HARTZ, Circuit Judge.
Defendant Rocky Eugene Dodd was convicted on two counts of first-degree murder in Oklahoma state court and received two death sentences. The two victims were his next-door neighbors in an apartment complex in Edmond, Oklahoma. They were found in their apartment with their throats cut. The prosecution case was circumstantial; there were no eyewitnesses, no confession, and no fingerprint, blood, or DNA evidence linking Defendant to the killings.
Defendant applied for relief from his convictions and sentences under 28 U.S.C. § 2254 in the United States District Court
After his first convictions were set aside on appeal, Defendant was retried, convicted, and sentenced to death in Oklahoma state court for the 1994 murders of Keri Sloniker and Shane McInturff. See Dodd v. State, 100 P.3d 1017, 1024 (Okla.Crim. App.2004). The opinion of the Oklahoma Court of Criminal Appeals (OCCA) affirming the convictions and sentences described most of the key facts surrounding the murders and second trial:
Id. at 1024-27 (paragraph numbers omitted).
After the jury returned a guilty verdict on each of the two first-degree murder counts, the trial moved to the sentencing phase. For each count the jury found two statutory aggravating factors beyond a reasonable doubt: (1) that Defendant had previously been convicted of a violent felony, an armed robbery committed at age 16, see id. at 1024, 1047; and (2) that he had knowingly created a great risk of death to more than one person, see id. at 1024, 1047-48. The jury fixed Defendant's punishment at death for each count, and the court imposed two death sentences. See id. at 1024.
Defendant appealed directly to the OCCA, which denied relief. See id. at 1052. He then filed two applications for postconviction relief in state court, both of which the OCCA denied.
In October 2006 Defendant filed his application for relief under 28 U.S.C. § 2254. He asserted 15 grounds for relief, seven of which are relevant to this appeal:
The district court denied Defendant's requests for discovery and an evidentiary hearing, and denied relief on all claims. But it granted a certificate of appealability (COA) with respect to claim (1), insufficiency of the evidence, and claim (4), improper victim-impact testimony. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254 application). Defendant timely filed a notice of appeal. We expanded the COA to cover claim (2), exclusion of evidence of a third-party culprit, and claim (3), prosecutorial misconduct. Defendant appeals the denial of relief on claims (1) through (4) and requests a COA on claims (5) through (7): improper hearsay and bad-acts evidence, ineffective assistance of trial counsel, and cumulative error.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we must apply a "highly deferential standard" in § 2254 proceedings, one that "demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (internal quotation marks omitted). If a claim has been "adjudicated on the merits in State court proceedings," we may not grant relief under § 2254 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" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). The phrase "clearly established Federal law, as determined by the Supreme Court of the United States," id. § 2254(d)(1), "refers to the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the relevant state-court decision," Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Under the "contrary to" clause of § 2254(d)(1), we may grant relief only "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts." Id. at 413, 120 S.Ct. 1495. And under the "unreasonable application" clause, we may grant relief only "if the state court identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. "[A]n unreasonable application of federal law is different from an incorrect application of federal law. Indeed, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (emphasis, citation and internal quotation marks omitted). In evaluating whether the application of a rule was unreasonable, we must consider the rule's specificity. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). "The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Id.
Defendant claims that the evidence against him was insufficient to sustain his convictions. Evidence is sufficient to support a criminal conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On direct appeal the OCCA rejected Defendant's claim on the merits. See Dodd, 100 P.3d at 1041-43. It concluded: "Reviewing the evidence as a whole, including the evidence presented by the defense, we believe a rational juror could have determined that [Defendant's] guilt was the only reasonable hypothesis presented, and further, that the hypothesis was proven beyond a reasonable doubt." Id. at 1042-43.
Given the OCCA's merits adjudication of this claim, "our task is limited by AEDPA to inquiring whether the OCCA's application of Jackson was unreasonable." Matthews v. Workman, 577 F.3d 1175, 1183 (10th Cir.2009). It was not. The OCCA reasonably held that the evidence could have permitted a rational trier of fact to find Defendant guilty on both counts of first-degree murder beyond a reasonable doubt. We deny relief on this claim.
Defendant claims that he was denied his constitutional right to present a complete defense when the trial court excluded evidence that somebody else had committed the murders. The OCCA rejected this claim on the merits. See Dodd, 100 P.3d at 1032-34. We cannot say that this decision was contrary to or an unreasonable application of law clearly established by the Supreme Court.
Before trial, Defendant filed a notice of intent to present evidence that a person other than the accused had committed the murders. The motion listed more than a dozen items of potential evidence; but we recite only the items that Defendant emphasizes in this appeal. Robert McInturff, father of victim Shane McInturff, made a statement to the police on November 7, 1994, the day the bodies were discovered. In it he recounted Shane's telling him the prior June that Shane had run up a debt with a woman named Gidget, whom he had met at a pool hall, and that Gidget and
The trial court excluded Defendant's proffered evidence of a third-party culprit, ruling that the evidence failed to comply with Oklahoma's overt-act rule. At the time of trial, Oklahoma courts had interpreted this rule to mean that "evidence offered to show that some other person committed the crime charged must connect such other person with the fact; that is[,] some overt act on the part of another towards the commission of the crime itself." Dennis v. State, 879 P.2d 1227, 1232 (Okla.Crim.App.1994) (internal quotation marks omitted). Evidence showing merely "a possible motive on the part of another," unaccompanied by "evidence of acts or circumstances that tend clearly to point to another, rather than the accused," would not satisfy this rule. Id. (internal quotation marks omitted).
On direct appeal the OCCA affirmed the trial court's ruling. It said that Defendant's proffered evidence "not only failed to establish an overt act by a third party, but more fundamentally, it failed to establish an identifiable third party with a motive to harm either [victim]." Dodd, 100 P.3d at 1033. It further observed regarding the various items of evidence that "the more specific one item was, the more likely it was inconsistent with the others." Id. And it concluded: "Because the proffered evidence was ambiguous and entirely speculative as to a potential alternative suspect, the trial court did not abuse its discretion in excluding it from the guilt stage of trial to avoid confusion of the issues." Id. The OCCA then "reject[ed] [Defendant's] claim that barring this evidence violated his constitutional right to a fair trial, because it prevented him from mounting a defense." Id. It explained:
Id. The court also emphasized that Defendant had been permitted to put on substantial evidence that someone else must have committed the murders:
Id. The court concluded:
Id.
Defendant argues that the denial of his constitutional claim was contrary to or an unreasonable application of clearly established law set forth in a number of Supreme Court precedents. Two statements by the Court are probably the most helpful to his position. The first is: "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (even after trial court had decided that confession was admissible, defendant was constitutionally entitled to put on evidence of circumstances of confession to show that it was unreliable) (citations and internal quotation marks omitted). The second is: "Restrictions on a criminal defendant's rights to confront adverse witnesses and to present evidence `may not be arbitrary or disproportionate to the purposes they are designed to serve.'" Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (Constitution did not necessarily require admission of evidence of prior sexual relationship between rape victim and defendant when defense did not comply with requirement of notice to prosecution) (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (rejecting per se rule excluding hypnotically refreshed testimony when applied to defendant's own testimony)).
At the same time, however, the Supreme Court has never questioned the traditional reasons for excluding evidence that may have some relevance. The formulation in Federal Rule of Evidence 403 sets them forth as follows: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. Thus, Crane said:
476 U.S. at 689-90, 106 S.Ct. 2142.
As the Court recently observed, "[o]nly rarely" has it "held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence." Nevada v. Jackson, ___ U.S. ___, 133 S.Ct. 1990, 1992, 186 L.Ed.2d 62 (2013) (per curiam). Of the four cases cited by Jackson for this proposition, three predated the OCCA's decision in this case. All are readily distinguishable.
In the first, Washington v. Texas, 388 U.S. 14, 16, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), the defendant wished to call as a witness his previously convicted accomplice, who would testify that the defendant had tried to persuade the accomplice to leave and then fled before the accomplice fired the fatal shot. "It [was] undisputed that [the accomplice's] testimony would have been relevant and material, and that it was vital to the defense." Id. But under a state rule of evidence, testimony by accomplices was generally excluded. See id. at 16-17, 87 S.Ct. 1920. The Court held that the rule was absurd, particularly since it had exceptions if the accomplice had been acquitted or was testifying for the prosecution, when the danger of perjury would be enhanced. See id. at 22-23, 87 S.Ct. 1920. As Jackson summarized, the state evidentiary rule in Washington "could not be rationally defended." 133 S.Ct. at 1992.
The next cited decision was Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The defendant was charged with murder. See id. at 287, 93 S.Ct. 1038. Another person (McDonald) had made a written confession and had orally confessed to three different friends. See id. at 287-89, 93 S.Ct. 1038. The defendant called McDonald as a witness, and the written confession was admitted into evidence. See id. at 291, 93 S.Ct. 1038. On cross-examination the state elicited that McDonald had repudiated the confession, and McDonald explained why he had falsely confessed. See id. Defense counsel then sought to cross-examine McDonald as an adverse witness but, because of a state voucher rule forbidding a party to impeach his own witness, he could not cross-examine McDonald about his confessions. See id. at 291-92, 295-96, 93 S.Ct. 1038. Also, because of the state hearsay rule the defendant was not permitted to call the three friends to testify about McDonald's confessions. See id. at 292-93, 93 S.Ct. 1038. The Court noted that the state had not sought to defend its voucher rule "or explain its underlying rationale," id. at 297, 93 S.Ct. 1038, and it held that there were strong indicia of reliability of the oral confessions, see id. at 298-303, 93 S.Ct. 1038. To exclude all this evidence, it ruled, violated the defendant's constitutional
The third decision was Rock. In that case the defendant himself was prevented from testifying to the extent that his memory had been hypnotically refreshed. See 483 U.S. at 47-48, 107 S.Ct. 2704. The Court held that the state's per se rule excluding hypnotically refreshed memories must yield to an individualized examination of the reliability of the testimony in the particular case. See id. at 61-62, 107 S.Ct. 2704.
In each of these cases the excluded evidence could not have been more relevant. If believed, the evidence in itself would have established the defendant's innocence. Yet the state court either had provided no rationale for the exclusion, see Chambers, 410 U.S. at 297, 93 S.Ct. 1038, could not defend an absurd rule, see Washington, 388 U.S. at 22-23, 87 S.Ct. 1920, or had failed to examine the reliability of the specific evidence in that case, see Rock, 483 U.S. at 61-62, 107 S.Ct. 2704; Chambers, 410 U.S. at 298-303, 93 S.Ct. 1038. Not so in this case. The excluded evidence merely suggested the possibility of other culprits. The OCCA examined the evidence and found it "ambiguous and entirely speculative as to a potential alternative suspect." Dodd, 100 P.3d at 1033. And, it said, exclusion would eliminate what "amounted only to evidence of the victim's bad character" and would "avoid confusion of the issues." Id. Nor did the court rely on a rigid rule to require exclusion. The OCCA noted that "the defense... failed to establish an overt act by a third party," but its analysis of the admissibility of the evidence and Defendant's fair-trial claim addressed traditional factors in evidentiary rulings. Id. We may well have ruled differently on the admissibility of the evidence, but the OCCA's assessment of the evidence was not irrational and it did not contradict or unreasonably apply clear Supreme Court precedent.
We briefly address three other decisions on which Defendant relies. He cites Crane as supporting his complete-defense argument. The opinion is relevant but unhelpful to Defendant. In Crane the state court, after ruling that the defendant's confession was voluntary and therefore admissible, excluded testimony about the circumstances of his confession. See 476 U.S. at 684-86, 106 S.Ct. 2142. The Supreme Court held that the exclusion violated the defendant's constitutional right to present a complete defense. See id. at 690, 106 S.Ct. 2142. The evidence was certainly relevant; the defendant could be acquitted only if he could convince the jury that his confession was unreliable. Yet neither the state courts nor the prosecution briefs "advanced any rational justification for the wholesale exclusion of this body of potentially exculpatory evidence." Id. at 691, 106 S.Ct. 2142. Again, the evidence here was not as relevant and there were rational grounds for exclusion.
Defendant's third case is our decision in Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999). He relies on the statement in that case that Supreme Court precedents like Rock and Chambers "make[] clear that a state court may not apply a state rule of evidence in a per se or mechanistic manner so as to infringe upon a defendant's constitutional right to a fundamentally fair trial." Id. at 1214. But as we have just explained, that is not what the OCCA did in Defendant's case. Rather than applying the overt-act rule mechanistically or inflexibly, it analyzed Defendant's evidence on the merits and found it "ambiguous and entirely speculative as to a potential alternative suspect." Dodd, 100 P.3d at 1033.
Finally, Defendant argues that regardless of whether the initial evidentiary exclusion was constitutional, during guilt-phase closing arguments the prosecution improperly commented on the absence of evidence of a third-party perpetrator by challenging defense counsel to "cut to the chase" and asking, "What is the reasonable theory of innocence ...?" Tr. of Proceedings, Vol. 16 at 105-06, Dodd, No. CF-94-7724 (D.Okla. May 30, 2002) (Tr.). These remarks, Defendant suggests, infringed on his constitutional right to present a complete defense because they "double[d] down by highlighting the defense failure to present the very evidence prosecutors succeeded in excluding." Aplt. Br. at 21. He relies on our decision in Paxton. We are not persuaded.
After the defendant in Paxton had been found guilty of murdering a friend, the prosecution presented evidence during the sentencing stage that he had been charged in the shooting death of his wife years earlier. See 199 F.3d at 1202-03. The circumstances of the wife's death occupied "the bulk of the state's evidence" during this stage. Id. at 1212. The defendant offered into evidence a court order stating that the charge against him had been dismissed because he had been cleared by a polygraph examination. See id. at 1211. But the trial court excluded the evidence under a state rule that polygraph results could not be admitted for any purpose. See id. At closing argument the prosecutor told the jury that the defendant had failed to introduce any evidence countering the state's version of events and that nobody knew why the charges had been dismissed. See id. at 1212-13. We ruled that the evidentiary exclusion had violated the defendant's Eighth Amendment right to present mitigating evidence at the sentencing phase, and that the defendant had been denied his due-process right to explain
Two key distinctions set Paxton apart from this case. First, in Paxton the problematic closing argument occurred during the sentencing phase. We substantially relied on Supreme Court cases relating to a defendant's opportunity to present mitigating evidence not admissible under ordinary evidentiary rules. See id. at 1213-14.
Second, the prosecutor in Paxton outright lied to the jury. He knew the reason why the charges against the defendant had been dismissed; but knowing that evidence of that reason was excluded, he falsely asserted that the reason was unknown. That is not what happened here. Defendant's principal challenge is to the following remarks in the State's closing argument (we emphasize the portions specifically referred to in Defendant's opening brief):
Tr., Vol. 16 at 105-06 (emphasis added). In rebuttal closing argument the State continued this attack, asserting, "[Y]ou still have no reasonable theories of innocence." Id. at 165.
Fairly understood, the State's argument was simply that there was no reasonable view of the evidence other than Defendant's guilt. This was a permissible comment on the evidence at trial. And there was no assertion of a fact known by the prosecutor to be untrue. In particular, the State did not assert that there was no piece of evidence that supported innocence. On the contrary, the closing argument appeared to concede that point. And we cannot say, as was true in Paxton, that the prosecution knew that excluded evidence contradicted what was said in closing. Indeed, the prosecutors here could have made the same argument even if the excluded evidence had been admitted. It would not be unreasonable, as we have already said, to view that evidence as speculative.
Under AEDPA deference we cannot sustain this claim.
At oral argument before this court, defense counsel's first contention was that the trial court had violated Defendant's rights under the Confrontation Clause by restricting the cross-examination of Anne McInturff, whose son was one of the victims. On direct examination she
Although one might be able to extract the Confrontation Clause argument from Defendant's opening brief in this court, it was never raised before that. At trial, in responding to the testimony of Anne McInturff, defense counsel re-urged her prior motion to permit evidence of a third-party perpetrator, but she did not distinguish Ms. McInturff's prior inconsistent statement in particular and say that the Confrontation Clause guaranteed Defendant the right to elicit it on cross-examination. And after the motion was denied, defense counsel did not conduct any cross-examination of Ms. McInturff. The trial court would not have been alerted to the special reason to allow cross-examination about the prior inconsistent statement. Likewise, Defendant's brief on direct appeal to the OCCA mentioned Ms. McInturff's testimony, but the only constitutional claim in that discussion was that the exclusion of substantive evidence had denied Defendant's right to present a complete defense. Nowhere did Defendant argue that he had also been denied the right to cross-examine Ms. McInturff under the Confrontation Clause. His applications for state postconviction relief contained no Confrontation Clause argument, either. Nor was the argument raised in federal district court. We know of no precedent authorizing us to review an issue not exhausted in state court and not presented to the federal district court.
Defendant alleges that the prosecution engaged in misconduct at several points in his trial. The OCCA denied this claim on the merits. See Dodd, 100 P.3d at 1038-41.
"Ordinarily, a prosecutor's misconduct will require reversal of a state court conviction only where the remark sufficiently infected the trial ... to make it fundamentally unfair, and, therefore, a denial of due process." Duckett v. Mullin, 306 F.3d 982, 988 (10th Cir.2002). "Nonetheless, when the impropriety complained of effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair." Id. (internal quotation marks omitted). Only one of Defendant's claims of misconduct arguably fits the second category. We begin by addressing that claim.
Defendant says that at voir dire the prosecutor used certain tactics "to psychologically condition" jurors into thinking that the State need not prove its case beyond a reasonable doubt. Aplt. Br. at 39. The parties agree that the OCCA rejected this claim on the merits, finding no error. It explained that "[t]he prosecutor had a right to find out if any prospective jurors were unable, either as a matter of principle or simple misunderstanding, to give circumstantial evidence the same weight accorded to direct evidence, as the law would require them to do." Dodd, 100 P.3d at 1029. Defendant suggests that this analysis was contrary to or an unreasonable application of clearly established federal law. We disagree.
Because Defendant's remaining claims of prosecutorial misconduct do not allege the invasion of a specific constitutional right, he must show that the alleged misconduct "sufficiently infected the trial ... to make it fundamentally unfair, and, therefore, a denial of due process." Duckett, 306 F.3d at 988. "[T]his is a high hurdle." Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir.2012). And it is even higher here because Defendant must show that the OCCA's rejection of his claim was unreasonable under § 2254(d). See id. He has failed to do so.
Defendant complains that during the guilt phase the prosecutor improperly introduced, and commented on, what he characterizes as "victim impact testimony" from the victims' family members. Aplt. Br. at 42, 44. He cites statements by Shane McInturff's parents and Keri Sloniker's mother alluding to their close relationships with the victims; and he cites the following statement by the prosecutor about Keri Sloniker in his guilt-phase closing argument: "On her left-hand was a small little diamond that Shane McInturff had given her that expressed his commitment of his intention to marry her and spend the rest of his life with her. He did, it was just a lot shorter life than any of us thought." Tr., Vol. 16 at 61.
We see no prosecutorial misconduct in the questioning of the witnesses; the questions inquired about matters relevant to establish the witnesses' familiarity with the victims' activities, and the questioning was relatively brief. The prosecutor's comment in closing, however, cannot be defended. He made no effort to tie it to a material fact in the case. Nevertheless, it was brief and isolated, and Defendant did not object. See Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir.1999) (failure to object, although "not dispositive, is relevant to our assessment of fundamental unfairness"). The OCCA was not unreasonable in refusing to say that the statement rendered the trial fundamentally unfair.
Defendant further complains that while cross-examining him, the prosecutor
As for the prosecution's comments that Al Ames's knife perfectly matched a swipe of blood found on Keri Sloniker's foot, the OCCA recognized that such comments "were at times overstated," Dodd, 100 P.3d at 1038, but it noted that the jury had been "instructed that these comments were not evidence," id., that the defense had highlighted the limitations of the evidence on cross-examination, see id., and that the strength of the evidence had been "clarified by considerable forensic expert testimony on the subject," id. at 1040-41. The OCCA reasonably determined that the jury was not misled.
Next, Defendant claims that the prosecution improperly vouched for witnesses by (1) eliciting testimony from investigator Rockie Yardley describing previous cases on which he had worked; (2) eliciting testimony from crime-scene reconstructionist Tom Bevel that one of the prosecutors had met him at the crime scene; and (3) using the phrase "we know" when summarizing the evidence during guilt-phase closing arguments. "It is clearly impermissible to bolster a State witness by suggesting that information available to the prosecution but not presented to the jury supports the witness's testimony." Cargle v. Mullin, 317 F.3d 1196, 1219 (10th Cir.2003) (citing United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Additionally, prosecutors have a "duty to refrain from overzealous conduct by commenting on the defendant's guilt and offering unsolicited personal views on the evidence." Young, 470 U.S. at 7, 105 S.Ct. 1038. Any failure to observe these principles here, however, did not result in a fundamentally unfair trial. Yardley's testimony about past cases was relevant to establish his expertise. As for Bevel's mention of meeting the prosecutor at the crime scene, even if it could be characterized as improper, it occupied a mere snippet of otherwise appropriate testimony, and defense counsel never objected. Moreover, Defendant has not suggested that the expertise or integrity of Yardley or Bevel was at issue in the case. And as for the prosecutor's use of "we know" in closing, "[s]uch arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear." Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). "[A] 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." Id. at 647, 94 S.Ct. 1868.
Defendant also complains of assorted instances of what he describes as "melodramatic, badgering[] conduct" by the prosecutor. Aplt. Br. at 57. Some of this conduct, such as the closing-argument statement that Defendant was a "`brutal amateur'" at killing, the OCCA held to be proper commentary on the evidence presented. Dodd, 100 P.3d at 1041. Defendant has offered no Supreme Court authority to the contrary. As for the rest, the OCCA ruled:
Id. Our review of the record assures us that this determination was reasonable.
Finally, Defendant claims that during closing argument the prosecutor attempted to mislead jurors regarding a window in the victims' apartment. The apartment's living room had two adjacent windows on the south side of the front door; we will refer to the window closer to the door as the north window and the other as the south window. The victims would sometimes leave one of these windows (presumably, the north window) unlocked so that a person who did not have a door key could open the window, reach in, and unlock the front door. Robert McInturff testified that before entering the apartment with Defendant and discovering the victims, he tried to open the window but found it locked. When police arrived on the scene a short time later, they discovered that the south window was unlocked and ajar by about a millimeter. Defendant claims that the prosecutor improperly argued that while Mr. McInturff was examining the bodies, Defendant unlocked and opened the window that Mr. McInturff had just tried to open.
There are two problems with Defendant's argument. First, the prosecutor did not misstate the evidence. He indeed referred to a window in his closing argument, saying: "There's only one person on the planet who had access and a reason to monkey with that window. It's that guy right there, the killer." Tr., Vol. 16 at 46. But he did not say that "that window" was the one that Mr. McInturff had tried. Although Defendant contends that the prosecutor was deliberately vague, allowing jurors to think that the "access window" had gone from locked to unlocked when, in fact, it had remained locked, Aplt. Br. at 49, we cannot tell from the record whether he indicated nonverbally what window he was referring to or whether any ambiguity in his statement was motivated by a desire to deceive the jury. We think it significant that the argument made by Defendant on direct appeal about the prosecutor's reference to the open window was not that the prosecutor misidentified which window was open but that there was insufficient evidence to support the inference that Defendant unlocked and opened a window.
Second, even if the prosecutor misidentified which window was ajar, Defendant cannot explain why the issue mattered very much. As the State pointed out in federal district court, the distance from the south side of the south window to the north side of the north window was less than four feet, so if the south window was unlocked, a person could easily reach in and unlock the north window. Nor is it
Viewing Defendant's allegations of prosecutorial misconduct as a whole, we cannot say that the OCCA was unreasonable in refusing to hold that the challenged conduct deprived Defendant of a fundamentally fair trial. Relief on this claim is denied.
During the sentencing phase the trial court admitted testimony from seven relatives of the victims recommending that Defendant receive the death penalty. Defendant argues that the admission of these sentence recommendations violated the Eighth Amendment's prohibition on cruel and unusual punishment. The OCCA found no constitutional error. See Dodd, 100 P.3d at 1046. The federal district court ruled that allowing the witnesses to recommend the death penalty was error under the Eighth Amendment but that the error was harmless. We agree with the district court that the admission of the sentence recommendations violated the Eighth Amendment; but we cannot agree that the constitutional error was harmless.
For each murder count the prosecution alleged the same four aggravating factors: (1) that Defendant had previously been convicted of a felony involving the use or threat of violence to a person; (2) that Defendant had knowingly created a great risk of death to more than one person; (3) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) that a probability existed that Defendant would commit criminal acts of violence that would constitute a continuing threat to society.
After moving successfully to incorporate all evidence and testimony admitted during the guilt phase, the prosecution called eight sentencing-phase witnesses. The first was an officer from the Norman, Oklahoma, police department who recounted Defendant's assault and robbery of a 77-year-old woman 11 years before the murders. His account was consistent with Defendant's guilt-phase testimony that when he was 16 he had participated in an assault and robbery of an elderly woman. The court later admitted a certified copy of the judgment and sentence showing that Defendant had pleaded nolo contendere to robbery with a dangerous weapon and had been sentenced to 10 years' incarceration, nine of which were suspended.
In mitigation the defense offered testimony from Defendant's grandmother, his parents, and two of his sisters that they loved Defendant and would continue to keep in touch with him if he were sentenced to life in prison, and each urged the jury to spare his life. It also offered the testimony of an official from the Oklahoma Department of Corrections that Defendant had been disciplined only three times while in prison. And an Oklahoma inmate testified about the circumstances of the most serious disciplinary infraction, a fight.
During its first closing argument the prosecution maintained that three of the alleged aggravators — prior violent felony; knowingly creating a great risk of death to more than one person; and murder for the purpose of avoiding or preventing a lawful arrest or prosecution — were easily proved because Defendant had admitted to the essential elements during his guilt-phase cross-examination. Addressing the fourth alleged aggravator, the probability that Defendant would commit criminal acts of violence that would constitute a continuing threat to society, the prosecution developed the theme that Defendant was a dangerous man who had consistently sought to escape responsibility for his actions. It cited Defendant's past criminal behavior, his dishonesty in police interviews after the murders, and his conduct in prison, including the fight with the inmate and an attempt at suicide with a razor blade.
The defense expounded several points in closing. It reminded the jurors that they need not find mitigating circumstances unanimously or beyond a reasonable doubt. It stressed the limited number and nonegregious nature of Defendant's disciplinary infractions in prison, arguing that Defendant had shown that he could behave and contribute to prison society. It recounted the testimony of Defendant's family. And it invoked Defendant's two daughters, maintaining that Defendant cared for them and that they deserved to have a father.
The prosecution delivered a second closing argument, rehashing many of its earlier points and returning to the theme that Defendant had continually sought to escape responsibility for a violent lifestyle. It also appealed to the victim-impact evidence, although not mentioning the sentencing recommendations of family members.
In Booth v. Maryland, 482 U.S. 496, 509, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the Supreme Court held "that the introduction of a [victim-impact statement] at the sentencing phase of a capital murder trial violates the Eighth Amendment." The victim-impact statement in Booth "provided the jury with two types of information. First, it described the personal characteristics of the victims and the emotional impact of the crimes on the family. Second, it set forth the family members' opinions and characterizations of the crimes and the defendant." Id. at 502, 107 S.Ct. 2529. Four years later the Court overruled Booth in part, holding "that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar." Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Payne made clear in a footnote, however, that it was not overruling the portion of Booth that held unconstitutional "the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence." Id. at 830 n. 2, 111 S.Ct. 2597. "The Supreme Court's decision in Payne and our own post-Payne cases clearly establish that it is a violation of the Eighth Amendment to allow a victim or a victim's family member to comment, during second-stage proceedings, on the appropriate sentence for a capital defendant." Selsor v. Workman, 644 F.3d 984, 1026-27 (10th Cir. 2011).
Oklahoma law, however, is to the contrary. It "expressly authorizes the admission of victim impact testimony, including victims' characterization of the crime and opinions as to what sentence a defendant should receive." Lockett v. Trammel, 711 F.3d 1218, 1236 (10th Cir.2013); see Okla. Stat. tit. 21, § 142A-8(A) (2010) (providing that "Each victim ... may present a written victim impact statement" and "[t]he court shall allow the victim impact statement to be read into the record"); id. § 142A-1(1) (defining victim to include, in cases of homicide, "a surviving family member"); id. § 142A-1(8) (defining victim impact statements to include "the opinion of the victim of a recommended sentence"). On direct appeal in this case the OCCA rejected Defendant's argument that "the victim impact witnesses should not have been allowed to recommend the death penalty as an appropriate punishment." Dodd, 100 P.3d at 1046. It found no error, noting that Oklahoma law "specifically permits such recommendations, and we have cautioned that they should be limited to a straight-forward, concise response to a question asking what the recommendation is or a short statement of recommendation in a written statement, without amplification." Id. (internal quotation marks omitted). It concluded: "Those admonitions were observed here. We decline to reconsider our position." Id.
The admission of sentencing-phase victim-impact testimony recommending the death penalty violated Defendant's Eighth Amendment rights. By holding otherwise, the OCCA reached "a decision that was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see, e.g., Hooper v. Mullin, 314 F.3d 1162, 1174 (10th Cir.2002).
The OCCA alternatively conducted a harmless-error analysis, stating that if "there [was] any question as to the propriety of the victim impact evidence," Dodd, 100 P.3d at 1046, "any minor impropriety in the victim impact testimony was harmless beyond a reasonable doubt," id. at 1047. The federal district court, after holding that the admission of the sentence recommendations had violated clearly established law, likewise ruled the error to be harmless. We disagree.
In reviewing whether the admission of the sentence recommendations was harmless, we apply the standard announced in Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), under which "an error is 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). We apply this test regardless of whether the state court conducted its own harmless-error review. See Lott v. Trammell, 705 F.3d 1167, 1218 (10th Cir.2013). "A substantial and injurious effect exists if a court finds itself in grave doubt about the effect of the error on the jury's sentencing decision." Lockett, 711 F.3d at 1232 (brackets and internal quotation mark omitted). We recognize that "an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Brecht, 507 U.S. at 634, 113 S.Ct. 1710 (internal quotation marks omitted). Nevertheless, "when a court is in virtual equipoise as to the harmlessness of the error under the Brecht standard, the court should treat the error as if it affected the verdict." Fry, 551 U.S. at 121 n. 3, 127 S.Ct. 2321 (ellipses and internal quotation marks omitted).
We are at least in equipoise. Our doubts begin with the peculiarity ("chutzpah" may be a better word) of the State's argument in this appeal. It contends that the victims' sentencing recommendations did not have a substantial effect on the sentence even though it went to the extraordinary length of eliciting that recommendation from six, and perhaps seven, of the eight witnesses it called at the sentencing phase of the trial. One family member included her recommendation of the death sentence in the statement she read to the jury. The other six completed their statements and then were asked only one further question by the prosecutor, "Do you have a specific recommendation that you would like to offer the jury on punishment," Tr., Vol. 17 at 41, or the equivalent. This presentation of victim requests for the death penalty was not a one-off or a mere aside. It was a drumbeat. For this court to decide that such testimony did not have a substantial effect on the jury would be to impugn the expertise of a very experienced and highly successful prosecutor, whose firsthand knowledge of Oklahoma capital juries far exceeded what we could possibly acquire. Cf. Napue v. Illinois, 360 U.S. 264, 270-71, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (fact that prosecutor "thought it important to establish before the jury that no official source had promised [leniency to witness]" supported determination that failure to disclose promise of leniency caused trial to be unfair).
This panel is well aware that no prior panel of this court has ruled that victim recommendations of the death penalty required reversal. We have found ten decisions in which we decided that such testimony was harmless. See Grant v. Trammell, 727 F.3d 1006, 1015-17 (10th Cir.2013); Lockett, 711 F.3d at 1226, 1238-40; Lott, 705 F.3d at 1202, 1214, 1218-19; DeRosa v. Workman, 679 F.3d 1196, 1236-37, 1240 (10th Cir.2012); Selsor,
It is not just the sheer volume of such testimony. This was also a significantly weaker case for the death penalty. Unlike seven of our precedents, the jury did not find the aggravating circumstance that the murder was "especially heinous, atrocious, or cruel." Lockett, 711 F.3d at 1225 (internal quotation marks omitted); see id. at 1228; see Lott, 705 F.3d at 1172; DeRosa, 679 F.3d at 1219; Gary Welch, 639 F.3d at 989-90; Frank Welch, 451 F.3d at 681-82; Willingham, 296 F.3d at 919; Hain, 287 F.3d at 1239-40 (listing the jury's finding of this aggravator as the first factor convincing the court of harmlessness). Nor did it find that Defendant was a continuing threat to society, as in two of the remaining three precedents. See Grant, 727 F.3d at 1016-17 (emphasizing the strength of the evidence that the defendant posed a continuing threat); Hooper, 314 F.3d at 1167. In the only case in which the jury did not find either the especially-heinous or continuing-threat aggravator, the two victim statements "did not expressly refer to [the defendant] being put to death; instead, they both simply stated without embellishment [that] they agreed with the prosecution's `recommended sentence.'" Selsor, 644 F.3d at 1027. Indeed, without denigrating the importance of any aggravating circumstances, we think it worth noting that the two factors found by the jury in this case added little beyond the findings of guilt. The prior-felony aggravator was based on a felony committed 11 years before the murders (and 18 years before the trial), when Defendant was 16. And Defendant "knowingly created a great risk of death to more than one person," Dodd, 100 P.3d at 1024, because the jury found that he had murdered the two victims.
Moreover, the guilt of Defendant was not as clear cut as in cases in which we have ruled that victim recommendations were harmless. See Lott, 705 F.3d at 1219 (noting "the overwhelming evidence of [the defendant's] guilt of the two rapes/murders, as well as his admitted guilt of the two subsequent rapes"); Gary Welch, 639 F.3d at 995 (describing evidence of guilt as "overwhelming"). As the prosecutor explained to the jury, this was a circumstantial case. There was no confession, no eyewitness; and no physical evidence — no fingerprints or DNA or blood evidence — marked Defendant as the culprit. Fingerprints were found on Keri Sloniker's purse and Shane McInturff's wallet, both of which apparently had been rifled through, but they matched neither of the victims nor Defendant and were unidentified. And there was no blood or object used in the murders found in Defendant's apartment, which was next to the victims'. The manner of the murders could also cast doubt on Defendant's guilt. The two victims had their throats slashed yet there were no signs of a struggle, such as defensive wounds or marks on their bodies. Their positions may have suggested that they had been bound, but no binding materials were found and no marks on their bodies showed binding. A defense expert witness provided the common-sense opinion that one person could not have committed such murders by himself. Perhaps Defendant had been extremely careful in making sure he left no physical evidence of his crime; but is such care
The State suggests that the sentencing determination was easy for the jury since it took less than four hours of deliberation. But it does not explain why we should consider this time span to be short; and it does not explain why the deliberations could not have been speeded up by the family members' sentence recommendations.
In sum, we find ourselves "in grave doubt about the effect of the error on the jury's sentencing decision." Lockett, 711 F.3d at 1232 (brackets and internal quotation marks omitted). We hold that the admission of the sentence recommendations in this case was not harmless.
Defendant requests that his COA be modified to cover three additional claims: (1) admission of improper hearsay and bad-acts evidence; (2) ineffective assistance of trial counsel; and (3) cumulative error.
A COA will issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard requires "a demonstration that ... includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted). In other words, the applicant must show that the district court's resolution of the constitutional claim was either "debatable or wrong." Id. For those of Defendant's claims that the OCCA adjudicated on the merits, "AEDPA's deferential treatment of state court decisions must be incorporated into our consideration of [his] request for [a] COA." Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.2004). We deny the request to modify the COA.
Defendant claims that the trial court violated his constitutional rights when it admitted guilt-phase testimony from Shane McInturff's friend Brian Brown that (1) McInturff had once said that Defendant owed McInturff $800 for drugs and (2) McInturff had once told Brown that Defendant had fired a gun in the direction of a Ferris wheel. The OCCA held that this testimony was improperly admitted under state law but was harmless. See Dodd, 100 P.3d at 1034-36. Although it did not address Defendant's constitutional arguments, its analysis of harmlessness is cogent and persuasive. No reasonable jurist could say that admission of the evidence "had 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).
Defendant claims that his trial counsel was ineffective for (1) failing to counter the prosecutor's sentencing-phase arguments that Defendant had been given the chance to lead a good life; (2) failing to respond effectively to the testimony and argument regarding the windows; and (3) failing to challenge the State's evidence of his postarrest suicide attempt, then proffering an ineffective jury instruction on the
Finally, Defendant raises a claim of cumulative error. Because we grant relief from his sentences, we need not review this claim as it pertains to the sentencing phase of his trial. And no reasonable jurist could debate whether guilt-phase errors cumulatively deprived Defendant of a fair trial.
We AFFIRM the denial of relief on all claims addressed in Parts III.A-C of this opinion. We REVERSE the denial of relief on the victim-impact evidence addressed in Part III.D and REMAND with instructions to grant relief on Defendant's sentences, subject to the State's right to resentence Defendant within a reasonable time. We DENY Defendant's request for a COA on the issues addressed in Part IV.
