Capital Habea Petitioner Denied Relief Despite Apparent Juror Confusion about LWOP

Warner v. Trammell, 2013 WL 1286637 (Okl.) (unpub'd) - Another Oklahoma death penalty decision. One of the aggravating factors for killing the defendant was that he was a continuing threat. The judge instructed that the jury had three choices: death, life without the possibility of parole and life with the possibility of parole. During deliberations the jury asked whether there was "ANY WAY the defendant could get out of prison if he was sentenced to life without parole? EVER?" The judge refused to answer the question, but just referred them to the instructions. Habeas relief would be available if the judge's response threatened to cause the jury to perceive a false choice between death and a limited period of incarceration. The 10th didn't see that happening here even though the Oklahoma appeals court feels juror confusion about parole eligibility persists in Oklahoma and the judge had told the jury when he answers a question by telling them to look at the instructions that could be code for: "the law doesn't allow me to answer." The judge told the jury the instruction answer could mean other things and the jury had 3 choices which indicated one of the choices was life with no possibility of parole. So there was no reasonable likelihood the jurors would interpret the judge's remarks the wrong way, declares the 10th.