Appellant: Gilbert Ray Postelle
Appellee: State of Oklahoma
( A. Johnson )
OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF AND MOTION FOR EVIDENTIARY HEARING
Before the Court is Petitioner Gilbert Ray Postelle's original application for post-conviction relief and motion for evidentiary hearing. Postelle was convicted by jury of four counts of First Degree Murder (Counts 1-4), in violation of 21 O.S. 701.7 (2004), and one count of Conspiracy to Commit a Felony (Count 5), in violation of 21 O.S. 421 (2001), in the District Court of Oklahoma County, Case No. CF-2005-4759. The jury imposed the death penalty on Counts 1 and 4.1 The jury fixed punishment of life imprisonment without the possibility of parole on Counts 2 and 3 and ten years imprisonment on Count 5. Judgment and Sentence were imposed by the district court in accordance with the jury's verdict and Postelle appealed. Postelle raises nine propositions of error in this application.
None of these claims have merit. Under the Capital Post-Conviction Procedure Act, the only claims that may be raised are those that "[w]ere not and could not have been raised in a direct appeal" and that also "[s]upport a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 22 O.S. 1089(C)(1) and 22 O.S. 1089(c)(2). The post-conviction process is not a second appeal and the doctrines of res judicata and waiver will apply where a claim either was, or could have been, raised in the petitioner's direct appeal. Coddington v. State, 2011 OK CR 21, 2, 259 P.3d 833, 835. The burden is on the applicant to show that his claim is not procedurally barred. See 22 O.S. 1089(C) (2006).
GROUNDS FOR RELIEF
Current incompetency (preliminary request to hold proceeding in abeyance) As a preliminary matter, Postelle's counsel contend that he is presently incompetent to proceed in this matter and they ask the Court to hold this post-conviction proceeding in abeyance until his competency is restored.2 Counsel surmise that Postelle's current mental state is the result of chronic methamphetamine use, low I.Q., organic brain damage and major mental illness. In support of counsel's belief of Postelle's incompetency, counsel reference the affidavit of Dr. William Ruwe who testified on Postelle's behalf in the second stage of his trial and who has been retained by Postelle's collateral counsel in this post-conviction proceeding to provide expert opinion pertaining to Postelle's psychiatric disorders.3
Even accepting as true collateral counsel's allegations that Postelle is unable to assist them in this post-conviction proceeding, we find that Postelle's request to hold this proceeding in abeyance until his competency is restored should be denied. Postelle's counsel acknowledge this Court's decision in Fisher v. State, 1992 OK CR 79, 845 P.2d 1272, rejecting the view that a capital post-conviction petitioner must be competent during post-conviction proceedings.4 In that case, Fisher challenged his competency during post-conviction proceedings before the district court and this Court. This Court rejected Fisher's claim and request for an evidentiary hearing, relying on the ABA Criminal Justice Mental Health Standards (1989) (hereinafter "Standards"), particularly Standard 7-5.4 ("Mental incompetence at time of noncapital appeal").
The Fisher Court quoted Standard 7-5.4:
"(b) Mental incompetence of the defendant at time of appeal from conviction in a criminal case should not prohibit the continuation of such appeal as to matters deemed by counsel or by the court to be appropriate.
"(i) If, following the conviction of the defendant in a criminal case, there should arise a good faith doubt about the mental competence of the defendant during the time of appeal, counsel for the state or the defendant should make such doubt known to the court and include it in the record.
"(ii) Counsel for the defendant should proceed to prosecute the appeal on behalf of the defendant despite the defendant's incompetence and should raise on such appeal all issues deemed by counsel to be appropriate.
"(c) Mental incompetence of the defendant during the time of appeal shall be considered adequate cause, upon a showing of prejudice, to permit the defendant to raise, in a later appeal or action for postconviction relief, any matter not raised on the initial appeal because of the defendant's incompetence."
The Fisher Court continued:
"Noticeably absent from the above Standards is any requirement that appellate proceedings be stayed in the event an appellant is deemed incompetent. The absence of such a rule is explained in the Commentary Introduction to Standard 7-5.4: Because convicted defendants, like parties to appellate litigation in general, do not participate in appeal proceedings, mental incompetence rarely affects the fairness or accuracy of appellate decisions. Therefore, the standard envisions that appellate or postconviction review procedures will be carried to completion despite an appellant's mental incompetence, provided it later appears that matters important to review could not be presented because of mental incompetence, they should be considered in postconviction review proceedings."
Fisher, 1992 OK CR 79, 15-16, 845 P.2d at 1276-77.
The Fisher court held that the existence of a doubt as to an appellant's present mental competency should not serve as a basis to halt state appellate proceedings. Id. 1992 OK CR 79, 17, 845 P.2d at 1277 "Post-conviction review is available for important issues, revealed after an appellant attains competence, which were not raised during an earlier appeal because of incompetence." Id.
The Court noted that post-conviction relief would not be automatic and would require the applicant to show prejudice related to mental incompetence before omitted issues would be considered in a subsequent appeal. Id. The Court found that the district court did not err in rejecting Fisher's incompetency claim and requests for an evidentiary hearing and stay, and rejected Fisher's renewed request on appeal for an evidentiary hearing. Id.
Post-conviction counsel argue that the reasoning in Fisher is no longer sound because of the current, more restrictive requirements to obtain successive post-conviction review. We disagree. Under 22 O.S. 1089(D)(8)(b) (2006), a petitioner may file a successive application for post-conviction relief when the claim could not have been previously raised because the factual basis for the claim was unavailable as it was not ascertainable through the exercise of reasonable diligence before being presented. Incompetency of the applicant could serve as the basis for not discovering pertinent facts to support a claim and such facts would not have been ascertainable through the exercise of reasonable diligence because of the applicant's incompetency. A claim not raised because of incompetency would not be procedurally barred provided the applicant could show that the facts supporting the claim were not available during earlier appellate proceedings and the other conditions of the statute were met. Nothing in the current statute conflicts with the Court's decision in Fisher to consider in subsequent post-conviction proceedings claims omitted because of a defendant's incompetence during appellate proceedings as long as the required conditions are met.
Moreover, the right to counsel in a capital post-conviction proceeding comes from statute, not the Constitution. See 22 O.S. 1089(B) (2006).
In any capital post-conviction proceeding under 22 O.S. 1089 (2006), the "Oklahoma Indigent Defense System shall represent all indigent defendants in capital cases seeking post-conviction relief upon appointment by the appropriate district court after a hearing determining the indigency of any such defendant." This provision does not mention competence to assist counsel; it merely grants indigent petitioners under a sentence of death a statutory right to be represented by appointed counsel in a proceeding under 22 O.S. 1089 (2006). Nothing in the plain language of the statute requires that an indigent state prisoner under a sentence of death be competent to assist counsel before his post-conviction action may proceed.
In addition, nothing in the plain language provides any right to have the post-conviction proceeding stayed when the petitioner is not competent to communicate rationally with his counsel. And, neither the United States Supreme Court nor the United States Court of Appeals for the Tenth Circuit has ever found a right to be competent to assist counsel in a state post-conviction proceeding. Under the statute prescribing the rules for the determination of competency, "competency" is defined as the "present ability of a person arrested for or charged with a crime to understand the nature of the charges and proceedings brought against him or her and to effectively and rationally assist in his or her defense." 22 O.S. 1175.1(1) (2005). "Criminal proceeding" is defined as "every stage of a criminal prosecution after arrest and before judgment, including, but not limited to, interrogation, lineup, preliminary hearing, motion dockets, discovery, pre-trial hearings and trial." O.S. 1175.1(4) (2005). These definitions provide for competency determinations through trial, but not beyond trial. There is no requirement of competence for a capital post-conviction petitioner under either the Capital Post-Conviction Procedure Act (22 O.S. 1089 (2006)) or in the procedures for the determination of competency at 22 O.S. 1175.1 - 22 O.S. 1175.6 (2005).5 Postelle's counsel argue that claims in his petition could be more compelling if he were competent to assist, referring specifically to Postelle's ineffective assistance of counsel claim concerning trial counsel's failure to adequately investigate his mental state and his social and family history. The investigator assigned to Postelle's case states in her affidavit that because she cannot obtain the necessary information from Postelle himself, she has relied on Postelle's family members to provide information about him and his life. Postelle's application contains twenty-eight attachments including affidavits from trial counsel, appellate counsel, twelve affidavits from family members and friends about Postelle's mental state and family history, and an affidavit from Dr. Ruwe delving into Postelle's mental health and family history. Whether or not Postelle could offer meaningful additional information pertaining to the issues raised before this Court is uncertain.
Post-conviction counsel have made this Court aware of concerns regarding Postelle's competency as directed in Fisher. Because there is no requirement of competence in a capital post-conviction proceeding and there is a procedure to raise a claim omitted due to an applicant's incompetency during post-conviction proceedings, we deny Postelle's invitation to reconsider our decision in Fisher and his request to hold this proceeding in abeyance.
I. Ineffective Assistance of Trial Counsel
Postelle claims that trial counsel was constitutionally ineffective. The Court in Coddington v. State explained the analysis of ineffective assistance of counsel claims on post-conviction:
"A claim of ineffective assistance of trial counsel is appropriate for post-conviction review if it has a factual basis that could not have been ascertained through the exercise of reasonable diligence on or before the time of the direct appeal. 22 O.S. 1089(D)(4)(b)(1) (2006). A claim of ineffective assistance of appellate counsel may be raised for the first time on post-conviction. 22 O.S. 1089(D)(4)(b)(2) (2006). We review post-conviction claims of ineffective assistance using United States Supreme Court precedents. 22 O.S. 1089(D)(4) (2006); Davis v. State, 2005 OK CR 21, 6, 123 P.3d 243, 245-46. [The applicant] must show that counsel's performance was deficient, and that he was so prejudiced by that performance that he was deprived of a fair trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). We will not find counsel was ineffective if [the applicant] was not prejudiced by counsel's act or omission. Harris v. State, 2007 OK CR 32, ¶ 3, 167 P.3d 438, 441. A finding of prejudice requires a showing of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Smith v. State, 2010 OK CR 24, 19, 245 P.3d 1233, 1239; Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, -- U.S. --, 131 S.Ct. 770, 790, 792, 178 L.Ed.2d 624 (2011). There is a strong presumption that counsel's conduct is within the wide range of reasonable professional conduct. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. [The applicant] must show "that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy." Davis, 2005 OK CR 21, 7, 123 P.3d at 246. A strong presumption exists that, where counsel focuses on some issues to the exclusion of others, this reflects a strategic decision rather than neglect. Richter, 131 S.Ct. at 790. Appellate counsel need not raise every non-frivolous issue. Jones v. Barnes, 463 U.S. 745, 753-54, 103 S.Ct. 3308, 3313-14, 77 L.Ed.2d 987 (1983)."
Coddington, 2011 OK CR 21, 3, 259 P.3d at 835-36.
Specifically, Postelle contends trial counsel was ineffective for failing to present evidence, by way of admission of the ballistics report or use of an expert, to refute Randall Byus's testimony accounting for the presence of his DNA on one of the casings recovered at the scene. This claim is waived because it could have been raised on direct appeal as the factual basis for the claim was ascertainable through the exercise of reasonable diligence on or before that time. Postelle admits that trial counsel defended the case by attempting to prove that Byus was unworthy of belief and showing that Byus's version of events at the murder scene portraying himself as an innocent bystander was inconsistent with the physical evidence. Postelle concedes that trial counsel spent much of closing argument on this point. Postelle also admits that trial counsel made the very point in closing argument that he claims trial counsel should have better made using either an expert witness or through admission of the ballistics report, namely that the shell casing with Byus's DNA was fired from the weapon that Byus said was used by Postelle to murder the four victims not David Postelle's SKS rifle (the gun Byus claimed to have handled the previous day). Evidence concerning this claim was in the trial record and this claim is procedurally barred because it could have been raised on direct appeal.
Postelle also claims that trial counsel was constitutionally ineffective for failing to adequately investigate and present evidence of mental retardation. This claim is waived because it too could have been raised on direct appeal as the factual basis for the claim was ascertainable through the exercise of reasonable diligence on or before that time. Postelle admits that trial counsel had him evaluated early on to address suspicions that Postelle suffered from mental retardation. According to Postelle, the testing revealed I.Q. scores within the borderline range of mental retardation; the scores were too high, however, to qualify Postelle as mentally retarded for purposes of being ineligible for the death penalty. Postelle now claims that the I.Q. scores obtained failed to account for the scientific principle known as "the Flynn Effect" and the Standard Error of Measurement. When these factors are considered, Postelle argues that his I.Q. falls within the range required in 21 O.S. 701.10b (2006) (the statute setting forth the procedure to determine if a defendant is mentally retarded and ineligible for the death penalty).
Under 21 O.S. 701.10b (2006), the defendant bears the burden of demonstrating, inter alia, significantly subaverage general intellectual functioning. An intelligence quotient of 70 or below on an individually administered, scientifically recognized standardized intelligence quotient test administered by a licensed psychiatrist or psychologist is evidence of significantly subaverage general intellectual functioning. 21 O.S. 701.10b(C) (2006). "In determining the intelligence quotient, the standard measurement of error for the test administrated shall be taken into account."6 Id. Postelle's 1.Q. was calculated at 79 in November 2006 based on his scores on the Wechsler Adult Intelligence Scale - Third Edition (WAIS III) administered by Dr. Terese Hall. Dr. Ruwe calculated Postelle's I.Q. at 76 approximately a year later.? (Tr. 2861) Postelle maintains that both of his previous I.Q. scores fall into a range whose lower limits fall into the mentally retarded category when the standard error of measurement and Flynn Effect are considered for each score.
We rejected a similar claim in Smith v. State, 2010 OK CR 24, 10, 245 P.3d 1233, 1237 stating:
"The problem with this argument is that while the language of section 701.10b directs that an 1.Q. score near the cutoff of 70 be treated as a range bounded by the limits of error, it also directs unequivocally that no such treatment be afforded to scores of 76 or above. In particular, after stating that "[i]n determining the intelligence quotient, the standard measurement of error for the test administered shall be taken into account," section 701.10b goes on to say: "however, in no event shall a defendant who has received an intelligence quotient of seventy-six (76) or above on any individually administered, scientifically recognized, standardized intelligence quotient test administered by a licensed psychiatrist or psychologist, be considered mentally retarded and, thus, shall not be subject to any proceedings under this section" (emphasis added). By directing that no defendant be considered mentally retarded who has received an 1.Q. score of 76 or above on any scientifically recognized standardized test, the Legislature has implicitly determined that any scores of 76 or above are in a range whose lower error-adjusted limit will always be above the threshold score of 70."
Neither Postelle's I.Q. nor the statute setting forth the procedure for determining mental retardation has changed since trial. The facts underlying Postelle's claim of mental retardation were known to both trial and appellate counsel. It stands to reason that neither trial nor appellate counsel pressed a claim under 21 O.S. 701.10b because Postelle's I.Q. scores prevented him from being found mentally retarded under the express language of the statute.8 Because this claim could have been raised on direct appeal, the issue is waived.
Postelle claims trial counsel failed to investigate and present mitigating evidence about his background and mental health. Postelle concedes that trial counsel uncovered some mitigating evidence, but argues the information was incomplete and presented in a disjointed and unpersuasive manner.
This claim is likewise waived because the facts underlying the claim were discoverable with reasonable diligence during direct appeal. Postelle criticizes trial counsel for using previously recorded testimony of his sister and uncle instead of presenting them live or through the use of video testimony. Trial counsel used the recorded testimony of Postelle's sister and uncle from his brother's trial (substituting his name in place of his brother's) because his sister was unavailable because she was incarcerated in a juvenile facility out of state and his uncle was unavailable because he was in the hospital. (Tr. 2806, 2694, 2771) Trial counsel's efforts to present Postelle's sister via videotape were unsuccessful because the sound quality was too poor to be understandable. These facts were in the record and available to direct appeal counsel. The likely reason appellate counsel did not raise a claim of ineffective assistance of trial counsel on this basis is because the record showed that presenting the witnesses live was not an option and was beyond the control of trial counsel.
This claim is waived. And lastly, Postelle claims that trial counsel should have presented testimony from additional family members and lifelong friends about Postelle's symptoms of mental illness and the pervasive mental illness in his family. Postelle acknowledges that his defense team hired Dr. Ruwe to perform a full psychological and neuropsychological evaluation of him. Dr. Ruwe concluded that Postelle suffers from organic brain damage and mental illness. The defense team also presented testimony from several of Postelle's family members and friends about Postelle's drug abuse from an early age and his chaotic and abusive upbringing.
The crux of Postelle's claim is that while the evidence presented was relevant, it should have been presented in a more "compassionate and convincing manner" along with more evidence of Postelle's and his family's history of mental illness. According to Postelle, had trial counsel done so, a reasonable probability exists that the jury would have returned a punishment less than death. This might be true, but to prevail on a claim that trial counsel was constitutionally ineffective for failing to adequately investigate and present mitigating evidence, Postelle's burden is two-fold and we are not persuaded that this claim meets either criterion.
First, with regard to trial counsel's allegedly deficient performance, "[w]hen a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-688, 104 S.Ct. at 2064. "[Al court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 2066. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's performance." Id. at 691, 2066. Postelle criticizes trial counsel for focusing more on his organic brain damage in second stage rather than his mental illnesses. Postelle cites in support Dr. Ruwe's affidavit diagnosing him with Major Depressive Disorder, Recurrent, Severe, with Psychotic Features (a mental illness which causes delusions and/or hallucinations) and Post Traumatic Stress Disorder. Postelle also notes Dr. Ruwe's conclusion that he possibly suffers from Schizoaffective Disorder or Schizophrenia, disorders both marked by delusions and/or hallucinations. Evidence of these illnesses, according to Postelle, would have shown his jury that his ability to exercise rational judgment and conform his conduct to the requirements of the law is significantly impaired.
That Postelle's ability to exercise rational judgment and consider the consequences of his actions was impaired was the substance of the mitigation case presented by the defense. Dr. Ruwe testified about Postelle's exposure to and abuse of methamphetamine from an early age. He also testified that Postelle's test scores suggested that he suffered from depression and Post Traumatic Stress Disorder. He explained how Postelle's chronic drug abuse damaged his teenage brain and affected its development, resulting in poor impulse control and an inability to make good decisions. Trial counsel understood the potential mitigating value of testimony that Postelle was incapable of making good decisions and controlling his actions. Attributing Postelle's poor judgment to drug abuse rather than mental illness was a sound strategy that was consistent with the expert testimony. Dr. Ruwe testified at trial that Postelle demonstrated no signs of a thought disorder, delusions or hallucinations during testing. His thought process was logical and goal oriented. Dr. Ruwe's observations of Postelle during his pre-trial evaluation contrast with symptoms of the mental illnesses with which Dr. Ruwe has diagnosed Postelle post verdict. Considering the circumstances existing at the time trial counsel investigated Postelle's mitigation case, and applying a heavy measure of deference to counsel's actions, as we must under Strickland, we find that trial counsel's actions were objectively reasonable. Trial counsel's performance was not constitutionally deficient.
Second, even if it is assumed that trial counsel's failure to better present the mitigation case and include additional evidence of Postelle's and his family's history of mental illness was objectively unreasonable, and therefore constituted deficient performance, Postelle fails to show that he was prejudiced by that deficient performance. Postelle's jury was presented with compelling evidence that his ability to make good decisions and conform his behavior was impaired because of his chronic drug abuse. The very point he wishes to make with the additional evidence of mental illness, namely that his judgment is impaired, was made at trial. His jury also knew that he suffered from mental illness in the form of depression and post traumatic stress disorder. We are not convinced that additional evidence of mental illness would have made a difference in the jury's sentencing decision. Hence, we find Postelle has not shown that trial counsel was constitutionally ineffective.
2. Waived Claims
Postelle provides no explanation why the record-based claims in Propositions 2 through 7 were not raised on direct appeal. The claims are therefore waived.9 Coddington, 2011 OK CR 21, 2, 259 P.3d at 835; 22 O.S. 1089(C).
3. Ineffective Assistance of Appellate Counsel
Postelle claims that appellate counsel was ineffective for failing to challenge trial counsel's effectiveness based on the omissions outlined in his first proposition, and for failing to raise the record-based claims raised in Propositions 2 through 7.
As we stated in Coddington, 2011 OK CR 21, 12, 259 P.3d at 837, "our scope of review does not encompass the substantive claim underlying the ineffective assistance argument." We decide only whether appellate counsel was ineffective for failing to raise the omitted issues. Id. In other words, we ask was it professionally unreasonable not to present the omitted claims and was the defendant prejudiced by counsel's omission. This Court adheres to the strong presumption that, where appellate counsel focuses on some issues to the exclusion of others, this reflects a strategic decision rather than neglect. Id. at 3, 259 P.3d at 835-36.
Postelle cannot show that a reasonable probability exists that the outcome of his appeal would have been different had appellate counsel pressed a claim of ineffective assistance of trial counsel based on trial counsel's failure to admit the ballistics report or present expert testimony to impeach Randall Byus, trial counsel's failure to argue that Postelle was mentally retarded or trial counsel's failure to investigate and present mitigating evidence.
As discussed in Postelle's ineffective assistance of trial counsel claim above, trial counsel challenged the credibility and factual account of Randall Byus during trial and in closing argument. Trial counsel argued Byus's explanation about his DNA on a casing at the crime scene was unworthy of belief because the casing was fired from the murder weapon that Byus allegedly never touched. This point was understandable without the admission of the ballistics report or expert testimony. Thus, appellate counsel's election to focus on other claims was not unreasonable.
Trial counsel could not contend, under 21 O.S. 701.10b (2006), that Postelle was mentally retarded in order to avoid the death penalty because Postelle's I.Q. scores were 76 and above. See Smith, 2010 OK CR 24, 10, 245 P.3d at 1237. Nor was trial counsel ineffective for failing to better present Postelle's case in mitigation or present additional evidence of Postelle's mental illnesses or his family's history of mental illness for the reasons discussed in Section 1, supra.
Nor do we find that Postelle has shown that appellate counsel was ineffective for failing to raise the other record-based claims raised in this post-conviction application. Appellate counsel raised 20 well reasoned and supported claims of error in Postelle's direct appeal brief. Appellate counsel's decision to focus on the record-based issues included in the direct appeal brief to the exclusion of those in this post-conviction application can be attributed to strategy rather than neglect and Postelle has not shown the outcome of his direct appeal would have been different had appellate counsel included the omitted issues. This claim is therefore denied.
4. Accumulation of Error
Postelle also claims that an accumulation of errors identified in his direct appeal and in this post-conviction application requires relief. Having determined on direct appeal that there was no accumulation of error sufficient to warrant reversal of his conviction or modification of his sentence, and having found no merit to any of the claims raised here, there is no basis for granting post-conviction relief on this cumulative error claim.
5. Motion for Evidentiary Hearing
Also pending before the Court in connection with this application is Postelle's motion for an evidentiary hearing. A post-conviction applicant is entitled to an evidentiary hearing only if "the application for hearing and affidavits . . . contain sufficient information to show this Court by clear and convincing evidence the materials sought to be introduced have or are likely to have support in law and fact to be relevant to an allegation raised in the application for post-conviction relief." Rule 9.7(D)(5), Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch. 18, App. (2011). Additionally, in a post-conviction proceeding, we will remand for an evidentiary hearing only if we find there are "unresolved factual issues material to the legality of the applicant's confinement." 22 O.S. 1089 (D)(5) (2006).
Based on the existing record and the affidavits proffered with Postelle's application for post-conviction relief, we fail to discern any disputed questions of fact that are material to Postelle's confinement. His request for an evidentiary hearing is denied.
DECISION
Having reviewed Postelle's application for post-conviction relief, we conclude: (1) there exist no controverted, previously unresolved factual issues material to the legality of his confinement; (2) Postelle's grounds for review have no merit or are barred from review; and (3) the Capital Post-Conviction Procedure Act warrants no relief in this case.
Accordingly, Postelle's Application for Post-Conviction Relief and Motion for Evidentiary Hearing are DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
OPINION BY: A. JOHNSON, P.J.
LEWIS, V.P.J.: Concur
LUMPKIN, J.: Concur in Results
C. JOHNSON, J.: Concur SMITH, J.: Concur
LUMPKIN, JUDGE: CONCUR IN RESULT
I concur in the results reached by the Court, however, I continue to adhere to the law set out in my Concur in Result to Fisher v. State, 1992 OK CR 79, 845 P.2d 1272, 1278-1279.
As I stated in Fisher and reiterate here, i.e. "This Court should first review the Oklahoma Statutes to determine if a procedure exists to address this issue at the present stage of the proceedings." Fisher, 845 P.2d at 1278. While the ABA standards are nice aspirations in the application to trial procedures and appellate rights, the bottom line is those aspirations are not law. The Oklahoma Legislature determines the substantive and procedural law for this state and that should be the authority for any decision this Court makes in this regard.
Without authority and offering a dicta anticipation the opinion states, "Incompetency of the applicant could serve as the basis for not discovering pertinent facts to support a claim and such facts would not have been ascertainable through the exercise of reasonable diligence because of the applicants incompetency." Slip at 6. The opinion goes on to pontificate on how a future case might be decided. These statements have no legal basis and the issue is not before us as this case is presented.
While the aspirations of the ABA are good for reflective thought, we should not become so enamored with them that we forget we are bound by the law, not aspirations. Because of that, I compliment my colleague for finally turning to the statutes and resolving the right to competency determinations under statutes. Slip at 7. I further compliment my colleague for reinforcing the fact that waiver and res judicata leaves few issues that can have merit at the post-conviction stage of the litigation. For that reason, the defendant's resources in a criminal prosecution should be focused primarily on the trial itself, and if necessary, the direct appeal. It is through the trial and direct appeal that a person charged and convicted of a crime has the primary opportunity to create a record that supports viable issues on appeal.
(FOOTNOTES):
1 The jury found two aggravating circumstances: (1) that Postelle created a great risk of death to more than one person; and (2) that each of the murders was especially heinous, atrocious or cruel. We affirmed Postelle's conviction and sentence in Postelle v. State, 2011 OK CR 30, -- P.3d --.
2 Postelle's collateral counsel, his direct appeal counsel and an investigator have filed affidavits, stating their belief that Postelle is presently incompetent. Postelle's counsel do not request a competency evaluation or assert any reason to believe that Postelle's competency may be restored at some point in the near future. Counsel ask instead for an indefinite stay of the proceedings.
3 Postelle did not raise any issue with respect to his competency at trial or on direct appeal. Dr. Ruwe testified in second stage that he had some concern about Postelle's competency during his initial assessment and recommended a structured competency examination. (Tr. 2871) Whether or not such an evaluation was performed is not in the record. Dr. Ruwe makes no findings regarding Postelle's present competency in his affidavit.
4 Counsel note that they have little confidence this Court would consider in a subsequent post-conviction application any new claim developed after Postelle becomes competent to assist counsel, the Court's holding in Fisher notwithstanding. Counsel believe it necessary to raise the competency issue now to preserve it for federal review.
5 We are not dealing with competency to be executed under 22 O.S. 1005 (2001).
6 In Smith v. State, 2010 OK CR 24, 10, n. 6, 245 P.3d 1233, 1237 n. 6, this Court noted that under the Oklahoma statutory scheme, "the Flynn Effect, whatever its validity, is not a relevant consideration in the mental retardation determination for capital defendants."
7 Dr. Ruwe testified that Postelle was not mentally retarded during the second stage of trial.
8 Postelle claims trial counsel was also ineffective for failing to investigate and present evidence of his adaptive functioning deficits to support a finding of mental retardation. Because trial counsel could' not establish that Postelle had significantly subaverage general intellectual functioning through I.Q. tests, presenting evidence of adaptive functioning deficits would not have made any difference to the resolution of the issue.
9 Proposition 2: Mr. Postelle's sentence is violative of his rights under the Eighth and Fourteenth Amendments, because he is mentally retarded; Proposition 3: Mr. Postelle was tried by a biased judge in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment Rights; Proposition 4: Juror L. P. was not asked whether he would automatically vote to impose the death penalty upon a conviction of first degree murder, in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II , Section 7 / Article II , Section 9 and Article II , Section 20 of the Oklahoma Constitution; Proposition 5: Prosecutorial misconduct deprived Mr. Postelle of a fair trial and due process of law; Proposition 6: The trial court's failure to provide a complete record of the proceedings leading to Mr. Postelle's convictions and sentences of death constitutes a violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and Article II , Section 7 / Article II , Section 9 and Article II , Section 20 of the Oklahoma Constitution; and Proposition 7: Because execution of the severely mentally ill serves no retributive or deterrent function, Mr. Postelle's death sentences violate the Eighth Amendment ban on cruel and unusual punishments.