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Bland v. State5/16/2000
s but it was only in response to the officers shooting at him (Exhibits J and K).
The record reveals that counsel strenuously objected to the introduction of evidence regarding Appellant's prior conviction. In an attempt to keep from the jury the details of the prior crime, counsel offered to stipulate to the weapon used and the manner in which the homicide was committed. Further, the jury was informed the prior conviction was for first degree manslaughter, not murder. In light of the proper admission of the details of the crime (to support the "continuing threat" aggravator) any additional evidence which counsel might have produced would not have lessened the severity of the prior crime. Any additional evidence counsel might have presented (as Appellant now suggests from other witnesses to the crime or forensic testing on the fired shells) would not have been found sufficiently mitigating by a reasonable juror to outweigh the evidence in aggravation. We find counsel adequately defended against the prior conviction.
While Appellant has provided a great deal of information in his affidavits, we find he has failed to set forth sufficient evidence to warrant an evidentiary hearing. He has failed to show by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to utilize or identify the complained-of evidence. Short, 980 P.2d at 1108-1109. Accordingly, we decline to grant Appellant's application for an evidentiary hearing.
ACCUMULATION OF ERROR CLAIM
In his eighteenth assignment of error, Appellant contends that, even if no individual error merits reversal, the cumulative effect of such errors warrants either reversal of his conviction or a modification of his sentence.
This Court has repeatedly held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Ashinsky v. State, 780 P.2d 201, 209 (Okl.Cr.1989); Weeks v. State, 745 P.2d 1194, 1196 (Okl.Cr.1987). However, when there have been numerous irregularities during the course of a trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors is to deny the defendant a fair trial. Bechtel v. State, 738 P.2d 559, 561 (Okl.Cr.1987). While certain errors did occur in this case, even considered together, they were not so egregious or numerous as to have denied Appellant a fair trial. Therefore, no new trial or modification of sentence is warranted and this assignment of error is denied. Short, 980 P.2d at 1109; Patton v. State, 973 P.2d 270, 305 (Okl.Cr.1998), cert. denied, ___ U.S. ___. 120 S.Ct. 347, 145 L.Ed.2d 271 (1999).
MANDATORY SENTENCE REVIEW
Pursuant to 21 O.S.1991, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of the aggravating circumstances as enumerated in 21 O.S.1991, § 701.12. Turning to the second portion of this mandate, the jury found the existence of two (2) aggravating circumstances: 1) the defendant was previously convicted of a felony involving the use of threat of violence to the person; and 2) there was an existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, § 701.12(1)(7). Each of these aggravators was supported by sufficient evidence.
"When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, the proper test is whether there was any competent evidence to support the S
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