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Parker v. State

Court of Appeals of Oklahoma, Division II

February 9, 2018

MATTHEW RICHARD PARKER, Petitioner/Appellee,
v.
STATE OF OKLAHOMA, Respondent/Appellant.

          Mandate Issued: 03/07/2018

         APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE WILLIAM J. MUSSEMAN, TRIAL JUDGE

          Fred Randolph Lynn, Tulsa, Oklahoma, for Petitioner/Appellee

          Steve Kunzweiler, TULSA COUNTY DISTRICT ATTORNEY, Stephanie A. Collingwood, Douglas A. Wilson, ASSISTANT DISTRICT ATTORNEYS, Tulsa, Oklahoma, for Respondent/Appellant

          JANE P. WISEMAN, PRESIDING JUDGE.

         ¶1 The State of Oklahoma appeals a trial court order finding that Matthew Richard Parker "made a prima facie showing of actual innocence for the purpose of initiating a claim pursuant to the Oklahoma Governmental Tort Claims Act." After review, we affirm the order.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Parker was found guilty by a jury of "sexually abusing a minor child/felony" and was sentenced on April 25, 1997, to life in prison. Parker appealed citing numerous propositions of error including ineffective assistance of counsel. In a summary opinion filed October 19, 1998, the Court of Criminal Appeals affirmed the judgment and sentence of the trial court.

         ¶3 As reported in Parker v. Scott, 394 F.3d 1305 (10th Cir. 2005), Parker sought federal habeas relief. The United States District Court for the Northern District of Oklahoma denied Parker's petition for a writ of habeas corpus, and the United States Court of Appeals for the Tenth Circuit affirmed that decision.

         ¶4 On July 1, 2011, Parker filed an "Application for Post-Conviction Relief" in his Tulsa County District Court case on the ground of "actual innocence." Stating that he passed a polygraph test while he was incarcerated, he further asserted, "The investigation by which I came to be accused and the prosecution resulting therefrom were so suggestive and results-oriented as to dictate a guilty verdict. My trial lawyer, who has been disbarred, did not spot this set of problems." In his brief supporting his application, he asserted the existence of four items of previously unavailable evidence which we will discuss in detail below.

         ¶5 The trial court denied Parker's Application for Post-Conviction Relief in September 2011. The Court of Criminal Appeals then reversed the trial court's decision and remanded the case for an evidentiary hearing on Parker's post-conviction application.

         ¶6 After an evidentiary hearing held on August 30 and 31, and September 27, 2012, the trial court made findings about the four items of evidence Parker claimed were unavailable to him at the time of trial. Parker claimed that Dr. Waterman would testify "'that developments in the area of investigative techniques used in child sex abuse cases since 1996 all but conclusively demonstrate Matthew Parker's innocence'" and "'that the investigation conducted in 1996 was badly flawed, particularly in its use of outdated, discredited, condemned interviewing techniques.'" The trial court found that "the proposed testimony of Dr. Waterman would not have been material to this case" and Parker "did not exercise due diligence to discover Dr. Waterman prior to trial, as Dr. Waterman was available to testify at the time of [Parker's] trial."

         ¶7 The second item Parker claimed was excluded and not available at trial was "the alleged absence of a mole on [Parker's] penis." The court found that, while Parker argued his trial counsel's ineffectiveness prevented him "from demonstrating evidence of the lack of a mole on his penis" and also that his "trial counsel lied to him about the effectiveness and permissibility of this evidence, " it was unclear from Parker's testimony at the evidentiary hearing "exactly what evidence his trial counsel lied to him about." Both Parker and his mother testified that he did not have a mole on his penis. The court found additional evidence on this issue "would have been merely cumulative" and the issue concerning the lack of a mole could have been raised in the direct appeal of the conviction or in the habeas corpus proceeding.

         ¶8 The third item Parker alleged was not available at trial was "the prior, unsubstantiated, allegation of sexual abuse made by the complaining witness." Parker claimed the complaining witness had previously alleged sexual abuse by "a previous babysitter's husband." Parker alleged this information

was known at the time of the trial, but was not brought to the jury's attention through the ineffectiveness of [his] trial counsel (again, through a lie about the State's willingness to employ such a procedure) and through a legal error by the trial court (failure to hold a required taint hearing under OKLA.STAT.tit. 12 § 2803.1).

         The trial court found that this evidence was known at the time of trial and the issue could have been raised in the direct appeal or in the habeas corpus proceeding.

         ¶9 The fourth item Parker claimed was unavailable was his passing a polygraph examination in 2007. Parker claimed Susan Loving, a member of the Pardon and Parole Board, requested that he take the exam, his application for release received a unanimous 5-0 vote in favor of his release, but Governor Brad Henry denied the application. He also claimed that before trial, the prosecution offered the following "deal"--if he passed a polygraph examination, they would drop the charges, but if he failed the examination, "he would plead guilty and be sentenced to ten years imprisonment." Parker claimed he agreed, but the prosecution withdrew the deal. The trial court found Parker was not precluded from taking the examination before trial and the "evidence of the polygraph examination [is] immaterial as such evidence would not have been admissible in evidence at [Parker's] trial."

         ¶10 Parker appealed the trial court's decision to the Court of Criminal Appeals, and the Court granted Parker's application for post-conviction relief and remanded the case for a new trial. The Court stated:

In May v. State, 1976 OK CR 328, ΒΆ10, 75 P.3d 891, we held that when there exists evidence of material facts not previously presented and heard, vacation of the conviction or sentence may be required in the interest of justice. In the present case we find evidence of material facts, favorable to [Parker], not previously presented and heard from the testimony of Rhae Smith at the evidentiary hearing. The record reflects that testimony concerning the child's advanced sexual knowledge and prior ...

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