May 24, 2019

Archives for October 26, 2015

Colorado Supreme Court: Announcement Sheet, 10/26/2015

On Monday, October 26, 2015, the Colorado Supreme Court issued two published opinions.

People v. Herrera

Tucker v. Town of Minturn

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Counsel’s Trial Strategy Sound and Performance Not Deficient so No Prejudice to Defendant

The Tenth Circuit Court of Appeals issued its opinion in Hanson v. Sherrod on Thursday, August 13, 2015.

John Hanson and Victor Miller went on a crime spree in Tulsa, Oklahoma in August and September 1999. Hanson and Miller carjacked Mary Bowles’ car with her inside. They drove to an isolated area near a dirt pit, where they intended to drop off Bowles, but encountered the owner of the pit, Thurman, who Miller shot and killed. The two then drove a short distance away and Miller told Hanson, “You know what you need to do.” Hanson then shot and killed Bowles; her badly decomposed body was found several weeks later. The two drove to a motel where they wiped down the inside of Bowles’ car and abandoned it. In the next several days, they robbed a video store and a credit union. After the credit union robbery, Miller’s wife (who had been the getaway driver) called Crime Stoppers and told police about the credit union robbery and Bowles’ abandoned car. She also told police where the pair were staying. Police found Bowles’ car and lifted fingerprints from both Miller and Hanson from the interior of the car. They surrounded the motel where Miller and Hanson were staying. Miller surrendered right away, but Hanson refused to leave the room. Eventually, police deployed tear gas and forced Hanson out of the room. They found two weapons with live ammunition in the room, which were the same type of weapons used in the shootings and robberies. Miller and Hanson were charged jointly with first-degree murder of Thurman and first-degree murder of Bowles. Alternatively, they were charged with felony murder for the two killings. At Miller’s request, their trials were severed.

Attorneys Jack Gordon and Eric Stall represented Hanson. Crucial evidence came from Rashad Barnes, a former coworker of Hanson’s who had been letting Hanson live in his car. Barnes testified that Hanson showed up at Barnes’ backyard acting nervous and jittery and told him several details of the killings and robberies. Hanson was convicted of first-degree murder of Bowles (Count 1) and felony murder of Thurman (Count 2). At sentencing, the jury found three aggravating circumstances: (1) Hanson’s prior felony conviction; (2) he knowingly created a great risk of death for more than one person; and (3) he posed a continuing threat to society. He was sentenced to death for Count 1 and life imprisonment for Count 2. He appealed. The Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions but remanded for resentencing due to errors at the penalty phase. Days before the resentencing hearing began, Hanson learned that a fellow inmate of Miller’s, Ahmod Henry, would testify that Miller confessed to Bowles’ murder. Hanson filed an application for post-conviction relief based on that testimony, which he characterized as new exculpatory evidence. The state district court granted his motion for a new trial but the OCCA reversed, concluding the district court lacked jurisdiction.

Hanson’s resentencing hearing was held in January 2006, and he was again represented by Gordon. By the time the resentencing trial was held, Barnes had been killed in an unrelated incident. Barnes’ testimony from the first trial was read into the record over Hanson’s objections. In addition to testimony from Hanson’s family, a psychologist testified that she considered Hanson a low risk to society. At the end of the resentencing hearing, the jury recommended a death sentence based on three aggravating circumstances: (1) Hanson’s earlier violent felony conviction; (2) he knowingly created a great risk of death for more than one person; and (3) he had committed murder to avoid lawful arrest or prosecution. Hanson again appealed, and the OCCA invalidated the second aggravating circumstance. After reweighing the evidence, the OCCA affirmed the death sentence. The U.S. Supreme Court denied certiorari.

In 2008, Hanson filed an application for post-conviction relief, which the OCCA denied. He filed a second application in 2010, which was also denied. In December 2010, he filed a federal habeas petition in the U.S. District Court for the Northern District of Oklahoma, citing nine points of error. The district court denied his habeas petition but granted a COA on six of his claims. Hanson appealed to the Tenth Circuit, which granted him a COA for the remaining three points of error in addition to the six accepted by the district court.

Hanson asserted several instances of ineffective assistance of trial and appellate counsel. He argued his trial counsel was ineffective for (1) failing to call Henry as a witness, (2) failing to raise additional grounds for the admission of Barnes’ prior trial testimony, (3) failing to investigate and introduce mitigating evidence at sentencing, (4) failing to object to prosecutorial misconduct. He argued his appellate counsel was ineffective for failing to challenge his trial counsel’s ineffectiveness and failing to put forth evidence of mental illness and brain damage. Finally, he argued both trial and appellate counsel were ineffective for failing to argue that the aggravating circumstance of avoiding arrest failed to specify which crime Hanson sought to avoid prosecution of by murdering Bowles. The Tenth Circuit analyzed each claim in turn.

The Tenth Circuit first evaluated Henry’s possible testimony. At trial, Gordon chose not to examine Henry directly; rather, he introduced the evidence through the detective to whom Henry made the statement. Gordon’s strategy allowed the confession to be presented to the jury without the opportunity for the prosecution to cross-examine Henry, who had serious credibility issues. The Tenth Circuit found no ineffective assistance, noting instead that Gordon’s decision not to call Henry was sound trial strategy. Because Gordon’s performance was not deficient, there was no prejudice.

Next, the Tenth Circuit turned to Hanson’s claim that Gordon’s performance was deficient in regards to the introduction of Barnes’ prior testimony. Gordon argued vigorously that Henry’s statement should prevent the admission of Barnes’ testimony, but he did not argue separately that Miller’s trial testimony was another grounds for objection. Gordon admitted that he never read the transcript of Miller’s trial. The OCCA concluded Gordon’s failure to admit evidence from Miller’s trial appeared strategically sound, since there were good reasons to shield the jury from Miller’s testimony, including that Miller had inculpated Hanson and that Miller’s testimony refuting Barnes was contradicted by objective facts, such as the fingerprints in Bowles’ car and the firearms found at the pair’s arrest. The Tenth Circuit acknowledged that Gordon admitted his failure to read Miller’s transcript. However, it could not find that the error constituted deficiency. The Tenth Circuit noted that even if the performance were deficient Hanson suffered no prejudice, because any potentially useful scraps of evidence were contradicted by the “inconvenient truth” that the two were found committing other crimes with the same firearms used to murder Thurman and Bowles.

Hanson also argued Gordon’s performance was deficient because he failed to call several familial witnesses to rebut the continuing threat aggravator. Gordon called one expert witness and four lay witnesses to rebut the continuing threat aggravator, all of whom testified that Hanson was kind, loving, hard-working, and a good father. Hanson argued that 13 other lay witnesses would have humanized him in the eyes of the jury. The OCCA analyzed the potential testimony and concluded it was duplicative and only of marginal value. The Tenth Circuit agreed, noting it would be troubled if Gordon had not actually interviewed any of the 13 proffered witnesses but the additional evidence would not have impacted the jury’s ultimate decision.

Turning to Hanson’s argument that both trial and appellate counsel were deficient for failing to introduce evidence of his mental illness and brain damage, the Tenth Circuit found no error. Hanson was evaluated by several mental health professionals prior to trial, who performed various tests. He was again evaluated prior to sentencing. On direct appeal of the death sentence, Hanson’s new counsel attempted to retain a neuropsychologist but was advised against it by one of the psychologists who had previously evaluated him. For his federal habeas petition, Hanson’s counsel, who was different from the previous appellate counsel, obtained evaluations from a psychiatrist and neuropsychiatrist. The OCCA found no ineffective assistance in failure to introduce this evidence previously, specifically stating, “We cannot accept as credible Hanson’s assertion that the experienced capital litigation experts and attorneys all missed these obvious indicators of mental illness and cognitive dysfunction in this case at every step.” The OCCA found the issue was reviewed and rejected by both trial and appellate counsel. The Tenth Circuit affirmed, agreeing with the OCCA that it was implausible that the other mental health professionals would have missed this issue.

Hanson argued that Gordon’s performance was deficient for failure to object to prosecutorial misconduct. The Tenth Circuit evaluated each instance and found that no prosecutorial misconduct occurred, so there was no deficiency in Gordon’s failure to object. Finally, the Tenth Circuit rejected Hanson’s claim that the government was required to specify which predicate felony it used as basis for the the avoiding arrest aggravator. The Tenth Circuit noted there was no requirement that the government specify an underlying felony, but even if the requirement existed there was evidence that the prosecution based the aggravator on Thurman’s murder. Regardless, the OCCA struck the third aggravator on review, which was the appropriate remedy. Hanson also argued that the cumulative errors rendered his counsel ineffective, but the Tenth Circuit disagreed.

The Tenth Circuit affirmed the district court and denied Hanson’s motion to expand his COA.

Tenth Circuit: Unpublished Opinions, 10/23/2015

On Friday, October 23, 2015, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Lopez-Montez

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.