Tenth Rejects Claims of Error, Affirms Death Sentence in OK Case
Brown v. Sirmons, --- F.3d ----, 2008 WL 307452 (10th Cir. Feb. 5, 2008).
Multiple issues raised in a §2254 death penalty case–the conviction and sentence were upheld by the Tenth. The overall result, both below and in federal court seems somewhat shocking given the nature of some of the claimed errors, the relative garden variety nature of the offense (killing of a clerk during a 7-11 robbery), and the extremely mild to non-existent criminal background of the petitioner (P) (3 separate illegal firearm possessions, and one assault and battery in what looked like a crowd melee fight).
- use of dual juries in trying co-Defendants was not structural error and did not burden Petitioner’s cross examination (jury A leaves the room when evidence inadmissable against Def A is admitted)
- deference afforded to court’s voir dire on death eligible jurors. There is no constitutional right to rehabilitate jurors who express doubts about imposing the death penalty.
- Petitioner had a full and fair opportunity to litigate his 4th Amendment claim in state court and even though a 4th Amendment violation likely occurred, a habeas court cannot overturn a conviction on that basis. Stone v. Powell equally applies in a death penalty case.
- the state supreme court’s resolution of many claims of prosecutorial misconduct (many of which were reviewed on appeal under plain error standard because not objected to below) was not an unreasonable application of federal law. While the state supreme court ruled that it was error to introduce during the penalty phase a gruesome photo of the beating the victim sustained, that court determined that the error was harmless. Tenth agrees it did not have a substantial and injurious effect on the verdict.
- failure of trial court to give instructions on (1) second degree felony murder and (2) second degree murder “involving imminently dangerous conduct” not an unreasonable application of federal law. (1) The robbery was first degree because completed with the baseball-bat beating to death of the Victim (second degree robbery is by use of fear). (2) Second degree murder instruction issue reviewed de novo because not procedurally barred and not addressed in state court. Because robbery and the murder that resulted--felony murder--requires no evidence of an intent to cause the death of a victim under Okla law, but second degree murder does require evidence of depraved mind, the jury would not have been able to acquit Petitioner of the greater offense (first degree felony murder) by finding him guilty of the lesser one and so, under Okla law, he was not entitled to the lesser instruction.(Less mens rea warrants greater punishment).
- sufficient evidence of the penalty phase aggravators--heinousness of crime--was proven by evidence the victim suffered before he died; there was proof through a video that Petitioner participated in causing Victim’s death. The video showed that he, with others, went to the back room where the Victim’s body was found, and he stayed for the entire time until all the robbers left the store. Although the evidence was that Petitioner did not inflict the blows, but did hold down the Victim, and although the co-Defendant who inflicted the blows was spared the death penalty, the different results do not matter.
- the killing to avoid arrest and the continuing threat aggravators were appropriate
- any error in inappropriate victim impact evidence was harmless.
Multiple issues raised in a §2254 death penalty case–the conviction and sentence were upheld by the Tenth. The overall result, both below and in federal court seems somewhat shocking given the nature of some of the claimed errors, the relative garden variety nature of the offense (killing of a clerk during a 7-11 robbery), and the extremely mild to non-existent criminal background of the petitioner (P) (3 separate illegal firearm possessions, and one assault and battery in what looked like a crowd melee fight).
- use of dual juries in trying co-Defendants was not structural error and did not burden Petitioner’s cross examination (jury A leaves the room when evidence inadmissable against Def A is admitted)
- deference afforded to court’s voir dire on death eligible jurors. There is no constitutional right to rehabilitate jurors who express doubts about imposing the death penalty.
- Petitioner had a full and fair opportunity to litigate his 4th Amendment claim in state court and even though a 4th Amendment violation likely occurred, a habeas court cannot overturn a conviction on that basis. Stone v. Powell equally applies in a death penalty case.
- the state supreme court’s resolution of many claims of prosecutorial misconduct (many of which were reviewed on appeal under plain error standard because not objected to below) was not an unreasonable application of federal law. While the state supreme court ruled that it was error to introduce during the penalty phase a gruesome photo of the beating the victim sustained, that court determined that the error was harmless. Tenth agrees it did not have a substantial and injurious effect on the verdict.
- failure of trial court to give instructions on (1) second degree felony murder and (2) second degree murder “involving imminently dangerous conduct” not an unreasonable application of federal law. (1) The robbery was first degree because completed with the baseball-bat beating to death of the Victim (second degree robbery is by use of fear). (2) Second degree murder instruction issue reviewed de novo because not procedurally barred and not addressed in state court. Because robbery and the murder that resulted--felony murder--requires no evidence of an intent to cause the death of a victim under Okla law, but second degree murder does require evidence of depraved mind, the jury would not have been able to acquit Petitioner of the greater offense (first degree felony murder) by finding him guilty of the lesser one and so, under Okla law, he was not entitled to the lesser instruction.(Less mens rea warrants greater punishment).
- sufficient evidence of the penalty phase aggravators--heinousness of crime--was proven by evidence the victim suffered before he died; there was proof through a video that Petitioner participated in causing Victim’s death. The video showed that he, with others, went to the back room where the Victim’s body was found, and he stayed for the entire time until all the robbers left the store. Although the evidence was that Petitioner did not inflict the blows, but did hold down the Victim, and although the co-Defendant who inflicted the blows was spared the death penalty, the different results do not matter.
- the killing to avoid arrest and the continuing threat aggravators were appropriate
- any error in inappropriate victim impact evidence was harmless.
posted by Anonymous at 1:35 PM
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