Opposition Brief — Bowen v. Oklahoma

Supreme Court brief1985

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LY JUN 7 1985

No. 84-1741 {

ALEXANDER L. STEVAS

CLERK

—

ene

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

CLIFFORD HENRY BOWEN,

Petitioner,

vs.

STATE OF OKLAHOMA,

Respondent.

RESPONSE IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

MICHAEL C. TURPEN

ATTORNEY GENERAL OF OKLAHOMA

ROBERT A. NANCE *

ASSISTANT ATTORNEY GENERAL

DEPUTY CHIEF, FEDERAL DIVISION

ROBERT W. COLE

ASSISTANT ATTORNEY GENERAL

112 State Capitol Building

Oklahoma City, OK 73105 ’

(405) 521-3921

ATTORNEYS FOR RESPONDENT

* Counsel of Record June, 1985

No. 84-1741

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

CLIFFORD HENRY BOWEN,

Petitioner,

vs.

STATE OF OKLAHOMA,

Respondent.

RESPONSE IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

MICHAEL C. TURPEN

ATTORNEY GENERAL OF OKLAHOMA

ROBERT A. NANCE *

ASSISTANT ‘ATTORNEY GENERAL

DEPUTY CHIEF, FEDERAL DIVISION

ROBERT W. COLE

ASSISTANT ATTORNEY GENERAL

112 State Capitol Building

Oklahoma City, OK 73105

(405) 521-3921

ATTORNEYS FOR RESPONDENT

* Counsel of Record June, 1985

QUESTIONS PRESENTED

1. Whether the Due Process Clause

of the Fourteenth Amendment requires the

State to reveal to the Defendant inves-

tigatory leads which are deadends, even

in the absence of a request by the De-

fendant.

2. Whether an experienced criminal

defense lawyer calling twelve alibi wit-

nesses in the first stage of a capital

murder case, but calling no witnesses

nor making any argument in the sentenc-

ing stage deprived the Defendant of ef-

fective assistance of counsel.

TABLE OF CONTENTS

Page

OQueations Pregented 1. « 6 ss ee 8 i

Taeee ae: Cee & 6S 8 Ks ee Oe Se

Opinion and Judgment

DOLAVOEOG -DOAOW bs cos the 4 we ee 1

Jurisdiction * a es e e m . es - a * e 2

Constitutional Provisions

ang Statutes Involved « . «sess s « 2

Statement of the Casé ...+s-«sss 3

A. Preomeducal BRietoty ..«s + + 3

B. Statement of the Facts ... +

Summary of the Argument ....... 16

Why the Writ of Certiorari

BHOULG Ge DORiGG -..46.4 sw den een

THE REJECTED INVESTIGATORY

LEAD COMPLAINED OF BY THE DE-

FENDANT WOULD NOT HAVE CREATED

A REASONABLE DOUBT REGARDING

HIS GUILT AND NEED NOT HAVE

BEEN PROVIDED BY THE PROSECU-

TION IN THE ABSENCE OF A _ RE-

Gee 6 See ee ee ee eae a ee

Il.

DEFENDANT'S ATTORNEY GAVE HIM

CONSTITUTIONALLY EFFECTIVE AS-

SIiGTAMGe Bi TRANG. «2+ s ts ew st ee se

eee ae ee a ne ce ee ce ee ee

iii

TABLE OF AUTHORITIES

Cases Cited

Bowen v. State of Oklahoma,

No. P-81-315 .. 2 «© « « « @ e@

Daugherty v. State,

640 P.2d 558 (Okl. Cr.

oy ee ee et ae eee oe ee oe ae

Hall v. State,

é' 650 P.2d 893 (Okl.Cr.

Rees s 6. oe et ae -ehe

Irvin v. State,

617 P.2d 588 (Okl.Cr.

Beee) «sé © oe «se. © *

Moore v. Illinois,

606 0.8; 7e6- 12974). « &-<

Strickland v. Washington,

U.S. , 104 S. Ct.

__, 80 L. Ed. 24 674

(29e? «0 * a 51s wD

30, 31-32,

United States v. Agurs,

427 0.8. 97 (1976) . «6 «

Unit# States v. Chronic,

U.S. , 104 S. Ct.

__ , 80 L. Ed. 2d 657

[Beeel «és Blac we ee

United States v. Glick,

710 F.2d 639

(16008 Ceti 2eeel «6 «6 « «

38,

20,

Page

* l

o a

« 20

« 36

22, 23

27, 29

39, 40

19,

23, 24

s iee

. =a

Statutory Provisions Cited

26 GuhsOi§ ABS? nk ee 2

21 0.8.Supp.1980, § 701.7 . « « « « « 3

Constitutional Provisions Cited

United States Constitution,

Bae meen: a 6 6 @ © 8@ © 6 2

United States Constitution,

Fourteenth Amendment, § 1... . 3

sate mama ae

No. 84-1741

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

CLIFFORD HENRY BOWEN,

Petitioner,

vs.

STATE OF OKLAHOMA,

Respondent.

RESPONSE IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

The Respondent, State of Oklahoma,

respectfully presents this as its Re-

sponse in Opposition to the Petition for

Writ of Certiorari filed herein.

OPINION AND JUDGMENT DELIVERED BELOW

The Oklahoma Court of Criminal Ap-

peals' opinion in Bowen v. State of

Oklahoma, No. F-81-315, was rendered on

November 30, 1984. The Oklahoma Court

of Criminal Appeals denied the Petition-

er's Motion for Rehearing on March 8,

1985.

JURISDICTION

The Petitioner invokes jurisdiction

of this Court under 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The following provisions of the

United States Constitution are applica-

ble to this case.

The Sixth Amendment to the United

States Constitution provides as follows:

"In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial,,by an im-

partial jury of the State and dis-

trict wherein the crime shall have

been committed, which district shall

have been previously ascertained by

law, and to be informed of the na-

ture and cause of the accusation; to

be confronted with the witnesses

against him; to have compulsory pro-

cess for obtaining witnesses in his

favor, and to have the Assistance of

Counsel for his defence."

The Fourteenth Amendment, § l, to

the United States Constitution provides

as follows:

“SECTION 1. All persons born or

naturalized in the United States,

and subject to the jurisdiction

thereof, are citizens of the United

States and of the State wherein they

reside. No State shall make or en-

force any law which shall abridge

the privileges or immunities of

citizens of the United States; nor

shall any State deprive any person

of life, liberty, or property, with-

out due process of law; nor deny to

any person within its jurisdiction

the equal protection of the laws."

STATEMENT OF THE CASE

A. Procedural History

Clifford Henry Bowen, hereinafter

Defendant, was convicted on March 13,

1981, after jury trial in the District

Court of Oklahoma County, State of Okla-

homa, in that court's Case No. CRF-80-

3397 of three counts of First Degree

Murder under 21 0O.S.Supp.1980, § 701.7.

The jury sentenced the Defendant to die

in each count. The trial court over-

ruled the Defendant's Motion for New

Trial, and Amended Motion for New Trial

on May 7, 1981, and judgment and sen-

tence were imposed on that date.

The Defendant perfected his direct

appeal to the Oklahoma Court of Criminal

Appeals, in that court's Case No. F-81l-

315, and that court remanded the case to

the trial court for an evidentiary hear-

ing on the Defendant's second Motion for

New Trial. The trial judge, the Honor-

able Raymond Naifeh, conducted an evi-

dentiary hearing on that motion on Sep-

tember 29-30, 1983, and submitted Find-

ings of Fact and Conclusions of Law on

October 26, 1983. Thereafter, the De-

fendant filed a supplemental appellate

brief in the Court of Criminal Appeals.

B. Statement of the Facts

On July 5, 1980, during the evening

hours, a group of guests at the Guest

House Inn assembled by the pool. Mary

Chilton. a night office clerk at the mo-

tel, worked until 10:00 p.m., and then

joined her friends at pool side (Tr.

289). Later that evening, she notice a

man who was not a guest at the motel

(Tr. 292), standing at the concession

stand, leaning upon the candy machine

(Tr. 311). It was part of her duties to

keep intruders off the premises (Tr.

292).

Harold Behrens, ondietendine: of the

Petitioner and one of the individuals at

pool side, placed his hand upon the

shoulder of Ray Peters, who is one of

the decedents, said “see you tomorrow,"

and left via the concession area (Tr.

294). Such physical contact upon part-

ing company was not Behrens’ normal

practice (Tr. 422). Then, Mary Chilton

also left by way of the concession area.

This area is very well Jit by flood-

lights from the roofline (Tr. 234, 312),

lights on the ceiling of the vending ma-

chine area (Tr. 232, 298-99), and light

from the vending machines’ themselves

ees Bet) All of the above-mentioned

lights were on (ir. 298). Mary Chilton

walked within three feet of the man and

looked right at him (Tr. 295). She had

no trouble seeing the Defendant's face

‘ey See pg te In addition, Mary Chilton

had a good view of the Defendant when

she was sitting at the pool side (Tr.

308). She gave an accurate description

of the Defendant's height, weight, and

physical stature (Tr. 307). The Defen-

dant had a pale complexion (Tr. 317).

This was substantiated by others (Tr.

355). Mary Chilton "memorized" the De-

fendant's face (Tr. 13), and there was

no doubt in her mind that the Defendant

Oe nse antes mone

‘

was the man that she saw at the conces-

sion stand (Tr. 293, 295, 326).

Carrie Pitchford, her husband, and

her daughter also were pool side (Tr.

331). The family left the pool area at

1:30 a.m. and went to their room (Tr.

332). While her husband and her daugh-

ter went to bed immediately, Carrie did

not. She thought about going back out

and twice looked out the window to see

if any of the women were still by the

pool (Tr. 333). She looked out a third

time and saw a large, pale complected

man, subsequently identified as_~ the

Defendant, leaning upon a machine at the

concession stand (Tr. 335). The Defen-

dant looked straight up at Carrie Pitch-

ford so that she could see his full face

(Tr. 336). She viewed the Defendant for

"one full minute or more." (Tr. 354.)

The lighting was very good; it was simi-

lar to a stage (Tr. 339, 349). Carrie

Pitchford had not been drinking that

evening (Tr. 343). She had no trouble

seeing the Defendant's features (Tr.

339), and there was no doubt in her mind

that the Defendant was the man whom she

had seen that evening (Tr. 336). As

soon as Carrie laid down, she heard gun-

fire, jumped up, and saw one of the de-

cedents slump in his pool side chair

(Te. 337).

The manager of the motel noticed an

individual in the concession area (Tr.

359). The description of the individual

and his attire were substantially the

same as the description given by other

witnesses. The manager also saw a car

with womeone sitting in it (Tr. 360).

The manager and his wife heard "fire-

crackers" and then noticed an individ-

ual, with a red cap in his hand, shoot-

ing a gun (Tr. 361). The manager sum-

moned the police (Tr. 363). As this was

being done, a car exited the motel park-

ing lot at a high rate of speed (Tr.

364).

When the police arrived, they found

three men sitting at a pool side table,

all of whom had at least two gunshot

wounds (Tr. 209). Six .45 caliber spent

casings were found, as well as one lead

projectile (Tr. 210). At 2:30 ealie,

photographs of the scene were taken, and

the lighting of the premises, with the

assistance of two flashlights, was ade-

quate with which to take photographs

(Fe... .220).. There were floodlights upon

the roofline (Tr. 234), lighting upon

the ceiling of the vending machine area

(Tr. 232), lighting from the vending

machines themselves (Tr.237), and light-

ing from the motel sign (Tr. 237). The

lighting was so good that the photog-

rapher stated that "I could load my

camera, read my settings, read the tape

measure" (Tr. 235).

On July 6, an autopsy was performed

upon all three bodies. The death of Ray

Peters was caused by two gunshot wounds

to the head which resulted in extensive

lacerations and a brain hemorrage (Tr.

£94) « Loose gunpowder was found upon

the body; therefore, the gun was dis-

charged within two feet of the body (Tr.

+ FS Lawrence Evans had three gunshot

wounds inflicted by hollow point bullets

(Tr. 256-57). The cause of death was

the wounds (Tr. 260). Marvin Nowlin had

two gunshot wounds which caused his

death (Tr. 268). Pathological symptoms

of drug use were found in Peters and

Nowlin (Tr. 271). All of the cartridges

were fired from the same gun (Tr. 279).

Hollow point bullets were used to caused

greater damage upon impact (Tr. 283).

Maitre?

In an effort to connect’ Harold

Behrens, a co-defendant, with the Defen-

dant and to provide a motive, the testi-

mony of two additional witnesses was

introduced. In 1975, David McBride

supervised the organized crime detail of

the Oklahoma City Police Department.

Harold Behrens, an ex-police officer,

was asSigned to participate in the sur-

veillance of Jerry Ray James and the

Defendant (Tr. 405). During the later

stages of the investigation, Harold

Behrens resigned from the police depart-

ment (Tr. 408). Immediately after the

resignation, Jerry James and the Defen-

dant disappeared from Oklahoma City (Tr.

409).

Jack Zumwalt testified that he lived

with and was lover of Harold Behrens

(Tr. 421). Harold Behrens made his liv-

ing selling drugs and supported Jack

Zumwalt while they lived together (Tr.

421). It was not the custom of Harold

Behrens to have physical contact with

people upon parting their company, as he

had done on the early morning hours of

July 6 (Tr. 422). Ray Peters worked for

Harold Behrens as a drug dealer (Tr.

423). In June, Ray Peters had been ar-

rested in Pauls Valley, Oklahoma, for

driving under the influence and drug

charges. Harold Behrens was afraid that

Ray Peters would become an _ informant

(Te. 424). After Jack Zumwalt heard of

Ray Peters' death, he asked Harold

Behrens why Ray Peters and not Jim

Powell, another drug seller. , Harold

Behrens replied, "because we need Jim."

(Tr. 425.)

An arrest warrant was issued for the

Defendant, and Officer Cook went to

Tyler, Texas, to serve it (Tr. 432).

The Defendant was advised of his rights

(Tr. 433). The Defendant was questioned

Pent TaN Si PR Nii

about a number of people, but when he

was asked if he knew Harold Behrens, he

glanced down and said no (Tr. 436).

The Defendant presented an alibi de-

fense. He presented numerous witnesses

who claimed that on the evening in ques-

tion, the Defendant was at a rodeo in

Tyler, Texas. The Defendant took the

stand in his own behalf and admitted

that he had two prior felony convictions

(Tr. 546). He claimed that on July 5,

he was not in Oklahoma City (Tr. 549).

He claimed that he has made his living

Since 1971 by gambling and supplemented

that income through the purchase = and

Sale of jewelry and real estate (Tr.

548, 522). The Defendant stated that he

had psoriasis and was told to get as

much sun as possible to remedy the mala-

dy, and consequently, that he had a sun-

tan (Tr. 549). The Defendant further

alleged that he knew nothing about guns

(Tr. 552).

Officer Harrison was called to tes-

tify for the defense. The officer stat-

ed that Mary Chilton initially identi-

fied a photograph of another, namely

William Simmons, as the assailant. The

officer attempted to secure an arrest

warrant for Simmons. Upon cross-exami-

nation of Officer Harrison, he revealed

that Mary Chilton never made a positive

identification of Simmons as the assail-

ant (Tr. 654), and that at an in-person

lineup, Mary Chilton said that Simmons

looked like the man but definitely was

not him.

The State produced rebuttal wit-

nesses. The arresting officer stated

that upon arrest the Defendant was

light-complected and did not have a tan

(Tr. 575-76). This was confirmed by

other witnesses (Tr. 580, 583). It was

also revealed that there is an airstrip

within four minutes of the rodeo where

the Defendant allegedly was (Tr. 577),

and that a flight from Tyler, Texas, to

the Oklahoma City downtown airpark would

only take between 30-35 minutes (Tr.

581). Records of in and out flights are

not kept, and less than one tank of gas

would be required for the round trip.

It is only 13 minutes from the Guest

House Inn to the downtown airpark (Tr.

584), so that the entire trip would take

less than one hour,

Williams Simmons testified. He is

only 5'8" and 180 pounds, which is a

much smaller frame than the one on the

assailant (Tr. 593). To rebut the pre-

sumption raised by the Defendant that he

knew nothing about guns, it was revealed

that on July 7, 1977, in Plano, Texas, a

search warrant was procured for a home

in which the Defendant resided along

Jian

with his wife and another (Tr. 587).

The Defendant was arrested and a search

uncovered an arsenal of weapons (Tr.

587-88).

The Defendant was found guilty of

three counts of Murder in the First

Degree. After the second stage of

trial, the jury determined that three

aggravating circumstances existed and

set the punishment for each count at

death.

SUMMARY OF THE ARGUMENT

Petitioner was not denied due pro-

cess of law in his trial for murder be-

cause the prosecution failed to disclose

information of an investigatory deadend.

At one point, police officer inves-

tigated a man named Lee Crowe, who was

Similar in stature to the Defendant.

However, two eyewitnesses identified the

Defendant rather than Lee Crowe as the

man present at the scene of the shoot-

ings. In addition, Crowe had an alibi.

Further, Crowe's fingerprints were not

found near the scene of the crime, nor

were .45 caliber shell casings found at

the crime matched with those which Crowe

had fired as a police officer at a fir-

ing range in South Carolina. The Defen-

dant made no request for exculpatory

evidence prior to trial. The fact that

police at one point inquired regarding

Lee Crowe but later abandoned the in-

quiry when it became clear witnesses

identified the Defendant rather’ than

Crowe in no way creates a reasonable

doubt as to Defendant's guilt, and,

therefore, that evidence is not material

in the constitutional sense.

The Defendant's trial counsel was an

experienced criminal defense lawyer with

30 years' experienced who had previously

been a prosecuting attorney. In the

defense case, coutisel presented 12 alibi

witnesses, attempting to show that the

Defendant was not in Oklahoma City at

the time of the murders. Instead, coun-

sel tried to show that Defendant was in

Tyler, Texas, at or near the time of the

shootings. When the jury returned a

guilty verdict for the offenses of gun-

ning down three men in cold blood while

they sat around a motel swimming pool,

it became clear that the alibi defense

did not persuade the jury. In light of

that failure to persuade the jury, coun-

sel made the tactical decision to do

nothing in the sentencing phase. Coun-

sel had successfully used this tactic in

another case. By doing so, counsel

hoped to secure a modification to life

imprisonment should his client be sen-

tenced to die. In any event, the Defen-

dant did not have genuine mitigating

evidence to offer. Even at this late

date, no such mitigating evidence is of-

fered to this Court.

WHY THE WRIT OF

CERTIORARI SHOULD BE DENIED

I. THE REJECTED INVESTIGATORY LEAD COM-

PLAINED OF BY THE DEFENDANT WOULD

NOT HAVE CREATED A REASONABLE DOUBT

REGARDING HIS GUILT AND NEED NOT

HAVE BEEN PROVIDED BY THE PROSECU-

TION IN THE ABSENCE OF A REQUEST.

The Defendant concedes that this is

a case in which no request for exculpa-

tory material was made by his trial

counsel. Unless the failure of the

prosecution to provide the information

now complained of deprived the Defendant

of a fair trial, there was no constitu-

tional violation requiring that the ver-

dict be set aside. United States v.

Agurs, 427 U.S. 97, 108 (1976). Evalu-

ating the supposediy withheld evidence

in the context of the entire record, the

omitted evidence is only material if it

created a reasonable doubt that did not

otherwise exist. Necessarily, only the

withholding of material evidence is con-

stitutional error. Agurs, supra, 427

ee ee ee See, Hall _v. State, 650

P.2d 893, 897 (Okl.Cr. 1982) (where no

request for exculpatory evidence likeli-

hood suppressed evidence would result in

acquittal must be more than a reasonable

probability).

The Lee Crowe lead relied upon by

the Defendant was a false lead initially

checked by police but later discarded

when eyewitnesses at the scene identi-

fied the Defendant as the man who had

laid in wait prior to executing the vic-

tims. Lee Crowe was never identified by

any witness as being anywhere near the

motel's swimming pool at which the three

victims were shot to death. Quite the

comida, seule witnesses positively iden-

tified the Defendant as the man _ who

waited near the motel concession area

for others to leave the pool side party

immediately before the three men were

shot to death with hollow-point' .45

caliber bullets. Neither did the .45

caliber automatic shell casings found at

the scene of the triple murder match the

-45 caliber shell casing Crowe had ex-

pended on the police firing range in

South Carolina. See attached Affidavit

of Detectives Cook and Horn, Appendix A.

Finally, police secured a fingerprint

card for Lee Crowe, and compared it with

the fingerprints found at the crime

scene with negative results. See Appen-

dix A.

This Court's case of Moore v. Illi-

nois, 408 U.S. 786 (1972), presents an

almost identical factual situation. In

Moore, two eyewitnesses identified the

defendant as the man who shot a bartend-

er following an altercation in a Chicago

area bar. In addition, a bartender in

another bar identified a man known to

him as "Slick" as having made statements

tnat he had shot a bartender in Lansing,

sllinois. It was reliably determined

that the defendant Moore was both the

shooter and the man who admitted the

shooting, but that he was not "Slick."

The police assigned a lieutenant to find

"Slick" without success. In that case,

this Court stated:

"We know of no constitutional re-

quirement that the prosecution make

a complete and detailed accounting

to the defense of all police inves-

tigatory work in a case. Here, the

elusive '‘'Slick' was an early lead

the police abandoned when eyewit-

nesses to the killing and witnesses

to Moore's presence at the Ponderosa

Gere: iTOGee. «4 6-47 Moore v. Illi-

nois, 408 U.S. at 795.

In Moore, the Court concluded that in

light of all of the evidence, the wit-

nesses' misidentification of the defen-

dant Moore as "“Slick" was not material

to the issue of guilt. Id., 408 U.S. at

797. The Court came to this conclusion

a a

el ie eealie tal te a a

even considering the fact that Moore had

raised an alibi defense that he was

working aS a waiter in a country club

about 50 miles from the scene of the

shooting at the time the murder oc-

curred. Id., 408 U.S. at 790-91.

In light of Agurs and Moore, it is

Clear that the early investigatory lead

of Lee Crowe was not material to the

Defendant's guilt or innocence. te. .42

clear from eyewitnesses to the scene

that the Defendant, not Crowe, was the

shooter. Both witnesses Chilton and

Pitchford selected Defendant positively

from photo arrays also containing Lee

Crowe. Both specifically ruled out

Crowe. It is also clear that the Defen-

dant was tied to Harold Behrens, who was

present at the scene and who uncharac-

teristically pointed out Ray Peters by

placing his hand on his shoulder to in-

dicate to the shooter who his victim

was. The fact that the police early on

investigated, but rejected, Lee Crowe as

a suspect creates no reasonable doubt

regarding the Defendant's guilt. The

Constitution does not require disclosure

of improper or trivial information which

"might" affect the jury's deliberation.

It only requires disclosure of evidence

which might give rise to a legitimate

doubt on the issue of guilt. United

States v. Agurs, 427 U.S. at 108-09. .

II. DEFENDANT'S ATTORNEY GAVE HIM CON-

STITUTIONALLY EFFECTIVE ASSISTANCE

AT TRIAL.

The Defendant now claims that he was .

denied constitutionally effective coun-

sel by his trial attorney's failure to

file certain motions and to challenge

AT aie”

the evidence of one eyewitness. He fur-

ther complains about counsel's failure

to call the co-defendant, Harold

Behrens, to testify that Behrens did not

know him and did not hire him for the

assassination-style killing. He further

challenges counsel's failure to more ef-

fectively rebut the prosecution's "“air-

plane theory" as well as failure to re-

ensue certain instructions and failure

and object to certain comments of the

prosecutor in closing argument. The De-

fendant further challenges his counsel's

failure to submit evidence or argument

in the sentencing phase of the trial.

As an initial matter, the Constitu-

tion does not require criminal defense

counsel to pursue all plausible lines of

defense. United States v. Glick, 710

F.2d 639, 644 (10th Cir. 1983). Where

the Defendant's planned alibi defense

has failed, he is, in hindsight, at-

: tempting to try his attorney by elevat-

ing everything that appellate counsel

might have done differently to the level

of a constitutional failure. This Court

asi

condemned the “distorting effects of

hindsight" in Strickland v. Washington,

_ U8 ,» 16 &. Ce. . , @ ts Oe.

2d 674, 694 (1984), in stating that

counsel's adequacy must be _ evaluated

based upon counsel's perspective at the

time. The Court also noted that there

are countless ways to provide effective

assistance in any given case. Even the

best criminal defense attorneys would

not defend a particular client in the

same way. Id., 80 L. Ed. 2d at 695.

Further, the Court recognized that coun-

sel is strongly presumed to have render-

ed adequate assistance and made all sig-

nificant decisions in the exercise of

reasonable professional judgment. Id.,

80 L. Ed. 2d at 695.

In discussing the reliance upon rea-

sonable professional judgment, this

Court in Strickland stated:

". . - As the Court of Appeals con-

cluded, strategic choices made after

thorough investigation of law and

facts relevant to plausible options

are virtually unchallengeable; and

Strategic choices made after less

than complete investigation are rea-

sonable precisely to the extent that

reasonable professional judgments

support the limitations on investi-

gation. ..." Id., 80 L. Ed. 2d at

695.

As in Strickland, many of the decisions

of counsel in the present case were

strategic choices of an experienced

criminal defense lawyer made in the ex-

ercise of reasonable professional judg-

ment.

For instance, counsel could have

challenged the fact that eyewitness Mary

Chilton had undergone hypnosis prior to

trial. However, Mary Chilton had given

identical testimony before hypnosis, and

a harsh attack on Chilton would have

blunted counsel's attempts to portray

the eyewitnesses as honest, but mistak-

en, witnesses. Further, Carrie Pitch-

ford, the other eyewitness, independent-

ly corroborated Mary Chilton without

herself being hypnotized. It is only

speculation to say what co-defendant

Harold Behrens would have testified had

he beer called. Behrers was convicted

and sentenced to life for his role in

the Guest House Inn murders. The deci-

sion not to challenge certain statements

of the prosecutors in closing arguments

were doubtless strategic as well, Par-

ticularly, where the prosecutor's por-

trayal of the Defendant as a profession-

al hit man was supported by the evidence

that he had lain in wait until most po-

tential witnesses had left the pool side

party and he could murder the three re-

maining men with ammunition available in

his .45 caliber automatic pistol. It

was entirely reasonable from the facts

demonstrated at trial to say that the

Defendant, who gunned down Ray Peters

and two potential witnesses, in cold

blood at 2:00 a.m., was conducting a

professional “hit.” Extended argument

over the point could only serve to rein-

force the idea in the mind of the jury.

Further, trial counsel had presented a

dozen alibi witnesses, attempting to

place the Defendant in Texas at the time

of the triple murder in Oklahoma City.

Unnecessary argument over prosecutor's

closing remarks could only serve to de-

tract from the force of the alibi testi-

mony. These matters were clearly stra-

tegic made by trial counsel with over 30

years' experience and, as _ such, are

"virtually unchallengeable.” Strickland

v. Washington, 80 L. Ed. 2d at 695.

The Defendant fails on the second

prong of the test announced by the Court

in Strickland v. Washington, supra. In

that case, this Court stated:

", . . The defendant must show that

there is a reasonable probability

that, but for counsel's’ unprofes-

sional errors, the result of the

proceeding would have been differ-

ent. A reasonable probability is a

probability sufficient to undermine

confidence in the outcome." Id., 80

L. Ed. 2d at 698.

The only prejudice the Defendant now

identifies to help the Court make the

determination necessary under Strickland

is found on page 24 of the Petition,

where the Defendant claims as prejudice

that he was an innocent man who was 300

miles away from the scene of the crime,

but yet was convicted. However, this

"prejudice" is merely a reassertion of

his alibi defense. The State presented

its eyewitnesses placing the Defendant

at the scene of the triple murder, while

the Defendant presented alibi witnesses

attempting to place him in Texas at the

time of the murders in Oklahoma City.

Gatien es € ttn weet edt An a

It cannot be said that the confidence in

the outcome of a criminal trial is in

doubt where a jury must choose, as a

matter of fact and evidence, between two

competing and inconsistent accounts of

the truth. To permit such jury deci-

sions to constitute "prejudice" would

emasculate not only Strickland, but also

the jury system.

Even given Defendant's asserted er-

rors of his trial counsel, there is no

reasonable possibility of a different

result in the guilt phase of his trial.

None of the asserted errors would have

changed the balance which caused. the

jury to credit the eyewitnesses' placing

him at the scene of the murder rather

than the alibi witnesses attempting to

place him in Texas. Strickland makes

clear that the point of the adversarial

system is to produce a just result.

Strickland v. Washington, 80 L. Ed. 2d

at 692-93. The point of the adversarial

system is not to contention for the sake

of contention, but instead is to produce

a just result through vigorous but fair

advocacy on both sides. In this sense,

Defendant's trial counsel was more than

adequate and the result was just.

The Defendant departs from the

teachings of Strickland v. Washington,

supra, in his criticism of trial coun-

sel's failure to put on evidence or make

argument during the punishment phase of

the trial. Strickland teaches us that

the adequacy of counsel's’ performance

must be evaluated from conduct from the

counsel's perspective at the time, giv-

ing that conduct a strong presumption

that it falls within the wide range of

reasonable professional assistance.

Id., 80 L. Ed. 2d at 694-95. From coun-

sel's perspective at the time of trial,

it became clear when the jury returned a

verdict of guilt that the alibi defense

had failed. This meant that the jury

either disbelieved the alibi witnesses

Or believed the State's "airplane the-

ory." If further mean; that the jury

found the Defendant guilty, beyond a

reasonable doubt, of laying in wait to

shoot three men to death with .45 cali-

ber hollow-point bullets. From coun-

sel's perspective at that point, he made

a strategic decision almost brilliant in

its simplicity.

What appears at first to be a trou-

bling failure of counsel is, in fact, a

cunning tactical decision. Given the

fact the jury returned a guilty verdict

on three counts of First Degree Murder,

it was almost sure from the underlying

circumstances that they would return

some, if not all, of the aggravating

circumstances sought by the State.

These aggravating circumstances’ were

that the Defendant created a risk of

death to more than one person (Tr. 694-

95), that the murder was committed for

purposes of avoiding or preventing law-

ful arrest or prosecution, that the mur-

der was especially heinous, atrocious or

cruel (Tr. 695), or that there was a

probability the Defendant would commit

criminal acts of violence and would con-

stitute a continuing threat to society

(Tr. 696). At the same time, none of

the standard mitigating circumstances

applied to the Defendant. See Appendix

B, copy of trial court's instructions on

minimum mitigating circumstances. Even

now, in the Petition for Writ of Certio-

rari, the Defendant offers the Court no

hint or clue of what evidence in mitiga-

tion would have been appropriate. Thus,

it becomes clear that the Defendant had,

and continues to have, no mitigating

evidence to offer. The murder involved

was one of deliberate assassination of

three men, shot down in cold blood.

This Court noted in United States v.

Chronic, ee . 2a: 8, Se. a

80 L. Ed. 2d 657 (1984), the following:

"Of course, the Sixth Amendment does

not require that counsel do what is

impossible or unethical. If there

is no bona fide defense to. the

charge, counsel cannot create one

and may disserve the interests of

his client by attempting a useless

clereace. «... {¢@., 90 &. Bd. 24

at 666, n. 19.

First, counsel had no duty to do what

was impossible or unethical in manufac-

turing nonexistent mitigating evidence.

Further, if counsel did nothing and yet

his client was sentenced to life, his

client would have been well served by

counsel's decision not to attempt the

useless charade of presenting mitigating

evidence. On the other hand, if, as

actually happened, his client was sen-

tenced to death, his strategic decision

to do nothing might appear to an appel-

late court to be ineffective assistance

and might result in modification by the

Court of Criminal Appeals from the death

penalty to life imprisonment. Such a

result would be highly likely in light

of the law in Oklahoma prejudice in the

second stage of a bifurcated proceeding

can only result in modification, if nec-

essary, but not reversal. Irvin v.

State, 617 P.2d 588, 599 (Ok1.Cr. 1980).

In the case at bar, Mr. Burger has

been engaged in the practice of law for

over 30 years. His practice consists

largely of cases in the field of cCrimi-

nal law. He also has ee employed as a

county prosecutor. He has tried in ex-

cess of three dozen murder cases. He is

well seasoned in the area of criminal

law and has had considerable experience

with cases similar to this one. The

failure to present a case during the

second stage of trial is a trial strate-

gy which Mr. Burger has used quite suc-

cessfully in the past. In the case of

Daugherty v. State, 640 P.2d 558 (Okl.

Cr. 1982), Mr. Burger was the trial

counsel. At trial, the defendant was

convicted of murder in the first degree.

During the penalty stage, the defendant

was sentenced to life imprisonment de-

spite the fact that no opening statement

was made, no evidence was presented, and

only a perfunctory closing argument was

made. See Appendix C, copy of counsel's

closing argument in Daugherty. Ee .- ie

obvious that this is a trial strategy

which has been used successfully by Mr.

Burger in the past. With nothing of

substance to offer in mitigation, trial

counsel relied on his proven strategy.

Thus, wuste Mr. Burger had nothing

in mitigation to offer during the sen-

tencing phase, he elected to do nothing

in the hope that his inaction might save

his client's life on appeal where no ef-

fective action could save it at triai.

However, even before this Court, the

Defendant is unable to show any preju-

dice in the sense of a reasonable proba-

bility of different result had his trial

counsel made any other tactical deci-

sion. Instead, on page 28 of the Peti-

tion, the Defendant cites to Justice

Brennan's footnote number 2 in Strick-

land for the proposition that some de-

nial of counsel constitutes error with-

out any showing of prejudice. However,

this attempt wrenches Justice Brennan's

thinking out of context, particularly in

the case where, as here, trial counsel's

decision was a tactical one based upon

the absence of mitigating evidence and

the hope of modification by the Court of

Criminal Appeals. To permit reversal

because of such deliberate tactics of

trial counsel would be to ignore Strick-

land's requirement that the defendant

show genuine prejudice as a result of

his counsel's activities.

In light of the facts and circun-

stances at the time, Defendant's counsel

had nothing in mitigation to offer and

rested his approach, by strategic deci-

sion, in a hope of modification by the

Court of Criminal Appeals, oor this

Court, if the jury returned the death

penalty. In a sense, where defense

counsel had nothing of substance to of-

fer, it is perhaps the most competent

thing he could have done under the cir-

cumstances. The Defendant herein has

not rebutted the strong presumption of

adequate assistance and exercise of rea-

sonable professional judgment, nor has

he met the Strickland burden of showing

a likely possibility the result would

have been different under any conceiv-

able course his trial counsel could have

taken. Therefore, his counsel was

clearly adequate within the tests set

out by this Court in Strickland v. Wash-

ington.

CONCLUSION

For reasons set out above, the State

of Oklahoma respectfully requests this

Court to deny the writ of certiorari

herein.

Respectfully submitted,

MICHAEL C. TURPEN

ATTORNEY GENERAL OF er,

ROBERT A. NANCE *

ASSISTANT ATTORNEY GENERAL

DEPUTY CHIEF, FEDERAL DIVISION

fobert W Cok

ROBERT W. COLE

ASSISTANT ATTORNEY GENERAL

112 State Capitol Building

Oklahoma City, OK 73105

(405) 521-3921

ATTORNEYS FOR RESPONDENT

* Counsel of Record

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