Tenth Rejects Numerous Arguments And Affirms Death Sentence

DeRosa v. Workman, 2012 WL 1893732, (10th Cir. 2012), published. The court affirms an Oklahoma capital sentence. The Court rejects the petitioner's argument that defense counsel failed to present available mitigating evidence. The first Strickland prong was not met because the counsel's performance was not deficient. The Court concludes that defense counsel was aware of most of the relevant mitigating events and the additional evidence was either duplicative or of marginal value. The second Strickland prong was not met because the petitioner could not prove prejudice. The COA also rejects the claims of prosecutorial misconduct. The Oklahoma courts reasonably concluded that the prosecutor did not commit misconduct by denying the existence of a deal with one testifying accomplice (White); it was not clear there was a deal at the time of trial, charges were reduced later but the reasons were clear (White was just the driver), and defense counsel was able to cross examine White at trial. The prosecutor did not improperly comment on the petitioner's right to remain silent. The Court agreed with the OCCA that the prosecutor should not have accused defense counsel of lying but the witness in question was not crucial and petitioner's right to due process was not violated. The COA agrees with the Oklahoma courts that prosecutorial comments vouching for state witnesses did not have a substantial or injurious effect or influence on the verdict. Although improper for the district attorney to refer to the elderly victims by their pet names of "Papa" and "Mama Glo" rather than their formal names, it was not so prejudicial as to render the trial fundamentally unfair or the death sentence unreliable. Similarly, improper victim impact testimony did not have a substantial and injurious effect or influence the jury's verdict. Death sentence affirmed.