Harris v. Sirmons
Filing
77
MEMORANDUM OPINION. After a complete review of the transcripts, trial records, appellate record, record on post-conviction proceedings, briefs filed by Petitioner and Respondent, and the applicable law, the Court finds Petitioner's request for relief in 32 Petition For Writ of Habeas Corpus should be denied. ACCORDINGLY, habeas relief is DENIED on all grounds. An appropriate judgment will be entered.. Signed by Honorable Stephen P. Friot on 4/19/2017. (llg)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JIMMY DEAN HARRIS,
Petitioner,
v.
TERRY ROYAL1, Warden,
Oklahoma State Penitentiary,
Respondent.
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Case No. CIV-08-375-F
MEMORANDUM OPINION
Petitioner, a state prisoner currently facing execution of a sentence of death,
appears with counsel and petitions for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, challenging his convictions in the District Court of Oklahoma County, Case
No. CF-1999-5071, of one count of first-degree murder, one count of shooting with
intent to kill, and one count of assault and battery with a dangerous weapon.
Respondent has responded to Petitioner’s Petition for a Writ of Habeas Corpus
(hereinafter “Petition”), 2 and Petitioner has replied. The State court record has
been supplied.3
1
During previous proceedings, Anita Trammell was the warden of the Oklahoma State
Penitentiary. However, Terry Royal has since assumed that office. According to Fed. R. Civ.
P. 25(d)(1), Mr. Royal is automatically substituted as a party.
2
References to the parties’ pleadings shall be as follows: Petitioner’s Petition for a Writ
of Habeas Corpus shall be cited as (Pet. at __.); Respondent’s Response in Opposition to Petition
for Writ of Habeas Corpus shall be cited as (Resp. at __.); and, Petitioner’s Reply To Respondent’s
Response to Petition for Writ of Habeas Corpus shall be cited as (Reply at __.).
3
The trial court’s original record shall be cited as (O.R. at __.). The trial transcript shall
be cited as (Tr., Vol. ___, p. __.).
PROCEDURAL HISTORY
Petitioner was convicted by a jury in the District Court of Oklahoma County
of one count of first-degree murder, one count of shooting with intent to kill, and
one count of assault and battery with a dangerous weapon. For the crime of firstdegree murder, the jury recommended the imposition of a sentence of death, finding
the existence of the aggravating circumstance that Petitioner knowingly created a
great risk of death to more than one person. He was also sentenced to life in prison
for shooting with intent to kill and ten years in prison for assault and battery with a
dangerous weapon.
Petitioner appealed his convictions and sentences to the Oklahoma Court of
Criminal Appeals (hereinafter “OCCA”).
The OCCA affirmed Petitioner’s
convictions and the non-capital sentences, but reversed the death sentence and
remanded for a new sentencing trial for the first-degree murder conviction. Harris v.
State, 84 P.3d 731 (Okla. Crim. App. 2004). At the resentencing trial the jury found
the existence of two aggravating circumstances: (1) Petitioner knowingly created a
great risk of death to more than one person; and (2) the existence of a probability
Petitioner would commit criminal acts of violence that would constitute a continuing
threat to society.
The trial court sentenced Petitioner to death on the jury’s
recommendation. Petitioner’s direct appeal from the resentencing trial was denied
by the OCCA. Harris v. State, 164 P.3d 1103 (Okla. Crim. App. 2007). Certiorari
was denied on March 24, 2008. Harris v. Oklahoma, 552 U.S. 1286 (2008).
Petitioner filed an Application for Post-Conviction Relief which was denied by the
OCCA in a published opinion. Harris v. State, 167 P.3d 438 (Okla. Crim. App.
2007).
2
FACTUAL BACKGROUND
Under 28 U.S.C. § 2254(e), when a federal district court addresses “an
application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue made by a State court
shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). For the purposes of
consideration of the present Petition, the Court provides and relies upon the
following synopsis from the OCCA’s opinion summarizing the evidence presented
at Petitioner’s trial.
Following review of the record, trial transcripts, and the
admitted exhibits, the Court finds this summary by the OCCA to be adequate and
accurate. The Court therefore adopts the following summary of the facts as its own:
Harris, who was a skilled transmission mechanic, and his wife,
Pam, worked in front office positions in transmission shops.
Throughout their relationship the two often worked together. Despite
being business partners as well as husband and wife, they had a stormy
relationship. This worsened significantly when Pam was hired, but
Harris was not, to work in Merle Taylor’s AAMCO transmission shop
in Oklahoma City. Harris commuted to work in Texas for several
months, during which time the marriage suffered. After Harris had a
work-related accident, he returned to Oklahoma. By the summer of
1999, Pam told him the marriage was over. While Harris agreed to a
divorce, he was angry and upset, and continued to hope Pam would
return to him. In mid-August of 1999, Harris called Pam, threatening
to kill her, her parents, their daughter, her co-workers, and Merle
Taylor. Pam got a protective order against Harris and filed for divorce.
The divorce was granted on August 25, 1999, and Harris was ordered
to leave the home without removing any property. Harris and Pam had
previously taped an agreement dividing the house property. On the
evening of the 25th, Harris moved out of the home, taking furniture and
many of Pam’s personal possessions. He also vandalized the house.
Pam discovered the damage the next day, found out where Harris had
stored her furniture and his tools, and had a lock put on that shed. In
the succeeding days Harris called Pam often demanding that she
remove the lock. Each time, she explained she could neither talk to
him nor remove the lock, and told him to call her attorney. He refused,
3
explicitly stating he would talk to her. He continued to threaten her
and others. On August 31, 1999, he threatened to kill Pam and was
seen driving by the AAMCO shop.
On the morning of September 1, 1999, Harris called the AAMCO
shop several times, demanding that she remove the lock on the storage
shed and threatening Pam and Merle Taylor. At approximately 9:00
a.m. Harris arrived at the shop and asked for Pam, who was standing
with Merle Taylor and his daughter-in-law Jessica. He shot Taylor
twice at close range, and shot at Jessica. Harris shot Pam, chased her
when she ran, and pistol-whipped her when he ran out of bullets and
could not quickly reload his gun. When Pam escaped, Harris fled,
discarded the gun and his van, and hid in a friend’s garage. Harris
claimed he was angry and upset, and could not make good decisions
because he was of low intelligence, was under the influence of alcohol
and drugs, and was mentally ill (although not legally insane).
To support the aggravating circumstances, the State presented
the evidence of the circumstances of the crimes. There was also
evidence that, during the ongoing difficulties in mid-August, Pam had
called police and Harris had resisted arrest. The State presented
evidence that Harris assaulted a jailer while awaiting trial, and had
physically, verbally and emotionally abused Pam throughout their
relationship. The State also presented victim impact evidence. In
mitigation, Harris presented evidence from his family and former
co-workers, as well as expert evidence, regarding his traumatic and
abusive childhood, history of substance abuse, low intelligence,
emotional instability, and possible mental illness.
Harris, 164 P.3d at 1106-07.
PETITIONER’S CLAIMS FOR RELIEF
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter
“AEDPA”),
in order to obtain federal habeas relief once a State court has
4
adjudicated a particular claim on the merits, Petitioner must demonstrate that the
adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d)(1-2).
The Supreme Court has defined “contrary to” as a State court decision that is
“substantially different from the relevant precedent of this Court.” Williams v.
Taylor, 529 U.S. 362, 405 (2000) (O’Connor, J., concurring and delivering the
opinion of the Court). A decision can be “contrary to” Supreme Court precedent
“if the state court applies a rule that contradicts the governing law set forth in
[Supreme Court] cases” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision of this Court and nevertheless arrives at
a result different from [Supreme Court] precedent.”
Id. at 405-06.
The
“unreasonable application” prong comes into play when “the state court identifies
the correct governing legal rule from [Supreme Court] cases but unreasonably
applies it to the facts of the particular state prisoner’s case” or “unreasonably extends
a legal principle from [Supreme Court] precedent to a new context where it should
not apply or unreasonably refuses to extend that principle to a new context where it
should apply.” Id. at 407. In ascertaining clearly established federal law, this
Court must look to “the holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions as of the time of the relevant state-court decisions.” Yarborough v.
Alvarado, 541 U.S. 652, 660-61 (2004) (quoting Williams, 529 at 412.
The “AEDPA’s purpose [is] to further the principles of comity, finality, and
federalism.
There is no doubt Congress intended AEDPA to advance these
5
doctrines.” Williams v. Taylor, 529 U.S. 420, 436 (2000). “The question under
AEDPA is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable – a substantially higher
threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
The deference
embodied in Section 2254(d) “reflects the view that habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 10203 (2011)(citation omitted).
GROUNDS FOR RELIEF
Ground 1:
Mental Health Rebuttal Evidence.
During the first stage of trial, and after Petitioner had testified, the defense
presented expert psychological and psychiatric testimony regarding Petitioner’s
intelligence and state of mind to support his diminished capacity defense of mental
illness. Subsequent to the defense’s notice that Petitioner intended to present such
a defense, the State obtained permission to have Dr. John Call, a psychologist,
interview Petitioner to determine if he was malingering. Dr. Call testified that
Petitioner appeared to be feigning or exaggerating cognitive, memory, and emotional
disorders. He also testified that Petitioner exhibited many traits of a psychopath.
Petitioner claims that the testimony of Dr. Call deprived him of a
fundamentally fair trial as his testimony was a surprise and that the defense was not
presented with a report prior to the testimony, that a prior determination was not
made regarding scientific reliability and acceptability of the substance of Dr. Call’s
testimony, that “psycopath” is not a mental illness or disease, and as such, was only
proper for indications of future behavior and improper evidence in the first stage of
trial, that the testimony should have been excluded as being more prejudicial than
probative, that evidence of bad character is barred under State law and admission of
6
such was a violation of Petitioner’s liberty interest, and that the OCCA’s
determination was an unreasonable determination of the facts in light of the evidence
presented. In short, Petitioner’s claim is that the OCCA’s determination that Dr.
Call’s testimony was properly admitted is unreasonable.
After noting that the State presented Dr. Call as a rebuttal witness subsequent
to Petitioner’s testimony and the defense presentation of expert testimony of mental
illness, the OCCA rejected Petitioner’s claim of surprise and failure to excluded Dr.
Call’s testimony as a discovery sanction:
First, we reject Appellant’s contention that Dr. Call’s testimony should
have been excluded as a discovery sanction. Generally, the State need
not give advance notice of rebuttal evidence, because it cannot know
before trial what evidence will be relevant in rebuttal. Goforth v. State,
1996 OK CR 30, ¶ 3, 921 P.2d 1291, 1292. Dr. Call only interviewed
Appellant after the defense gave notice that it intended to present a
defense based on Appellant’s mental health. Defense counsel was
present when Dr. Call interviewed Appellant. Appellant had access to
his own mental-health experts to review Dr. Call’s notes and testimony.
After Dr. Call testified on direct examination, the trial court granted
Appellant’s request for additional time to prepare for
cross-examination. Appellant was not unfairly surprised by Dr. Call’s
testimony.
Harris, 84 P.3d at 745.
Dr. Call was called by the State in rebuttal to a defense based on a claim of
diminished mental health.
Defense counsel was present during Dr. Call’s
examination and testing of Petitioner and during the trial court’s in camera hearing
on Dr. Call’s techniques and the information utilized in reaching his conclusions.
Counsel was given the opportunity during the in camera hearing to question Dr. Call
and was permitted to re-call him for cross-examination after the defense expert
reviewed his work. Further, as noted by the OCCA, after Dr. Call’s testimony the
trial court granted defense counsel’s request for additional time to prepare for cross-
7
examination. Considering the above, Petitioner has not demonstrated the OCCA’s
determination to be unreasonable.
Petitioner further claims it was error for the trial court to not hold a prior
hearing on the scientific reliability and acceptability of the substance of Dr. Call’s
methods and testimony consistent with Daubert v. Merrel Dow Pharmaceuticals, 509
U.S. 579 (1993). Although lengthy, the OCCA’s determination denying the claim
is set forth here in its entirety to set forth the facts and procedure regarding Dr. Call’s
testimony and to demonstrate the state court’s thorough and well considered review:
We next consider whether the trial court erred by not holding a hearing
on the reliability of Dr. Call’s methods consistent with Daubert v.
Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993). In Daubert, the Supreme Court recognized a trial
court’s important responsibility, as well as its broad discretion, in
assessing the admissibility of novel scientific evidence. The Court
identified several factors which may aid trial judges in determining
whether expert evidence is scientifically valid, and thus reliable
enough, to be admissible under the permissive guidelines of the Federal
Rules of Evidence. The Court stressed that its list of relevant factors
was not exhaustive, and that whether any of the factors mentioned were
applicable could only be determined on a case-by-case basis. In
essence, the Court held that while not all evidence deemed “scientific”
had to earn general acceptance in the scientific community before being
admissible, all such evidence should bear some indicia of traditional
scientific method. The focus should be “solely on principles and
methodology, not on the conclusions that they generate.” Daubert, 509
U.S. at 595, 113 S.Ct. at 2797. The Court subsequently extended
Daubert's principles to non-scientific but otherwise technical and
specialized expert testimony in Kumho Tire Co. v. Carmichael, 526
U.S. 137, 150–51, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). We
adopted the Daubert analysis in Taylor v. State, 1995 OK CR 10, ¶ 15,
889 P.2d 319, 328–29, and have likewise extended it (per Kumho ) to
other types of expert testimony. Harris v. State, 2000 OK CR 20, ¶ 9,
13 P.3d 489, 493.
8
Before Dr. Call testified, the trial court held an in camera hearing on
the techniques he used and the reasonableness of his reliance on certain
information to reach his conclusions. The hearing was consistent with
our holding in Lewis v. State, 1998 OK CR 24, ¶ 21, 970 P.2d 1158,
1167, that the trial court should determine the admissibility of expert
testimony before it is presented to the jury. At that hearing, Dr. Call
stated that the Hare Psychopathy Checklist was “the most widely
respected technique to assess psychopathy.” He testified as to his
experience in administering the technique, and explained that the
Checklist necessarily required him to obtain information from
immediate family which, in this case, included the surviving victim,
Mrs. Harris. Dr. Call testified that he did not tell Mrs. Harris the
purpose of his inquiry, and that he took her potential for bias into
account. He also stated that not all of Mrs. Harris’s observations about
Appellant were negative, and that many of her observations were
corroborated by others, including Appellant himself. The defense
cross-examined Dr. Call about his methods, but did not present any
evidence of its own. The trial court found Dr. Call’s methods reliable
and his testimony admissible. Defense counsel did not claim this
hearing was insufficient under Daubert until after Dr. Call had testified
on direct examination. Based on the information developed at the
original “Lewis” hearing, the trial court concluded that no further
Daubert inquiry was necessary.
Appellant complains that the Lewis hearing was not tantamount to a
Daubert hearing, because it did not address either “relevancy or
reliability of psychopathy opinion testimony in the guilt/innocence
phase of a criminal trial,” and claims that the Hare technique is “clearly
irrelevant and unreliable in this context” (emphasis added). We view
these concerns as a matter of general relevance, not affecting the
soundness of Dr. Call’s methods themselves. There was no evidence
that Dr. Call modified the Hare technique in any way, or that he used it
to assess anything but Appellant’s psychopathic tendencies.
Appellant’s complaint is not that the Hare Psychopathy Checklist is
unreliable per se, but that the Checklist did not assist the trier of fact,
see 12 O.S.2001, § 2702, because it was not a reliable indicator of
anything relevant to Appellant’s guilt. We conclude that it was.
9
Appellant correctly notes that the Hare Psychopathy Checklist is
routinely used to determine whether a person poses a threat to others
generally; thus, the Checklist is often employed in capital-sentencing
proceedings (e.g. to show the defendant is a continuing threat to
society) and civil commitment proceedings (e.g. to justify involuntarily
commitment of a sexual predator). However, merely because
psychopathy evidence is relevant for these purposes does not render it
irrelevant for any other purpose. Any ability of the Checklist to predict
future behavior must necessarily be based on its ability to indicate
tendencies presently existing in the subject’s personality – which in turn
is based, in part, on an examination of the subject’s past behavior.
Appellant’s own experts – also relying in part on Appellant’s past
behavior – testified to support the defense theory that Appellant’s
mental functioning was impaired, and ultimately, that Appellant was (at
least at the time of the crime) unable to form a specific intent to kill.
In turn, the State was entitled to offer alternative explanations of
Appellant’s behavior. Appellant points out that psychopathy is not a
recognized mental disorder. This, of course, is exactly why the State
introduced the evidence in question: to show that Appellant’s behavior
was not the result of a diminished mental capacity, but rather the
product of a generally violent personality for which he should be held
accountable. We have repeatedly held that the State may present
rebuttal evidence on mental-health issues raised by the defense. See
Lockett v. State, 2002 OK CR 30, ¶ ¶ 22–25, 53 P.3d 418, 425; Van
White v. State, 1999 OK CR 10, ¶ 52, 990 P.2d 253, 268–69; Maghe v.
State, 1980 OK CR 100, ¶ 7, 620 P.2d 433, 435; see also 12 O.S.2001,
§ 2404(A)(1) (where accused presents evidence of a pertinent character
trait, the prosecution may present evidence to rebut the same). Dr.
Call’s opinions, and prosecutor commentary on this evidence as bearing
on Appellant’s ability to form an intent to kill, were not improper.
Finally, we note that the jury was well aware of the limitations on Dr.
Call’s testimony. Dr. Call made it clear that while Appellant exhibited
many behaviors associated with psychopathy, he also exhibited many
behaviors inconsistent with psychopathy. Dr. Call admitted he could
not conclusively state that Appellant was a psychopath, and conceded
that even a psychopath may suffer from some other recognized mental
illness. The trial court’s limiting instruction, which Appellant did not
10
object to, was patterned after the one used by the trial court in Lewis v.
State, and we find it appropriate here as well. Proposition 2 is denied.
Harris, 84 P.3d at 744-47 (footnotes omitted).
Rather than apply Daubert to the facts in the record, this Court must determine
whether the OCCA’s decision was an unreasonable determination that Petitioner
received a fair trial. In Wilson v. Simons, 536 F.3d 1064 (10th Cir. 2008), the Tenth
Circuit considered a claim that admission of certain DNA results without a Daubert
hearing violated the petitioner’s Eighth and Fourteenth Amendment rights.
Denying the claim, the Tenth Circuit held:
“As a general matter, federal habeas corpus relief does not lie to review
state law questions about the admissibility of evidence....” Moore v.
Marr, 254 F.3d 1235, 1246 (10th Cir.2001) (internal citations omitted).
Absent a showing that the admission of the evidence violated a specific
constitutional guarantee, a federal court on habeas review will not
disturb the state court’s evidentiary ruling unless it was “so grossly
prejudicial that it fatally infected the trial and denied the fundamental
fairness that is the essence of due process.” Fox v. Ward, 200 F.3d
1286, 1296 (10th Cir.2000) (quoting Williamson v. Ward, 110 F.3d
1508, 1522 (10th Cir.1997)); Milone v. Camp, 22 F.3d 693, 702 (7th
Cir.1994). Because Daubert does not set any specific constitutional
floor on the admissibility of scientific evidence, the only relevant
question is whether the PCR test rendered the trial fundamentally
unfair. Milone, 22 F.3d at 702; see also Norris v. Schotten, 146 F.3d
314, 335 (6th Cir.1998).
Id. at 1101-02.
As stated above, Dr. Call testified in camera before his rebuttal testimony and
was subjected to defense counsel’s questioning. The trial court granted defense
counsel’s request for additional time to review Dr. Call’s testimony and was
permitted to re-call Dr. Call for cross-examination after the defense expert reviewed
his work. The Hare checklist utilized by Dr. Call was not novel. It was utilized to
not only predict future dangerousness but also as a diagnostic tool for treatment and
11
management.
Dr. Call’s opinion was based on the results of this recognized
diagnostic tool and offered to rebut the claim that Petitioner was not capable of
intending to kill Mr. Taylor. In fact, his opinion was corroborated by Petitioner’s
own second stage expert who agreed Petitioner had many of the traits of an
individual with psychopathy or antisocial personality disorder. (Tr., Vol. XVIII, pp.
181-82, 192-93).
Petitioner has not demonstrated the determination of the OCCA’s was
contrary to, or an unreasonable application of, clearly established Supreme Court
law. Nor has Petitioner demonstrated that the admission of Dr. Call’s testimony
rendered the trial fundamentally unfair. Petitioner’s first ground for relief is denied.
Ground 2:
Mental Capacity Jury Instruction.
Petitioner next claims that the trial court erred when it instructed the jury, over
defense objection, that mental retardation was a defense to the charged offenses only
if it rendered him incapable of knowing the wrongfulness of the offenses because of
his mental retardation. Petitioner claims this instruction denied him the right to
present a defense to the intent element of malice aforethought murder in violation of
his Sixth and Fourteenth Amendment rights.4
On appeal, the OCCA determined no prejudice existed and no violation of
Petitioner’s rights:
In Proposition 5, Appellant contends that the trial court’s
instructions to the jury relating to his defense were confusing, improper,
and denied him a fair trial. Appellant offered evidence that “low
intelligence, mental illness, and drug and alcohol induced intoxication”
combined to give him “limited control” over his actions at the time of
the crimes. The goal of Appellant’s defense was to show that at the
time of the shootings, he could not have formed a specific intent to kill.
4
Petitioner adds the absence of an instruction on second degree depraved mind murder
compounded the denial of his rights. See Ground 3, infra.
12
He requested and received a jury instruction on a lesser form of
homicide, First–Degree Manslaughter, arguably compatible with his
defense. However, because Appellant had attempted to show that he
was at least “borderline” mentally retarded, the trial court also
instructed the jury, over defense objection but consistent with
Oklahoma law, that mental retardation was a complete defense to
culpability if it rendered the accused incapable of knowing the
wrongfulness of his acts. See 21 O.S.2001, § 152(3).
Appellant claims the trial court’s instruction on mental
retardation as a complete exculpatory defense was not supported by the
evidence. We agree. The accused is entitled to instructions on any
defense theory, whether it be mitigating or exculpatory, if the law and
evidence reasonably support that theory. Cipriano v. State, 2001 OK
CR 25, ¶ 30, 32 P.3d 869, 876. Because, as Appellant concedes, the
evidence failed to suggest he was mentally retarded to the extent he
could not appreciate the wrongfulness of his actions, the trial court’s
instruction on mental retardation as an exculpatory defense was
unwarranted.
We fail to see how this instruction prejudiced Appellant. The
instruction actually saddled the State with the additional preliminary
burden of proving that Appellant was not mentally retarded before he
could be convicted of any crime. Even though the outcome might have
been unlikely, the instruction gave the jurors the option of finding
Appellant not guilty of any crime, if they believed his intellectual
capacity was so diminished that he could not distinguish right from
wrong. Finally, the instruction in no way discouraged the jury from
fully considering Appellant’s intellectual abilities, along with his
alleged mental illness and substance abuse, on the issue of whether he
lacked the ability to form a specific intent to kill. Because the
instruction could only have worked to Appellant’s benefit, we find no
violation of his substantial rights. McGregor v. State, 1994 OK CR 71,
¶ 23, 885 P.2d 1366, 1380; Allen v. State, 1994 OK CR 13, ¶ 33, 871
P.2d 79, 93. Proposition 5 is denied.
Harris, 84 P.3d at 749-50.
13
A petitioner seeking collaterally to attack a state court conviction based on an
erroneous set of jury instructions “bears a heavy burden of proof.” Shafer v. Stratton,
906 F.2d 506, 508 (10th Cir.1990). “Habeas proceedings may not be used to set
aside a state conviction on the basis of erroneous jury instructions unless the errors
had the effect of rendering the trial so fundamentally unfair as to cause a denial of a
fair trial in the constitutional sense,” Shafer, 906 F.2d at 508 (quotation omitted), or
“so infected the entire trial that the resulting conviction violates due process,” Estelle
v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147
(1973)).
Petitioner has not demonstrated the trial court’s instruction had a substantial
and injurious effect or influence on the jury’s verdict, Brecht v. Abrahamson, 507
U.S. 619, 631 (1993), or that the OCCA’s determination was contrary to, or an
unreasonable application of, clearly established federal law as determined by the
Supreme Court. Accordingly, Petitioner’s ground for relief is denied in its entirety.
Ground 3:
Failure to Instruct on Lesser Offense.
In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held that the
Due Process Clause of the Fourteenth Amendment sometimes requires a state
charging a defendant with a capital offense to permit the jury to consider alternative,
lesser included offenses that do not carry with them the prospect of a death sentence.
Id. at 627; see also Schad v. Arizona, 501 U.S. 624, 647 (1991). At the first stage
of trial the State charged Petitioner with first-degree malice aforethought murder.
The trial court denied defense counsel’s request to instruct the jury on second-degree
depraved mind murder, but did instruct on a lesser offense of first-degree
manslaughter. Petitioner claims here that the denial of his requested instruction on
the lesser offense of second-degree depraved mind murder violated his Sixth, Eighth,
and Fourteenth Amendment rights.
14
In Beck, the Supreme Court held that “a sentence of death [may not]
constitutionally be imposed after a jury verdict of guilt of a capital offense, when the
jury was not permitted to consider a verdict of guilt of a lesser included non-capital
offense, and when the evidence would have supported such a verdict.” Id. at 627
(emphasis added). On appeal, the OCCA determined the evidence did not warrant
an instruction on second degree murder:
In Proposition 10, Appellant claims error in the trial court’s
rejection of his proposed instructions on the lesser offense of Second
Degree (Depraved Mind) Murder, as well as his proposed instruction
attempting to define “reasonable doubt.” As to the first claim, the trial
court was required to instruct on every degree of homicide reasonably
supported by the evidence. Shrum v. State, 1999 OK CR 41, ¶ 10, 991
P.2d 1032, 1036. To warrant an instruction on Second Degree
(Depraved Mind) Murder, the evidence must reasonably support the
conclusion that the defendant committed an act so imminently
dangerous to another person as to evince a depraved mind in disregard
for human life. Williams v. State, 2001 OK CR 9, ¶ 23, 22 P.3d 702,
712.
Appellant shot Taylor twice at close range, immediately after
pushing him down to the ground. Appellant testified that he shot
Taylor “accidentally,” “without thinking or knowing” what he was
doing. Instructions on depraved-mind murder are unwarranted when
the defense claims the fatal gunshots were fired accidentally. Crumley
v. State, 1991 OK CR 72, ¶ 13, 815 P.2d 676, 678–79. Furthermore,
in determining the sufficiency of the evidence to support a lesser
offense, we look to whether the evidence might allow a jury to acquit
the defendant of the greater offense and convict him of the lesser.
Cipriano, 2001 OK CR 25 at ¶ 14, 32 P.3d at 873. Given the
substantial evidence that Appellant drove to the transmission shop to
do violence (see discussion of Proposition 6), we do not believe any
rational trier of fact could have found Appellant evinced a depraved
mind but lacked an intent to kill. Cf. Young v. State, 2000 OK CR 17,
¶¶ 61–62, 12 P.3d 20, 39–40 (instructions on depraved-mind murder
correctly refused where defendant entered restaurant with intent to rob
its occupants with firearm, stood directly in front of victim, raised gun,
15
demanded money, and fatally shot victim in the back of the chest when
victim tried to defend himself), cert. denied, 532 U.S. 1055, 121 S.Ct.
2200, 149 L.Ed.2d 1030 (2001); Boyd v. State, 1992 OK CR 40, ¶ 11,
839 P.2d 1363, 1367–68, cert. denied, 509 U.S. 908, 113 S.Ct. 3005,
125 L.Ed.2d 697 (1993) (instructions on depraved-mind murder
correctly refused where defendant shot victim a second time in the chest
at close range).
Harris, 84 P.3d at 750.
In Shad v. Arizona, 501 U.S. 624, 645-48 (1991), the Supreme Court held that
Beck’s requirement is satisfied so long as the jury is instructed on at least one lesser
included offense that is supported by the evidence. Here, the trial court instructed
on the lesser included offense of first-degree manslaughter.
The OCCA’s determination that the evidence did not warrant an instruction
on second degree murder was neither contrary to, nor an unreasonable application
of, clearly established federal law.
As detailed by the OCCA, Petitioner’s
testimony that he “accidently” and “without thinking or knowing” what he was doing
does not warrant an instruction on second degree depraved mind murder under
Oklahoma law. The OCCA further determined that substantial evidence existed
that Petitioner intentionally went to the transmission shop to do violence such that
no rational trier of fact could have found Petitioner evinced a depraved mind but
lacked the intent to kill – i.e., that the evidence did not support the lesser instruction
of second degree depraved mind murder.
As Beck’s requirements were met, and the OCCA’s determination was not
contrary to, or a unreasonable application of, federal law, Petitioner has not
demonstrated that failure to instruct on second degree depraved mind murder
rendered his trial fundamentally unfair. See James v. Gibson, 211 F.3d 543, 555 (10th
Cir. 2000). Accordingly, Petitioner’s third ground for relief is denied.
16
Ground 4:
Impartial Jury Claim.
Petitioner claims the prosecution utilized four of its nine peremptory
challenges to remove venire persons without sufficient race neutral reasons and that
the trial court’s acceptance of the reasons and dismissal of those prospective jurors
was a violation of his Fifth, Sixth, and Fourteenth Amendment rights as provided in
Batson v. Kentucky, 476 U.S. 79 (1986).
In Batson, the Supreme Court held that although a prosecutor ordinarily is
entitled to exercise permitted peremptory challenges “‘for any reason at all, as long
as that reason is related to his view concerning the outcome’ of the case to be tried,
. . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors
solely on account of their race or on the assumption that black jurors as a group will
be unable impartially to consider the State’s case against a black defendant.” Id. at
89 (internal citations omitted).
Subsequently, the Supreme Court articulated
Batson’s three-step process for evaluating claims that a prosecutor used peremptory
challenges in violation of the Equal Protection Clause:
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race. 476 U.S., at 96-97,
106 S.Ct. 1712. Second, if that showing has been made, the
prosecution must offer a race-neutral basis for striking the juror in
question. Id., at 97-98, 106 S.Ct. 1712. Third, in light of the parties’
submissions, the trial court must determine whether the defendant has
shown purposeful discrimination. Id., at 98, 106 S.Ct. 1712.
Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003).
On appeal, Petitioner raised his claim as to four minority veniremen excused
by the prosecution’s use of its peremptory challenges. Petitioner asserts his claim
here, however, only as to one venire person, stating “[d]ue to the limitations of the
AEDPA only the peremptory strike as to juror Carol Gray is being pursued in this
Petition.” (Pet. at 39) The OCCA identified Batson as controlling authority and set
17
forth its three part inquiry, analyzed all four of Petitioner’s claims, and denied relief.
Harris, 84 P.3d at 743. As to the claim raised here, the OCCA stated:
The prosecutor moved to strike Ms. Gray because
her answers to questions were unclear, and because she
made several comments suggesting she would be
sympathetic to Appellant’s defense. Appellant’s claim
that the prosecutor deliberately asked Ms. Gray confusing
questions is not supported by the record. Ms. Gray stated
that in her opinion, people who acted under the influence
of alcohol were less responsible for their actions. The
prosecutor’s concern about Ms. Gray’s ability to
assimilate the facts and follow the law was a plausible,
race-neutral reason for removing her. In conclusion, we
find no evidence that the prosecutor’s stated reasons for
striking these panelists were so fantastic or incredible as
to warrant relief. Proposition 8 is denied.5
Harris, 84 P.3d at 743.
“The disposition of a Batson claim is a question of fact....” Saiz v. Ortiz, 392
F.3d 1166, 1175 (10th Cir. 2004). As long as the state court applied Batson,
Petitioner is entitled to relief only if the state court’s rejection of his claim “was ‘an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.’ ” Black v. Workman, 682 F.3d 880, 896 (10th Cir. 2012)(quoting
28 U.S.C. § 2254(d)(2)).
Petitioner challenges the removal of Ms. Gray claiming that the prosecutor
utilized a peremptory challenge to excuse her because she was a black woman. The
prosecutor’s expressed reasons for excusing Ms. Gray included Ms. Gray’s inability
5
As an initial matter, we note that Appellant is Caucasian, his victims were Caucasian,
and that there were no identifiable race-related issues in the trial itself; that one of the panelists
complained of here (Ms. King) was not, according to the trial court, of a minority race; that several
members of the final jury panel were of a minority race; and that the prosecutor did not use every
peremptory challenge to remove a minority panelist. (Footnote 8 original)
18
to understand many of the questions presented to her and her multiple nonresponsive answers.
The prosecutor’s reasons for exercising a peremptory
challenge, and the trial court’s acceptance of those stated reasons, are supported by
review of the record. Many of Ms. Gray’s responses to pointed questions were
often confusing. When asked what things in life caused her to think about the death
penalty, Ms. Gray’s response reflected thought about guilt and innocence as well as
statements regarding the media’s inaccurate reporting of facts. She did not respond
concerning the death penalty. (Tr., Vol. 3, pp. 150-51) When asked whether in her
opinion Timothy McVeigh deserved the death penalty, Ms. Gray responded: “I only
know by people that were there that told me. They would tell me something that
were actually there. They couldn’t have seen everything, just certain. They, you
know, were here at the same time. They just tell me about their situation.” (Id.)
Ms. Gray responded to almost every question presented to her about the whether she
could impose the death penalty as a sentence by referring to evidence and the fact
that she did not know all the details prevented her from knowing if any sentence of
death had ever been appropriate or justified. (Tr., Vol. 3, pp. 147-51) Ms. Gray
further stated that in her opinion people under the influence of alcohol were less
responsible for their actions because they were not aware of what they were doing.
(Tr., Vol. 3, pp. 161-62)
The prosecutor provided several race-neutral reasons to strike Ms. Gray from
serving on the jury. The OCCA determined from its review that the prosecutor’s
concern about Ms. Gray’s ability to assimilate the facts and follow the law was
plausible, and that there was no evidence to support granting Petitioner’s claim for
relief. Petitioner has not satisfied his burden of demonstrating that the OCCA’s
determination was either contrary to, or an unreasonable application of, clearly
established federal law, nor has he demonstrated that the OCCA’s determination was
19
an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. Accordingly, Petitioner’s claim for relief is denied.
Ground 5:
Ineffective Assistance of Appellate Counsel in 2001 Direct Appeal.
Petitioner claims he was denied effective assistance of appellate counsel in his
2001 direct appeal when propositions of error were not presented regarding
prosecutorial misconduct in the first stage of trial, failure to claim ineffective
assistance of trial counsel for not obtaining micro-cassette tapes, failure by appellate
counsel to interview jurors and raise the issue of ineffective assistance of trial
counsel regarding Petitioner being seen by the jury wearing restraints, and failure to
raise the claim on appeal that the trial court did not instruct the jury the prosecution
must prove beyond a reasonable doubt the absence of heat of passion.
To prevail on a claim of ineffective assistance of counsel under the Sixth
Amendment, Petitioner must first show that his counsel “committed serious errors
in light of ‘prevailing professional norms’” in that the representation fell below an
objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668,
688 (1984). In so doing, Petitioner must overcome the “strong presumption” that
his counsel’s conduct fell within the “wide range of reasonable professional
assistance” that “‘might be considered sound trial strategy,’” Strickland, 466 U.S. at
689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). He must, in other
words, overcome the presumption that his counsel’s conduct was constitutionally
effective. United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993). A claim
of ineffective assistance “must be reviewed from the perspective of counsel at the
time,” Porter v. Singletary, 14 F.3d 554, 558 (11th Cir.), cert. denied, 513 U.S. 1009
(1994), and, therefore, may not be predicated on “‘the distorting effects of
hindsight.’”
Parks v. Brown, 840 F.2d 1496, 1510 (10th Cir. 1987), quoting
Strickland, 466 U.S. at 689.
20
If constitutionally deficient performance is shown, Petitioner must then
demonstrate that “there is a ‘reasonable probability’ the outcome would have been
different had those errors not occurred.”
Haddock, 12 F.3d at 955; citing
Strickland, 466 U.S. at 688, 694; Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993).
In the specific context of a challenge to a death sentence, the prejudice component
of Strickland focuses on whether “the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death.”
Strickland, 466 U.S. at 695; quoted in Stevens v. Zant, 968 F.2d 1076, 1081 (11th
Cir. 1992), cert. denied, 507 U.S. 929 (1993). Petitioner carries the burden of
establishing both that the alleged deficiencies unreasonably fell beneath prevailing
norms of professional conduct and that such deficient performance prejudiced his
defense. Strickland, 466 U.S. at 686; Yarrington v. Davies, 992 F.2d 1077, 1079
(10th Cir. 1993).
In essence, “[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland, 466 U.S. at 686. “Counsel’s performance must
be ‘completely unreasonable’ to be constitutionally ineffective, ‘not merely
wrong.’” Welch v. Workman, 639 F.3d 980, 1011 (10th Cir. June 7, 2010)(quoting
Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997)).
“Surmounting
Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371,
130 S.Ct. 1473, 1485 (2010).
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,”
[Strickland] at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320,
333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two
apply in tandem, review is “doubly” so, Knowles, 556 U.S., at 123, 129
S.Ct. at 1420. The Strickland standard is a general one, so the range
of reasonable applications is substantial. 556 U.S., at 123, 129 S.Ct. at
21
1420 . Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness
under § 2254(d). When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s deferential
standard.
Harrington v. Richter, 562 U.S. 86, 105 (2011).
Demonstrating deficient performance of appellate counsel can often be more
difficult:
In Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987
(1983), we held that appellate counsel who files a merits brief need not
(and should not) raise every nonfrivolous claim, but rather may select
from among them in order to maximize the likelihood of success on
appeal. Notwithstanding Barnes, it is still possible to bring a Strickland
claim based on counsel’s failure to raise a particular claim, but it is
difficult to demonstrate that counsel was incompetent. See, e.g., Gray
v. Greer, 800 F.2d 644, 646 (C.A.7 1986) (“Generally, only when
ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome”).
Smith v. Robbins, 528 U.S. 259, 288 (2000).
In analyzing an appellate ineffectiveness claim based upon the failure to raise
an issue on appeal, “we look to the merits of the omitted issue,” Neill v. Gibson, 278
F.3d 1044, 1057 (10th Cir.2001).
If the omitted issue is so plainly meritorious that it would have been
unreasonable to winnow it out even from an otherwise strong appeal,
its omission may directly establish deficient performance; if the omitted
issue has merit but is not so compelling, the case for deficient
performance is more complicated, requiring an assessment of the issue
relative to the rest of the appeal, and deferential consideration must be
given to any professional judgment involved in its omission; of course,
if the issue is meritless, its omission will not constitute deficient
performance. See, e.g., Smith [v. Robbins], 528 U.S. [259], 288, 120
S.Ct. 746; Banks v. Reynolds, 54 F.3d 1508, 1515-16 (10th Cir. 1995);
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
22
Cargle v. Mullin, 317 F.3d 1196, 1202-03 (10th Cir. 2003).
1. Failure to present a prosecutorial misconduct claim.
Petitioner claims appellate counsel was ineffective for failing to raise a claim
of prosecutorial misconduct. He claims the prosecutor improperly denigrated the
defense, defense counsel, defense witnesses, and made improper comments during
cross-examination.
Petitioner raised this claim in his 2005 post-conviction
proceeding. After the OCCA noted that appellate counsel is not required to raise
every non-frivolous claim, the OCCA determined Petitioner’s claim did not form the
basis of a finding of ineffective assistance of appellate counsel:
Harris first argues appellate counsel should have claimed that
prosecutorial misconduct occurred in the first stage of Harris’s trial. A
thorough review of the record does not support Harris’s claims. He
first cites instances where, he claims, the prosecutor denigrated the
defense, defense counsel and witnesses, and made improper comments
to the jury. Many of the prosecutor’s statements or questions were
proper: Harris’s objections to some improper questions were sustained;
and Harris fails to show how he was prejudiced by comments which
might have crossed the line. Harris also argues that the prosecutor
attempted to incite societal alarm by referring to the missing murder
weapon. Specific references to evidence relevant to this case, or
Harris’s own actions regarding potential evidence, do not constitute
societal alarm. Harris suggests that the alleged misconduct in first
stage closing argument amounts to structural error. Without engaging
in an analysis of structural error, the record does not support his
suggestion that this argument contained errors which prejudiced Harris;
thus, the argument certainly could not have constituted structural error.
Harris has not demonstrated prejudice from appellate counsel’s failure
to raise first stage prosecutorial misconduct, and this claim cannot form
the basis for a finding of ineffective assistance of appellate counsel.
Harris, 167 P.3d at 442.
The deferential standard of review under 28 U.S.C. § 2254(d) is required since
the OCCA adjudicated Petitioner’s prosecutorial misconduct claim on the merits.
23
See Walker v. Gibson, 228 F.3d 1217, 1241 (10th Cir. 2000), abrogated on other
grounds by Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001). Petitioner does
not demonstrate that the asserted prosecutorial misconduct denied him a specific
constitutional right.
The appropriate standard for a prosecutorial misconduct
habeas claim, therefore, is “‘the narrow one of due process, and not the broad
exercise of supervisory power.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). Accordingly, “it
is not enough that the prosecutor’s remarks were undesirable or even universally
condemned.” Darden, 477 U.S. at 181 (citation omitted). A prosecutor’s improper
remarks require reversal of a conviction or sentence only if the remarks “so infected
the trial with unfairness as to make the resulting conviction a denial of due process.”
Donnelly, 416 U.S. at 643, 645 (1974). The fundamental fairness inquiry requires
an examination of the entire proceedings and the strength of the evidence against the
petitioner, both as to the guilt stage and the sentencing phase. Id. at 643.
As stated by the OCCA, a majority of the complained of questions by the
prosecutor were proper and addressed discrepancies in the testimony of witnesses
and the Petitioner.
Further, as to any comments directed toward Petitioner’s
defense, experts testified Petitioner had borderline mental functioning that would
have diminished his capacity to reason and solve problems. The jury was aware of
this testimony, and any claimed “denigration” of Petitioner’s defense by the
prosecution would cause little to no prejudice compared to the information and
opinions provided by both sides’ experts and additional facts and testimony
presented at trial.
Most importantly, Petitioner has not demonstrated the
complained of comments by the prosecutor so infected the trial with unfairness as to
rise to a denial of due process.
24
Appellate counsel is not required to raise every non-frivolous claim, and the
fact appellate counsel did raise a second stage prosecutorial claim is suggestive of a
thorough review of the record and reasoned determination in support of a strategic
decision to not include a first stage prosecutorial claim. Petitioner has failed to
demonstrate the OCCA’s determination was contrary to, or an unreasonable
application of, clearly established Supreme Court law.
2. Trial counsel’s failure to obtain micro-cassette tapes.
Petitioner next claims ineffective assistance of appellate counsel for failing to
raise the claim of trial counsel ineffectiveness. Petitioner claims trial counsel was
ineffective for failing to conduct pre-trial discovery to obtain micro-cassette tapes
belonging to Petitioner. The tapes were seized out of Petitioner’s van pursuant to a
search warrant and reportedly contained recorded conversations between Petitioner
and his wife regarding what property she agreed he could take from their house upon
their separation. Petitioner argues the tapes were relevant to show he was acting in
conformity with their agreement and that Ms. Harris’s failure to live up to that
agreement and the withholding of his tools was the provocation that led to Petitioner
going to Ms. Harris’s place of business on the day of the homicide. Petitioner
claims trial counsel knew the tapes were material and was ineffective for failing to
formally request the tapes and for failing to issue a subpoena duces tecum to Ms.
Harris.
Harris next argues that appellate counsel failed to claim trial
counsel was ineffective. He fails to show that he was prejudiced by
appellate counsel’s omission. None of these separate claims of
ineffective assistance of trial counsel, which were not raised on Harris’s
direct appeal, form a basis for a finding of ineffective assistance of
appellate counsel.
Harris first argues that counsel failed to find or produce
microcassette tapes which he alleges were seized by the State in
25
Harris’s van. Harris raises the issue of these tapes in his motion for
discovery as well. He argues the tapes, allegedly a record of his
conversations with his wife Pam concerning what he could take from
their home, would show he was acting in accordance with her wishes
when he moved certain things from the house. Harris suggests this
would have explained why he was so angry when Pam locked up his
tools after he moved. Even if this were true, it completely fails to
account for the evidence showing Harris took other things which Pam
testified were not part of that agreement, and that Harris also defaced
the home as he left. In addition, this evidence goes to Harris’s
relationship with Pam and his reason for being at the AAMCO
transmission shop. However, Harris killed a third party, with whom
he had no quarrel. Harris fails to show how introduction of the
microcassette tapes would have resulted in a different outcome.
Harris, 167 P.3d at 442.
Petitioner testified he had taped several conversations between himself and
Ms. Harris about the division of their marital property. Two other witnesses,
Petitioner’s daughter and Petitioner’s brother, testified they had listened to the tapes.
Petitioner’s brother testified Ms. Harris stated on the tapes that Petitioner could take
everything in the house except a couple of large items of furniture and her family
photographs.
Subsequent to the recording of these conversations, Ms. Harris obtained a
court order giving her the house and all of its contents. The court also verbally
ordered Petitioner not to remove anything from the house. Petitioner took items
from the house and put them in a storage unit. Ms. Harris, thereafter, obtained a
court order to lock the storage unit. The day before, and the day of, the murder
Petitioner demanded Ms. Harris remove the lock. Petitioner blamed the shootings
on her failure release the property in the storage unit he believed to belong to him.
Petitioner has not demonstrated how trial counsel was deficient for failing to
obtain the tapes or how he was prejudiced by their absence. Extensive testimony
26
was received explaining the contents of the recorded conversations, as well as the
subsequent legal proceedings regarding the marital property. Petitioner learned of
the court-ordered lock on the storage unit five days before the murder. Although
Petitioner testified he blamed the shootings on Ms. Harris’s failure to give him his
property from the storage unit, he has not demonstrated, especially in light of the
court orders concerning the property, what additional information not presented at
trial was contained on the tapes or how they would have supported legal provocation
regarding the murder of a third person.
As the claim of ineffective assistance of trial counsel in insufficient to warrant
relief, appellate counsel cannot be determined ineffective for failing to raise the
claim on appeal. Petitioner has not demonstrated the OCCA’s determination to be
contrary to, or an unreasonable application of, clearly established federal law as
determined by the Supreme Court.
3. Failure to interview jurors.
Petitioner claims appellate counsel was ineffective for failing to interview and
investigate jurors from his first trial. He contends had counsel conducted interviews
it would have been discovered that the jurors saw Petitioner in handcuffs, and that
failure to do so was deficient performance. He asserts that one juror stated the
jurors who came to court early would see Petitioner being escorted in handcuffs from
the elevator to the courtroom, and that upon the pronouncement of the guilty verdict
a deputy sheriff “popped out his handcuffs and they made such a loud noise that
everyone on the jury and in the courtroom jumped.” (Pet. at 64)
Harris argues that appellate counsel should have claimed trial counsel
was ineffective because jurors at his first trial saw Harris in restraints
as he was escorted to and from the courtroom and after the guilty verdict
was pronounced. While Harris likens this to cases in which a person
is tried while shackled, the record shows that Harris was not tried while
27
in restraints. He fails to show any prejudice from any inadvertent view
of him handcuffed before trial.
Harris claims appellate counsel was ineffective for failing to interview
Harris’s jurors from the first trial. He suggests appellate counsel
would have discovered that some jurors saw Harris in handcuffs.
Harris completely fails to show how he was prejudiced by this
omission; nor does he show that, as a matter of prevailing professional
norms, appellate counsel must interview every trial juror.
Harris, 167 P.3d at 442-43 (footnote omitted).
Petitioner’s reliance on Deck v. Missouri, 544 U.S. 622 (2005), is misplaced.6
Deck held that the use of visible shackles during the guilt and penalty phase of trial
was forbidden unless it was “‘justified by an essential state interest’ – such as the
interest in courtroom security – specific to the defendant on trial.” Id. at 629. The
juror’s affidavit provided by Petitioner states Petitioner was seen coming off of the
elevator in handcuffs and that the handcuffs were never seen being used during trial.
(Petitioner’s Exhibit 9)
Secondly, securing a criminal defendant while being
transported to the courtroom serves a reasonable state security interest.
Petitioner has not demonstrated that a juror’s brief glimpse of a defendant in
handcuffs outside of the courtroom is fundamentally prejudicial. Nor has Petitioner
demonstrated the OCCA’s determination of the absence of both deficient
performance and of prejudice was unreasonable.
4. Failure to instruct that State must prove absence of heat of passion.
Petitioner next claims appellate counsel was ineffective for failing to assert on
direct appeal that a defense to first-degree murder is an affirmative defense of heat
6
The Supreme Court decided Deck in 2005 — after Petitioner’s trial and direct appeal –
and cannot, therefore, be considered in support of prevailing professional norms of appellate
counsel.
28
of passion, and that the jury should have been instructed that the State had the burden
of proving the absence of heat of passion beyond a reasonable doubt.
Petitioner raised his ineffective assistance of appellate counsel claim on postconviction:
Harris next claims that appellate counsel was ineffective for failing to
raise as error several rulings of the trial court. He first claims the trial
court should have instructed jurors that the affirmative defense of heat
of passion is a defense to murder in the first degree. This jury
instruction was not adopted until 2006, several years after Harris’s trial.
Beyond claiming that he “is not guilty of malice murder”, [Application
at 35] Harris fails to show any prejudice from the lack of this
instruction.
Harris, 167 P.3d at 443.
In Mullaney v. Wilbur, 421 U.S. 684 (1975), the Supreme Court, construing
a Maine murder statute allowing any intentional or criminally reckless killing to be
punished as murder unless the defendant proves that it was committed in the heat of
passion on sudden provocation, in which case it is punished as manslaughter, stated
that “the Due Process Clause requires the prosecution to prove beyond a reasonable
doubt the absence of the heat of passion on sudden provocation when the issue is
properly presented in a homicide case.” Id. at 704.
Two years after issuing the decision in Mullaney, however, the
Supreme Court clarified that its holding should be narrowly construed.
In Patterson v. New York, 432 U.S. 197, 214, 97 S.Ct. 2319, 53 L.Ed.2d
281 (1977), the defendant argued that Mullaney prohibited a state from
permitting guilt or punishment “to depend on the presence or absence
of an identified fact without assuming the burden of proving the
presence or absence of that fact, as the case may be, beyond a
reasonable doubt.” The Court rejected that interpretation. Although
it acknowledged that Mullaney requires a state to prove “every
ingredient of an offense beyond a reasonable doubt” and prohibits a
state from “shift[ing] the burden of proof to the defendant by presuming
that ingredient upon proof of the other elements of the offense,” the
29
Court declared it “unnecessary” to have gone further in Mullaney. Id.
at 215, 97 S.Ct. 2319. Patterson thereby limited Mullaney to situations
where a fact is presumed or implied against a defendant. See id. at 216,
97 S.Ct. 2319; United States v. Molina-Uribe, 853 F.2d 1193, 1203-04
(5th Cir. 1988), overruled in part on other grounds by United States v.
Bachynsky, 934 F.2d 1349 (5th Cir. 1991) (en banc). Because the
written instructions did not permit the jury to presume malice
aforethought, required the State to prove malice aforethought beyond a
reasonable doubt, and defined malice and heat of passion as mutually
exclusive, the instructions provided to the jury in Mr. Bland’s case did
not violate Patterson. See Davis v. Maynard, 869 F.2d 1401, 1406-07
(10th Cir. 1989) (rejecting a Mullaney challenge to substantially similar
jury instructions), vacated sub nom., Saffle v. Parks, 494 U.S. 484, 110
S.Ct. 1257, 108 L.Ed.2d 415 (1990), opinion reinstated in part, 911 F.2d
415 (10th Cir. 1990) (per curiam).
Bland v. Sirmons, 459 F.3d 999, 1013 (10th Cir. 2006).
Petitioner relies on U.S. v. Lofton, 776 F.2d 918 (10th Cir. 1985), to support
his claim that in state court, as in federal criminal trials, a defendant is entitled to an
instruction on heat of passion as a defense. This claim was also raised in Bland,
supra, and rejected by the Tenth Circuit, stating:
If this Court’s decision in Lofton were controlling, Mr. Bland might
well be entitled to relief. Under the AEDPA standard of review,
however, a habeas petition shall not be granted unless the state-court
decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1) (emphasis added). The
decisions of lower federal courts applying Supreme Court precedent are
not determinative, see Williams, 529 U.S. at 406, 120 S.Ct. 1495, and
in this case the lower federal courts have in fact divided as to the proper
scope of Mullaney after Patterson. Compare Lofton, 776 F.2d at
920-21, with Molina-Uribe, 853 F.2d at 1203-04. Because the
OCCA’s decision reasonably applies the correct legal rule from
Mullaney, as the Supreme Court construed that rule in Patterson, the
OCCA decision is neither contrary to, nor an unreasonable application
of, clearly established Supreme Court precedent, notwithstanding the
interpretation of that rule in this Circuit.
30
Bland, 459 F.3d at 1014.
Petitioner had failed to demonstrate the OCCA’s determination to be contrary
to, or an unreasonable application of, clearly established federal law as determined
by the Supreme Court. Petitioner’s fifth ground for relief is denied in its entirety.
Ground 6:
Cumulative Error.
Petitioner next claims that more than one constitutional error occurred in the
first stage of his trial and this Court should consider those errors cumulatively and
grant habeas relief.
It is true as a general principle of law that “[t]he cumulative effect of two or
more individually harmless errors has the potential to prejudice a defendant to the
same extent as a single reversible error.” United States v. Oberle, 136 F.3d 1414,
1423 (10th Cir. 1998)(quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th
Cir. 1990)). However, “‘[a] cumulative-error analysis merely aggregates all the
errors that individually have been found to be harmless, and therefore not reversible,
and it analyzes whether their cumulative effect on the outcome of the trial is such
that collectively they can no longer be determined to be harmless.’ The analysis,
however, ‘should evaluate only the effect of matters determined to be error, not the
cumulative effect of non-errors.’” Id. (quoting Rivera, 900 F.2d at 1470-71). See
also Newsted v. Gibson, 158 F.3d 1085, 1097 (10th Cir. 1998); Castro v. Ward, 138
F.3d 810, 832-33 (10th Cir. 1998); United States v. Trujillo, 136 F.3d 1388, 1398
(10th Cir. 1998).
“In death penalty cases, we review whether the errors so infected the trial with
unfairness as to make the resulting conviction a denial of due process, or rendered
the sentencing fundamentally unfair in light of the heightened degree of reliability
demanded in a capital case.” Wilson v. Sirmons, 536 F.3d 1064, 1122 (10th Cir.
2008).
31
Upon review of the entire trial transcript and the evidence and testimony
presented, the Court does not find the cumulation of those errors determined to be
harmless had a “substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Because this Court has
concluded that no error occurred during the first stage of trial, the only matters
considered here are the errors found by the OCCA. The error regarding the trial
court’s instruction on the defense of mental retardation found by the OCCA does not
constitute constitutional error, but rather an error of state law. Cumulative error
analysis applies only to constitutional errors. Young v. Sirmons, 551 F.3d 942, 972
(10th Cir. 2008). The other errors regarding comments made by the prosecutors
were of minor. See Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir. 2000)(“courts must
be careful not to magnify the significance of errors which had little importance”).
The errors were not so egregious or numerous as to prejudice Petitioner to the same
extent as a single reversible error. The cumulative effect of the errors, when
compared with the evidence and testimony presented at trial, did not significantly
strengthen the state’s case or diminish Petitioner’s case. No reasonable probability
exists that the jury would have acquitted Petitioner absent the errors. Accordingly,
Petitioner’s sixth ground for relief is denied.
Ground 7:
Ineffective Assistance of Trial and Appellate Counsel in 2005 Penalty
Re-Trial and First Direct Appeal.
Petitioner claims trial counsel was ineffective for failing to investigate and
then to seek a pre-trial determination that Petitioner was mentally retarded and thus
ineligible for the death penalty.7 As set forth in Ground 5, to prevail on a claim of
7
The Court acknowledges that “[i]n 2006, the American Association on Mental
Retardation [ ] changed its name to the American Association on Intellectual and Developmental
Disabilities [ ]. ‘Intellectual disability,’ rather than ‘mental retardation,’ is now the preferred
terminology. [Citation omitted.] Also, previously enacted federal legislation known as Rosa’s
32
ineffective assistance of counsel, Petitioner must overcome the strong presumption
of reasonable professional assistance and demonstrate both deficient performance
and resulting prejudice viewed in light of prevailing professional norms.
See
Strickland, 466 U.S. at 689. In the instant case, Petitioner must also demonstrate
the determination of the OCCA to be contrary to, or an unreasonable application of,
clearly established federal law as determined by the Supreme Court. 28 U.S.C.
§ 2254(d).
Petitioner raised this issue on appeal from his resentencing trial. After setting
forth the requirements of Strickland and its progeny for evaluating an ineffectiveness
claim, the OCCA determined that no prejudice resulted from counsel’s failure to
request a pre-trial determination of mental retardation:
A capital defendant who wishes to claim mental retardation must
raise that claim with the trial court before the trial begins. A threshold
requirement for such a claim is one IQ test of 70 or below; such a test
will not itself guarantee a finding of mental retardation but may begin
the process by which the court determines whether a defendant is
mentally retarded. Harris had two IQ test scores, obtained during the
pretrial process, of 66 and 68. He complains that counsel did not use
these scores to initiate this process and attempt to determine whether he
was mentally retarded before trial began. Harris argues that, given his
test scores, if counsel had asked for a hearing to determine mental
retardation the trial court would have been required to hold that hearing.
At that hearing Harris might or might not have been found mentally
retarded, but if he were found to be retarded, he would avoid the death
penalty. Thus, Harris claims, he had nothing to lose and everything to
gain by raising the issue, and counsel was ineffective for failing to do
so.
Law, Pub.L. No. 111–256, 124 Stat. 2643 (2010), mandates the use of the term ‘intellectual
disability’ in place of ‘mental retardation’ in all federal enactments and regulations. Nonetheless,
throughout this opinion, the Court will use the old terminology because the legal sources relevant
to its analysis, including Oklahoma law, prior opinions, and the opinions of the Supreme Court,
use the terms ‘mental retardation’ and ‘mentally retarded.’ ” Howell v. Trammell, 728 F.3d 1202,
1206 n.1 (10th Cir. 2013), quoting Hooks v. Workman, 689 F.3d 1148, 1159 n. 1 (10th Cir. 2012).
33
Harris cannot show he was prejudiced by counsel’s failure. To
prevail on a pretrial claim of mental retardation, Harris would have to
show (1) significantly subaverage intellectual functioning; (2)
manifested before the age of 18; (3) accompanied by significant
limitations in adaptive functioning in at least two of nine enumerated
skill areas. All the evidence in the record, including the evidence from
the first trial and competency hearing, indicates that Harris could not
meet this test. Despite these two IQ scores, all Harris’s other IQ scores
were over 70. All Harris’s experts, including the ones who testified at
his first trial and competency hearing, considered these scores along
with Harris’s other characteristics and concluded he was not mentally
retarded.8 Harris’s expert, Dr. Draper, testified at his trial that he was
not mentally retarded. She and other experts stated in this and other
proceedings that Harris was “slow” or of low intelligence, but all agreed
that his employment history, aptitude as a transmission mechanic, and
other characteristics were not those of a mentally retarded person.
Harris argues that this Court cannot dispose of this claim using
the prejudice analysis above. He admits the test for ineffective
assistance of counsel is whether there is a reasonable probability that,
but for counsel’s unprofessional errors, the results of the trial would
have been different. Regarding this claim, the different result would
have been a finding of mental retardation and ineligibility for the death
penalty. Thus, the Court is required to review the record to see
whether, had counsel requested a hearing, Harris would have prevailed
on his claim of mental retardation. There is no support in the record
for such a conclusion. However, Harris argues that only a jury, not
this Court, may make a determination of a defendant’s possible
mentally retarded status under any circumstances. Harris has
misunderstood this Court’s jurisprudence on this issue. In a series of
cases involving retroactive capital post-conviction procedures, this
Court has declined to make an initial finding of fact regarding mental
retardation, remanding for jury determination the question of whether
a capital defendant, convicted and currently on Death Row, is mentally
8
“One expert did testify at the competency hearing that, based on the two low scores, he
believed he had to say Harris was mildly mentally retarded, but that was not his conclusion after
examining Harris and he found the scores surprising.” (n. 55 in original).
34
retarded. That is not the issue here. The issue is whether, on this
record, Harris’s counsel was ineffective for failing to ask for a pretrial
determination of mental retardation. Nothing in this record shows
that, had counsel made that request, evidence would have shown by a
preponderance of the evidence that Harris was mentally retarded.
There is a great deal of evidence in the record to show otherwise,
including the opinion of several experts who testified that Harris was
not mentally retarded. We cannot conclude there was a reasonable
probability that, but for counsel’s omission, the results of this
resentencing proceeding would have been different.
Harris, 164 P.3d at 1115-16 (footnotes omitted - except n. 55 in original).9
This Court’s review is not to determine whether the OCCA’s determination
was incorrect or wrong. Rather, it is to determine if it was unreasonable to find trial
counsel was not ineffective. Petitioner argues trial counsel failed to conduct a
reasonable investigation and failed to request a trial to present evidence establishing
mental retardation. He claims trial counsel should have retained a psychologist to
test and assess retardation, that the psychologist would have provided an intelligence
quotient (IQ) test result similar to the one submitted on direct appeal – an IQ of 6775 – and would have also explained standard errors of measurement and the “Flynn
Effect” and their impact on IQ scores. He further argues that the second and third
prong of the standard for determination of mental retardation, manifestation before
the age of 18 and significant limitations in adaptive functioning, have been met
through expert testimony presented in his 2001 trial.10
9
“We found in Propositions I and II that counsel was not ineffective for failing to claim
Harris was mentally retarded, or for failing to present the evidence of mental status and mental
illness raised in his first trial and competency proceedings. Relying on the issues raised in
Propositions I and II, Harris claims that counsel failed to independently investigate the case as
previously developed in order to satisfactorily conclude that the extant evidence was viable and
reliable. This appears to be speculation, as the record does not support this allegation.” Id. at
1118.
10
In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court declared the execution
of mentally retarded individuals unconstitutional. Although the Court set out some guidelines for
35
The issue, however, is whether the OCCA was unreasonable in concluding
counsel’s performance did not result in prejudice. Review of the record shows
Petitioner’s first IQ test at age seven resulted in a score of 87. Although he
subsequently was retested in 2000 and 2001 with scores below 70, testimony was
presented questioning those test results as having been influenced by decades of drug
and alcohol abuse along with the stress of incarceration and mental illness with
accompanying hallucinations and delusions. One additional test administered at
Eastern State Hospital in 2001 resulted in a test score of 75.
This test was
administered in a more therapeutic environment and at a time when Petitioner was
not abusing alcohol and his psychoses were controlled.
Petitioner testified at his first trial. The record reflects that he was coherent,
responsive, and demonstrated a strong vocabulary with a good memory for details.
The OCCA found Petitioner’s testimony showed his ability to process and
understand information, communicate well, and to engage in logical reasoning.
Howell v. State, 138 P.3d 549, 564 (Okla. Crim. App. 2006).
Considerable
evidence was also presented at his first trial contrary to allegations of significant
limitations in adaptive functioning. Testimony from both lay and expert witness
was presented regarding Petitioner’s ability to be self-directed, of his ability to
diagnose and re-build transmissions, his lengthy work history, and his ability to care
for himself and for others.
such determination, it left to the states to decide what criteria to use to determine who is mentally
retarded. In Murphy v. State, 54 P.3d 556 (Okla. Crim. App. 2002), the OCCA followed the
Atkins’ guidelines and held that person is mentally retarded if (1) he or she functions at a
significantly sub-average intellectual level, (2) that such mental retardation manifested itself
before the age of eighteen, and (3) the mental retardation is accompanied by significant limitations
in adaptive functioning in at least two of nine enumerated skill areas. The OCCA further held
that no person shall be eligible to be considered mentally retarded unless he or she has an IQ of
seventy or below as reflected by at least one scientifically recognized and approved contemporary
intelligent quotient test. Id. at 567-68.
36
Based on the record available to the state court, the OCCA’s determination
that Petitioner was not prejudiced – and thus counsel was not ineffective – by trial
counsel’s failure to request a pre-trial determination of mental retardation was
neither contrary to or an unreasonable application of clearly established federal law,
nor an unreasonable determination of facts in light of the evidence presented.
Accordingly, Petitioner’s seventh claim for relief is denied.
Ground 8:
Ineffective Assistance of Trial Counsel Regarding Mental Illness and
Impairment Evidence in 2005 Penalty Retrial.
Petitioner next claims trial counsel was ineffective for failing to present
mitigating evidence that he suffers from mental illness and for failing to present
expert testimony to rebut the continuing threat aggravating circumstance.
appeal from Petitioner’s re-sentencing trial, the OCCA held:
In Proposition II Harris claims that trial counsel was ineffective
for failing to present evidence of diminished mental capacity and
probable mental illness. This evidence was available to counsel or
easily discoverable, and much of it was presented at Harris’s first trial.
Trial counsel has a duty to investigate and present relevant mitigating
evidence. However, where counsel makes an informed decision to
pursue a particular strategy to the exclusion of other strategies, this
informed strategic choice is “virtually unchallengeable”. We have
noted that among counsel’s basic duties is “to make informed choices
among an array of alternatives, in order to achieve the best possible
outcome for the client.” The United States Supreme Court has found
counsel ineffective where the failure to thoroughly investigate and
present mitigating evidence “resulted from inattention, not reasoned
strategic judgment.”
At Harris’s resentencing trial, defense counsel presented
mitigating evidence through Harris’s sister, brother, former co-worker
and employer, son-in-law, and two daughters. His most extensive
mitigating evidence was presented through Dr. Draper, an expert
witness in developmental analysis. Dr. Draper testified extensively
regarding the developmental processes that led Harris to commit these
37
On
crimes. She began by discussing his tumultuous and abusive
childhood. She described his medical problems throughout childhood
as well as his learning disabilities, low intelligence, and academic and
social problems in school, including schoolyard fights. Dr. Draper
described how, during Harris’s teenage years, his father taught him to
be a transmission mechanic but also taught him to use drugs and alcohol
regularly. Dr. Draper discussed the very negative effect on Harris of
his mother’s lingering death from cancer, the death of his grandparents,
and the family’s separation. She testified regarding Harris’s brief first
marriage. Dr. Draper noted that Harris’s first wife had alleged he was
abusive and filed for a victim’s protective order and divorce, but said
Harris’s first wife told her that Harris did not abuse her and she had said
otherwise because she wanted to leave him. Dr. Draper told jurors of
Harris’s attempt at suicide when his first wife left him. She explained
that for several years Harris and Pam had custody of his daughters, and
described his love for his daughters as well as his inability to engage
emotionally as a parent. She described his relationship with Pam,
including a mutual pattern of verbal and emotional abuse. Dr. Draper
showed jurors how Harris depended on Pam emotionally and
professionally.
Throughout her testimony Dr. Draper emphasized that Harris’s
chaotic and troubled background resulted in extreme emotional
instability. She discussed how his low intelligence and chronic
substance abuse contributed to his inability to handle stress or resolve
problems. She described Harris’s reliance on Pam, and his feelings of
despair and devastation when Pam left him. Dr. Draper also
emphasized Harris’s anger at his situation, and at the loss of his tools,
and his inability to control or appropriately express his anger. She
testified that this inability was caused by Harris’s immaturity,
emotional instability, poor judgment, and confusion. She noted his
expressions of remorse for Merle Taylor’s death, while agreeing that
Harris still blamed Pam for leaving him and causing him to commit the
crimes. She discussed psychological methods of predicting future
violence, and testified that in a controlled environment, medicated,
without access to controlled substances and without a romantic partner,
she did not believe Harris would be dangerous. Dr. Draper testified
that Harris had been diagnosed as mentally ill and was on psychotropic
medications in jail. She stated that she did not further explore the area
38
of mental illness because those diagnoses had been made after the
crimes occurred, and her focus was on explaining Harris’s actions and
symptoms of underlying difficulties which led to the crimes.
However, her observations of Harris’s behavior were consistent with
the diagnoses.
After Dr. Draper testified, counsel attempted to have a
representative from the jail testify regarding the medications Harris
took for his mental conditions. Counsel failed to give notice of this
testimony to the State. The trial court noted that mere evidence Harris
was on medication would encourage jury speculation regarding
Harris’s mental condition. Harris argues that this attempt shows
counsel realized he had erred in failing to present evidence of mental
illness.
Harris complains that counsel failed to present extensive
evidence regarding his mental state and diagnoses of mental illness.
Most of this evidence was presented at Harris’s first trial or his
competency proceedings, and was readily available to counsel. A
significant portion of this evidence was presented at the first stage of
Harris’s original trial, to argue his mental state could not support a
finding of malice, rather than as evidence in mitigation. After the
crimes, questions were raised regarding Harris’s competency. At one
point he was sent to Eastern State Hospital, received treatment and
medication, and was declared competent. Doctors representing the
court, the State, and the defense examined Harris throughout the pretrial
proceedings. He received several diagnoses of mental illness: bipolar
disorder with psychotic features, schizo-affective disorder, depressive
with psychotic features. Experts agreed at the very least Harris was
clinically depressed. They all also noted his low intelligence. One
expert for the State, and the doctors at Eastern State Hospital, suspected
Harris was either malingering or exaggerating his mental condition.
One defense expert testified that, based on his contact with Harris
shortly after the crimes, Harris was probably suffering from mental
illness at the time of the crimes. Nobody believed that Harris’s mental
illness, even if present when the crimes were committed, rendered him
legally insane; the experts agreed that Harris knew right from wrong
and understood the consequences of his actions. Harris’s experts
described the connection his mental illness and chronic substance abuse
39
may have had with the crimes. They testified that as a consequence of
his mental state, Harris was low functioning and emotionally unstable,
unable to solve problems or take action towards goals, highly agitated
and angry. At the first trial, Harris’s expert on future dangerousness
testified that he could not say Harris would not be a danger to society;
he did say that, in a controlled environment and with medication, Harris
would present less danger than otherwise.
After thoroughly considering the evidence which was presented
at Harris’s resentencing trial, and the evidence which was presented
earlier and could have been presented, this Court concludes that counsel
was not ineffective. Counsel was aware of the evidence of mental
condition and status. Rather than rely on it to persuade jurors that
Harris’s mental state and after-diagnosed mental condition were
mitigating circumstances, counsel chose a different path. He called
Dr. Draper to testify regarding Harris’s development over his life.
This evidence was comprehensive. It included Harris’s troubled and
abusive childhood, his low IQ and trouble in school, his difficulty with
marital relationships, his relationships with his family and daughters,
his dependency on Pam, the mutually abusive nature of that
relationship. Dr. Draper also discussed Harris’s chronic substance
abuse which began when he was a teenager with his father, his poor
judgment, anger and inability to solve problems, and his extreme
emotional instability. She also discussed the likelihood that, based on
his past behavior and mental state, Harris would be a danger in the
future. While Harris’s specific diagnoses of mental illness were not
presented to the jury, jurors were told he had been diagnosed as
mentally ill. Those diagnoses were made after the crimes, and Dr.
Draper did describe the highly emotional mental state Harris was in at
the time of the crimes. Dr. Draper used all this evidence to explain
why Harris could not accept his circumstances and resorted to murder.
Harris claims that the prejudice from this decision is evident. At
the first trial, jurors heard much of this evidence.
During
deliberations, they asked a question about the type of prison in which
Harris might serve a sentence of imprisonment. The trial court’s
answer to this question, which was inaccurate as a matter of law,
resulted in the case’s reversal and this resentencing trial. Harris
contends this indicates that his first jury seriously considered imposing
40
a sentence of less than death, and claims that, had the evidence been
presented again, his resentencing jury would have done the same. This
Court cannot speculate as to why Harris’s first jury asked their question,
or what its sentencing intent might have been. Counsel chose to
provide Harris’s resentencing jury with a thorough picture of his life,
intelligence, and emotional state, including his anger, grief and despair
immediately preceding the crimes. Through Dr. Draper, jurors heard
evidence which encompassed or incorporated some of the evidence
presented at the first trial. We will not second-guess counsel’s
reasoned strategic judgment. Counsel’s choice of mitigating evidence
did not amount to ineffective assistance.
Harris, 164 P.3d at 1116-18 (footnotes omitted).
As set forth previously, Petitioner must demonstrate deficient performance
and resulting prejudice to prevail on a claim of ineffective assistance of counsel, and
demonstrate the determination of the state court was contrary to, or an unreasonable
application of, clearly established federal law as determined by the Supreme Court.
Petitioner claims that evidence of his mental deficiencies presented in his 2001 trial
and his competency trial, along with evidence of his mental retardation, should have
been presented to his re-sentencing jury as mitigating evidence to explain his violent
behavior the day of the murder. Petitioner admits trial counsel’s use of Dr. Draper
to introduce evidence of his developmental and life paths was a sound strategic
decision. He claims, however, that trial counsel recognized that mental illness was
a valuable mitigating tool but his plan to use Dr. Draper to the exclusion of other
mental health experts was unreasonable.
Petitioner’s claim is myopic and ignores the totality of the evidence and
testimony presented in his first trial. Expert testimony was presented that none of
the possible mental health issues developed until after the crimes. The evidence
presented was conflicting and did not with any certainty provide a reason for any
41
possible mental illness to be a contributor to the crimes.11 As the OCCA identified,
counsel presented mitigating evidence through Petitioner’s sister, brother, former
co-worker and employer, son-in-law, and two daughters. Most extensively, he
presented testimony and evidence through Dr. Draper – an expert in developmental
analysis – that not only described and explained Petitioner’s development process
but also incorporated opinions of other experts that had previously testified in other
proceedings. By avoiding the conflicting diagnoses offered in his first trial of
possible mental illness – discovered after the crimes – and preventing the
introduction of Petitioner’s violent tendencies, trial counsel’s presentation of a more
sympathetic explanation of his life history was reasonable, as was the OCCA’s
conclusion on this point.
As set forth previously regarding claims of ineffective assistance of counsel,
counsel’s performance must be not merely wrong, but constitutionally unreasonable.
“The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington v. Richter, 562 U.S 86, 105 (2011).
Here, Petitioner has failed to meet his burden of demonstrating the requirements of
Strickland, and failed to demonstrate the determination of the OCCA was contrary
to, or an unreasonable application of, clearly established Supreme Court law.
Review of the underlying issue of the performance of trial counsel demonstrates a
lack of merit in Petitioner’s claim. As such, appellate counsel’s decision to not
include the claim in the appeal, given the necessary deferential consideration, does
not constitute deficient performance.
As to his claim of ineffective assistance of counsel for failure to present expert
testimony to rebut the continuing threat aggravating circumstance, the OCCA held:
11
Additionally, by not claiming mental illness as a mitigating factor, the jury was not
informed that two experts had previously considered Petitioner to be a psycopath.
42
Harris also claims that counsel failed to present evidence directly
bearing on the continuing threat aggravating circumstance. In fact, Dr.
Draper did discuss methods for predicting future dangerousness, and
gave her opinion that Harris would not be a future danger to society.
Harris argues that counsel should have presented an expert on risk
assessment, who could have provided an accurate and scientifically
sound analysis of the exact likelihood that Harris would be a future
danger. The experts who testified at Harris’s first trial, and Dr. Draper,
all testified that he was in fact likely to pose a risk of future danger.
Harris’s experts testified that, under particular circumstances likely to
be found in prison, that risk was significantly lessened, but they all
agreed that Harris posed more risk to the general population than the
average person. Given this evidence, we will not say counsel was
unreasonable for choosing not to stress the issue of Harris’s potential
for danger to society by using risk assessment evidence.
This proposition is accompanied by an Application for
Evidentiary Hearing. To support his claim that counsel did not
conduct a thorough independent investigation, Harris provides an
affidavit with a psychological evaluation conducted after the trial
ended. As he notes in his brief, this evaluation is consistent with other
psychological evaluations which were available to counsel. To
support his claim that counsel failed to present evidence bearing on the
continuing threat aggravating circumstance, Harris offers an affidavit
containing a risk assessment profile. This profile reaches a similar
conclusion to that of Dr. Draper and other experts-in a controlled,
structured environment, medicated, without access to controlled
substances, and without a romantic relationship such as that with Pam,
Harris poses little threat to society. The application for evidentiary
hearing and supplemental materials do not contain sufficient
information to show this Court by clear and convincing evidence there
is a strong possibility trial counsel was ineffective for failing to use or
identify the evidence. Harris’s Application for Evidentiary Hearing is
denied.
Id. at 1118-19 (footnotes omitted).
As identified by the OCCA, the risk assessment provided by Petitioner in
support of his Application for Evidentiary Hearing in state court contains an opinion
43
regarding future dangerousness consistent with evidence and expert opinion
presented at trial. The consensus opinion was that although Petitioner did present
a risk of future dangerousness, the threat is lessened in a controlled and structured
environment, free from the influences of a relationship like that with his ex-wife and
free of controlled substances and alcohol. Considering the strength of the State’s
case and the overwhelming evidence supporting the continuing threat aggravating
circumstance – evidence of a history of fighting, destruction of family member’s
property, physical and mental abuse of his spouse, threats against other individuals,
resisting arrest, and an altercation with detention officer while in jail – the OCCA’s
determination was not unreasonable. Petitioner has failed to demonstrate counsel
was ineffective and failed to demonstrate the determination of his claims by the
OCCA was contrary to, or an unreasonable application of, clearly established
Supreme Court law. Accordingly, this claim and Petitioner’s entire ground for
relief is denied.
Ground 9:
Oklahoma’s Uniform Jury Instruction on Mitigating Circumstances.
In his ninth ground for relief, Petitioner claims the definition of mitigating
circumstances contained in the Oklahoma Uniform Jury Instructions (OUJI)
impermissibly limits consideration of mitigating evidence and fails to make
consideration of mitigating evidence mandatory in violation of the Eighth and
Fourteenth Amendments. He argues that the first sentence of the instruction on
mitigating circumstances – “Mitigating circumstances are those which, in fairness,
sympathy, and mercy, may extenuate or reduce the degree of moral culpability or
blame” – is grammatically flawed in that it only applies to the extent the mitigating
circumstances extenuate or reduce the defendant’s moral culpability.
The OCCA determined the instruction did not unconstitutionally limit the
jury’s ability to consider mitigating evidence:
44
Harris argues that the plain language of the uniform instruction’s first
sentence itself limits the jury’s consideration of mitigating evidence.
That sentence reads: “Mitigating circumstances are those which, in
fairness, sympathy, and mercy, may extenuate or reduce the degree of
moral culpability or blame.” Harris admits this Court has rejected this
line of argument. However, he suggests that the language is
ambiguous at best, and, combined with prosecutorial argument,
foreclosed the jury’s consideration of mitigating evidence. He failed
to object to either the instruction or argument at trial. Reviewing for
plain error, we find none. We do not find that the current uniform jury
instruction prohibits jurors from considering mitigating evidence. One
prosecutor did consistently argue in closing that jurors should not
consider Harris’s second stage evidence as mitigating, since it did not
extenuate or reduce his guilt or moral culpability. This argument
improperly told jurors not to consider Harris’s mitigating evidence.
However, in final closing a second prosecutor invited jurors to consider
all Harris’s mitigating evidence, weigh it against the aggravating
circumstances, and find that the death penalty was appropriate. The
jury was properly instructed on the definition of mitigating evidence,
the evidence Harris presented, and its duties. For that reason, the
initial prosecutorial argument was harmless.
This Court is troubled, however, by the consistent misuse of the
language in this instruction in the State’s closing arguments. This
Court noted in Frederick v. State that the prosecutor could argue
mitigating evidence did not reduce a defendant’s moral culpability or
blame. However, we did not intend to suggest that prosecutors could
further argue that evidence of a defendant’s history, characteristics or
propensities should not be considered as mitigating simply because it
does not go to his moral culpability or extenuate his guilt. This would
be an egregious misstatement of the law on mitigating evidence. After
careful consideration, this Court has determined that an amendment to
the language of the instruction will clarify this point, and discourage
improper argument. We emphasize that the language of the current
instruction itself is not legally inaccurate, inadequate, or
unconstitutional. Cases in which the current OUJI-CR (2d) 4-78 has
been used and applied are not subject to reversal on this basis.
45
In conjunction with this case, the Court will refer this issue to the
Oklahoma Uniform Jury Instruction Committee (Criminal) for
promulgation of a modified jury instruction defining mitigating
circumstances in capital cases. To delineate the various purposes of
mitigating evidence, this Court suggests including both (a) that
mitigating circumstances may extenuate or reduce the degree of moral
conduct or blame, and separately, (b) that mitigating circumstances are
those which in fairness, sympathy or mercy would lead jurors
individually or collectively to decide against imposing the death
penalty.
The uniform jury instruction given in this case did not
unconstitutionally limit the jury’s ability to consider mitigating
evidence. The prosecutor’s improper argument on this issue was cured
by further argument and instruction. Harris’s claim for relief is denied.
However, this Court finds that the current uniform jury instruction
defining mitigating circumstances, OUJI-CR (2d) 4-78, should be
modified to clarify the constitutional scope of mitigating evidence and
discourage improper argument.
Harris, 164 P.3d at 1113-1114 (footnotes omitted).
The burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack on the constitutional
validity of a state court’s judgment is even greater than the showing
required to establish plain error on direct appeal. The question in such
a collateral proceeding is “whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due
process”, Cupp v. Naughten, 414 U.S., at 147, 94 S.Ct., at 400, 38
L.Ed.2d 368, not merely whether “the instruction is undesirable,
erroneous, or even ‘universally condemned, . . . .’”
Henderson v. Kibbe, 431 U.S. 145, 154 (1977)(citations omitted); see also Cummins
v. Sirmons, 506 F3d 1211, 1240 (10th Cir. 2007).
In Boyde v. California, 494 U.S. 370 (1990), the Supreme Court considered a
claim that the wording of an instruction prevented the jury from considering the
evidence of the defendant’s character and background as such evidence did not
46
extenuate the gravity of the crime. The Supreme Court reiterated that the jury must
be able to consider all relevant mitigating evidence. It held that the proper test is
“whether there is a reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of constitutionally relevant
evidence.” Id. at 380. The Court found it unlikely that the instruction prevented the
jury from considering the mitigating evidence:
All of the defense evidence presented at the penalty phase—four days
of testimony consuming over 400 pages of trial transcript—related to
petitioner’s background and character, and we think it unlikely that
reasonable jurors would believe the court’s instructions transformed all
of this “favorable testimony into a virtual charade.” California v.
Brown, 479 U.S., at 542, 107 S.Ct., at 840. The jury was instructed
that it “shall consider all of the evidence which has been received
during any part of the trial of this case,” App. 33 (emphasis added), and
in our view reasonable jurors surely would not have felt constrained by
the factor (k) instruction to ignore all of the evidence presented by
petitioner during the sentencing phase. Presentation of mitigating
evidence alone, of course, does not guarantee that a jury will feel
entitled to consider that evidence. But the introduction without
objection of volumes of mitigating evidence certainly is relevant to
deciding how a jury would understand an instruction which is at worst
ambiguous. This case is unlike those instances where we have found
broad descriptions of the evidence to be considered insufficient to cure
statutes or instructions which clearly directed the sentencer to disregard
evidence. See, e.g., Hitchcock v. Dugger, 481 U.S. 393, 398–399, 107
S.Ct. 1821, 1824–1825, 95 L.Ed.2d 347 (1987) (“[I]t could not be
clearer that the advisory jury was instructed not to consider, and the
sentencing judge refused to consider, evidence of nonstatutory
mitigating circumstances ...”).
Id. at 383-84.
As in Boyde, the instruction complained of by Petitioner did not limit the
jury’s consideration of the evidence presented in support of the mitigating
circumstances. The jurors were instructed they should consider any evidence they
47
found mitigating and that they were not required to impose a sentence of death, even
if the aggravating circumstances outweighed the mitigating circumstances. In fact,
the jurors were instructed that they could not impose a sentence of death unless they
determined the aggravating circumstances outweighed the mitigating circumstances.
The jury was given an instruction listing thirteen mitigating circumstances. In
addition to trial counsel’s opening statements and closing argument, Petitioner
presented six witnesses in support of the mitigating circumstances. Petitioner has
not demonstrated the jury was prevented from considering his mitigating evidence
because of the instruction. Even if the instruction was improper, Petitioner has not
shown that the error so infected the entire sentencing trial that it violated due process.
Additionally, Petitioner has not demonstrated the OCCA’s determination to be
contrary to, or an unreasonable application of, clearly established Supreme Court
law. Accordingly, Petitioner’s ground for relief is denied.
Ground 10: Prosecutor’s Closing Argument Regarding Mitigating Evidence.
Petitioner next claims that prosecutorial misconduct during closing argument
prevented the jury from considering mitigation evidence when one of the prosecutors
argued that the jury should not consider mitigating evidence because it didn’t reduce
Petitioner’s culpability or responsibility.12 During initial closing, the prosecutor
argued several times that the mitigating circumstances listed by the Petitioner did
not reduce his culpability or responsibility for the crimes. The OCCA determined
the prosecutor’s comments were improper, but that the comments were harmless in
light of later comments made in final closing arguments inviting the jury to consider
12
This claim is closely related to Petitioner’s claim raised in Ground 9 regarding the
language of the jury instruction regarding mitigating circumstances.
48
all the evidence and in light of the proper instructions submitted to the jury. Harris,
164 P.3d at 1113.13
The deferential standard of review under 28 U.S.C. § 2254(d) is required since
the OCCA adjudicated Petitioner’s prosecutorial misconduct claim on the merits.
See Walker v. Gibson, 228 F.3d 1217, 1241 (10th Cir. 2000), abrogated on other
grounds by Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001). Petitioner does
not demonstrate that the prosecutor’s misconduct denied him a specific
constitutional right.
The appropriate standard for a prosecutorial misconduct
habeas claim, therefore, is “‘the narrow one of due process, and not the broad
exercise of supervisory power.’” Darden v. Wainwright, 477 U.S. 168, 181
(1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)).
Accordingly, “it is not enough that the prosecutor’s remarks were undesirable or
even universally condemned.” Darden, 477 U.S. at 181 (citation omitted).
A
prosecutor’s improper remarks require reversal of a conviction or sentence only if
the remarks “so infected the trial with unfairness as to make the resulting conviction
a denial of due process.” Donnelly, 416 U.S. at 643, 645 (1974). The fundamental
fairness inquiry requires an examination of the entire proceedings and the strength
of the evidence against the petitioner, both as to the guilt stage and the sentencing
phase. Id. at 643. “Any cautionary steps – such as instructions to the jury – offered
by the court to counteract improper remarks may also be considered. Counsel’s
failure to object to the comments, while not dispositive, is also relevant to a
fundamental fairness assessment.” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir.
2002) (citations omitted).
13
The entire portion of the OCCA’s opinion addressing this issue is set forth in Ground
9, supra.
49
Petitioner has not demonstrated that his due process rights were violated by
any or all of the prosecutor’s statements. See Thornburg v. Mullin, 422 F.3d 1113,
1124-25 (10th Cir. 2005) (holding that the OCCA had adjudicated the merits of a
due process claim because the OCCA’s analysis of plain error involved the same test
used to determine whether there was a denial of due process).
Unlike in Boyde the prosecutor here argued to jurors during his closing
that they should not consider Payton’s mitigation evidence, evidence
which concerned postcrime as opposed
to precrime conduct.
Because Boyde sets forth a general framework for determining whether
a challenged instruction precluded jurors from considering a
defendant’s mitigation evidence, however, the California Supreme
Court was correct to structure its own analysis on the premises that
controlled Boyde. The Boyde analysis applies here, and, even if it did
not dictate a particular outcome in Payton’s case, it refutes the
conclusion of the Court of Appeals that the California Supreme Court
was unreasonable.
***
Boyde, however, mandates that the whole context of the trial be
considered. And considering the whole context of the trial, it was not
unreasonable for the state court to have concluded that this line of
prosecutorial argument did not put Payton’s mitigating evidence
beyond the jury’s reach.
The prosecutor’s argument came after the defense presented eight
witnesses, spanning two days of testimony without a single objection
from the prosecution as to its relevance. As the California Supreme
Court recognized, like in Boyde, for the jury to have believed it could
not consider Payton’s mitigating evidence, it would have had to believe
that the penalty phase served virtually no purpose at all.
Brown v. Payton, 544 U.S. 133, 143-44 (2005).
Upon review of the entire proceedings, the Court determines that, considered
alone or together, the prosecutor’s remarks did not so infect the trial with unfairness
as to make the resulting conviction a denial of due process. For the reasons set forth
in the previous claim for relief, and for the rationale as articulated by the Supreme
50
Court in Boyde and Payton, the jury was not prevented from considering the
evidence presented in support of Petitioner’s mitigating circumstances. Petitioner
has not demonstrated that the OCCA’s determination was contrary to, or an
unreasonable application of, clearly established federal law. Accordingly, this
claim is denied.
Ground 11: Victim Impact Witnesses.
Petitioner claims that the decedent’s son and wife both expressed their opinion
that death was the appropriate sentence in violation of his Due Process rights to a
fair and reliable re-sentencing trial and the clearly established Supreme Court
precedent of Booth v. Maryland, 482 U.S. 496 (1987) and Payne v. Tennessee, 501
U.S. 808 (1991).
Respondent responds recognizing previous court opinions
binding this court’s review, but asserts the recommendations of punishment were
harmless in light of the evidence presented.
In Petitioner’s resentencing trial, the decedent’s son, Toby Taylor, and the
decedent’s wife, Carolyn Taylor, both expressed their opinions that death was the
appropriate sentence. On appeal, the OCCA refused to reconsider its position that
witnesses giving a short, straight-forward recommendation for the imposition of the
death penalty was statutorily permitted.
Merle Taylor’s son and wife each gave victim impact evidence, and
asked jurors to impose the death penalty. Harris argues in Proposition
VII that this recommendation was unconstitutional and denied him his
right to a fair trial. Harris admits that this Court has held that family
members of the victim may recommend a sentence in a capital
sentencing trial, but urges us to reconsider. We decline this invitation.
Harris, 164 P.3d at 1110 (by footnote basing its determination on DeRosa v. State,
2004 OK CR 19, 89 P.3d 1124, 1151-52; Conover v. State, 1997 OK CR 6, 933 P.2d
904, 920; Ledbetter v. State, 1997 OK CR 5, 933 P.2d 880, 890-91, and stating
51
“Harris does not claim that the victim impact evidence itself was improper, other
than the recommendation of punishment.”).
In Hooper v. Mullins, 314 F.3d 1162 (10th Cir. 2002), the Tenth Circuit
considered an identical claim where the trial court permitted three members of the
victim’s family to testify they believed the defendant deserved to die. The OCCA,
as it has here, concluded the trial court properly admitted the testimony. Despite
that determination, the Tenth Circuit agreed with the petitioner that the OCCA’s
determination was contrary to clearly established Supreme Court precedent:
The Supreme Court has held that “if the State chooses to permit
the admission of victim impact evidence and prosecutorial argument on
that subject, the Eighth Amendment erects no per se bar.” Payne v.
Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
In so holding, the Court overruled its earlier decisions in Booth v.
Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and
South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d
876 (1989). See Payne, 501 U.S. at 811, 817, 830, 111 S.Ct. 2597.
Nonetheless, we have recognized that “ Payne left one significant
portion of Booth untouched. . . . [T]he portion of Booth prohibiting
family members of a victim from stating ‘characterizations and
opinions about the crime, the defendant, and the appropriate sentence’
during the penalty phase of a capital trial survived the holding in Payne
and remains valid.' ” Hain, 287 F.3d at 1238-39 (quoting Payne, 501
U.S. at 830 n. 2, 111 S.Ct. 2597). Therefore, the trial court erred by
admitting this victim-impact testimony during Petitioner’s capital
sentencing proceeding. See id. at 1239.
Nonetheless, this
constitutional error was harmless because it did not have a “substantial
and injurious effect or influence in determining the jury's verdict.”
Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (further quotation omitted); see
also Willingham, 296 F.3d at 931 (applying Brecht's harmless-error
analysis to similar claim).
Payne also provides that victim-impact evidence that is “so
unduly prejudicial that it renders the trial fundamentally unfair”
deprives a capital defendant of due process. 501 U.S. at 825, 111 S.Ct.
2597. Because the victim-impact evidence did not have that effect
52
here, however, the OCCA reasonably denied Petitioner relief on this
due-process claim. See Willingham, 296 F.3d at 931; United States v.
Chanthadara, 230 F.3d 1237, 1273-74 (10th Cir. 2000).
Hooper v. Mullins, 314 F.3d 1162, 1174 (10th Cir. 2002).
It was error, in respect to Booth and Payne, for the witnesses to give their
opinion of an appropriate sentence. This error alone will not provide a basis for
habeas relief unless it can be determined the error was not harmless. Before a
harmless error analysis can be undertaken, it must first be determined what type of
error occurred - “trial error” or “structural” error. Here, the error complained of by
Petitioner is “trial error” and a harmless error analysis is proper:
Trial error “occur[s] during the presentation of the case to the jury,” and
is amenable to harmless-error analysis because it “may . . . be
quantitatively assessed in the context of other evidence presented in
order to determine [the effect it had on the trial]”. . . . At the other end
of the spectrum of constitutional errors lie “structural defects in the
constitution of the trial mechanism, which defy analysis by ‘harmlesserror’ standards”. . . . The existence of such defects - - deprivation of
the right to counsel, for example - - requires automatic reversal of the
conviction because they infect the entire trial process.
Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993)(citations and footnote
omitted).14
Admission of the witnesses’ sentence recommendation of death was error and
this Court must, therefore, assess the prejudicial impact of the error under the
14
The Court’s decision that this error is “trial error,” not requiring automatic reversal, is
supported by the list of sixteen cases set forth as example by the Supreme Court in Arizona v.
Fulimante, 499 U.S. 279, 306-308 (1991)(Rehnquist, J.) detailing a wide range of errors to which
harmless error analysis has been applied. Cases in which constitutional rights were so basic as to
preclude harmless error include: Payne v. Arkansas, 356 U.S. 560 (1958)(coerced confession);
Gideon v. Wainwright, 372 U.S. 335 (1963)(right to counsel); and Tumey v. Ohio, 273 U.S. 510
(1927)(impartial judge).
53
“substantial and injurious effect” standard set forth in Brecht. See Fry v. Pliler, 551
U.S. 112, 121-22 (2007).
In Brecht, the Supreme Court held that an error is harmless unless it “‘had
substantial and injurious effect or influence in determining the jury's verdict.’”
Brecht, 507 U.S. at 631(quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)). Although improper, it is doubtful the witnesses’ concisely stated opinions
had much inflammatory impact compared to the nature of the murder, the strength
of the state’s case, and the extensive evidence supporting the aggravating
circumstances. Petitioner shot and killed a man who had placed himself between
Petitioner and Ms. Harris and attempted to convince Petitioner he should not be at
the transmission shop. Petitioner also shot Ms. Harris and shot at an innocent
bystander. When he ran out of bullets and experienced difficulties reloading his
gun, Petitioner used the weapon to beat Ms. Harris. These facts, together with
evidence of Petitioner’s long history of violence, strongly support the jury’s finding
of the two aggravating circumstances.
Here, the witnesses’ opinions regarding sentencing did not have a substantial
and injurious effect on the jury’s determination to recommend death as the
appropriate sentence. Accordingly, Petitioner’s claim is denied.
Ground 12: Re-allegation of the Continuing Threat Aggravating Circumstance.
At his re-sentencing trial, the State re-alleged the continuing threat to society
aggravating circumstance.
The jury in Petitioner’s first trial did not choose
continuing threat as one of the aggravating circumstances. Petitioner claims this reallegation is a violation of his double jeopardy and due process rights.
In Proposition VIII Harris argues that the State improperly re-alleged
the continuing threat aggravating circumstance. In Harris’s original
trial and again at resentencing, the State alleged that Harris would
constitute a continuing threat to society. At Harris’s first trial, jurors
did not find this aggravating circumstance. Harris claims that this
54
failure is equivalent to an acquittal, and that the State was barred from
re-alleging that he would be a continuing threat in the resentencing
proceedings. This Court recently considered and rejected this claim in
Hogan v. State [, 139 P.3d 907, 929-30 (Okla. Crim. App. 2006)]. We
will not reconsider it in this case.
Harris, 164 P.3d at 1110 (footnote omitted).
Petitioner first claims that the OCCA’s determination is based solely on state
law and its refusal to apply Supreme Court law is, therefore, contrary to clearly
established federal law as determined by the Supreme Court. Petitioner’s assertion
is mistaken for two reasons. First, the OCCA relied on its previous decision in
Hogan v. State, as case in which it did discuss and rely on federal law. Second, a
state court need not even be aware of Supreme Court precedent so long as neither
the reasoning nor the result contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002).
Petitioner asserts that the first jury “acquitted” him of the great risk of death
aggravating circumstance by not checking that box on the form in his first trial, and
that when the state subsequently sought that aggravating circumstance in his resentencing trial it violated the Eighth Amendment Double Jeopardy clause and
Petitioner’s Due Process rights.
In Poland v. Arizona, 476 U.S. 147 (1986), the Supreme Court rejected a claim
identical to the one Petitioner presents here:
We reject the fundamental premise of petitioners’ argument, namely,
that a capital sentencer’s failure to find a particular aggravating
circumstance alleged by the prosecution always constitutes an
“acquittal” of that circumstance for double jeopardy purposes.
Bullington indicates that the proper inquiry is whether the sentencer or
reviewing court has “decided that the prosecution has not proved its
case” that the death penalty is appropriate. We are not prepared to
extend Bullington further and view the capital sentencing hearing as a
set of minitrials on the existence of each aggravating circumstance.
Such an approach would push the analogy on which Bullington is based
past the breaking point.
55
Poland v. Arizona, 476 U.S. at 155-56 (footnote omitted)(emphasis in original).
Petitioner acknowledges Poland is contrary to his claim, but argues
nonetheless that the subsequent Supreme Court decisions in Ring v. Arizona, 536
U.S. 584 (2002), Apprendi v. New Jersey, 530 U.S. 466 (2000), and especially
Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), entitle him to relief.15 Petitioner
relies on the following passage to argue that he was acquitted of “‘murder plus two
aggravating circumstances’ and convicted of the lesser offense of ‘murder plus one
aggravating circumstance’ because the jury found the state had not met their burden
of proof beyond the reasonable doubt and ‘double jeopardy protections attach to that
‘acquittal’ on the offense of murder plus [two] aggravating circumstance(s).’” (Pet.
at 189):
In the post-Ring world, the Double Jeopardy Clause can, and must,
apply to some capital-sentencing proceedings consistent with the text
of the Fifth Amendment. If a jury unanimously concludes that a State
has failed to meet its burden of proving the existence of one or more
aggravating circumstances, double-jeopardy protections attach to that
“acquittal” on the offense of “murder plus aggravating
circumstance(s).” Thus, Rumsey was correct to focus on whether a
factfinder had made findings that constituted an “acquittal” of the
aggravating circumstances; but the reason that issue was central is not
that a capital-sentencing proceeding is “comparable to a trial,” 467
U.S., at 209, 104 S.Ct. 2305 (citing Bullington, supra, at 438, 101 S.Ct.
1852), but rather that “murder plus one or more aggravating
circumstances” is a separate offense from “murder” simpliciter.
Sattazahn, 537 U.S. at 111-12. The Supreme Court continued, however, in the next
paragraph:
For purposes of the Double Jeopardy Clause, then, “first-degree
murder” under Pennsylvania law-the offense of which petitioner was
15
Petitioner recognizes, however, that the procedural facts in Sattazahn are different than
those involved here. (Pet. at 188)
56
convicted during the guilt phase of his proceedings-is properly
understood to be a lesser included offense of “first-degree murder plus
aggravating circumstance(s).” See Ring, supra, at 609, 122 S.Ct. 2428.
Thus, if petitioner’s first sentencing jury had unanimously concluded
that Pennsylvania failed to prove any aggravating circumstances, that
conclusion would operate as an “acquittal” of the greater offense-which
would bar Pennsylvania from retrying petitioner on that greater offense
(and thus, from seeking the death penalty) on retrial. Cf. Rumsey, supra,
at 211, 104 S.Ct. 2305.
Id. (emphasis added).
Here, Petitioner was not acquitted of the death penalty.
The jury in
Petitioner’s first case found one aggravating circumstance and sentenced him to
death. Thus, the first jury found the prosecution had proven its case that the death
penalty was appropriate. Petitioner has failed to demonstrate that the determination
of the OCCA was contrary to, or an unreasonable application of, clearly established
Federal law as determined by the Supreme Court. This ground for relief is denied.
Ground 13: Ineffective Assistance of Counsel in the 2005 Resentencing Trial and
Appeal.
The authority for establishing and determining an ineffective assistance claim
is set forth in detail in Ground 5, supra, and need not be repeated here except to
reiterate that it is difficult to establish ineffective assistance of appellate counsel,
because counsel should not raise every non-frivolous claim, but select among them
to maximize the likelihood of success. Miller v. Mullin, 354 F.3d 1288, 1298 (10th
Cir. 2004); see also Smith v. Robbins, 528 U.S. 259, 288 (2000)(only when ignored
claims are clearly stronger than those raised will the presumption of effective
performance be overcome).
57
1. Appellate counsel effectiveness regarding Atkins’ claim.
Petitioner claims appellate counsel was ineffective for failing to claim that
Petitioner’s Equal Protection and Due Process rights were violated when he was
“arbitrarily” denied a jury determination regarding his mental retardation.
Finally, Harris argues in Proposition I that resentencing appellate
counsel was ineffective for failing to claim that his denial of a jury
determination of mental retardation denied him equal protection and
due process. Harris’s appeal after resentencing contained a claim that
resentencing counsel was ineffective for failing to seek a determination
that he was mentally retarded. We found that this decision did not
support a finding of ineffective assistance because, as nothing in the
record suggested Harris is retarded and much suggests he is not, Harris
failed to show he was prejudiced by counsel’s omission. Harris argues
on post-conviction that resentencing appellate counsel should have
separately raised the constitutional claims. He argues that he is
similarly situated to other defendants who have been granted jury
determination of this issue. As in his direct resentencing appeal,
Harris again misunderstands the Court’s jurisprudence on this issue.
He cites cases in which post-conviction defendants already on Death
Row, with no other recourse, filed post-conviction claims of mental
retardation. These defendants had already been sentenced to death and
sought an after-the-fact determination that they were ineligible for that
sentence. As this Court does not engage in initial fact-finding, those
cases were remanded for jury determination. Harris, by contrast, had
not yet received the death penalty or any other sentence. He had the
opportunity to raise his claim of mental retardation in the trial court,
according to the procedures in effect at that time. Harris is not
similarly situated to the capital post-conviction defendants and was not
entitled to the procedures used in those cases. Neither his equal
protection nor due process rights were denied by the procedures
appropriate to his case. Harris was not prejudiced by resentencing
appellate counsel’s failure to raise this constitutional claim.
Harris, 167 P.3d at 444-45 (footnotes omitted).
There is debate between the parties regarding whether this claim has been
exhausted. This court need not make that determination as the claim can be denied
58
on the merits. This claim is closely related to Petitioner’s claim in Ground 7.
Here, however, Petitioner claims that when the Supreme Court decided Atkins, it
created a “class” of people – criminal defendants charged with a capital crime who
are mentally retarded and may not be subject to execution. Petitioner makes this
claim based on Cleyburne v. Cleyburne Living Center, Inc., 473 U.S. 432 (1985),
where the Supreme Court determined that the Equal Protection Clause “is essentially
a direction that all persons similarly situated should be treated alike.” Id. at 439.
The OCCA’s determination that Petitioner was not similarly situated to other
inmates allowed to return to state court to raise their Atkins’ claims is not
unreasonable. As the OCCA identified, those inmates had already been sentenced
to death and sought an “after-the -fact” determination they were ineligible to receive
a sentence of death because of their mental retardation. Petitioner’s resentencing
occurred after the Supreme Court’s decision in Atkins, providing him the
opportunity to raise his claim that the other death row inmates did not have.
Petitioner also was not denied due process as he had the opportunity to present his
claim in the trial court. The fact it was not presented is discussed in the disposition
of Petitioner’s Ground 7.
For the reasons set forth above, and those in Ground 7, supra, Petitioner has
failed to demonstrate either deficient performance or prejudice by appellate counsel.
Additionally, he has failed to demonstrate the decision of the OCCA was contrary
to, or an unreasonable application of, clearly established Supreme Court law.
2. Failure to present additional mitigation evidence.
Petitioner claims that appellate counsel was ineffective for failing to raise on
direct appeal that trial counsel was ineffective for failing to present mitigating
evidence from Petitioner’s daughters that would have humanized him and shown
that his life was worth saving. Although his daughters did testify at the resentencing
59
trial, Petitioner complains that the testimony was presented in a leading fashion and
without the substance and specifics with which his daughters testified in his first
trial.
Harris suggests resentencing trial counsel failed to conduct reasonable
investigation when he did not allow Harris's daughters to testify as fully
as they had in the first trial. This claim is contradictory on its face;
resentencing trial counsel was familiar with the record of the first trial,
and made a strategic choice not to use all the testimony used in
mitigation the first time. This is not a failure to investigate.
Harris, 167 P.3d at 443, n. 19.
The OCCA’s determination is not unreasonable.
Petitioner’s daughters
testified at the resentencing trial that they loved their father, were never abused by
him, that he was a good father to them and provided for them, that they would visit
him in prison and stay in touch with him, and that they had provided information to
Dr. Draper who correctly described their home life with their father. They also
asked the jury to spare his life. Trial counsel presented the jury with a humanizing
description of Petitioner’s life and of his relationship with his daughters. Petitioner
has not demonstrated that trial counsel was either deficient or that his performance
was prejudicial.16 As such, appellate counsel was not ineffective for failing to raise
this issue.
3. Failure to raise additional instances of prosecutorial misconduct.
Petitioner next claims appellate counsel was ineffective for failing to raise
additional claims – other than that raised on direct appeal – of prosecutorial
misconduct. Petitioner claims the prosecutor made several statements in closing
16
It is noteworthy that including the extra testimony of Petitioner’s daughters in the first
trial still resulted in the jury sentencing Petitioner to death.
60
argument improperly raising societal alarm, stated facts not in evidence, and
improperly argued victim impact testimony.
Harris also claims that resentencing appellate counsel failed to raise the
issue of prosecutorial misconduct. Harris’s resentencing appellate
brief has no separate proposition claiming prosecutorial misconduct,
but misconduct issues are raised in Propositions VI. Harris offers other
examples of misconduct which he claims resentencing appellate
counsel should have raised, emphasizing the prosecutor’s use of the
victim impact statements in argument. Harris has not claimed in this
Application or on appeal that the victim impact evidence itself was
improper, and the record does not suggest otherwise. He has failed to
show with this example or other references that prosecutorial argument
deprived him of a fair trial with reliable results, or that an objection to
the argument would have resulted in a different outcome.
Harris, 167 P.3d at 443-44.
As set forth in Petitioner’s tenth ground for relief, supra, a prosecutor’s
improper remarks require reversal of a conviction or sentence only if the remarks
“so infected the trial with unfairness as to make the resulting conviction a denial of
due process.” Donnelly, 416 U.S. at 643, 645 (1974).
Petitioner first claims the prosecutor incited societal alarm and argued facts
not in evidence when in his first closing argument he argued the similarities between
Petitioner’s actions and a terrorist, and stated it was fortunate Petitioner didn’t have
an automatic weapon. Petitioner does not identify any facts improperly argued
other than that there was no evidence presented that he was a terrorist or that he had
or wanted an automatic rifle. He only describes the prosecutor’s closing argument
at satirical and causing societal alarm. The prosecutor’s argument was in response
to defense counsel’s question to the jury in his closing asking if they saw differences
between Petitioner and a terrorist. See Thornburg v Mullin, 422 F.3d 1113,1131
(10th Cir. 2005)(argument invited or in response to defense counsel easily falls
within the wide latitude of argument allowed to prosecutors).
61
Evidence was
presented that Petitioner emptied his pistol and then attempted to reload it. In
addition to shooting Mr. Taylor and Ms. Harris, he also shot at a third person that
happened to be in the building. When he couldn’t reload his pistol, he physically
beat Ms. Harris. The prosecutor argued when considering the events that it was
fortunate Petitioner didn’t have an automatic weapon. A prosecutor may comment
on and draw reasonable inferences from evidence presented at trial. Hooper v.
Mullin, 314 F.3d 1162, 1172 (10th Cir. 2002).
Regarding the victim impact testimony, Petitioner claims the prosecutor’s
reading almost verbatim the victim impact statements served to inflame the passions
of the jury and improperly invoke sympathy. Victim impact is evidence properly
admitted in the trial and the prosecutor is permitted to discuss the evidence during
closing argument.
Petitioner has not demonstrated, other than summarily
concluding that the comments were improper and inflamed the jury, the prosecutor’s
arguments so infected the trial with unfairness as to make the resulting conviction a
denial of due process.
He has also failed the demonstrate the OCCA’s
determination to be unreasonable.
4. Claim regarding handcuffs and restraints worn in courtroom.
Petitioner claims appellate counsel was ineffective for failing to interview
jurors from his resentencing trial and failing to present a claim that he was observed
wearing handcuffs and restraints in the presence of jurors in violation of his due
process rights.
Harris argues that resentencing appellate counsel should have raised the
issue that resentencing jurors saw him in handcuffs as he was escorted
into the courtroom before trial. He fails to demonstrate any prejudice,
and this will not support a claim of ineffective assistance of
resentencing appellate counsel.
Harris, 167 P.3d at 444 (footnote omitted).
62
This claim is virtually identical to Petitioner’s previous claim raised in subpart three of his fifth ground for relief.17 The differences are minor. This claim
involves his resentencing jury and his argument involves juror statements claiming
they would arrive early to court and would see the deputy escorting Petitioner into
the courtroom with handcuffs or restraints.
This issue has been addressed in
Petitioner’s fifth ground for relief and will not be repeated here. The argument and
authority set out previously is incorporated here. Petitioner has not demonstrated
that appellate counsel was ineffective.
5. Claim regarding continuing threat aggravating circumstance.
Finally, Petitioner claims appellate counsel was ineffective for failing to raise
the issue that the jury’s finding of the continuing threat aggravating circumstance
was not unanimous as required by Oklahoma law.
Petitioner relies on two
affidavits to claim that the jury did not reach a unanimous verdict on the aggravating
circumstance.
Harris claims resentencing appellate counsel was ineffective for failing
to raise the issue of the validity of the continuing threat finding. The
record reflects that the jury found Harris was a continuing threat to
society and that, when polled, each juror affirmed that finding and the
sentence of death. Harris relies on juror affidavits to suggest that not
all jurors were unanimous regarding the continuing threat aggravating
circumstance. A juror may not testify to any matter or statement made
during deliberations which influenced his mental processes or verdict,
other than extraneous prejudicial information or outside influences.
We cannot consider these juror affidavits, and this claim cannot support
a finding of ineffective assistance of resentencing appellate counsel.
Harris, 167 P.3d at 444 (footnote omitted).
17
Comparison between the two reveals a majority of the argument and authority
presented is an exact reproduction.
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Petitioner claims the OCCA’s determination of each juror’s affirmation of the
verdict was an unreasonable determination in light of the record. The record
reveals, however, that the trial court asked the foreperson if the verdict was
unanimous as to both aggravating circumstances and as to the sentence of death.
The trial court then asked each individual juror if that was their verdict. Petitioner
has not demonstrated that the OCCA’s factual determination that the jurors were
polled regarding the aggravating circumstances was unreasonable.
Petitioner has also not demonstrated the OCCA’s inability under state law to
consider the affidavits to be unreasonable.
Tit. 12 O.S. 2001, sec. 2606(B)
precludes offering evidence regarding a juror’s mental processes during
deliberations. Petitioner asserts that the corresponding federal rule, Fed. R. Evid.
606(b), permits testimony about an error in entering the verdict onto the verdict form.
Reliance on the federal evidence rule is misplaced, however, because that rule relates
only to the determination of the admissibility of evidence in federal cases.
Petitioner has provided no Supreme Court authority requiring the consideration of
juror affidavits to impeach a verdict, nor has he demonstrated the OCCA’s
determination to be contrary to, or an unreasonable application of, clearly
established law.
For the foregoing reasons, Petitioner’s thirteenth ground for relief is denied in
its entirety.
Ground 14: Cumulative Error.
Petitioner claims that the accumulation of errors in his resentencing trial
violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.
Petitioner raised this issue in his 2005 direct appeal from his resentencing trial. The
OCCA determined the accumulation of errors did not warrant relief:
In Proposition XII Harris claims that the accumulation of errors in the
preceding propositions requires relief. In Proposition III, we found the
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trial court erred in failing to bring the jury into open court when a
question was presented in deliberations, but that error was harmless.
In Proposition VI we found that error in argument was cured by
instructions. Even taken together, these errors do not require relief.
Harris, 164 P.3d at 1119 (footnote omitted).
Petitioner also requested cumulative review in his 2005 post-conviction
proceedings:
Harris claims in Proposition III that the accumulation of error on appeal
and in post-conviction require relief. No authority allows this Court to
consider, on post-conviction, errors raised on direct appeal which were
not also raised as error in the post-conviction claim. We have
determined that trial, resentencing, and appellate counsel were not
ineffective. There is no cumulative error to consider.
Harris, 167 P.3d at 445 (footnotes omitted).
Authority regarding cumulative review was set forth in consideration of
Petitioner’s sixth ground for relief and need not be repeated here. Upon review of
the entire trial transcript and the evidence and testimony presented, the Court does
not find the cumulation of those errors determined to be harmless had a “substantial
and injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). In addition to the errors found by the
OCCA, the only error found by this court was the victim impact statements making
sentence recommendations. That error was determined to be harmless. The errors
were not so egregious or numerous as to prejudice Petitioner to the same extent as a
single reversible error. The cumulative effect of the errors, when compared with
the evidence and testimony presented at trial, did not significantly strengthen the
state’s case or diminish Petitioner’s case. No reasonable probability exists that the
jury would have sentenced Petitioner differently absent the errors. Accordingly,
Petitioner’s fourteenth ground for relief is denied.
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CONCLUSION
After a complete review of the transcripts, trial records, appellate record,
record on post-conviction proceedings, briefs filed by Petitioner and Respondent,
and the applicable law, the Court finds Petitioner’s request for relief in his Petition
For Writ of Habeas Corpus (Dkt. No. 32) should be denied. ACCORDINGLY,
habeas relief is DENIED on all grounds. An appropriate judgment will be entered.
IT IS SO ORDERED this 19th day of April, 2017.
08-0375p017.docx
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