Tenth Affirms Okla. Death Penalty Imposed after Robbery Goes Awry
Young v. Sirmons, --- F.3d ----, 2007 WL 1417284 (10th Cir. May 15, 2007)
10th affirms conviction and death sentence in a §2254 by an Oklahoma prisoner, convicted of murder one during the attempted robbery of an after-hours gambling operation in the back room of a restaurant. Trial evidence showed that Defendant and his co-defendant threatened the players with guns, one player struggled for the co-Defendant’s gun, the Victim then tried to shoot Defendant, and Defendant fired back, killing Victim. Defendant ended up with bullet wounds. The co-defendants were separately tried–the co-defendant was acquitted and Defendant got death. His issues and the 10th’s disposition of them are as follows:
1. Suggestive one-person show-up identification of Defendant at hospital: Okla. court did not rule contrary to Sup. Ct. Law in rejecting Defendant's claim by determining that even if the identification procedure was unnecessarily suggestive, it was admissible if it satisfied the five-factor test outlined in Manson v. Brathwaite, 432 U.S. 98 (1977), nor did the Okla. court unreasonably apply Manson in holding that the identification was reliable.
2. Sufficiency of evidence on Murder 1. The 10th found that the Okla. court’s application of the Jackson v. Virginia, 443 U.S. 307(1979) standard (whether, after viewing the evidence contained in the record in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt) was objectively reasonable. Defendant went into the restaurant with the intent to commit an armed robbery and shot Victim 4 times–sufficient to show malice aforethought. Sufficient DNA, blood and eyewitness evidence established Defendant was the shorter man and the man who shot the Victim.
3. Failure to give lesser included offense instructions on Murder 2 and voluntary manslaughter. Defendant argued that evidence supported Murder 2 on theory that he was at the robbery but did not fire his weapon (an Okla spin: if aiding and abetting it is Murder 1 but if not fire a gun it is Murder 2) ; or for voluntary manslaughter that it was a robbery gone awry, Victim fired first and Defendant fired back. Okla court determined that there was no evidence that Defendant did not intend to kill Victim during the robbery. 10th said it was not unreasonable for the Okla court to hold that a rational jury could not find Defendant did not fire his gun. For the same reason–Defendant had an intent to kill–the Okla court found that no rational jury could find Defendant guilty of voluntary manslaughter, and the 10th said this was not unreasonable on the evidence. Additionally, 10th cannot re-interpret Okla law which says that voluntary manslaughter is not available when defendant provokes the deadly situation in which a Victim shoots in self-defense and Defendant shoots back and kills Victim.
4. Ineffective assistance of counsel.
(a) for not introducing crime scene expert testimony that the co-Defendant fired the fatal shots. Expert testified at evidentiary hearing, and would have said if he had testified at trial that 3 guns were fired (Defendant's, co-Defendant's, Victim’s), but that it was likely the co-Defendant's gun fired the fatal shots (although his testimony regarding angle of shot could have supported prosecution case that Defendant shot). 10th certainly muddles the expert’s testimony, in part because there was poor crime scene work done by the local cops in preserving evidence. It agrees with the federal district court that Defendant did not meet the prejudice prong of Strickland “because of the nature of the evidence relied upon by the state to establish that Defendant may have fired the fatal shot, testimony by a crime scene re- constructionist could not have affected the outcome of the trial.”
(b) Ineffective Assistance of Counsel claims for not presenting mitigation evidence at the penalty phase on the environmental, cultural, and societal impact of growing up in south-central Los Angeles, California. The jury found 3 aggravating factors: (1) he had been previously convicted of a felony involving the use or threat of violence to a person (five years earlier he had been convicted of shooting into an occupied vehicle, second degree robbery, and assault with a firearm); (2) there was a strong probability that he would commit criminal acts of violence that would constitute a continuing threat to society; and (3) he knowingly engaged in conduct that posed a great risk of death to multiple persons. After some jumping through AEDPA hoops the 10th determined that the federal district court correctly held an evidentiary hearing on the issue, but then held that counsel’s investigation of mitigating evidence was not constitutionally inadequate. Counsel presented some evidence about Defendant's upbringing through his sister, who only emphasized the positive, however, and did not give any cultural, explanatory account of why he got involved in violent activity. Counsel apparently made a strategic decision not to get into Defendant's youthful gang activity, since it could have cut against him.
10th affirms conviction and death sentence in a §2254 by an Oklahoma prisoner, convicted of murder one during the attempted robbery of an after-hours gambling operation in the back room of a restaurant. Trial evidence showed that Defendant and his co-defendant threatened the players with guns, one player struggled for the co-Defendant’s gun, the Victim then tried to shoot Defendant, and Defendant fired back, killing Victim. Defendant ended up with bullet wounds. The co-defendants were separately tried–the co-defendant was acquitted and Defendant got death. His issues and the 10th’s disposition of them are as follows:
1. Suggestive one-person show-up identification of Defendant at hospital: Okla. court did not rule contrary to Sup. Ct. Law in rejecting Defendant's claim by determining that even if the identification procedure was unnecessarily suggestive, it was admissible if it satisfied the five-factor test outlined in Manson v. Brathwaite, 432 U.S. 98 (1977), nor did the Okla. court unreasonably apply Manson in holding that the identification was reliable.
2. Sufficiency of evidence on Murder 1. The 10th found that the Okla. court’s application of the Jackson v. Virginia, 443 U.S. 307(1979) standard (whether, after viewing the evidence contained in the record in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt) was objectively reasonable. Defendant went into the restaurant with the intent to commit an armed robbery and shot Victim 4 times–sufficient to show malice aforethought. Sufficient DNA, blood and eyewitness evidence established Defendant was the shorter man and the man who shot the Victim.
3. Failure to give lesser included offense instructions on Murder 2 and voluntary manslaughter. Defendant argued that evidence supported Murder 2 on theory that he was at the robbery but did not fire his weapon (an Okla spin: if aiding and abetting it is Murder 1 but if not fire a gun it is Murder 2) ; or for voluntary manslaughter that it was a robbery gone awry, Victim fired first and Defendant fired back. Okla court determined that there was no evidence that Defendant did not intend to kill Victim during the robbery. 10th said it was not unreasonable for the Okla court to hold that a rational jury could not find Defendant did not fire his gun. For the same reason–Defendant had an intent to kill–the Okla court found that no rational jury could find Defendant guilty of voluntary manslaughter, and the 10th said this was not unreasonable on the evidence. Additionally, 10th cannot re-interpret Okla law which says that voluntary manslaughter is not available when defendant provokes the deadly situation in which a Victim shoots in self-defense and Defendant shoots back and kills Victim.
4. Ineffective assistance of counsel.
(a) for not introducing crime scene expert testimony that the co-Defendant fired the fatal shots. Expert testified at evidentiary hearing, and would have said if he had testified at trial that 3 guns were fired (Defendant's, co-Defendant's, Victim’s), but that it was likely the co-Defendant's gun fired the fatal shots (although his testimony regarding angle of shot could have supported prosecution case that Defendant shot). 10th certainly muddles the expert’s testimony, in part because there was poor crime scene work done by the local cops in preserving evidence. It agrees with the federal district court that Defendant did not meet the prejudice prong of Strickland “because of the nature of the evidence relied upon by the state to establish that Defendant may have fired the fatal shot, testimony by a crime scene re- constructionist could not have affected the outcome of the trial.”
(b) Ineffective Assistance of Counsel claims for not presenting mitigation evidence at the penalty phase on the environmental, cultural, and societal impact of growing up in south-central Los Angeles, California. The jury found 3 aggravating factors: (1) he had been previously convicted of a felony involving the use or threat of violence to a person (five years earlier he had been convicted of shooting into an occupied vehicle, second degree robbery, and assault with a firearm); (2) there was a strong probability that he would commit criminal acts of violence that would constitute a continuing threat to society; and (3) he knowingly engaged in conduct that posed a great risk of death to multiple persons. After some jumping through AEDPA hoops the 10th determined that the federal district court correctly held an evidentiary hearing on the issue, but then held that counsel’s investigation of mitigating evidence was not constitutionally inadequate. Counsel presented some evidence about Defendant's upbringing through his sister, who only emphasized the positive, however, and did not give any cultural, explanatory account of why he got involved in violent activity. Counsel apparently made a strategic decision not to get into Defendant's youthful gang activity, since it could have cut against him.
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