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Taylor v. Oklahoma12/1/1998
ely prepare for trial and in failing to call second stage mitigation witnesses.
None of the rest of Appellant's claims warrant an evidentiary hearing. The evidence supporting Appellant's first claim is in the appellate record and available for this Court's review. Therefore, there is no need for additional evidence to be gathered in an evidentiary hearing and presented to this Court. The other claims raised by Appellant contain only speculation and conjecture concerning counsel's effectiveness. His second claim is more of a complaint of prosecutorial misconduct than ineffective assistance of trial counsel. His third claim is based upon the assertion that trial counsel should have moved to disqualify the district attorney's office because the lead prosecutor's son worked for the family of one of the victims. However, Appellant has not stated a legal basis for the claim of disqualification. Therefore, there is not a strong possibility counsel was ineffective failing to seek the district attorney's removal.
In his sixth and ninth claims, Appellant compares his trial to a case tried subsequent to his by trial counsel. This Court will not indulge in such comparisons. Every criminal case is distinct and no two trials are alike. Therefore, to compare counsel's conduct in one trial to that in another is simply impossible and something this Court will not do.
In his seventh and eighth claims, Appellant submits the record of the Pittsburg County District Court case of State v. Hale to argue that statements made by counsel in that case indicate he neglected crucial life without parole motions in Appellant's trial, and that he acknowledged that he could not hear the jury's responses to voir dire questions during Appellant's trial. Explanation of the parole process and voir dire questioning on the nuances of the sentencing option of life without the possibility of parole is not permitted by our case law. See Mayes v. State, 887 P.2d 1288, 1318 (Okl.Cr.1994). Therefore, any failure on counsel's part to file certain motions pertaining to the life without parole option does not raise a strong possibility of ineffectiveness. Further, there is nothing in the record in Appellant's case to indicate that counsel was unable to adequately hear the juror's responses during voir dire or that his conduct was in any way compromised by any hearing difficulties.
Finally, in his tenth claim Appellant argues counsel failed to seek forensic testing of a MAC 11 gun belonging to Steven Verner to determine if the gun fired any of the projectiles found. However, nothing in the supporting affidavit from Lisa Cooper, Investigator, Oklahoma Indigent Defense System, shows any evidence that would have exculpated Appellant. She only states that the data base shows that the MAC 11 and the Ruger of 9mm Luger caliber [like the murder weapon here] would produce projectiles having similar dimensions. This is not sufficient information to warrant an evidentiary hearing.
Accordingly, we remand this matter to the District Court of Pittsburg County, Case No. CRF-95-570, for an evidentiary hearing solely on the fourth and fifth claims raised in Appellant's Application. The trial court shall conduct the evidentiary hearing within thirty (30) days from the date of this remand. Rule 3.11(B)(3)(b)(iii). The trial court shall make written findings of fact and Conclusions of law to be submitted to this court within thirty (30) days of the evidentiary hearing, together with the transcripts of the proceeding. Id. The findings of fact and Conclusions of law shall determine the availability of the evidence or witness at the time of trial; the effect of the evidence or witness on the trial court proceedings;
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