury instruction on the defense of voluntary intoxication; Although Appellant claimed he was in an alcoholic blackout and could not remember the murders, the State produced evidence that two (2) days after the murders he said that “three died last night and three more will die tomorrow.” (Tr. Ill, pg. 216). This evidence of Appellant’s memory of the offenses, together with the testimony of the eyewitness regarding his conduct at the time of the offenses, shows he was not entitled to a defense of voluntary intoxication.

¶ 3 As to Appellant’s claim of ineffective assistance of counsel, the Supreme Court has said in Strickland v. Washington, 466 U.S. 668, 696 , 104 S.Ct. 2052, 2069 , 80 L.Ed.2d 674, 699 (1984) and as further clarified in Lockhart v. Fretwell, 506 U.S. 364 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993) when a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Here, the Court decides that counsel’s conduct was deficient and then decides the prejudice question. This is the reverse of the analysis set forth by the Supreme Court and adopted by this Court. See Paxton v. State, 910 P.2d 1059, 1062 (Okl.Cr.1996); Allen v. State, 909 P.2d 836, 839 (Okl.Cr.1995); Duvall v. State, 825 P.2d 621, 637-38 (Okl.Cr.1991). Applying the proper method of analysis, we need only find Appellant was not prejudiced by counsel’s failure to enter certain objections as these were minor omissions which did not render the trial unfair or the verdict suspect or unreliable. With that finding, we need not undertake the analysis to determine whether counsel’s conduct was actually deficient.

¶ 4 I agree with the denial of the Application for Evidentiary Hearing on Sixth Amendment Claims and offer the following analysis to support that decision. In order to meet the “clear and convincing” standard to warrant an evidentiary hearing, Appellant must present this Court with evidence, not speculation, second guesses or innuendo. This requirement of setting forth evidence does not include requests for more time to develop and investigate information which might be available. Instead it requires evidence that is not merely cumulative to that presented at trial. The application must present something new or different which raises the question whether trial counsel’s failure to present the evidence was ineffectiveness, or merely trial strategy.

¶ 5 In the present case, an affidavit is provided by Dr. Phillip J. Murphy, Ph.D. Dr. Murphy states that he testified during the penalty phase of trial to the types of mental defects from which Appellant suffered, the likelihood he would suffer alcoholic blackouts on a regular basis, and information concerning his future dangerousness. He further states that subsequent to trial, he received numerous medical records on Appellant. Relying upon these records, which came from various hospitals and drug treatment centers, and the findings of Dr. Mash, a neurophar-macologist, Dr. Murphy concluded in part, that Appellant’s “higher brain centers which provide for his typical decisions were not operative during the time when he apparently committed this crime.” He also states that after reviewing the records provided to him subsequent to Appellant’s trial, his conclusion that Appellant was unable to “form usual criminal intent” mirrored his conclusion given at trial. (Exhibit A to Appellant’s application). Reviewing this affidavit, I find portions of it are merely cumulative to the *1252 testimony at trial, and other portions are only speculation and opinion based on someone else’s evaluation.

¶ 6 Another affidavit is provided by Dr. Deborah C. Mash, Ph.D. wherein she states she reviewed certain records and reports on Appellant in order to give her expert opinion regarding the effects certain illegal drugs and alcohol may have had on Appellant’s mental state. Dr. Mash never met Appellant and her opinion is based solely upon her review of records prepared by others and Appellant’s testimony. As I discussed in White v. State, 973 P.2d 306, 314 (Okl.Cr.1998) (Lumpkin, J., specially concur) Standard 7-6.6, American Bar Association Criminal Justice Mental Health Standards limits expert testimony regarding opinions on the defendant’s intent at the time of the crime. Reviewing Dr. Mash’s affidavit, I find most of it is speculation and improper opinion testimony.

¶ 7 The remainder of the affidavits are from family and friends who state that Appellant was drinking the night of the murder and give opinions on his level of intoxication at the time, and that Appellant he was a nice guy when he was not drinking too much. This type of evidence was presented at trial, therefore the affidavits are merely cumulative.

¶8 Having reviewed the affidavits under the analysis set forth above, I find sufficient evidence has not been presented showing a strong possibility trial counsel was ineffective for failing to present the evidence contained in the affidavits as such evidence was cumulative, speculative and improper opinion evidence. Therefore, I would deny the Application for Evidentiary Hearing on Sixth Amendment Claims/