Tenth Rejects Capital Habeas Petitioner's Numerous Claims

Lockett v. Trammell, -- F.3d --, 2013 WL 1286633 (10th Cir. 4/1/13) - another rejection of numerous challenges to an OK death verdict. With respect to the penalty phase: (1) Erroneous exclusion of social worker's testimony, including both evidence and expert opinion re: the effect on Mr. Lockett of his horrible childhood, did not have a substantial and injurious effect on the jury's death verdict. The jury heard ample other testimony linking Mr. Lockett's crimes to his miserable childhood and adolescence. (2) While victim impact testimony, including opinion about the appropriate sentence and characterizations of the crime, violated clearly established Eighth Amendment law, the error did not have a substantial and injurious effect on the verdict and so was harmless. The Tenth points out that OK continues to allow prohibited victim impact testimony despite repeated Tenth Circuit rulings holding it improper. (3) It was reasonable to admit testimony re: future dangerousness from state expert who examined Mr. Lockett with respect to a contemplated, but not utilized, insanity defense; Mr. Lockett put his mental health at issue in the penalty phase. (4) There was sufficient evidence to support the jury's finding that Mr. Lockett created a great risk of death to more than one person. (5) The cumulative effect of the penalty phase errors was not prejudicial.
Mr. Lockett did not receive IAC during the guilt phase by counsel's concession of guilt. The OK analysis of this claim is entitled to AEDPA deference. The evidence of guilt was overwhelming and included a videotaped confession with a detailed description of the crimes.
The COA declines to grant a certificate of appealability on 3 issues on which the district court had declined to grant it. (1) The district court's interviews of 19 jurors outside the defendant's presence during voir dire was not shown to be prejudicial; his counsel was present and the interviews were conducted on the record. (2) Counsel's performance was not shown to be deficient with respect to presentation of mental health evidence. The record supported counsel's decision not to pursue an insanity defense and additional mental health evidence would have been cumulative and would not have affected the verdict. (3) The jury instructions re: weighing aggravating and mitigating circumstances were proper; under Tenth Circuit precedent, the jury was not required to find that aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt.