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Bland v. State5/16/2000
roduced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. Appellant has failed to meet his burden of showing a reasonable probability that, but for any unprofessional errors by counsel, the result of the trial would have been different as any errors or omissions by counsel did not influence the jury's determination of guilt or decision to impose the death sentence. Accordingly, we find that Appellant was not denied effective assistance of counsel and this assignment of error is denied.
Filed with the direct appeal is an Application for Evidentiary Hearing on Sixth Amendment Claims and Motion to Supplement, pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2000). Appellant asserts in the Application that counsel was ineffective in failing to investigate and utilize available evidence. Attached to the Application are twelve (12) affidavits.
Rule 3.11(B)(3)(6) allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to "utilize available evidence which could have been made available during the course of trial. . . ." Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains "sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence." Rule 3.11(B)(3)(b)(i).
In his brief in support of the application, Appellant initially asserts that trial counsel failed to constructively use testimony from Dr. Church regarding Appellant's drug addiction as mitigation evidence during second stage. In her affidavit, Exhibit A, Dr. Church provides an extensive description of Appellant's history of drug abuse and its relevance to the homicide. The record reveals that Dr. Church's testimony at trial was well developed and she was given every opportunity to explain her diagnosis. As discussed in Proposition IV certain conclusions reached by Dr. Church were inadmissible opinion testimony. That appellate counsel would have developed the testimony differently is not grounds for finding trial counsel ineffective. While Appellant may wish trial counsel had done things differently, " ven the best criminal defense attorneys would not defend a particular client in the same way." Hooper v. State, 947 P.2d 1090, 1115 (Okl.Cr.1997), cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998) quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Accordingly, Appellant has failed to show any deficient performance.
Appellant next argues counsel failed to conduct an adequate investigation into the allegation that he was in possession of the victim's brown wallet. In support of this argument, Appellant relies on the affidavit of Trooper J.D. Fisher (Exhibit E) and the OSBI interview with Mike Simmons (Exhibit H). In his affidavit, Trooper Fisher states, in part, that he discovered only one wallet on Appellant, a biker or Harley billfold which snapped. Appellant argues that if defense counsel had adequately interviewed Trooper Fisher he would have discovered the Trooper did not discover a brown (the victim's) wallet in Appellant's possession. As for Mike Simmons, Appellant argues that counsel failed to present evidence to impeach Simmons' trial testimony that he had seen Appellant in possession of two billfolds while at the Econo-Lodge in Chandler, with one being a brown billfold. In his interview with the OSBI, Simmons does not make any reference to the billfolds.
Any failure by trial counsel to further investigate and examine T
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