April 22, 2019

Tenth Circuit: No Error Where More than One Aggravating Circumstance Proved by Same Facts

The Tenth Circuit Court of Appeals issued its opinion in Jackson v. Warrior on Tuesday, November 10, 2015.

Shelton Jackson repeatedly threw the two-year-old son of his girlfriend, Monica Decator, on the ground, severely injuring the child. He hid the injured child in the crawl space of a nearby vacant house. He went to a convenience store and emptied Ms. Decator’s bank account at an ATM, then went to watch wrestling at his uncle’s apartment as he regularly did. When he returned home, he killed Ms. Decator to keep her from reporting the child abuse to authorities. He then set fire to the house. He was arrested the next afternoon, when the bus in which he was traveling to Houston made a regularly-scheduled stop. At a police station in Tulsa, he gave directions to the child’s location and gave a statement confessing to the child abuse and killing. He was charged with first degree murder, first degree arson, and injury to a minor child. A jury found him guilty of all three crimes and recommended the death penalty. On appeal, the OCCA found that Jackson’s trial attorneys were constitutionally ineffective because they conceded his guilt without consulting with him or obtaining his consent or acquiescence. The OCCA reversed and remanded the murder conviction and death sentence, and affirmed the arson and child abuse charges.

On remand, Jackson was again convicted of first degree murder. At sentencing, the state urged four aggravating factors to support a death sentence: (1) the murder was especially heinous, atrocious, or cruel; (2) Jackson killed Ms. Decator to avoid prosecution for a previous crime; (3) he posed a continuing threat; and (4) During Ms. Decator’s murder, Jackson knowingly created a great risk of death to more than one person. The state offered evidence from the trial as proof of the first three factors and introduced the testimony of a doctor to prove the fourth factor. The sentencing court dismissed the continuing threat aggravator. The defense introduced mitigating evidence, mainly based on Jackson’s history, including cognitive and functional disabilities from fetal alcohol syndrome, severe abuse, teasing, and time in a correctional facility that was later discovered to fail to protect children from abuse. The defense also introduced the testimony of Arthur Farakhan, who testified that Jackson was involved in a program for disadvantaged youth and that his life would have value in prison. The jury returned a death sentence.

On appeal after remand, Jackson asserted multiple contentions of error, including that there was insufficient evidence to prove the great risk of death aggravator beyond a reasonable doubt. The OCCA affirmed the murder conviction and death sentence. Jackson then sought post-conviction relief, contending his counsel was ineffective for calling Farakhan and failing to object to his potentially prejudicial testimony, and also for failing to raise that claim on direct appeal. The OCCA denied all requested relief. Jackson then filed a petition for habeas relief in federal district court, again arguing the evidence was insufficient to prove the great risk of death aggravator and that both trial and appellate counsel were ineffective. The district court denied habeas relief but granted a certificate of appealability.

On appeal to the Tenth Circuit, Jackson argued the trial court’s submission to the jury of the great risk of death aggravator unconstitutionally skewed its deliberations during the penalty phase. The Tenth Circuit recited Oklahoma law, which allows the “great risk of death” aggravator when another person is endangered by defendant’s acts in killing the victim. Jackson strenuously objected to the use of the great risk of death aggravator, contending that the focus should be on the killing act itself, and when he killed Ms. Decator the child was not present. The state argued that Jackson created a great risk of death to the child by killing Ms. Decator because, as his mother, she was the only person likely to look for the child. The trial court agreed with the state. The OCCA did not decide the issue because the facts used to support the great risk of death aggravator were the same facts as used to prove the “avoid arrest” aggravator, so the jury deliberations were not unconstitutionally skewed. The Tenth Circuit analyzed the case on which the OCCA relied, Brown v. Sanders, 546 U.S. 212 (2006). The Tenth Circuit determined that although Oklahoma was a state that weighed aggravating and mitigating factors, Sanders applies equally in weighing and non-weighing states, and the OCCA applied the correct rule in affirming Jackson’s sentence.

Jackson next argued that even if the OCCA applied the Sanders rule correctly, it erroneously conflated admissibility and “aggravatability.” The OCCA held that the great risk of death aggravator was not supported by any evidence that was not also admissible to support other aggravators. The OCCA held that the evidence of the nature and extent of the child’s injuries could have been admitted to prove the valid avoid arrest aggravator. The Tenth Circuit further noted that evidence of the child’s injuries supported Jackson’s knowledge of those injuries and motive of avoiding arrest and prosecution. The Tenth Circuit found that the OCCA’s determination that the physician’s testimony could support the avoid arrest aggravator was not objectively unreasonable. Jackson argued that the physician’s testimony would not have been admissible to prove the avoid arrest aggravator, but the Tenth Circuit disagreed, dismissing Jackson’s argument that the evidence before the jury should have been limited to what Jackson himself admitted. The Tenth Circuit found that the nature and extent of the child’s injuries was best described by a doctor.

Turning to Jackson’s ineffective assistance claim regarding Mr. Farakhan, the Tenth Circuit again found that the OCCA’s decision was objectively reasonable. Mr. Farakhan was brought to testify in Jackson’s mitigation, but he held strong opinions that the death penalty was appropriate for intentional murder. The state questioned Mr. Farakhan about his views on the death penalty, and during this questioning defense counsel did not object. Jackson contends this was error, and his counsel should not have called Mr. Farakhan in the first place because of his views on the death penalty. The OCCA found that defense counsel’s decision to call Mr. Farakhan was neither unreasonable nor unsound, and although the prosecutor’s questioning was improper, the single potentially prejudicial statement did not undermine the rest of the mitigating evidence. The Tenth Circuit applied a “doubly deferential” standard to evaluate the ineffective assistance claim, based on both Strickland and AEDPA. The Tenth Circuit found the OCCA reasonably rejected Jackson’s ineffective assistance claim, since there was ample evidence weighing both for and against the death penalty and it substantially outweighed any potential prejudice from Mr. Farakhan’s single statement.

Finally, Jackson argued that there was cumulative error requiring reversal. The Tenth Circuit found no error, so Jackson could not prove cumulative error. The Tenth Circuit affirmed Jackson’s conviction and sentence.

Tenth Circuit: Trial Counsel’s Strategic Decision Does Not Constitute Ineffective Assistance

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Warrior on Tuesday, November 10, 2015.

As Paul Howell parked his Suburban in his parents’ driveway with his two young daughters and his sister, he was shot by a black man in a white shirt with a black hat and a red bandanna covering his face. His sister grabbed the girls out of the backseat and ran them into the house, and Howell’s parents ran out to find their son, lifeless, in the driveway. The Suburban was gone. Howell died later that day from a gunshot wound to the head. Police later found the Suburban in a convenience store parking lot on the south side of Oklahoma City and canvassed the area, looking for suspects. They interviewed Kermit Lottie at a nearby auto body shop, who informed them that Ladell King and at least one other person had attempted to sell him the Suburban the previous day but he refused to buy it. Police tracked down King later that day, and he gave them a phone number and address for Julius Jones.

Police surrounded Jones’s parents house and called him to tell him that they wanted to talk to him about the murder. Jones escaped through a second-story window. Officers obtained warrants and searched the house, finding in Jones’s room a white t-shirt and black stocking cap that matched the descriptions given by Howell’s sister. Police also found a .25-caliber semi-automatic pistol and ammunition matching the bullets in the Suburban and Howell. Two days later, officers arrested Christopher Jordan, and after a citywide search, they found and arrested Jones. Jordan pleaded guilty and agreed to testify against Jones at trial. Jones was eventually found guilty of first-degree felony murder and sentenced to death.

Jones appealed his convictions and death sentence to the Oklahoma Court of Criminal Appeals (OCCA). He asserted numerous claims of error, including that his trial counsel, David McKenzie, was ineffective for failing to call Emmanuel Littlejohn, an inmate who briefly shared a cell with Jordan, who Jones asserted would have testified that Jordan admitted to shooting Howell and said that Jones wasn’t involved at all. After interviewing Littlejohn and speaking to his attorney about his credibility, McKenzie decided that Littlejohn was a “pathological liar” and lacked credibility. The OCCA found that Jones’ argument about McKenzie’s ineffective assistance went to trial strategy, and found nothing unreasonable about McKenzie’s decision not to call Littlejohn. The OCCA affirmed his convictions and sentence.

Next, Jones sought post-conviction relief in state court, claiming, among other things, that McKenzie was ineffective for failing to investigate whether anyone could corroborate Littlejohn’s story. Jones asserted that Christopher Berry, another inmate who had shared a cell pod with Jordan, had heard Jordan bragging about shooting Howell. McKenzie was also Berry’s attorney, but he never asked Berry about Jones’ case. The OCCA rejected Jones’ claims, noting that Berry suffered from the same credibility problems as Littlejohn and the inmates’ accounts showed only that Jordan changed his story to suit his needs.

Jones then sought federal habeas relief. The federal district court rejected all of Jones’ eight asserted grounds for relief, but granted a certificate of appealability on only one issue: whether McKenzie was ineffective for failing to investigate Littlejohn’s claim that Jordan confessed to the shooting. Using the Strickland analysis, the Tenth Circuit determined that the OCCA had denied relief on the performance prong and had not evaluated the prejudice prong. The Tenth Circuit found that the OCCA had applied the correct legal standard in its decision, and had analyzed trial counsel’s purported deficiency for failing to investigate and present the two witnesses at trial. The Tenth Circuit found Jones failed to establish that the OCCA’s decision was contrary to established law. The Tenth Circuit similarly found no basis for Jones’ claim that the OCCA’s decision was based on an unreasonable determination of the facts.

The Tenth Circuit affirmed the district court’s denial of habeas relief, and denied Jones’ motion to extend the COA to include several additional claims of ineffective assistance.

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.