BRISCOE, Chief Judge.
Petitioner James DeRosa, an Oklahoma state prisoner, was convicted of two counts of first-degree felony murder and sentenced to death on both counts. The two murders that were the subject of his convictions occurred on October 2, 2000. DeRosa unsuccessfully challenged his convictions and sentences on direct appeal, as well as in an application for state post-conviction relief. DeRosa then sought federal habeas relief by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied his petition but granted a certificate of appealability (COA) as to one issue. We, in turn, granted a COA on two additional issues. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we now affirm the decision of the district court.
The Oklahoma Court of Criminal Appeals (OCCA), in addressing DeRosa's direct appeal, outlined the relevant background facts of DeRosa's crime:
DeRosa v. State, 89 P.3d 1124, 1129-1133 (Okla.Crim.App.2004) (DeRosa I).
On October 4, 2000, DeRosa was charged by information in the District Court of LeFlore County, Oklahoma, Case Number CF-00-635, with two counts of first-degree felony murder. The prosecution subsequently filed a bill of particulars alleging that DeRosa "should be punished by death due to the following aggravating circumstances": (1) the murders were especially heinous, atrocious, or cruel; and (2) the murders were committed for the purpose of avoiding or preventing lawful arrest or prosecution. State ROA at 101, 105, 220.
Three attorneys from the Oklahoma Indigent Defense System (OIDS) were appointed to represent DeRosa: James Rowan, Jason Spanich, and James Lockard.
The case proceeded to trial on October 15, 2001. At the conclusion of the first-stage evidence, the jury found DeRosa guilty of both counts of first-degree felony murder. The case proceeded immediately to the sentencing phase of trial. At the conclusion of the second-stage evidence, which incorporated by reference all of the first-stage evidence, the jury found the existence of both alleged aggravating circumstances with respect to each of the counts of conviction. The jury in turn fixed DeRosa's punishment at death for each of the two counts of conviction.
On October 19, 2001, the state trial court formally sentenced DeRosa to death for each of the two murder convictions. Judgment in the case was entered on November 30, 2001.
DeRosa's lead trial attorney, OIDS attorney James Rowan, filed a notice of intent to appeal on his behalf. James Lockard, one of the OIDS attorneys who was appointed to represent DeRosa at trial, continued to represent DeRosa on direct appeal and filed an appellate brief asserting nine propositions of error.
On April 22, 2004, the OCCA issued an opinion affirming the convictions and sentences. DeRosa I, 89 P.3d at 1158. DeRosa, after unsuccessfully seeking a rehearing from the OCCA, filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied on January 10, 2005. DeRosa v. Oklahoma, 543 U.S. 1063, 125 S.Ct. 889, 160 L.Ed.2d 793 (2005).
On March 25, 2004, DeRosa, represented by private counsel, filed an application for state post-conviction relief and a verified motion for evidentiary hearing on his post-conviction claims. In his first proposition of error, DeRosa alleged that his trial counsel was ineffective for failing to (a) rehabilitate a prospective juror regarding
On May 3, 2004, less than one month after it denied DeRosa's direct appeal, the OCCA issued an order denying DeRosa's application for post-conviction relief and his motion for an evidentiary hearing. The OCCA concluded that all of DeRosa's claims of ineffective assistance of trial counsel were procedurally barred due to DeRosa's failure to assert them on direct appeal. The OCCA in turn rejected DeRosa's ineffective assistance of appellate counsel claims on the grounds that the failure of DeRosa's appellate counsel to raise the issues identified by DeRosa did not constitute deficient performance. Lastly, the OCCA concluded that DeRosa's claim of cumulative error was barred by res judicata.
DeRosa initiated these federal habeas proceedings on May 13, 2005, by filing motions for appointment of counsel and to proceed in forma pauperis. The district court granted those motions and appointed counsel to represent DeRosa.
On December 23, 2005, DeRosa's appointed counsel filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition asserted twelve grounds for relief: (1) that trial counsel's failure to investigate fully and to present readily available evidence in mitigation denied DeRosa effective assistance of counsel and a fair sentence procedure; (2) the denial of DeRosa's change of venue motion deprived DeRosa of a fair trial; (3) DeRosa's right to a fair jury was violated when the trial court excused improperly a prospective juror who was able to consider all sentencing options; (4) the improper actions of the prosecutor denied DeRosa a fair trial and reliable sentencing; (5) the irrelevant and inadmissible comments of witness Janet Tolbert denied DeRosa a fair trial and sentencing determination; (6) admission of the victim-impact evidence denied DeRosa a fair trial; (7) DeRosa was deprived of a fair sentencing determination due to the trial court's failure to instruct the jury that it had to find beyond a reasonable doubt that the aggravating circumstances found to exist outweighed the mitigating circumstances, and DeRosa's appellate counsel was ineffective for failing to present this claim on direct appeal; (8) the murder-to-avoid-arrest aggravating circumstance was not established by sufficient evidence and was unconstitutional as applied to DeRosa; (9) the heinous, atrocious, or cruel aggravating circumstance was not properly defined; (10) the jury was not told that DeRosa had a constitutional right not to testify; (11) the cumulative effect of numerous errors denied DeRosa a fair trial under the Eighth and Fourteenth Amendments; and (12) the lethal injection protocols proposed to be used by the State of Oklahoma violate the Fifth, Eighth, and Fourteenth Amendments.
On September 27, 2010, the district court issued an opinion and order denying DeRosa's petition. Judgment was entered in the case that same day.
DeRosa filed a timely notice of appeal and a motion for COA. On November 1, 2010, the district court granted DeRosa a
We subsequently granted DeRosa a COA with respect to two additional issues: (1) whether the cumulative effect of the improper comments of the prosecuting attorney made during both phases of trial was harmless; and (2) whether allowing the jury to hear the responses of two victim-impact witnesses who testified during the penalty phase of trial was harmless constitutional error.
Our review of DeRosa's appeal is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts. Id.
If a claim was addressed on the merits by the state courts, we may not grant federal habeas relief on the basis of that claim unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). "When reviewing a state court's application of federal law, we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly." McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). "Rather, we must be convinced that the application was also objectively unreasonable." Id. "This standard does not require our abject deference, ... but nonetheless prohibits us from substituting our own judgment for that of the state court." Snow, 474 F.3d at 696 (internal quotation marks omitted).
If a claim was not resolved by the state courts on the merits and is not otherwise procedurally barred, our standard of review is more searching. That is, because § 2254(d)'s deferential standards of review do not apply in such circumstances, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error. McLuckie, 337 F.3d at 1197.
In Proposition One of his appellate brief, DeRosa contends that his trial counsel was constitutionally ineffective for failing to contact and present during the second stage of trial "crucial, obvious witnesses available and willing to testify" on DeRosa's behalf. Aplt. Br. at 9. In support, DeRosa argues "that the entire mitigation effort [at trial] flowed from, and was shaped by, [his] mother Cassie (Naydan) DeRosa." Id. at 14. But, he argues, "Cassie DeRosa was, in truth, a raging sociopath with an unimaginably destructive effect on [him]," and "[t]his is a horror story, both biologically and environmentally, that the jury should have heard." Id. In turn, DeRosa contends that his counsel should have located and presented as witnesses during the second-stage proceedings (a) his maternal grandmother, Connie Naydan Carroll, (b) his father, James Money, (c) his maternal uncle, Michael Naydan, (d) his high school counselor, Virginia Poe, and (e) his high school track coach, Stan Stone.
It is undisputed that DeRosa never presented his claim of ineffective assistance
DeRosa's claim is governed by the standards outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court held that "[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components." Id. at 687, 104 S.Ct. 2052. "First," the Court noted, "the defendant must show that counsel's performance was deficient." Id. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. "Second," the Court noted, "the defendant must show that the deficient performance prejudiced the defense." Id. "Unless a defendant makes both showings," the Court held, "it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id.
Notably, the Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that `[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). There is a strong presumption that "an attorney acted in an objectively reasonable manner and that an attorney's challenged conduct might have been part of a sound trial strategy." Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir.2002) (emphasis omitted). And, because "[t]here are countless ways to provide effective assistance in any given case," "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
As a threshold matter, it is well established that "insufficient preparation of the mitigation case can constitute ineffective assistance of counsel." Wilson v. Sirmons, 536 F.3d 1064, 1142 (10th Cir. 2008) (citing Williams v. Taylor, 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). "But this is so only if the investigation fails to ... uncover significant mitigating evidence." Id. at 1143. And, even if counsel's performance is determined to have been deficient, DeRosa must further establish that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 691, 104 S.Ct. 2052 ("An error by counsel, even if professionally unreasonable, does not warrant setting aside the
In order to assess both prongs of the Strickland test, we shall begin by reviewing the mitigating evidence that was actually presented by DeRosa's trial counsel. We will then review the additional mitigating evidence that DeRosa now contends should have been presented.
At the sentencing phase of trial, DeRosa's appointed counsel presented testimony from the following five witnesses:
Jason DeRosa—Jason is DeRosa's older half-brother (they have the same mother, but different fathers). Jason testified at length about DeRosa's unstable and painful childhood, including the fact that, when DeRosa was approximately three years old, their mother Cassie, in order to facilitate her own military training, left them in a full-time daycare center for a lengthy period of time, at the end of which their maternal grandmother retrieved them and took them to Dallas to live with her for approximately three years. From there, Jason testified, DeRosa was taken in by his biological father, James Money, Sr. (Money), and DeRosa lived with Money and his new family for approximately five years. At the approximate age of eleven, DeRosa moved to Indianapolis to live with his mother, her new husband, James DeRosa Sr. (DeRosa Sr.), and Jason. In 1992, DeRosa Sr. died while on active duty in the military. Jason testified that "[t]here was no structure to [DeRosa's] life, through the ... whole childhood and up until he was an adult," Tr. at 602, and that DeRosa "felt like he didn't belong a lot of times," id. at 603. Jason further testified that he loved DeRosa and he asked the jury to spare DeRosa's life.
Cassie DeRosa—Cassie, DeRosa's mother, testified that DeRosa was born on March 17, 1977, in Irving, Texas, and that at the time of his birth their family included herself, her then-husband, Money, and her son Jason. A few weeks after DeRosa was born, she testified, Money stole approximately $1,500 from his employer and fled to San Francisco. Money returned to Irving approximately four months later. Shortly thereafter, Cassie testified, she came home one day to find Money on the couch with a male lover. She testified that she responded by moving out of the family's house with her two sons, and proceeded to try to raise them by herself.
According to Cassie, her mother did not help her with raising the two boys. She testified: "My mother doesn't—my mother never cared for me. A few years ago, she finally gave me an answer when I asked why, and she said, well, you were defective. So she never liked me much. She never—when she wanted something or needed me, or needed help or wanted something, then I was her daughter, and other than that, I wasn't her daughter and she didn't care for Jimmy, Jr. [i.e., DeRosa.] Jimmy, Jr. looked like me, from the day he was born he was defective, and so it's like she—she loved Jason, and loved him above everything, but the other two-thirds, you know, didn't count." Id. at 610.
Cassie testified that on the morning of November 28, 1978, she enlisted in the military, and later that afternoon filed for divorce from Money. She testified that she did so in that particular order because she would not have been allowed to enlist if she was a single mother. According to Cassie, she left for basic training in late December 1978, and her mother agreed to take care of Jason, "but she didn't keep [DeRosa]." Id. at 612. DeRosa was apparently left to be cared for by a roommate of Cassie's. Later on, Cassie testified, she was selected to attend a drill sergeant academy in Fort Leonard Wood, Missouri. Her mother, she testified, refused to take her boys because of the
Cassie testified that approximately two months after her mother took the boys from the daycare center, her mother sent DeRosa to Boston to live with Money.
According to Cassie, when she remarried DeRosa Sr. in 1985, her mother told her she deserved her children and could have them back. She testified that Jason returned to live with her in 1987, and that DeRosa returned to live with them in April 1988. Cassie testified that she soon realized, however, that DeRosa was "a handful" and had problems with authority and discipline. Id. at 618.
In August 1988, Cassie testified, she, DeRosa Sr., and the two boys moved to Germany. In Germany, DeRosa engaged in inappropriate behaviors and eventually had to be sent back to Arkansas to be admitted temporarily to a hospital psychiatric unit for treatment for concentration hyperactivity disorder and severe depression. According to Cassie, DeRosa was depressed about the physical and mental abuse he had suffered, and she testified that they suspected he had been sexually molested at some point by Money. Cassie testified that DeRosa, "even at sixteen, seventeen, eighteen, nineteen years old" would "just stand in the middle of the room and scream," and that she would hold him in a rocking chair and he would say, `Make the pain go away, mom. Make the pain go away.'" Id. at 623.
Cassie opined that she likewise suffered from depression and concentration hyperactivity disorder, and she testified that after her mother took her boys, she "ended up becoming a functioning alcoholic for quite sometime until [she] went and got... psychological treatment." Id. at 625.
After DeRosa was discharged from psychiatric treatment, he attended high school in Oklahoma. Cassie testified that DeRosa was smart, but was bored with school and had problems with his grades. And she testified that he would intentionally fail or make bad grades in order to prevent good things from happening. "It was almost like he didn't want anything good to happen to him," she testified. Id. at 629.
Following graduation from high school in 1995, Cassie testified, DeRosa joined the Army. He received a bad-conduct discharge, however, for stealing a car, and was sentenced to ten months in the military correctional facility at Fort Sill, Oklahoma. After completing that sentence, Cassie testified, DeRosa returned to Poteau, Oklahoma, and lived with her for some time while working a series of low-paying restaurant and retail jobs.
Ultimately, Cassie testified that, although she did not condone DeRosa's actions in robbing and murdering the Plummers, she still loved him, and she asked the jury to spare his life. In doing so, she stated: "He didn't deserve the life that he has had to live. There's no fault of his own. He's lived a life that I didn't choose for him, I didn't want for him, and I couldn't change what happened to him." Id. at 635. She also told the jury, "My son's a good boy—he is a good boy. His thought patterns don't work well sometimes and he doesn't see beyond a certain thing." Id. at 636.
Marlene Sharp—Marlene is DeRosa's half-sister; she and DeRosa have the same biological father (Money), but different mothers.
Marlene testified that she had no contact with DeRosa from that point until he and their father moved back to Texas. There, she testified, she began seeing DeRosa at least once a month. She testified that DeRosa was worried all the time and depressed.
Marlene testified that she moved back in with her father and DeRosa in an attempt to rebuild her relationship with her father. While she lived at their father's house, she testified, DeRosa "would get beat for wetting the bed," would have plates and dishes thrown at him, and "would take the spankings" for the misconduct of Timothy, their father's new son. Id. at 641. Marlene testified that she ended up leaving her father's house after six weeks because she couldn't take things anymore.
At some point after she moved out, Marlene testified, her father informed her that he was going on the road to be a truckdriver. She testified that she was scared for DeRosa, who was approximately nine or ten at the time, to stay alone with Vicki, her father's new wife, because Vicki was the one who had been abusing DeRosa. Consequently, she testified, she asked her father not to leave DeRosa alone with Vicki. Her father, in response, told her that Cassie had asked to have custody of DeRosa, and Marlene begged her father to allow DeRosa to move in with Cassie. Although her father agreed, she testified that, up until that point in time, DeRosa did not know that Cassie was his mother.
Wanda Draper—Draper, who has a Ph.D. in human development with a specialization in education, is a professor emeritus from the University of Oklahoma College of Medicine. At defense counsel's request, she analyzed the factors that impacted DeRosa's development. In doing so, she testified, she interviewed DeRosa on two occasions, interviewed a number of his family members, and studied the available medical records.
Draper testified that what she "found was a child who started out with a very difficult traumatic troubled kind of life because of the early problems going on in the family into which he was born, and so he never really had a particular family with whom he lived or grew up with. He moved back and forth and among various family members and sometimes was left without any of those anchor people, so he really never had an attachment—never had an attachment to his mother because she left very early in his life, leaving him to be cared for by others: One was her own mother or his maternal grandmother." Id. at 650-51.
Draper testified that she interviewed Connie Carroll, DeRosa's maternal grandmother, as well as Cassie DeRosa, DeRosa's mother. Draper testified that there was ongoing animosity between these two women, "and they each indicate[d] that they fe[lt] very strongly about the antagonism that they fe[lt] and the anger they fe[lt] toward one another." Id. at 651. This animosity, Draper testified, negatively impacted DeRosa's development.
According to Draper, she found a pattern of abandonment in DeRosa's life. She testified: "I specifically counted about seven times that he was abandoned. I think there are actually more than that, but seven particular times that he was abandoned by a significant person or someone he certainly considered to be significant in his life." Id. at 652. "[A]bout the third time that a child has to change the significant attachment figures in his life," Draper testified, "a child will begin to resist or back off from that attachment." Id. And, she testified, for a child to even ask "who's my mother" "means that child has no attachment." Id. at 653.
Draper testified that Connie, DeRosa's grandmother, disciplined him as a young child for starting fires. Connie told Draper that DeRosa "had been playing with matches and set a couple of fires in the house, and so she said [she] wanted to teach him a lesson and so . . . she put him in one end of the bathtub, and in the other end she wadded up newspapers and she set the newspapers on fire and let them burn closer and closer to him, and she told him this is what happens if you set fires. You could easily get burned and people could get burned with this, and so he was screaming, of course, and crying." Id. at 655-56. Draper opined that DeRosa "probably didn't hear or understand what the message was." Id. at 656.
Draper testified that when DeRosa was living with Connie, Connie was working two jobs and had very little extra time. Consequently, Draper testified, DeRosa
Draper testified that DeRosa experienced bedwetting problems for many years, and that when he was living with Money and his wife Vicki, Vicki "would whip [DeRosa] because he wet the bed." Id. at 658. According to Draper, the one thing that DeRosa could count on was that he would be punished if he misbehaved. As a result, she testified, misbehaving provided a form of stability because DeRosa knew what was going to happen to him. Relatedly, Draper explained that DeRosa had "assumed disability," which she testified occurs "where a child can't seem to succeed in any way that is appropriate, so they succeed as a failure." Id. at 660.
Draper testified that although DeRosa Sr. was, by all accounts, "a pretty decent human being," id. at 661, DeRosa could not form an attachment with him because DeRosa did not know if he would be abandoned again. Further, Draper testified, DeRosa didn't trust his mother enough to make an attachment with her either. "[I]f [Connie] the grandmother had taken [DeRosa] in and nurtured him and really cared about him," Draper testified, DeRosa "might have made it with that, but" Connie did not do so. Id. at 663. In short, she testified, "[he] had no single consistent person in his life." Id. at 664.
Draper opined that DeRosa "had a serious disorganized attachment disorder" that "developmentally hinder[ed] him." Id. at 666. And in light of this disorder, she testified, she was "not surprised that he had these problems," id., and "grew up to be a very troubled person," id. at 669.
Michael Gelbort—Gelbort, a clinical neuropsychologist, testified that he was hired by defense counsel to run a battery of tests and evaluate DeRosa. According to Gelbort, DeRosa was in "the high average to superior range in terms of his nonverbal" ability, "[b]ut in dramatic, or really marked contrast, his left hemisphere, the verbal, logical side of [his] brain [wa]s— it[was] as if [it was] from a different person." Id. at 684. More specifically, Gelbort testified that there was a difference of nearly two standard deviations between DeRosa's nonverbal ability and his verbal/logical ability, and he explained that this "doesn't happen by chance." Id. Gelbort opined that it meant "that something happened to the left side of [DeRosa's] brain" and that DeRosa was "demonstrating left frontal deficits." Id.
Gelbort proceeded to explain in more detail the purpose of the left frontal lobe of the human brain. "It's the most evolved part of the human brain," he testified, "and what causes human beings to be able to be very sophisticated in their thinking, problem solving, [and] reasoning." Id. at 684-85. He testified that "when you start doing damage to the frontal lobes, what you see is behavior that is not in our control." Id. at 685.
According to Gelbort, "[p]eople with frontal lobe problems tend to come of two types: One type you don't see, their [sic] the couch potatoes; they don't have any initiative; they don't do much." Id. The second type, he testified, "are those who have defective inhibition due to frontal lobe deficits. In other words, they act on their impulses rather than saying, no, that's a bad idea, and they get into trouble." Id. He testified that these problems typically present when a person is in their early teens, just as they did with DeRosa. And of these people, he testified, those who do not receive treatment in their teens, "you see that they have trouble getting along in life. Fortunately, it's not
Gelbort testified that "[t]hese are not things that, at this point in medical science, we know how to fix. We do have the ability to tone them down" using things like anti-seizure medication. Id. at 688. Finally, Gelbort testified, "I think it's a real shame that he [DeRosa] didn't get the treatment [when he was a teenager] such that none of us would be here today." Id. at 691.
On cross-examination, Gelbort testified that DeRosa was suffering from what he described as an "acquired brain injury" resulting from a lack of development. Id. at 694. Gelbort also explained that emotionally charged situations tend to exacerbate or make the condition worse, particularly when things are happening fast. He stated, "I don't see, in these cases with defective frontal lobes, that these people are necessarily making choices. It's more like the impulse—everybody has impulses going through them all the time." Id. at 698.
Having summarized the evidence actually presented at the sentencing phase of trial by DeRosa's trial counsel, we turn next to the additional evidence that DeRosa asserts should have presented:
Letter from Connie Naydan Carroll. Most notably, DeRosa contends that his trial counsel should have presented a seven-page letter that his maternal grandmother, Connie Naydan Carroll, wrote to the Commonwealth of Massachusetts Family Court on April 21, 1981. The letter, DeRosa asserts, was written in support of a request made by DeRosa's biological father, Money, to change a custody order entered by a Texas state court following the 1977 divorce of DeRosa's biological parents (i.e., Money and Cassie). According to DeRosa, the following passages are the most quote-worthy:
ROA, Vol. 1, Part 2 at 210.
Id. at 211.
Id. at 213.
Id. at 213-14.
Id. at 214.
Jerry Friedel. Friedel was Cassie's first husband and the father of Jason. Friedel, in an affidavit, alleged that Cassie intentionally set fire to a house he was renting following their divorce.
Michael Naydan. Naydan is Cassie's younger brother and DeRosa's uncle. In an affidavit submitted with DeRosa's habeas petition, Naydan alleged that "[g]rowing up with . . . Cassie was pure hell" and that "it was always very clear that Cassie had a major screw loose." Id. at 231. Naydan characterized Cassie as "a troublemaker," "a bully," and promiscuous. Id. Naydan alleged that "Cassie set fire to [Friedel's] house," and that "[a]fter the arson, [their] parents tried to get her checked into a mental hospital for some professional help, but the doctors said it had to be voluntary." Id. at 232. Naydan asserted that Cassie was an unfit mother and gave examples to support his assertion. Ultimately, Naydan alleged: "My sister is as nutty as they come and has always been a pathological liar. Cassie was not only an unfit mother, but she should never have been trusted to care for a child with special needs like [DeRosa]." Id. at 235.
Connie Carroll. Connie, as noted, was Cassie's mother and DeRosa's maternal grandmother. In an affidavit submitted with DeRosa's federal habeas petition, Connie reiterated much of the information that was contained in her 1981 letter to the Massachusetts family court. She further stated that "[o]ccasionally Cassie would seem to have her act together and [she] would let the boys [Jason and DeRosa] go with her." Id. at 238. Connie further stated that Cassie had the boys "when she
Jason DeRosa. Although Jason, DeRosa's older half-brother, actually testified as a mitigation witness on DeRosa's behalf, DeRosa now contends that Jason could have provided additional mitigating testimony. In particular, DeRosa asserts, Jason could have testified about specific examples of Cassie's "alcoholism, paranoia, hoarding, and other symptoms of mental illness." Aplt. Br. at 20. DeRosa also asserts that Jason could have testified that "there were huge verbal conflicts between [Cassie] and [Connie] and one time there was even a car chase when [Connie] was chasing [Cassie] to a police station." ROA, Vol. 1, Part 2 at 243.
James Money. Money, DeRosa's biological father, prepared an affidavit that was submitted with DeRosa's federal habeas petition. Money described his experiences in the Vietnam war and the impact it had on the rest of his life, including causing him to drink excessively. Money also described meeting and marrying Cassie. He stated that "[s]he would lie all the time to get out of sticky situations," "blamed everyone else, especially her mother, for all of her troubles," and "started fooling around behind [his] back." Id. at 248. Money confirmed that DeRosa lived with him and his current wife, Vicki, from the age of six until the age of eleven or twelve. He stated that after Cassie married DeRosa Sr., he agreed to let DeRosa live with Cassie and DeRosa Sr. "because [he] knew how close Jason and [DeRosa] were." Id. at 249. "That," he stated, "[was] the last time [he] ever saw [DeRosa]." Id.
Gunhilt Money. Gunhilt Money was Money's first wife, and Money divorced her to marry Cassie. Attached to DeRosa's federal habeas petition was an affidavit from Gunhilt that detailed her history with Money. She alleged that his experience in Vietnam "changed [him] into a totally different person," and "[he] . . . developed a very serious drinking problem and . . . seemed angry all the time." Id. at 259. She alleged "[he] was physically abusive to [their] children, and had no patience whatsoever." Id. Gunhilt alleged that she divorced Money in 1974, after Money began having an affair with Cassie, and that Money "never sent [her] a dime in child support." Id. at 260. In approximately 1980, Gunhilt alleged, she received a phone call "from Cassie's mother, Connie, who told [her] that Cassie had abandoned her children and [Connie] had rescued them from a day care center in Oklahoma," and Connie "needed to know how to reach [Money] so he could take custody of" DeRosa. Id. She alleged that Money "came back to Dallas to get [DeRosa] and . . . was arrested for non-payment of child support." Id. at 261. "When [Money] got out of jail," she alleged, they "attempted a reunion," and Money and DeRosa "came to live with [her] and [her] children." Id. "Even though [DeRosa] was three years old," she alleged, "no one had ever toilet trained the poor child, so he was still in diapers." Id. She alleged that DeRosa "seemed like a child who had always been sadly neglected and was in desperate need of love and caring." Id. According to Gunhilt, her reunion with Money "was very short-lived," and "[s]oon thereafter, he moved back to Boston with [DeRosa]." Id. She alleged that "[w]hen [DeRosa] was about 6 years old, [Money] moved back to Dallas and married a woman named Vicki." Id. She "would see [Money] occasionally," she alleged, "because [her] children
Donna M. Schwartz-Watts, M.D. Schwartz-Watts (Schwartz) is a board-certified psychiatrist and an associate professor of psychiatry and director of forensic services at the University of South Carolina School of Medicine in the Department of Neuropsychiatry. Schwartz examined various documents from this case and "opin[ed] with a reasonable degree of medical certainty that . . . DeRosa is pre-disposed to mental illness" and she concluded "[t]here [we]re indications of sexual abuse as a child including his history of eneuresis (bedwetting) and especially encopresis (soiling self)." Id. at 264. She also concluded "[t]here [we]re indications that. . . DeRosa suffered from symptoms consistent with Attention Deficit Hyperactivity Disorder during childhood." Id. "There [we]re indications" in the materials, she alleged, "that . . . DeRosa's mother was very negligent and abusive and may have mental illness." Id. In particular, Schwartz alleged, DeRosa's mother "manifest[ed] symptoms that could be consistent with a mood disorder, known as bipolar affective disorder . . . and likely an underlying personality disorder." Id.
Vicki Money. Vicki married Money in 1983. At that time, Money had custody of DeRosa, and DeRosa began living with Money and Vicki. Vicki alleged that "[i]t was always [her] understanding from both [Money] and Connie that [DeRosa's] mother, Cassie, was unstable and unfit to care for her children." Id. at 267. Vicki further alleged that DeRosa "had problems with frequent bedwetting" and "would [also] often poop his pants." Id. at 268. According to Vicki, DeRosa's "school became concerned that [DeRosa's] problems could be a symptom of sexual abuse, so they pulled him and [Vicki's adopted son] Tim out of class and interviewed them about [their] home life." Id. at 269. She alleged she "had counseled [her] son Tim, who had emotional and intellectual deficits, not to talk in school about [DeRosa's] bedwetting problems," and "told [him] that what happened in [their] home was private and wasn't anyone else's business." Id. "[W]hen Tim told this to the school officials who were investigating [them]," she alleged, "they thought [the family] w[as] hiding something and the state was called in to investigate." Id. "Tim and [DeRosa] were taken away from [them] for a short time," she alleged, "until they realized these concerns were unfounded." Id. Vicki alleged that she "was devastated" when Money "told [her] that Cassie and her new husband were going to take [DeRosa] with them to Germany." Id. at 270.
Ranada Gentry. Gentry is, apparently, an investigator employed by DeRosa's federal habeas counsel. Gentry interviewed DeRosa's former high school counselor, Virginia Poe, and DeRosa's former high school track coach, Stan Stone. Poe "stated [DeRosa's] mother was very difficult to work with," "was more strict on him than most other parents," and "had her own mental problems." Id. at 312. "Poe believed that [DeRosa] was a very unhappy child." Id. "Coach Stone recalled [DeRosa] was an excellent track runner . . . and in fact in 1995 . . . won the Oklahoma State Championship in the 3200 meter." Id. at 313. "During the time Coach Stone worked with [DeRosa] he could tell [DeRosa] was a really troubled kid" and "seemed to him to be a child" who had been abused and neglected. Id. "Coach Stone remembered [DeRosa] had a very aggressive and intolerant mother" who "seemed to be pushing him without mercy." Id. According to Stone, DeRosa "was a very effeminate guy and it seemed [that] his mother
Marlene Sharp. Marlene was, as previously noted, DeRosa's half-sister and testified on DeRosa's behalf at the sentencing trial. In an affidavit submitted with DeRosa's federal habeas petition, Marlene alleged that their father, Money, was "a very heavy drinker," and "was very strict" and "very abusive." Id. at 355.
Because DeRosa never presented his ineffective assistance of trial counsel claim to the OCCA, no state evidentiary hearing was held regarding the claim. Further, the federal district court in this case concluded that DeRosa could not satisfy Strickland's prejudice prong, and thus did not hold an evidentiary hearing. Lastly, as respondent correctly notes, DeRosa "has not produced affidavits from his trial attorneys regarding their [sentencing phase] strategy." Aplee. Br. at 36. As a result, there is no evidence in the record on appeal detailing the sentencing phase strategy of DeRosa's trial counsel or any evidence indicating why they did not present the additional mitigating evidence that DeRosa now points to.
After examining the mitigating evidence that was actually presented by DeRosa's trial counsel, it is apparent that trial counsel was well aware of most, if not all, of the significant mitigating events that occurred during DeRosa's life. In particular, DeRosa's trial counsel was privy to (a) the fact that most of the significant adults in DeRosa's life, including his mother, were dysfunctional to one degree or another, (b) the strained, antagonistic relationship between DeRosa's mother and maternal grandmother, (c) the series of abandonments that DeRosa was subjected to as a child, including by his mother and biological father, (d) the fact that DeRosa's mother essentially abandoned DeRosa and his brother by leaving them in a daycare facility for a month, and the fact that DeRosa's maternal grandmother retrieved the boys from the daycare center and took custody of them, (e) the fact that DeRosa was unclear, during the initial years of his life, who his mother was, (f) the fact that DeRosa's biological father was neglectful and possibly abusive towards DeRosa, (g) the allegations that DeRosa's father molested DeRosa's half-sister, (h) the fact that DeRosa's stepmother, Vicki, physically punished and abused him, (i) the fact that DeRosa displayed inappropriate behaviors as a teenager and, consequently, had to be returned to the United States from Germany and admitted for inpatient psychiatric treatment, (j) the likelihood that DeRosa did not receive adequate inpatient psychiatric treatment upon his return to the United States, and (k) the nature of DeRosa's psychological issues, including in particular his left frontal lobe deficiencies and the resulting impacts on his behavior. DeRosa's trial counsel, in turn, presented this information to the jury through the testimony of the witnesses listed above.
In light of these uncontroverted facts, we are unable to conclude that the failure to present this additional mitigating evidence was an error "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. As we have outlined, the additional mitigating evidence is, in large part, duplicative of the evidence actually presented by DeRosa's trial counsel. And, to the extent the additional mitigating evidence is not duplicative, it is, in our view, of marginal value. Specifically, the additional,
Even if we were to assume that DeRosa could satisfy the first Strickland prong, we are not persuaded that he was prejudiced by his trial counsel's allegedly deficient performance. In assessing prejudice, we must determine "whether there is a reasonable probability that, absent the errors, the [jury] . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. 2052. "In making this determination, we consider the strength of the State's case, the aggravating circumstances the jury found, the mitigating evidence defense counsel did present, and the additional mitigating evidence the defense might have presented." Neill v. Gibson, 278 F.3d 1044, 1062 (10th Cir.2001).
At the sentencing phase of trial, the prosecution formally adopted all of the evidence it presented during the guilt phase of trial. The first-stage evidence established in particular that DeRosa was the key instigator in the decision to rob the Plummers, and was also the person who, in response to Curtis Plummer's request to be allowed to seek help for his critically injured wife, struck him over the head with a marble-top end table and then slit his throat. The first-stage evidence further established that the crime netted DeRosa and his accomplices approximately $73, a portion of which the three spent to buy food at Taco Bell. And, even though DeRosa's stated purpose in committing the robbery was to obtain cash to allow himself and Castleberry to travel to Texas to look for work, in the end the robbery proceeds were insufficient to accomplish this purpose, and DeRosa and Castleberry had to borrow money from Justin Wingo in order to fund their trip. In addition to adopting the first-stage evidence, the prosecution presented victim-impact testimony from Janice Tolbert, the Plummers' only daughter, and Jo Milligan, the sister of Gloria Plummer. Both women read to the jury statements that they had prepared prior to trial.
At the conclusion of the sentencing phase of trial, the jury found that the murders were especially heinous, atrocious, or cruel, and committed for the purpose of avoiding or preventing a lawful arrest or prosecution. The jury's findings in this regard were supported by overwhelming evidence. With respect to the especially heinous, atrocious, or cruel aggravator, the prosecution's evidence, which included testimony from the medical examiner who performed the autopsies on the Plummers, established that the Plummers' deaths were preceded by a physical and bloody struggle with DeRosa, and later Castleberry, during which both victims were stabbed multiple times. Gloria Plummer, the evidence established, suffered five stab wounds to her back (one of which entered her chest cavity and terminated at the diaphragm, a second that entered her left lung, and a third that went into the right lobe of her liver), one stab wound to her front (that also entered her left lung and cut her aorta), and four incised wounds or cuts. One of the incised wounds was a four-inch long wound to her upper neck that passed through her windpipe and transected her left carotid artery and jugular vein. This wound, the medical examiner testified, was caused by either sawing action with a knife or multiple passes in the same area with a knife. Although several of these wounds would have
As for Curtis Plummer, the evidence established that he suffered six separate stab wounds, two of which entered his lungs, as well as a seven-inch incised wound to his neck (caused either by multiple separate passes with a knife or a repositioning and a sawing type motion) that transected and passed through his trachea, windpipe, esophagus, carotid arteries, and jugular veins. The evidence also indicated that Curtis suffered a blunt force wound to the left side of his head from the marble-topped end table DeRosa threw on him. Although this blunt force wound may have rendered Curtis unconscious, and thus unaware at the time DeRosa inflicted the lengthy wound to his neck, the evidence was uncontroverted that Curtis was conscious prior to that point, and well aware not only of his own injuries, but also of the serious injuries suffered by Gloria. Indeed, the evidence established that he begged DeRosa and Castleberry to allow him to call 911 to seek assistance for Gloria, and offered them anything he had if they would allow him to get help.
The evidence also overwhelmingly established that the murders were committed for the purpose of avoiding a lawful arrest or prosecution. The prosecution's evidence established that the Plummers knew DeRosa because he had worked for them for a short time in the year prior to their murders. And DeRosa's plan to rob the Plummers capitalized on this familiarity: DeRosa, accompanied by Castleberry, approached the Plummers' home in the late evening and asked Gloria Plummer if they could enter in order to talk to Curtis Plummer about the possibility of work. But, significantly, DeRosa's plan to rob the Plummers did not include any method for avoiding arrest or prosecution, short of murdering the Plummers. Had the Plummers lived, they clearly could have identified DeRosa. Also, after DeRosa and Castleberry left the Plummers' house, they drove to a local lake and disposed of evidence, including the Plummers' truck, their clothing, and the knives, by dumping it into the lake. Lastly, following his arrest, DeRosa told cellmate Daniel Wilson at the LeFlore County Jail "that everything went perfect until Scotty White . . . c[a]me forward" and told the authorities what had happened. Tr., Vol. II at 277.
Having outlined the facts relevant to the prejudice determination, we conclude there is not a reasonable probability that the additional mitigating evidence that DeRosa now points to would have impacted the jury's findings regarding the aggravating circumstances of these murders. Thus, the only way that DeRosa could have been prejudiced by the omission of the additional mitigating evidence is if "there is a reasonable probability that" the presentation of the additional mitigating evidence would have caused the jury to "conclude[ ] that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. 2052.
On this point, DeRosa argues that, "[m]ost prominently, a mountain of deeply disturbing evidence regarding [his] mother Cassie existed but was not presented at trial" and could have altered the jury's sentencing determination. Aplt. Br. at 31. And, he argues, "[t]he mitigating power of Connie Naydan Carroll's letter to the Massachusetts court [wa]s unprecedented and especially strong." Id. In short, he argues, Cassie "was . . . a raging sociopath with an unimaginably destructive effect on [him]," and "[t]his [wa]s a horror story,
The problem with DeRosa's arguments is that the jury was well aware, based upon the mitigating evidence actually presented by DeRosa's trial counsel, that Cassie had serious personal issues and was far from a perfect mother. In particular, the jury knew that Cassie effectively abandoned her young sons at a daycare center and then, after her mother took the boys from the daycare center, made no serious attempts to obtain custody of them for several years thereafter. Although the jury may not have been aware of all of the sordid details of Cassie's life, the important point is that, through the testimony of the mitigating witnesses actually presented, the jury was made aware that DeRosa was repeatedly abandoned, rejected, or abused by the important figures in his life, most notably Cassie. In other words, the new evidence that DeRosa now points to regarding Cassie does not "differ in a substantial way . . . from the evidence actually presented at sentencing." Clark v. Mitchell, 425 F.3d 270, 286 (6th Cir.2005).
Relatedly, although DeRosa now attempts to portray his maternal grandmother as a potentially caring figure who was concerned for his well-being, the great weight of the evidence suggests otherwise. To be sure, it was Connie who retrieved DeRosa and Jason from the Oklahoma daycare center where Cassie had placed them. But Connie did not retain custody of DeRosa for long. Instead, the record indicates that she handed DeRosa over to Money. And there is no indication in the record that DeRosa continued to have any type of contact, let alone relationship, with Connie as an adolescent or young man. In fact, the evidence indicates that, as an adult, he continued to maintain a relationship with Cassie. Finally, and again relatedly, the mitigating evidence actually presented to the jury at sentencing established that, until DeRosa was a teenager and encountered DeRosa Sr., virtually every significant adult figure in DeRosa's life, including Connie, was seriously flawed and either abandoned, rejected, or physically or emotionally abused him.
Nor would the additional mitigating evidence have added anything significant to the jury's understanding of DeRosa's mental deficiencies. As this court has previously stated, a jury "may decide not to impose the death penalty because mental illness helps to explain why the defendant behaved the way he did and makes the defendant less culpable for his crimes," or "they may decide not to impose the death penalty because mental illness makes the defendant a more humanized, sympathetic figure." Wilson, 536 F.3d at 1144. But DeRosa "has not shown a reasonable probability that the additional evidence he offers would have changed the jury's balance of aggravating and mitigating circumstances under either [of these] approach[es]." Id.
In sum, the mitigating evidence actually presented by DeRosa's trial counsel did not "le[ave] the jury with a `pitifully incomplete' picture of the defendant." Id. at 1146 (quoting Anderson v. Sirmons, 476 F.3d 1131, 1148 (10th Cir.2007)). Instead, it gave the jury a relatively complete, albeit summarized, look at DeRosa's background and mental issues. And, most significantly, we conclude there is not a reasonable probability that the additional mitigating evidence now identified by DeRosa, whether considered individually or as a whole, would have altered the jury's sentencing determination.
In Proposition Two of his appellate brief, DeRosa contends that the prosecutor
Id. at 5-6.
Prosecutorial misconduct can result in constitutional error in one of two ways. "First, prosecutorial misconduct can prejudice `a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right.'" Matthews v. Workman, 577 F.3d 1175, 1186 (10th Cir.2009) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). Second, absent the infringement of a specific constitutional right, prosecutorial misconduct can result in constitutional error if it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643, 94 S.Ct. 1868. In other words, in the habeas context, the petitioner must establish that the prosecutor's misconduct was "of sufficient significance to result in the denial of the [petitioner]'s right to a fair trial." Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (internal quotation marks omitted). In considering whether a habeas petitioner has satisfied this standard, the offending prosecutorial remark or action must be placed in the context of the whole trial, and not viewed in isolation. Id. at 765-66, 107 S.Ct. 3102.
DeRosa also cites to three other Supreme Court cases as providing the clearly established federal law applicable to his claims: Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). In Caldwell, the petitioner was convicted of killing the owner of a small grocery store during the course of robbing it. During the second-stage proceedings, petitioner's counsel in large part argued that the jury should show the petitioner mercy in its sentencing decision. In response, the prosecutor "sought to minimize the jury's sense of the importance of its role," "argu[ing] that the defense had done something wholly illegitimate in trying to force the jury to feel a sense of responsibility for its decision." 472 U.S. at 325, 105 S.Ct. 2633. In doing so, the prosecutor made the following arguments to the jury:
Id. at 325-26, 105 S.Ct. 2633. After his conviction and sentence were affirmed on direct appeal, the petitioner sought federal habeas relief, arguing that the prosecutor's second-stage arguments led the jury to believe that the responsibility for determining the appropriateness of his death sentence rested not with it but with the state appellate court.
In addressing this issue, the Supreme Court held "that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 328-39, 105 S.Ct. 2633. The Court noted that "[b]elief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an `awesome responsibility' has allowed this Court to view sentencer discretion as consistent with—and indeed as indispensable to—the Eighth Amendment's `need for reliability in the determination that death is the appropriate punishment in a specific case.'" Id. at 330, 105 S.Ct. 2633 (quoting Woodson, 428 U.S. at 305, 96 S.Ct. 2978). Continuing, the Court concluded that "[i]n the capital sentencing context there [we]re specific reasons to fear substantial unreliability as well as bias in favor of death sentences when there [we]re state-induced suggestions that the sentencing jury m[ight] shift its sense of responsibility to an appellate court." Id. at 330, 105 S.Ct. 2633. Ultimately, the Court concluded that in Caldwell's case, "the State sought to minimize the jury's sense of responsibility for determining the appropriateness of death," and that it was impossible to "say that this effort had no effect on the sentencing decision. . . ." Id. at 341, 105 S.Ct. 2633. Accordingly, the Court vacated the petitioner's sentence and remanded the case for further proceedings. Id.
In Gardner, a capital case, the Supreme Court did not address prosecutorial misconduct, but instead held generally that "[i]t is of vital importance to the defendant [in a capital case] and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." 430 U.S. at 358, 97 S.Ct. 1197.
Finally, in Woodson, the Supreme Court struck down as unconstitutional a North Carolina statute that "ma[de] death the mandatory sentence for all persons convicted of first-degree murder." 428 U.S. at 286-87, 96 S.Ct. 2978. In doing so, the Court concluded, in pertinent part, that one of the "constitutional shortcoming[s] of the North Carolina statute [wa]s its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death." Id. at 303, 96 S.Ct. 2978. In other words, the Court held, the statute "accord[ed] no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense," and instead "treat[ed] all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Id. at 304, 96 S.Ct. 2978.
DeRosa contends that his right to a fair trial was violated when the prosecutor informed the jury during first-stage closing arguments that codefendant and
DeRosa I, 89 P.3d at 1148 (internal paragraph numbers and footnotes omitted).
In this federal habeas appeal, DeRosa asserts that he "has rebutted by clear and convincing evidence the OCCA's conclusion there `apparently' was no deal with White at the time of trial." Aplt. Br. at 51. According to DeRosa, the prosecutor "knew there was a deal" and he in fact "reduced White's charges to accessory after-the-fact prior to . . . DeRosa's preliminary hearing despite the fact White's admitted actions clearly made him responsible for the murders as a principal." Id. DeRosa argues that "[w]hen [the prosecutor] argued `there's no deal,' he knew White had kept his agreement to testify against . . . DeRosa," and "also knew he had, at least tacitly,
Contrary to DeRosa's assertions, he has not rebutted by clear and convincing evidence the OCCA's finding that there was no evidence of a deal between White and the prosecutor at the time of trial. To be sure, it was uncontroverted that the prosecutor reduced White's charges prior to DeRosa's trial. But the reasons for doing so appear clear: the substantial, if not overwhelming, evidence established that White merely acted as a driver for DeRosa and Castleberry. Further, although White may have, at the time of trial, been hopeful of receiving a favorable deal with the prosecutor, there is simply no evidence that a deal existed at the time of trial. See United States v. Molina, 75 F.3d 600, 602 (10th Cir. 1996) ("The mere fact that . . . witnesses were subsequently allowed to plead on favorable terms is not evidence that plea agreements were secretly reached prior to the witnesses' testimony and improperly withheld from the defense."). Instead, the evidence indicates only that White, with the prosecutor's agreement, pled guilty to the accessory charges at some point after DeRosa's trial. Moreover, as the OCCA noted, DeRosa's trial counsel was able to cross-examine White at trial about his hope for a favorable deal, and thereby placed White's credibility at issue before the jury. Notably, however, White's testimony was corroborated by a substantial amount of other evidence, including the testimony of Castleberry.
Thus, in sum, the OCCA reasonably concluded that the prosecutor did not engage in misconduct in denying the existence of a deal with White.
DeRosa next contends that the prosecutor, in questioning witnesses Kendall Ballew, the former LeFlore County Sheriff, and Shawn Ward, an investigator employed by the LeFlore County District Attorney's office, "impermissibl[y] . . . denigrat[ed]. . . DeRosa's right to remain silent." Aplt. Br. at 56. Ballew and Ward were the two law enforcement officers who traveled to Corpus Christi, Texas, to take Castleberry and DeRosa into custody. The prosecutor asked Ballew whether he talked to Castleberry upon taking him into custody, and Ballew testified that Castleberry made a statement to him. The prosecutor in turn elicited testimony from Ward that Castleberry gave consent to search his vehicle (i.e., the vehicle that he and DeRosa drove to Corpus Christi), and that Castleberry subsequently pled guilty to two counts of murder. DeRosa complains that the prosecutor in first-stage closing arguments in turn made the following remarks that, he asserts, indirectly criticized DeRosa's decision to remain silent:
Tr. at 531-32.
DeRosa presented this claim to the OCCA on direct appeal. The OCCA rejected it, stating:
DeRosa I, 89 P.3d at 1147-48 (internal paragraph numbers omitted).
In this federal habeas appeal, DeRosa argues that the OCCA unreasonably concluded that the prosecutor's remarks did not burden the exercise of his constitutional right to remain silent. He argues that, because "[t]here were two murder suspects presented to the jury, one who made use of his Fifth Amendment rights, and one who waived his Fifth Amendment rights," "[t]he obvious and clear implication [of the prosecutor's remarks] is that if Castleberry's confession and guilty plea were the right thing, then DeRosa's invocation of his constitutional rights was the wrong thing." Aplt. Br. at 58.
We conclude, however, that the OCCA reasonably applied the principle outlined by the Supreme Court in Donnelly, i.e., that a reviewing "court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations." 416 U.S. at 647, 94 S.Ct. 1868. Although DeRosa asserts that the prosecutor's remarks in his case were not ambiguous, we disagree. The prosecutor's remarks, considered as a whole, were clearly intended to rebut the assertion by DeRosa's defense counsel that Castleberry had, in exchange for a plea deal with the prosecution, provided false testimony about DeRosa's involvement in the robbery and murders. And although the prosecutor's specific remarks about Castleberry doing "the right thing" perhaps could be interpreted as a comment on DeRosa's silence, the more natural and reasonable interpretation, as the OCCA effectively concluded, is that the prosecutor was simply asserting that Castleberry was following his conscience and telling the truth about what had happened.
DeRosa contends that "[d]uring the presentation of witnesses and in closing argument, the prosecutor tainted the jury and imposed his personal view of the evidence by unfairly attacking defense counsel and accusing him of lying." Aplt. Br. at 60.
DeRosa raised this same claim on direct appeal. The OCCA outlined the background
DeRosa I, 89 P.3d at 1141-45 (internal paragraph numbers omitted).
In this federal habeas appeal, DeRosa argues that "[t]he OCCA's determination that Wilson's testimony was not particularly significant [wa]s an unreasonable determination." Aplt. Br. at 62. "The prosecution," he argues, "clearly characterized Wilson's testimony as critical, so much so it said DeRosa's defense was to `get rid of Danny Wilson's testimony somehow because Danny Wilson's testimony cooks his. . . goose.'" Id. (quoting Tr. at 552).
A review of the entire trial transcript, however, establishes that DeRosa's arguments are baseless. To be sure, the prosecutor, during first-stage oral arguments, did argue that defense counsel needed "to get rid of Danny Wilson's testimony somehow because Danny Wilson's testimony cooks his client's goose, and the way he's chosen to get rid of it is to say that one of my assistant district attorneys conspired with one of my investigators to get his client." Tr. at 552. But the prosecutor's purpose in doing so was not to assert that Danny Wilson was the prosecution's key witness, but rather simply to counter defense counsel's assertion that there was some type of conspiracy or agreement between Wilson and Ward, whereby Wilson provided false testimony to assist the prosecution. Indeed, as the OCCA reasonably noted in rejecting this claim, it is quite clear from reviewing the trial transcript that Wilson was a relatively minor witness, and that his testimony was by no means crucial. Instead, the key testimony came
Related to his claim regarding witness Wilson, DeRosa contends that the prosecutor also engaged in misconduct and violated DeRosa's right to a fair trial by vouching for the credibility of the prosecution's witnesses, including investigator Ward, during first-stage closing arguments. The OCCA rejected this claim on the merits (along with some related claims), stating as follows:
DeRosa I, 89 P.3d at 1148-49 (internal paragraph numbers omitted).
DeRosa complains that "[t]he OCCA did not employ the Chapman [harmless-beyond-a-reasonable-doubt] standard" in assessing the harmlessness of the prosecutor's comments, and thus "its determination was unreasonable." Aplt. Br. at 68. But even assuming that the OCCA did err in this regard, we are bound to apply "the more forgiving standard of review" outlined in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), under which an error is deemed harmless unless it "had substantial and injurious effect or influence in determining the jury's verdict," Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (internal quotation marks omitted). And we conclude, having reviewed the trial transcript, that the prosecutor's statements did not have a substantial and injurious effect or influence in determining the jury's verdict. Rather, the jury's first-stage verdict was amply, if not overwhelmingly, supported by the prosecution's evidence. And we conclude the same holds true for the jury's second-stage sentencing verdict.
DeRosa contends the prosecutor violated his right to a fair trial by repeatedly referring to the victims as "Papa" and "Mama Glo," rather than using their real names. Relatedly, DeRosa contends the prosecutor acted improperly and violated DeRosa's right to a fair trial during closing arguments by thanking the jury on behalf of the victims' family. According to DeRosa, these actions by the prosecutor "encouraged the jurors to develop improper sympathy for the victims." Aplt. Br. at 72.
DeRosa asserted this same claim on direct appeal. The OCCA rejected it, stating as follows:
DeRosa I, 89 P.3d at 1146 (internal paragraph numbers omitted).
We conclude, after reviewing the trial transcript, that the OCCA's harmless error analysis was reasonable. And although DeRosa asserts in this appeal that the prosecutor's comments specifically violated his Eighth Amendment right to a fair and reliable sentencing proceeding, the transcript of the sentencing proceeding clearly indicates otherwise. Unlike in Caldwell, the prosecutor's comments did not result in the jury "believ[ing] that the responsibility for determining the appropriateness of the defendant's death rest[ed] elsewhere." 472 U.S. at 328-39, 105 S.Ct. 2633. Nor did the prosecutor's comments appear to impact the reliability of the jury's second-stage verdict. Finally, and relatedly, the prosecutor's comments were not significant enough to cause the jury to base its second-stage verdict on "caprice or emotion," rather than "reason." Gardner, 430 U.S. at 358, 97 S.Ct. 1197. In other words, the comments were harmless because they did not have a "substantial and injurious effect or influence in determining the jury's verdict." Fry, 551 U.S. at 116, 127 S.Ct. 2321 (internal quotation marks omitted).
DeRosa contends the prosecutor violated his Eighth and Fourteenth Amendment rights by asking questions of potential jurors during voir dire "designed to educate [them] that evidence that did not reduce guilt or moral culpability was not to be considered by them." Aplt. Br. at 78. "The types of mitigating evidence dismissed in this questioning," he asserts, "included classic kinds of mitigating evidence: family history, bad childhood, lack of brain function, lack of capacity." Id. DeRosa argues that the prosecutor then "continued this theme in [second-stage] closing argument" by asserting that DeRosa would claim the crimes were the fault of others, including his parents, the daycare center, his grandmother, and the military. Id.
Were DeRosa to now attempt to return to the OCCA and file a second application for post-conviction relief raising the claim, it would clearly be procedurally barred. The applicable rule of the OCCA provides that "a second application for post-conviction relief must be filed within sixty days from the date a previously unavailable factual basis for an application is discovered." Smith v. State, 245 P.3d 1233, 1238 (Okla. Crim.App.2010) (citing Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010)). Because DeRosa was obviously aware of the factual basis for the claim at the time he filed his initial application for post-conviction relief, he is now well outside the sixty-day window afforded by the OCCA's rule and thus would be procedurally barred from filing a second application for post-conviction relief based upon this claim of prosecutorial misconduct.
And DeRosa has made no attempt to overcome this anticipatory procedural bar to federal habeas review. As we have noted, DeRosa cannot make a credible claim of actual innocence, and thus cannot rely on the "fundamental miscarriage of justice" exception to procedural bar. Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Further, DeRosa has made no attempt to argue cause and prejudice, i.e., that his appellate or post-conviction counsel was ineffective for failing to raise the claim.
Finally, DeRosa argues that the various instances of prosecutorial misconduct cited in his brief, considered cumulatively, created fundamental unfairness at both stages of his trial. The OCCA concluded that the allegations of prosecutorial misconduct (save for the last claim, which, as we have noted, was never raised in state court), considered together with the alleged introduction of improper victim-impact evidence, did not result in fundamental unfairness.
In our view, this conclusion is entirely reasonable. As we have explained, the evidence of DeRosa's guilt was extremely strong, if not overwhelming. Likewise, the aggravating factors found by the jury were amply supported by the evidence. Considering the evidence and trial proceedings as a whole, we conclude that the jury was able to judge the evidence fairly, notwithstanding the various instances of prosecutorial misconduct alleged by DeRosa. We in turn conclude, therefore, that neither stage of trial was rendered fundamentally unfair by the cumulative effect of the alleged misconduct.
In Proposition Three of his appellate brief, DeRosa contends that the introduction at his trial of improper victim-impact evidence violated his rights under the Eighth Amendment. In support, DeRosa first asserts that "[u]nofficial victim[-]impact evidence was presented . . . in the guilt phase of trial," Aplt. Br. at 82 (italics in original), when Janet Tolbert, the Plummers' only daughter, testified. "In response to a simple request to point to suspect DeRosa in the courtroom and identify him by his appearance," DeRosa asserts, "Tolbert angrily lost control and lashed out emotionally against him," id. at 83. Specifically, the following exchange occurred between the prosecutor and Tolbert:
Tr. at 66-67.
DeRosa further contends that "[d]uring official victim-impact evidence [at] the second stage of trial, the anger, and the errors, continued to accumulate." Aplt. Br. at 84 (italics in original). "Janet Tolbert," DeRosa asserts, "angrily directed her remarks not only to the jury, but specifically to [him]." Id. As examples, DeRosa points to the following statements by Tolbert:
Tr. at 588.
Id. at 589.
Similarly, DeRosa argues, Jo Milligan, Gloria Plummer's sister, provided improper victim-impact testimony by testifying as follows:
Id. at 590.
Id.
Id. at 591.
In short, DeRosa argues, "Janet Tolbert and Jo Milligan's testimony characterized the crime and the pain the victims felt in an inflammatory way, and Janet Tolbert pleaded with the jury on behalf of her entire family to sentence James DeRosa to death."
DeRosa identifies Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), as providing the clearly established federal law applicable to this claim. In Booth, the Court held "that evidence and argument relating to the victim and the impact of the victim's death on the victim's family are inadmissible [under the Eighth Amendment] at a capital sentencing hearing." Payne, 501 U.S. at 830 n. 2, 111 S.Ct. 2597. That holding was overruled by the Court in Payne. Id. at 830 and n. 2, 111 S.Ct. 2597. "Booth also held that the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment." Id. at 830 n. 2, 111 S.Ct. 2597. Payne did not overrule this portion of Booth. Id. Thus, it remains constitutionally improper for the family members of a victim to provide "characterizations and opinions about the crime, the defendant, and the appropriate sentence" during the penalty phase of a capital case. Welch v. Sirmons, 451 F.3d 675, 703 (10th Cir. 2006), overruled on other grounds by Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009) (en banc) (applying de novo standard of review in circumstances where state habeas petitioner presents an ineffective assistance of counsel claim and the state appellate court declined to supplement the original trial record with outside evidence proffered by the petitioner).
DeRosa raised these same arguments (except for his argument regarding a member of the Plummer family gesturing to him) on direct appeal. In doing so, however, he did not argue that Janet Tolbert's first-stage testimony constituted "unofficial" victim-impact testimony. Instead, he argued simply that she provided "prejudicial testimony," and he argued that her testimony in that regard, when combined with the alleged prosecutorial misconduct, violated his right to a fair trial. In a separate part of his direct appeal brief, DeRosa argued that the second-stage testimony of Tolbert and Milligan constituted improper victim-impact testimony.
The OCCA rejected DeRosa's challenge to Tolbert's first-stage testimony (i.e., what DeRosa now classifies as "unofficial" victim-impact testimony), stating as follows:
DeRosa I, 89 P.3d at 1145 (internal footnote omitted). In turn, the OCCA concluded that, even when considered with "some of the district attorney's remarks [that] crossed the line of appropriate representation," Tolbert's first-stage testimony did not "violate due process," or result in DeRosa's "death sentence [being] obtained through a violation of the Eighth Amendment." Id. at 1149.
The OCCA also rejected DeRosa's challenge to the second-stage testimony of Tolbert and Milligan:
Id. at 1151-52.
The question we must address is whether the OCCA's conclusions were contrary to, or an unreasonable application of, clearly established federal law. To be sure, the OCCA was correct in concluding that the witnesses' characterizations of the crime and what the victims likely thought or felt were improperly admitted. But, in suggesting that a trial court can permissibly allow a victim impact witness to testify as to a recommended sentence for a capital defendant, so long as that recommendation is not overly emotional, the OCCA's analysis was clearly contrary to Payne and Booth. As a result, the OCCA's prejudice analysis necessarily failed to take into account the full scope of the constitutional errors that resulted from the admission of the challenged victim impact testimony, and thus is not entitled to any deference in this federal habeas proceeding.
We therefore proceed to "determine de novo whether the erroneous admission of [all of the challenged] victim impact testimony so clearly swayed the jury as to cause [DeRosa] actual prejudice as required by Brecht." Welch v. Workman, 639 F.3d 980, 1002 (10th Cir.2011). "In doing so, we are mindful that `an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.'" Id. (quoting Brecht, 507 U.S. at 634, 113 S.Ct. 1710).
As we have noted, the prosecution alleged, and the jury found, the existence of two aggravating factors with respect to each of the murders. The evidence presented by the prosecution, which was essentially uncontroverted, overwhelmingly supported the jury's findings. Further, the jury was properly instructed by the trial court on the use of mitigating evidence and its role in the sentencing deliberations, as well as the proper role of victim-impact evidence. State ROA at 533-35. Consequently, we conclude that the admission of the improper portions of the victim impact testimony did not have a "substantial and injurious effect or influence in determining the jury's verdict." Fry, 551 U.S. at 116, 127 S.Ct. 2321 (internal quotation marks omitted).
AFFIRMED.
Notably, DeRosa did not raise this as an issue either in direct appeal or in his application for post-conviction relief, and thus we conclude the issue is procedurally barred.
