Court Rejects Juror, Misconduct and IAC Claims to Affirm Death Penalty
Matthews v. Workman, ___F.3d ___, 2009 WL 1927051 (10th Cir. 2009).
Death penalty upheld in habeas corpus petition. (1) COA applies Brecht “substantial and injurious effect” test to juror’s improper communication with excused alternate after guilt phase, previous to penalty phase, where alternate said newspaper account of crime supported the guilty verdict, and juror told other jurors during penalty phase that she had spoken with alternate, though they did not recall any mention of newspaper account. COA says that Petitioner never argued residual doubt, so confirmation of guilty verdict by paper would not have influenced juror’s death vote–no harm.
Regarding a second juror issue: AEDPA deference to state court determination under its Evid. Rule 606 not to take post-verdict juror testimony about deliberations (different juror said made up mind to impose death before the penalty phase, and Petitioner claimed a Due Process violation), and no S. Ct. precedent that requires it.
(2) Sufficient evidence of guilt under Jackson (will not re-count)
(3) Brecht standard applied to prosecutorial misconduct claims (state court reached merits of claims in spite of counsel’s failure to object at trial, so fed court does too, applying AEDPA deference). In spite of some pretty egregious argument, the state court’s determination that it did not render trial fundamentally unfair was not unreasonable. One claim, however, the COA plays fast and loose with: that the prosecutor commented on P’s right to remain silent. The COA said that this was really a comment on Petitioner’s failure to present evidence, and the only objection below was that it was a comment on silence, not an objection to improper burden shifting. State court not wrong to determine there was not improper comment on silence.
(4) Ineffective Assistance of Counsel claim (reviewed de novo): Failures to cross-examine and failure to present witness were strategic, tactical choices–would open the door or would expose ambiguous unhelpful information. Failure to present certain mitigation evidence harmless because cumulative of evidence already in.
Death penalty upheld in habeas corpus petition. (1) COA applies Brecht “substantial and injurious effect” test to juror’s improper communication with excused alternate after guilt phase, previous to penalty phase, where alternate said newspaper account of crime supported the guilty verdict, and juror told other jurors during penalty phase that she had spoken with alternate, though they did not recall any mention of newspaper account. COA says that Petitioner never argued residual doubt, so confirmation of guilty verdict by paper would not have influenced juror’s death vote–no harm.
Regarding a second juror issue: AEDPA deference to state court determination under its Evid. Rule 606 not to take post-verdict juror testimony about deliberations (different juror said made up mind to impose death before the penalty phase, and Petitioner claimed a Due Process violation), and no S. Ct. precedent that requires it.
(2) Sufficient evidence of guilt under Jackson (will not re-count)
(3) Brecht standard applied to prosecutorial misconduct claims (state court reached merits of claims in spite of counsel’s failure to object at trial, so fed court does too, applying AEDPA deference). In spite of some pretty egregious argument, the state court’s determination that it did not render trial fundamentally unfair was not unreasonable. One claim, however, the COA plays fast and loose with: that the prosecutor commented on P’s right to remain silent. The COA said that this was really a comment on Petitioner’s failure to present evidence, and the only objection below was that it was a comment on silence, not an objection to improper burden shifting. State court not wrong to determine there was not improper comment on silence.
(4) Ineffective Assistance of Counsel claim (reviewed de novo): Failures to cross-examine and failure to present witness were strategic, tactical choices–would open the door or would expose ambiguous unhelpful information. Failure to present certain mitigation evidence harmless because cumulative of evidence already in.
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