April 20, 2019

Tenth Circuit: Prejudicial Nature of Prosecutor’s Improper Conduct Did Not Significantly Affect Outcome of Proceedings

The Tenth Circuit Court of Appeals issued its opinion in Simpson v. Carpenter on Thursday, December 27, 2018.

Oklahoma prisoner Kendrick Simpson sought federal habeas relief from his death sentence for two counts of first-degree murder. The district court denied Simpson’s petition and on appeal, the Court of Appeals found no reversible error and affirmed.

Following an altercation in a night club, Mr. Simpson had fired multiple shots at a moving vehicle containing three passengers. Two of the three passenger victims died at the scene from their gunshot wounds. The State of Oklahoma charged Mr. Simpson with the first-degree murders of the two passenger victims, and with discharging a firearm with intent to kill the third passenger. The prosecution sought a penalty of death for each murder.

The jury convicted Mr. Simpson of two counts of first-degree murder, and sentenced him to death. Mr. Simpson appealed his convictions and sentences, and sought federal post-conviction relief. The district court granted a Certificate of Appealability (“COA”) on two of Mr. Simpson’s eighteen grounds for relief, and the Tenth Circuit subsequently granted a COA on five additional issues.

Mr. Simpson first asserted he was entitled to federal habeas relief because the trial court erroneously excluded expert testimony regarding his PTSD diagnosis and dissociative episodes. Mr. Simpson claimed the testimony was necessary to support the defense that he was incapable of forming the specific intent necessary to commit first-degree murder, and that the Oklahoma Criminal Court of Appeals’ (“OCCA”) determination that the PTSD evidence was irrelevant was both contrary to and an unreasonable application of clearly established federal law. The State countered that the claims were unexhausted, and therefore Mr. Simpson was barred from presenting the arguments on appeal.

The Court rejected the State’s argument that Mr. Simpson’s PTSD claim was unexhausted, concluding instead that although his claim was now more refined, the core of his argument was the same. However, his argument with respect to the dissociative episodes resulting from his PTSD were new. The Court therefore found that Mr. Simpson had properly exhausted his PTSD argument, but that he had failed to properly preserve his argument concerning his dissociative episodes. Turning to the merits, the Court found that the expert testimony regarding Mr. Simpson’s PTSD diagnosis was devoid of any detail on the impact Mr. Simpson’s PTSD had on his ability to form the intent to kill as well as the interactive effects of PTSD and intoxicants. The Court therefore found that the OCCA was reasonable in its determination that the expert testimony regarding Mr. Simpson’s PTSD was irrelevant.

Mr. Simpson next asserted an alleged Brady violation by the prosecutor’s withholding of impeachment evidence as to a jailhouse informant, which he argued was critical to support the Continuing Threat Aggravator. The OCCA had ruled Mr. Simpson’s Brady claim had been waived because Mr. Simpson did not present his Brady claim until his second application for post-conviction relief, in violation of state procedural rules.

Focusing on whether Mr. Simpson was prejudiced by the suppressed evidence, the Court found that the State’s other evidence presented at trial was strong enough to support the Continuing Aggravating Threat factor, even without their reliance on the testimony of the jailhouse informant. The Court concluded that there was no reasonable probability that the jury would have returned a different verdict had the testimony been impeached, therefore the evidence was not material under Brady, and Mr. Simpson could not demonstrate prejudice. Accordingly, the Court held Mr. Simpson’s Brady claim was precluded from federal habeas review, as he could not establish both cause and prejudice as necessary to overcome the state procedural bar.    

Mr. Simpson also claimed that the trial court’s jury instructions and the prosecutor’s improper arguments unconstitutionally limited the jury’s consideration of mitigating evidence. The Court rejected Mr. Simpson’s argument as to the jury instructions, citing its decision in Hanson v. Sherrod,which addressed the constitutionality of the same instructions. The Court went on to explain that because the jury instructions permitted the jury to consider mitigating circumstances other than those enumerated for them, there was no reasonable likelihood the jury would have felt precluded from considering other mitigating evidence, and the OCCA was therefore reasonable in its finding of the same.

With respect to the prosecutor’s improper arguments, Mr. Simpson contended that the prosecutor not only argued that the evidence did not sufficiently mitigate the conduct, the prosecutor suggested that the evidence should not be considered by the jury at all, thus unfairly limiting the jury’s consideration of the mitigating evidence offered. While the Court noted that there were significant and troubling prosecutorial comments (and went so far as to chastise the conduct in a related footnote), the Court found the OCCA was reasonable in its decision that the jury was not precluded from considering the evidence offered by Mr. Simpson because of the language of the jury instructions.

Mr. Simpson next claimed that prosecutorial misconduct denied him a fundamentally fair sentencing proceeding. While the Court acknowledged that the prosecutorial statements at issue were improper, the Court relied on the State having presented significant aggravating evidence to conclude that the OCCA acted reasonably in deciding that the prejudicial impact of these comments did not render the sentencing trial fundamentally unfair.

Mr. Simpson also argued that there was insufficient evidence to support the heinous, atrocious, or cruel aggravating factor determination, and the finding was therefore unconstitutional and unreasonable. Although no evidence was presented with respect to how long the victim remained conscious after having been shot or as to whether the victim appeared to be in pain, the Court found that the jury could have reasonably inferred that the victim experienced conscious physical suffering based on the evidence about the victim’s wounds, therefore OCCA was reasonable in deciding there was sufficient evidence to support the jury’s finding with respect to the HAC Aggravating factor.

Mr. Simpson also alleged his trial counsel was constitutionally ineffective during both the guilt and sentencing stages of the trial. The Court disagreed, and discussed each instance of alleged ineffective counsel individually. First, with respect to the trial counsel’s alleged failure to investigate and present mitigating evidence, the Court concluded that the State had presented strong evidence in support of the death sentence, and the additional mitigating evidence would have done little if anything to undermine the jury’s findings. Second, the Court found that Mr. Simpson’s trial counsel was not required to request an instruction for second-degree murder, as the offense was not reasonably supported by the evidence. Third, with respect to the trial counsel’s failure to object to improper prosecutorial argument, the Court noted it had already been determined that the prosecutor’s misconduct did not deprive Mr. Simpson of a fundamentally fair sentencing trial, therefore Mr. Simpson could not show that he was actually prejudiced by counsel’s deficient performance. Finally, the Court concluded that the trial counsel did not perform deficiently in failing to object to the jury instruction on mitigation evidence because the mitigation instruction was a correct statement of law. The Court therefore concluded that the OCCA’s adjudication of Mr. Simpson’s ineffective assistance of counsel claim was reasonable.

Mr. Simpson’s final claim was that the cumulative errors in his trial denied him a fundamentally fair trail and sentencing proceeding. Despite the identified errors, the jury was presented with copious amounts of aggravating evidence, overwhelming evidence of guilt, and proper instructions from the trial court. The Court therefore found the OCCA was reasonable in its finding that the cumulative effect of the prosecutorial misconduct and instances of his counsel’s deficient performance was harmless.

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