Capital Conviction Affirmed

Malicoat v. Mullin, 2005 WL 2503817 (10/11/05) - Another Oklahoma death sentence affirmed. Trying a capital case in a courtroom with the "eye for an eye, tooth for a tooth" carving behind the judge did not render the trial fundamentally unfair. It was not a violation of due process to refuse to instruct on an offense with a less-than-death maximum penalty because that offense was not a lesser-included offense under state law. The defendant could be constitutionally killed even though the jury did not necessarily find he intended to kill the child because it was enough that the defendant himself willfully committed an act which produced an injury that resulted in the death. The requirement of intent to kill only applies in felony-murder cases. The following prosecutorial conduct did not warrant overturning the conviction or death sentence: conducting closing in the voice of the child victim; arguing it was the jury's civic duty to convict; calling the defendant a monster; referring to the mitigation evidence as excuses; expressing a personal belief in the death penalty; stating without evidence that the child was named after a character in the TV show "Touched by an Angel." It was harmless to introduce into evidence an irrelevant photo of the child months before her death. It was not unreasonable for counsel to fail to give an opening statement or to introduce psychological testimony that didn't go to a relevant issue and it was not prejudicial for counsel not to investigate the defendant's history of seizures. In the course of the decision, the 10th made some observations interesting to habeasphiles about when de novo review is appropriate where the state appellate court applies a state standard different from the governing S.Ct. law.