Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH
FEB 15 2000
PATRICK FISHER
TENTH CIRCUIT
Clerk
v.
GARY GIBSON, Warden, Oklahoma
State Penitentiary; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
Vicki Ruth Adams Werneke, Assistant Federal Public Defender, Death Penalty
Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for
Petitioner-Appellant.
Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A.
Drew Edmondson, Attorney General of Oklahoma, with her on the brief),
Oklahoma City, Oklahoma, for Respondents-Appellees.
Before TACHA , BALDOCK , and EBEL , Circuit Judges.
TACHA , Circuit Judge.
A jury found petitioner guilty of first degree murder and two counts of
assault and battery with a dangerous weapon and sentenced him to death for the
murder conviction and to twenty and fifteen years imprisonment for the other two
convictions. The Oklahoma Court of Criminal Appeals affirmed the convictions
and sentences.
See Jones v. State , 648 P.2d 1251 (Okla. Crim. App. 1982),
cert.
denied , 459 U.S. 1155 (1983). That court also affirmed the state trial courts
denial of petitioners first application for post-conviction relief.
See Jones v.
App. Mar. 28, 1995) (unpublished order). Thereafter, petitioner filed a revised
federal habeas petition, and the district court reopened the case. The court denied
habeas relief and granted a certificate of probable cause.
On appeal, petitioner asserts the following grounds for relief: (1) there is
insufficient evidence in the record to support the unconstitutionally applied
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320, 322-23 (1997). Under pre-AEDPA law, this court affords a presumption of
correctness to state court factual determinations.
110 F.3d 1508, 1513 & n.7 (10th Cir. 1997);
495 U.S. 731, 735 (1990) (per curiam) (holding federal courts may overturn state
court factual determinations only upon concluding they are not fairly supported by
record). This court reviews the district courts conclusions of law de novo and its
factual findings for clear error.
Cir. 1999) . When the district courts findings are based merely on a review of
the state record, we do not give them the benefit of the clearly erroneous standard
but instead conduct an independent review.
1257, 1264 n.1 (10th Cir. 1999). We may grant relief to a state prisoner only if
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See Tr. vol. 2 at 402. He also stated that he came to kill everyone
thereafter, petitioner pointed the gun at Ms. Linker, who ducked and crawled
behind the bar to hide. Petitioner fired the gun, and the bullet hit Ms. Strain,
who fled from the bar.
Petitioner then turned to Stanley Buck, Sr. and his son Stanley Buck, Jr.
and asked them what they were doing.
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Petitioner asked Mr. Buck, Sr., after the first shot, if he was dead and then shot
him again. He died as a result of the gunshot wounds.
Petitioner testified at trial that on the day of the murder he had probably
taken the prescription drug Ativan and had drunk two shots of whiskey and one
beer. His defense was that the interaction of the drug and alcohol rendered him
unconscious of his acts and therefore temporarily insane. He testified that he did
not know if he had done the things about which the other witnesses had testified.
See id. at 647.
The jury rejected petitioners insanity defense and found him guilty of
murder. At the sentencing stage, the jury found two aggravating circumstances:
the murder was especially heinous, atrocious, or cruel and petitioner knowingly
created a great risk of death to more than one person.
DISCUSSION
I. HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATOR
Petitioner argues there is insufficient evidence to support the
unconstitutionally applied heinous, atrocious, or cruel aggravating circumstance.
The trial court instructed the jury as follows:
You are further instructed that the term heinous, as that term
is used in these instructions means extremely wicked or shockingly
evil, and that atrocious means outrageously wicked and vile; and
cruel means designed to inflict a high degree of pain, utter
indifference to, or enjoyment of, the suffering of others; pitiless.
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O.R. at 173. After petitioners conviction, the Supreme Court held that this
instruction was unconstitutional as applied.
356, 360 (1988); see also Cartwright v. Maynard , 822 F.2d 1477, 1485-91 (10th
Cir. 1987). Subsequently, the Oklahoma Court of Criminal Appeals narrowed the
aggravator, holding that it only applies to those murders which are preceded by
torture or serious physical abuse.
Crim. App. 1987); see also Phillips v. State , 989 P.2d 1017, 1039 (Okla. Crim.
App. 1999). This narrowed construction is constitutionally permissible.
Duvall v. Reynolds , 139 F.3d 768, 792-93 (10th Cir.),
See
(1998).
The Oklahoma Court of Criminal Appeals, in reviewing the denial of
petitioners second post-conviction application, properly applied this narrowed
construction.
See Walton v. Arizona , 497 U.S. 639, 653-54 (1990) (holding state
Dept of Corrections , 100 F.3d 750, 767, 772 (10th Cir. 1996) (determining state
court may properly cure error by correctly applying narrowed construction).
Reweighing the evidence under the narrowed construction, the Oklahoma
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appellate court determined the murder was especially heinous, atrocious, or cruel.
The court stated petitioner was wholly indifferent to the pain inflicted upon the
victim and [t]he unarmed victim lay wounded and pleaded for his life, yet the
[petitioner] coldly and deliberately shot him at point blank range and then
continued to mock the victim as he bled to death.
op. at 4 (quoting Jones , 648 P.2d at 1259). The court concluded the deceased was
tortured and knew death was eminent.
concluded there was sufficient evidence in the record to support finding this
aggravator under a narrowed construction of the instruction, even though no
evidence in the record supported the Oklahoma Court of Criminal Appeals
finding the victim pleaded for his life.
Petitioner argues the evidence does not support the Oklahoma Court of
Criminal Appeals determination that the murder was especially heinous,
atrocious, or cruel, because no evidence supports that courts finding [t]he
unarmed victim lay wounded and pleaded for his life.
review of the state appellate courts determinations, this court reviews the state
courts application of the narrowed construction under the rational factfinder
standard of Jackson v. Virginia , 443 U.S. 307 (1979).
767-68 (citing Richmond , 506 U.S. at 47); see also Lewis v. Jeffers , 497 U.S. 764,
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783 (1990).
Hatch v.
Oklahoma , 58 F.3d 1447, 1469 (10th Cir. 1995). A challenge to the sufficiency
of the evidence under
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74, 80 (Okla. Crim. App. 1995). Conscious physical suffering of the victim must
occur before death and any extreme mental distress must result from the
petitioners intentional acts.
Any mental torture must produce mental anguish in addition to that which
necessarily accompanies the underlying killing.
976 (Okla. Crim. App. 1998) (The length of time which the victim suffers mental
anguish is irrelevant.) (further quotation omitted),
364, 373 (Okla. Crim. App. 1991) (same),
960, 975 (Okla. Crim. App. 1999) (The mental torture element is confined to
cases in which the victim is terrorized for a significant period of time before
death.) (further quotation omitted),
and
Cheney , 909 P.2d at 81 (same). There is no mental anguish, however, when death
probably occurs instantaneously.
Crim. App. 1993). Evidence that the victim was conscious and aware of the
attack supports a finding of torture.
Crim. App. 1997); see also Hooks v. Ward , 184 F.3d 1206, 1240 (10th Cir. 1999)
(noting Oklahoma law requires murder victim to be conscious during at least part
of attack); Spears v. State , 900 P.2d 431, 443 (Okla. Crim. App. 1995)
(conscious[ness] . . . is the critical inquiry in determining whether a murder was
especially heinous, atrocious or cruel);
Crim. App. 1994) (permitting finding of aggravator when mental torment occurred
before shooting).
We agree with both petitioner and the federal district court that the record
does not support the Oklahoma Court of Criminal Appeals finding that petitioner
pleaded for his life. Nonetheless, we conclude the evidence is sufficient to
support a finding of torture or extreme mental cruelty under the properly
narrowed aggravator. Several factors indicate mental cruelty.
First, petitioner threatened to kill everyone in the bar. We can assume
Mr. Buck, Sr., heard petitioners threat. Petitioner raised his voice when making
the threat. See Tr. vol. 2, at 430. Mr. Buck, Jr., testified to hearing petitioner
arguing with Ms. Linker about the gun protruding from the boot.
498. Mr. Buck, Sr. presumably witnessed the shooting of Ms. Strain.
896 P.2d at 556 (finding extreme mental anguish where victims heard co-workers
savagely murdered and realized they could be next). According to Mr. Buck, Jr.
his father looked awful scared as petitioner put the gun to his fathers head and
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neck and pushed him toward the back of the bar. Tr. vol.
2 at 500-03. At this
time, Mr. Buck, Sr. probably was anticipating, with some uncertainty, harm or
death to both his son and to himself.
cf. Turrentine ,
965 P.2d at 977 (finding evidence insufficient to support mental torture element,
but noting, in dicta, [h]aving her mother killed in front of her, and possibly her
brother and then waiting her turn, seems sufficient to warrant a finding of mental
torture).
Also, petitioner shot Mr. Buck, Sr. without provocation.
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We recognize that Mr. Buck, Sr. probably lost consciousness thirty seconds
to two minutes after the first gunshot.
977 P.2d 1116, 1134 (Okla. Crim. App. 1998) (finding death was not
instantaneous). This is not a case where the victim was rendered unconscious
prior to any physical injury or mental torture. The manner of killing involved
cruelty beyond the act of the killing itself due to the threats and taunts and
Mr. Buck, Sr.s reasonable fear of harm to himself and to his son. Thus, we do
not need to engage in pure speculation and guesswork to conclude Mr. Buck,
Sr. experienced conscious mental torture before death.
Oklahoma appellate court had reviewed the trial transcript during its reweighing
and instead had looked only at the facts recited in the direct appeal opinion. This
appears to be correct, upon comparison of the direct appeal opinion,
648 P.2d at 1259, and the second post-conviction opinion,
Jones ,
Jones ,
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Petitioner raised this claim in his first post-conviction application, and the
Oklahoma Court of Criminal Appeals found it to be procedurally defaulted.
See
Jones , 704 P.2d at 1140. Petitioner again raised this claim in his first federal
habeas petition and also intertwined it with an ineffective assistance of appellate
counsel claim. The federal district court directed petitioner to exhaust the
ineffective assistance claim. Petitioner, however, failed to raise this claim in the
second state post-conviction application either alone or specifically as part of his
ineffective assistance of appellate counsel claim. In his revised federal habeas
petition, petitioner again argued the claim should be heard on its merits because
appellate counsel was ineffective. The federal district court considered the claim
on the merits for that reason. Respondents, however, urge that this court not
consider the merits of the claim because petitioner has failed to assert in state
court his ineffective assistance of appellate counsel claim.
See Murray v.
Carrier , 477 U.S. 478, 489 (1986) (deciding claim of ineffective assistance of
counsel should be presented to state courts as independent claim before it may be
asserted as cause for procedural default).
We conclude the merits of the ineffective assistance of appellate counsel
claim are unexhausted because petitioner did not argue ineffective assistance of
appellate counsel with respect to this claim in his second post-conviction
application. See OSullivan v. Boerckel , 526 U.S. 838, 119 S. Ct. 1728, 1731,
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1732 (1999); see also Smallwood , 191 F.3d at 1267 (Although petitioner raised
an ineffective assistance of counsel claim . . ., he based it on different reasons
than those expressed in his habeas petition[, and therefore] failed to exhaust his
ineffective assistance of counsel claim[].);
938-39 (10th Cir. 1997) (finding ineffective assistance claim unexhausted when
petitioner made general allegations in state court and specific allegations in
federal habeas petition). The state courts, however, would now find this
unexhausted claim procedurally barred on independent and adequate state
grounds. See Smallwood , 191 F.3d at 1267 (citing
Coleman v. Thompson ,
501 U.S. 722, 735 n.* (1991)). This court, therefore, will consider this
procedurally defaulted claim only if petitioner can show cause for his default and
resulting prejudice or a fundamental miscarriage of justice if the federal courts
fail to consider the claim.
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assistance of appellate counsel raised for the first time in that application.
Also,
this courts failure to review this claim will not result in a fundamental
miscarriage of justice, because petitioner cannot show actual innocence in light of
his admitting the shootings.
See
Tr. vol. 1 at 1-9. At that time, counsel objected. He indicated that the pending
charges were relevant because they suggested the district attorney had made a
Petitioner argues that respondents did not file a cross-appeal and therefore
any procedural bar argument has been waived. This court has never required a
respondent to file a cross-appeal in order to continue to assert that a claim is
procedurally barred. Rather, this court has even held that it may consider
procedural bar sua sponte.
See Hatch , 58 F.3d at 1453.
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Ms. Linker, petitioners counsel asked her if she had ever carried a firearm and if
she had carried one on the night of the murder. She asserted her Fifth
Amendment right against self-incrimination to the first question and answered
no to the second.
See id. vol. 2 at 468-69. Counsel did not ask Ms. Linker
about any pending criminal charges or contest the ruling on the motion in limine
regarding these charges. Counsel attempted to ask Ms. Linker about her previous
mental history. The State objected, and the trial court reminded counsel about the
motion in limine.
See id. at 470. Although Ms. Linker testified she had dated
Mr. Buck, Sr., counsel did not ask her about the nature of her relationship with
him. See id. at 490.
1. Procedural Bar/Waiver
Respondents argue this claim is procedurally barred. Petitioner first raised
this claim in his first state post-conviction application. The Oklahoma Court of
Criminal Appeals found it to be barred.
also raised the claim in his second post-conviction application. The Oklahoma
appellate court discussed the merits of the claim under the ineffective assistance
of appellate counsel argument, determining (1) the trial court erred in not
allowing defense counsel to cross-examine Ms. Linker on the pending charges in
order to show her possible bias; (2) counsel failed to preserve the issue during
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cross-examination of Ms. Linker; and (3) any error in not allowing petitioner to
impeach Ms. Linker was harmless because her testimony was cumulative to
Mr. Buck, Jr.s testimony.
On federal habeas corpus review, the district court concluded that (1) any
error concerning pending charges or Ms. Linkers relationship with Mr. Buck, Sr.
was waived, because counsel should have contested the ruling on the motion in
limine during cross-examination of Ms. Linker; and (2) any error regarding any of
the three areas was harmless because trial counsel effectively and thoroughly
cross-examined Ms. Linker and because the excluded material was not relevant to
petitioners defense.
Petitioner did waive any claims with respect to Ms. Linkers pending
charges and her relationship with the decedent. Under Oklahoma law, a motion in
limine is advisory.
See Cheatham v. State , 900 P.2d 414, 427 (Okla. Crim. App.
1995). To preserve an issue, a defendant must make an offer of proof during trial
or attempt to introduce evidence at trial.
1197-98 (Okla. Crim. App. 1994). Petitioner did not make an offer of proof
during trial, and his attempt to introduce evidence was limited to only the mental
health issue.
Despite the waiver, the Oklahoma Court of Criminal Appeals decided this
claim on its merits when it addressed the claim of ineffective assistance of
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Ylst v.
also Delaware v. Van Arsdall , 475 U.S. 673, 678 (1986). Whether the jury would
have been influenced by any possible bias of Ms. Linker is pure speculation.
Nonetheless, the jury was entitled to have the benefit of a full cross-examination
as to her possible bias in order to determine what weight to give her testimony.
See Davis , 415 U.S. at 317;
(holding that where witness was in prosecutors custody due to pending charges,
petitioner was entitled to show by cross-examination that his testimony was
affected by fear or favor);
de novo, see Hatch , 58 F.3d at 1467, we conclude the trial court improperly
curtailed cross-examination in violation of petitioners right to confrontation.
Our analysis does not end here. Harmless error analysis applies to
Confrontation Clause cases.
623, 637-38 (1993) (quotation omitted). This courts harmless error review is de
novo. See Tuttle v. Utah , 57 F.3d 879, 884 (10th Cir. 1995).
In reviewing for harmless error, this court examines the entire record to
determine the errors possible effect on the jury.
144 F.3d 641, 649 (10th Cir.),
error is harmless depends on (1) the importance of the witnesss testimony in the
prosecutions case; (2) whether the testimony was cumulative; (3) the presence or
absence of evidence corroborating or contradicting the testimony of the witness
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on material points; (4) the extent of the actual cross-examination; and (5) the
overall strength of the States case.
agreed that Ms. Linker was one of two main witnesses), whose testimony was not
merely cumulative. Her testimony and the testimony of the other main witness,
Mr. Buck, Jr., were inconsistent at times. Thus, the first two areas of inquiry
suggest the error was not harmless.
The remaining areas of inquiry, however, suggest the error was harmless.
Defense counsel carefully cross-examined Ms. Linker regarding the events
occurring at the shooting. The jury was able to observe her demeanor and assess
her credibility with respect to her description of these events. As the federal
district court noted, defense counsel pointed out inconsistencies between
petitioners testimony at the preliminary hearing and her testimony at trial, and
inconsistencies between her testimony and the testimony of other witnesses in an
attempt to impeach her.
Cf. Tapia v. Tansy , 926 F.2d 1554, 1557 (10th Cir. 1991)
174, 180 (6th Cir. 1993). Nothing in the record indicates, beyond mere
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had right to draw conclusions regarding promises State made or intended to make
where carrying a firearm after former conviction of a felony had not gone to
preliminary hearing in nine months and State had requested two continuances of
that preliminary hearing after petitioners preliminary hearing).
Also, the jury had some impeachment evidence before it. The State
presented evidence that Ms. Linker had a previous first degree manslaughter
conviction. See Tr. vol. 2 at 420; see also Davis , 415 U.S. at 316 (determining
evidence of prior criminal conviction is general way to discredit witness).
Ms. Linker testified that she had dated Mr. Buck, Sr.
C. Cumulative Error
Petitioner argues the federal district court erred in failing to consider the
combined effect of the right to confrontation and Fifth Amendment errors after it
found the errors to be harmless individually. Petitioner did not make this
argument in his revised habeas petition. Thus, this court need not consider it.
See Oyler v. Allenbrand , 23 F.3d 292, 299 n.8 (10th Cir. 1994). In any event, this
argument is without merit because petitioner procedurally defaulted his Fifth
Amendment claim and the right to confrontation violation was harmless.
III. PROSECUTORIAL MISCONDUCT
Petitioner asserts the prosecutor violated his right to a fair trial by
questioning him about the consequences if the jury were to find him not guilty by
reason of insanity. Specifically, the prosecutor asked petitioner if he knew that he
would go free if the jury found him temporarily insane.
claim in his second application for post-conviction relief. The Oklahoma Court
of Criminal Appeals discussed the issue on its merits when considering
ineffective assistance of appellate counsel. The court determined any error was
harmless, pointing to the overwhelming evidence of guilt and the lack of
persuasive evidence concerning the defense of insanity.
See Jones ,
No. PC-91-0756, slip op. at 8-9. The federal district court determined the state
trial court erred in allowing these questions, but any error did not violate
petitioners constitutional rights.
Allegations of prosecutorial misconduct are mixed questions of law and
fact. See Fero v. Kerby , 39 F.3d 1462, 1473 (10th Cir. 1994). A prosecutors
improper remark will require reversal of a state conviction only where the remark
sufficiently infected the trial so as to make it fundamentally unfair, and, therefore,
a denial of due process.
(1974); see also Darden v. Wainwright , 477 U.S. 168, 181 (1986). Inquiry into
the fundamental fairness of a trial can be made only after examining the entire
proceedings. See Donnelly , 416 U.S. at 643. An improper appeal to societal
alarm typically does not amount to a denial of due process.
See Brecheen v.
152(4); id. tit. 22, 1161. Thus, the prosecutors questions and comments were
improper under state law. Federal habeas relief is not available for state law
errors, however; rather, it is limited to violations of federal constitutional rights.
See, e.g. , Estelle v. McGuire , 502 U.S. 62, 67-68 (1991). A review of the entire
proceedings does not support petitioners argument that the prosecutors conduct
so infected the trial with unfairness that the resulting convictions and sentences
were a denial of due process. In light of the strong evidence of guilt, and the
weakness of petitioners defense, there is not a reasonable probability that the
outcome would have been different without the alleged misconduct.
See
Smallwood, 191 F.3d at 1276; cf. United States ex rel. Alerte v. Lane
, 725
F. Supp. 936, 943-44 (N.D. Ill. 1989) (concluding petitioner was denied a fair
trial where prosecutor repeatedly exploited fear petitioner would go free if found
not guilty by reason of insanity, where petitioners insanity defense was not based
on temporary insanity, where evidence of sanity was not overwhelming, and
where judge did not intervene or give curative instructions),
898 F.2d 69 (7th Cir. 1990).
appeal dismissed ,
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Strickland v. Washington ,
citation omitted).
As discussed above, the ineffective assistance of appellate counsel claim
with respect to the Fifth Amendment claim is procedurally barred. Because, also
(...continued)
inferred that if the defendant was found not guilty by reason of insanity he would
be released from commitment and (2) the death penalty was disproportionate.
The court considered both factors in vacating the death sentence. Also, the court
expressly noted the improper cross-examination was not fundamental error
regarding guilt, but may have affected the sentence.
See id.
5
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