August 23, 2019

Tenth Circuit: In Death Penalty Case, Court Affirms Lower Courts’ Denial of Petitions for Post-Conviction Relief

The Tenth Circuit published its opinion in Lott v. Trammell on Monday, January 14, 2013.

This is a death penalty appeal involving two murders that were committed over twenty-five years ago. Petitioner Ronald Lott was convicted by an Oklahoma jury of two counts of first-degree murder in December 2001. The state trial court, in accordance with the jury’s verdict, sentenced Lott to death on both counts in January 2002. After his direct appeal and application for state postconviction relief were unsuccessful, Lott sought federal habeas relief by filing a petition for writ of habeas corpus. The district court denied Lott’s petition. Having been granted a certificate of appealability with respect to several issues, Lott appealed.

The Tenth Circuit affirmed the district court’s denial of federal habeas relief as follows. It is important to note that the review of Lott’s appeal was governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts.  As a result, the Tenth Circuit’s focus on appeal was upon the rulings of the Oklahoma Court of Criminal Appeals (OCCA), not those of the federal district court.

1) Speedy Trial Claim: Lott contended that the state trial court violated his Sixth Amendment rights by denying his motions to dismiss the criminal proceedings on speedy trial grounds. The Tenth Circuit held that Lott failed to establish that the OCCA erred in concluding that two of the factors in Barker v. Wingo, 407 U.S. 514 (1972),  favored the State.  Consequently, Lott failed to establish that the OCCA’s balancing of the Barker factors was erroneous.

2) Erroneous Aiding and Abetting Instruction: Lott contended that the state trial court violated his constitutional rights by instructing the jury that he could be found guilty of felony murder on an accomplice liability theory, even though the prosecution at a pretrial motions hearing had disavowed reliance on an aiding and abetting theory of felony murder. The Tenth Circuit concluded that Lott was given plenty of notice concerning the State’s alternative theories of guilt, and the trial court’s aiding and abetting instruction was amply supported by the evidence presented at trial.

 3) Admission of Other-Crimes Evidence: Lott contended that he was deprived of his right to a fundamentally fair trial due to the admission at trial of evidence that he was convicted of two other rapes. A review of the state court record indicated that Lott’s trial was not rendered fundamentally unfair by the admission of the evidence of the other rapes. Aside from the other-crimes evidence, the prosecution’s evidence of Lott’s guilt of rape and murder (particularly the DNA evidence) was overwhelming. Further, it was clear to the Tenth Circuit that the other-crimes evidence would have, at a minimum, been admissible by the prosecution during the second-stage proceedings in order to prove the continuing-threat aggravator. Lastly, the jury rejected the continuing-threat aggravator, and thus it did not appear that this evidence had any impact on the jury’s sentencing decision.

4) Prosecutorial Misconduct—Introduction of Hearsay Statements of Robert Miller: Lott contended that the prosecution engaged in prejudicial misconduct by injecting hearsay statements of Robert Miller into both stages of trial in order to prove that, even though Miller may have been present during the commission of the crimes, it was Lott who killed both victims because he needed to eliminate witnesses. However, the transcript showed it was Lott’s counsel who first introduced Miller’s statements into evidence by cross-examining McKenna regarding Miller’s statements.

5) Trial Counsel’s Failure to Investigate and Present Mitigating Evidence: Lott contended that his trial counsel was ineffective for failing to investigate and present at the second-stage trial proceedings available mitigating evidence. The Tenth Circuit concluded that the only reasonable inference that could be drawn from the record was that Lott’s counsel determined that introduction of Lott’s social history would be more detrimental than beneficial, and thus made a strategic decision not to present that evidence. After carefully examining the record on appeal, the Tenth Circuit concluded that Strickland v. Washington, 466 U.S. 668 (1984), was reasonably applied.

6) Admission of Improper Victim Impact Evidence: Lott contended that the state trial court’s admission of improper victim impact testimony from witness Cynthia Houston, the granddaughter of victim Fowler, resulted in the arbitrary and capricious imposition of the death penalty in violation of the Eighth and Fourteenth Amendments. Although Lott’s constitutional rights were violated by the admission of Houston’s testimony opining about the appropriate sentence for Lott, the Tenth Circuit held that the  testimony did not have the required “substantial and injurious effect” on the outcome of the second-stage proceedings, given the overwhelming evidence of Lott’s guilt, as well as his admitted guilt of the two subsequent rapes, and the cruel and brutal nature of the crimes.

7) Sufficiency of Evidence—Avoid Arrest or Prosecution Aggravator: Lott contended that insufficient evidence was presented at his trial to support the jury’s second-stage findings that the two murders were committed in order to avoid arrest or prosecution. The Tenth Circuit concluded that the OCCA’s determination that the evidence was constitutionally sufficient to support the jury’s finding of the aggravator was neither contrary to, nor an unreasonable application of, clearly established federal law.

8) Cumulative Error: Lott lastly contended that the cumulative effect of all of the constitutional errors in his case warranted federal habeas relief. Upon de novo review, the Tenth Circuit could not conclude that, having identified only a single constitutional error (as described above), and having exhaustively examined the record on appeal, that Lott’s trial was “so infected . . . with unfairness as to make the resulting conviction[s] [or sentences] a denial of due process.”


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