Grant v. State

OPINION ON REMAND

LILE, Vice Presiding Judge.

¶ 1 John Marion Grant was tried by jury and convicted of First Degree Murder (21 O.S.1991, § 701.10) in Osage County District Court Case No. CF-99-28. The jury sentenced Grant to death after finding three aggravating circumstances. This Court affirmed the judgment and sentence. Grant v. State, 2002 OK CR 36, 58 P.3d 783. Grant subsequently filed an application for post conviction relief, which was denied.1

¶ 2 In Grant v. Oklahoma, — U.S.-, 124 S.Ct. 162, 157 L,Ed.2d 12 .(2003), the United States Supreme Court granted Grant’s petition for .writ of certiorari, vacated the judgment, and remanded the case back to this Court for further consideration in light of Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). This Court ordered the parties to submit briefs supporting their positions on the issues raised in this case'in light of the Wiggins decision, which was handed down after our decision in Grant’s direct appeal.2 This opinion supplements our original opinion, Grant, 2002 OK CR 36, 58 P.3d 783, with analysis based on the Wiggins decision.

¶ 3 In Wiggins v. Smith, the United States Supreme Court applied the well established standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1994):

“An ineffective assistance claim has two components: A petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.”

Wiggins, 539 U.S. at-, 123 S.Ct. at 2535. We utilized the same test in the present case. Grant, 2002 OK-CR 36, ¶ 81, 58 P.3d at 799.

¶ 4 Wiggins illustrates the need to partake in reasonable investigation before making strategic choices, because

“strategic choices made after 'thorough investigation of law and facts ... are virtually unchallengeable; and strategic choices *180made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”

Wiggins, 539 U.S. at —, 123 S.Ct at 2535, citing Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. ’

¶ 5 Wiggins claimed, “that his attorneys’ failure to investigate his' background and present mitigating evidence of his unfortunate life history at his capital sentencing pi’oceedings violated his Sixth Amendment right to counsel.” Wiggins, 539 U.S. at —, 123 S.Ct at 2531. The Supreme Court in reversing Wiggins’ conviction relied on well established law that “[I]n an 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 judgments.” Wiggins, 539 U.S. at —, 123 S.Ct at 2535.

¶ 6 The facts and circumstances of Wiggins are diametrically opposed to the facts and circumstances of Grant’s case. Wiggins had no prior criminal history, and at trial, counsel introduced no evidence of Wiggins’ life history or family background. Counsel in Wiggins completely faked to discover that,

“Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. He suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care.”

Wiggins, 539 U.S. at —, 123 S.Ct at 2542. In Grant’s case, counsel allowed Grant to testify about his early childhood, and Grant specifically told counsel that he did not want his family contacted because he basically had no contact with his family since the age of fifteen (he was thirty-seven at the time of this crime). Grant testified during the penalty stage of the proceedings.

¶ 7 Grant testified that he had five brothers and. three sisters and that he was somewhere in the middle according to birth order. He testified that he first left, home when he was twelve, and then at seventeen he left home for good because he was sent to prison. He had been incarcerated since that time except for a short period when he was paroled at the age of nineteen. Between the ages of twelve and seventeen he spent time in several juvenile facilities because of bad behavior.

¶ 8 During an evidentiary hearing ordered by this Court, family members testified that Grant was raised by his mother, as his father left before he was born. He was the sixth of nine children and was raised in poverty. Grant started getting into trouble by stealing. One of his sisters testified that he stole clothes and shoes for his younger siblings. Grant’s family members would have asked the jury to spare his life.

¶ 9 Grant’s childhood, unlike Wiggins’ life, was a matter of choice. Grant chose to steal at an early age. He was not abused sexually or physically by those in authority over him. His continued choices to commit criminal acts resulted in his long-term incarceration. It was during this incarceration that he committed the murder of Gay L. 'Carter, a kitchen supervisor for the Oklahoma Department of Corrections.

¶ 10 Trial counsel concluded that having family members testify during the punishment stage would be counterproductive, because they had not had much contact with him due to his long term incarceration. He was concerned about the family testifying how much they cared for Appellant, when, in fact, they had rarely visited Appellant while he was in prison. The testimony at the evidentiary hearing revealed that Grant’s mother visited him once a year for an hour each time. His father testified that he never visited Grant in prison. His brothers and sisters testified that they had visited him no more than five times. Grant’s uncle, Clayton Black, testified that he had visited him at least once or twice each year, usually visiting with Grant’s mother. One family member testified that they knew Grant was charged with murder, but they never took it upon themselves to determine the existence of or timing of a trial.

¶ 11 In our original opinion, we found that counsel’s failure to contact family members did not fall “outside the wide range of professionally competent assistance.” Grant, 2002 OK CR 36, ¶ 87, 58 P.3d at 800. Further*181more, we held that Grant could not show that the failure to present the testimony of family members rendered his sentence unreliable. Grant, 2002 OK CR 36, ¶ 88, 58 P.3d at 800. Grant could not show that he was prejudiced by counsel’s conduct. Id. While counsel could have contacted family members through Grant’s prison records, and did ask an investigator to attempt to contact the family, no contact was ever made.

¶ 12 The Wiggins case does not change our decision. Counsel’s decision in this case was driven by Grant’s own request to not have his family contacted. See Strickland, 466 U.S. at 691, 104 S.Ct. at 2066; Romano v. Gibson, 239 F.3d 1156, 1181 (10th Cir.2001). Counsel’s concern that the family members’ testimony showing care for Grant would be overshadowed by their actions of limited contact during the past twenty years of his life was a valid concern. Counsel’s decision was directed by his client. His knowledge of Grant’s early life, through conversations with Grant, would not have been enhanced by interviewing family members. The Court in Wiggins emphasized, “Strickland does not require counsel to investigate every conceivable line of mitigation evidence no matter how unlikely the effort would be to assist the defendant at sentencing.” Wiggins, 539 U.S. at — , 123 S.Ct. at 2541. Counsel in this case followed the directions of his client and made a reasonable decision that investigation into Grant’s family history by contacting family members was unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.

¶ 13 There are probably only few death penalty cases where counsel would not be ineffective for a failure to undertake an independent investigation of a defendant’s early life by contacting family members. This is one of them. The factors that make counsel’s independent investigation unnecessary was Grant’s own desire to not have his family contacted and his twenty years of incarceration prior to this crime.

¶14 Even if counsel’s failure to independently contact Grant’s family fell below acceptable standards of conduct, his conduct did not result in prejudice in this case. There is no indication that had the jury been confronted with the testimony of family members the result of this proceeding would have been different. The jury found the existence of three aggravating circumstances.3 Grant was incarcerated for committing violent crimes. He violently and repeatedly stabbed a civilian kitchen worker while he was serving a sentence for a violent crime. The testimony of Grant’s family members would not have swayed the jury from imposing the death penalty.

CONCLUSION

¶ 15 We find that counsel’s failure to undertake independent investigation into Grant’s childhood, by contacting family members, was reasonable. Furthermore, we find that, had the family members been contacted and been allowed to testify at trial, the outcome of this case would not have been different. No relief is required in this case based on our application of Wiggins to this case.

JOHNSON, P.J.; concurs in results. LUMPKIN, J.; specially concurs. CHAPEL, J.: dissents. STRUBHAR, J.: concurs.

. Oklahoma Court of Criminal Appeals Case No. PCD-2002-347.

. We reviewed supplemental briefs filed by the parties in this case; Appellant's brief filed on ■ December 22, 2003 and Appellee’s modified brief filed on February 4, 2004. ■