Thursday, October 08, 2015

Divided Panel Denies All Relief for Capital Habeas Petitioner

Hancock v. Trammell, 2015 WL 4910981 (8/18/15) (Okl.) (Published) - The 10th affirms Mr. Hancock's Oklahoma's death sentence. The 10th rejects his contention that the Oklahoma Court of Criminal Appeals ("OCCA") relied on an unreasonable determination of fact that the state trial court allowed certain evidence in under the state equivalent of Rule 609. If that were true then Mr. Hancock could have avoided the stringent AEDPA prerequisites for relief.

The evidence in question is that, 19 years before the killing involved in this case, Mr. Hancock successfully raised a defense of-self-defense so that he only was convicted of manslaughter. The state apparently wanted the jury to believe Mr. Hancock's current self-defense defense was just part of his usual scheme to get away with murder. The 10th first finds Oklahoma's plain error standard under which it resolved the issue was like the constitutional due process test. So it adjudicated the issue on the merits, thus sticking Mr. Hancock with the AEDPA requirements, absent an unreasonable fact determination. Then the 10th analyzes the OCCA decision and concludes the OCCA's decision is equally consistent with either (1) a mistaken belief the trial court relied on Rule 609 and thus deferred to that determination or (2) the OCCA independently took on the analysis itself and found the probative value was not substantially outweighed by the unfair prejudice of the evidence. So Mr. Hancock did not meet his burden to prove a reliance on an unreasonable determination of fact. Mr. Hancock waived any argument that the OCCA unreasonably applied federal law.

The incident in this case began with one of the soon-to-be-deceaseds swinging a metal bar at Mr. Hancock's head and perhaps hitting it. Mr. Hancock objected to instructions that indicated self-defense was unavailable if Mr. Hancock engaged in mutual combat or the deceased withdrew from attacking Mr. Hancock. The 10th finds sufficient evidence to justify the instructions because there was evidence of breaks from the deceased's attack and mutual combat following that and of the deceased's withdrawal from combat by stepping away from Mr. Hancock, going into another room and later going into the backyard where Mr. Hancock shot him with the deceased's own gun.

Mr. Hancock forfeited one issue by only raising it in one sentence in a footnote in the opening brief, another one by questioning the existence of evidence to support an instruction without making it a separate basis for relief in the habeas petition and others by not raising them at all in the petition. The 10th holds it was not unreasonable for the OCCA to find no prejudice from counsel's failure to seek a lesser-included instruction for manslaughter while resisting a criminal attempt, rather than for heat-of-passion manslaughter. Evidence supported the latter: adequate provocation, emotion, homicide during passion & causal connection to the homicide. Perhaps the former was less apropos. That required a killing in the honest but unreasonable belief that Mr. Hancock was in danger.

The OCCA reasonably applied the constitutional sufficiency-of-the-evidence standard, It did not have to adopt Mr. Hancock's version of events. It was okay to exclude evidence of the victims' gang affiliation. There was some evidence indicating biker-gang membership and Mr. Hancock's fear of the victims as a result. The preclusion of admission of the recordings of Mr. Hancock's statements to police did not interfere with Mr. Hancock's fundamental right to present a defense. He contended they would counter the state's attack on his credibility. But Mr. Hancock was able to present his version of events and that's all the constitution requires, the 10th says. The 10th finds Mr. Hancock was not prejudiced by counsel's failure to impeach a state eyewitness with two of her prior statements where counsel did impeach her with another inconsistent statement.

Finally, the 10th concludes there was sufficient evidence to prove the "heinous, atrocious or cruel" aggravator with respect to both dead people. The one victim received 3 painful shots, ran from Mr. Hancock to escape and was shot while on the ground, moaning and writhing in pain. The other victim received wounds to his face, hand and chest, saw his friend being shot, was shot while lying wounded on the floor and lingered before dying. It didn't matter if the OCCA found similar circumstances insufficient in another cases. It wasn't up to federal courts to police state law consistency.

Judge Lucero dissents. He finds the OCCA decision was clearly based on the mistaken belief that the trial court relied on Rule 609 to admit the offending evidence. Reviewing the due process question de novo, Judge Lucero concludes the admission of the old manslaughter conviction rendered the trial fundamentally unfair. That Mr. Hancock had previously raised self-defense had some limited probative value to show Mr. Hancock knew about the self-defense defense when he killed the victims. But he could have learned about that defense in any number of ways besides in his manslaughter case, including from Shakespeare. The conviction itself had no probative value. Not all prior convictions for similar crimes are probative, the judge points out. And here the crimes were not very similar. The prejudice was "immense," the judge says. The jury could have convicted him because of his prior offense. The prosecutor mentioned the conviction and the self-defense plea 6 times in closing. The prosecutor reminded the jury of the instruction to only consider it for the knowledge element, but Judge Lucero says: "There's a limit to the frequency with which a jury can be told 'don't think of an elephant' before we can assume the jury was being asked, with a wink and a nod, to think of an elephant." The judge pointed to the wonderful quote in the Medina-Copete case that the "naive assumption that prejudicial effects can be overcome by jury instructions, all practicing lawyers know to be unmitigated fiction." Plus the prosecutor also made improper propensity arguments as well. The entire case came down to whether the jury believed one eyewitness or Mr. Hancock. The state used the old conviction and self-defense plea to tell the jury Mr. Hancock was not to be believed. It went to the heart of the trial. Habeas relief is warranted, Judge Lucero concludes.