April 22, 2019

Tenth Circuit: Lesser Included Offense Must Have Nearly Identical Elements as Charged Offense

The Tenth Circuit Court of Appeals issued its opinion in United States v. Barrett on Wednesday, August 19, 2015.

Kenneth Barrett had outstanding warrants for failure to appear at a state court trial for drug charges, and in 1999 an Oklahoma drug task force learned Barrett was manufacturing and selling methamphetamine out of his home. Officers obtained a warrant and devised a plan to execute it at night. Barrett opened fire on the officers as they attempted to execute the warrant, killing one officer. Barrett was charged in Oklahoma state court with one count of first-degree murder and three counts of shooting with intent to kill. His first state trial resulted in a hung jury, and in 2004 he was retried and found guilty of two lesser included offenses—manslaughter instead of first-degree murder and assault with a dangerous weapon instead of shooting with intent to kill. He was sentenced to 30 years in prison.

In September 2004, Barrett was charged with various federal drug and murder offenses in the U.S. District Court for the Eastern District of Oklahoma: (1) causing Officer Eales’ death in the course of using a firearm in the furtherance of a drug-trafficking offense, (2) causing Eales’ death in the course of using a firearm in the furtherance of a crime of violence, and (3) intentionally killing Eales during a federal drug offense while Eales was engaged in his official duties. A jury convicted him of all three counts. He was sentenced to life in prison on the first two counts and death on the third count. On direct appeal, the Tenth Circuit affirmed the convictions and sentence. Barrett then sought relief under 28 U.S.C. § 2255, but the district court denied a COA. The Tenth Circuit granted a COA on seven issues related to ineffective assistance of counsel.

The Tenth Circuit addressed Defendant’s arguments in turn. It found no error with defense counsel’s decisions to utilize the same police tactics expert that was used in the state court, since the strategy worked in state court. The Tenth Circuit noted that the decision of which expert to call is quintessentially a matter of strategy for the trial attorney and it would hesitate to question any of defense counsel’s decisions. Defendant also argued his trial counsel erred by failing to counter the government’s crime scene reconstruction expert, and the Tenth Circuit again disagreed, finding the expert’s testimony was full of problems for the prosecution and defense counsel was well within reason to use the same strategy they used in the state trial. Defendant also argued his counsel was ineffective for failing to present mental health evidence during the guilt phase, but the Tenth Circuit determined Defendant failed to show prejudice.

Next, Defendant argued the jury instructions insufficiently advised the jury on lesser included offenses. The Tenth Circuit evaluated Defendant’s proffered lesser included offense instructions and found them inapposite because they were not lesser included offenses of the charged offenses. The Tenth Circuit noted that, to be a lesser included offense, it must contain the same elements as the charged offense except for the thing that makes the greater offense greater. Because the elements of the proposed lesser included offenses were not the same as the charged offenses, Defendant’s argument failed. Defendant’s arguments that his counsel should have requested instructions on victim identity and drug manufacturing similarly failed.

The Tenth Circuit last addressed Defendant’s argument that his counsel was ineffective for failing to explore evidence of his mental health issues during the penalty phase. The Tenth Circuit examined the record and found that defense counsel had not explored potential mitigating evidence of Defendant’s mental health issues at all. The Tenth Circuit reversed the death sentence and remanded for resentencing.

The Tenth Circuit reversed and remanded the death sentence and affirmed in all other respects.

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