Mandate Issued: 03/07/2018
FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE
WILLIAM J. MUSSEMAN, TRIAL JUDGE
Randolph Lynn, Tulsa, Oklahoma, for Petitioner/Appellee
Kunzweiler, TULSA COUNTY DISTRICT ATTORNEY, Stephanie A.
Collingwood, Douglas A. Wilson, ASSISTANT DISTRICT ATTORNEYS,
Tulsa, Oklahoma, for Respondent/Appellant
P. WISEMAN, PRESIDING JUDGE.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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
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.
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).
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.
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."
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, ¶10, 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 ...