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Capital Defense Weekly, December 21, 2009

By Capital Defense Newsletter
Dec 21, 2009

As one might expect this time of year, since the last edition there have been few notable opinions. Most notable is the Third Circuit's opinion in Zachary Wilson v. Beard that upholds the district court's grant of relief under Brady. In Wilson trial counsel for the Commonwealth failed to turn over large amounts of impeachment evidence. The suppressed materials later surfaced and dramatically undermined both the Commonwealth's case and its chief witnesses against Wilson.

As happens semi-regularly, a few opinions were missed last edition because they had not yet been uploaded to Lexis & Westlaw. Two cases from the Alabama Court of Criminal Appeals fall areespecially notable. The CCA in David Dwayne Riley v. State ordered a new trial as "the trial court should have given the jury a limiting instruction regarding the proper use of evidence about Riley's prior convictions." The other decision, Kim Vanpelt v. State, is not noted or the holdings in the case, but rather the creative lawyering of the Appellant's counsel which may provide some readers with ideas for their own appellate litigation endeavors. Unfortunately, Alabama , unlike every other appellate jurisdiction in the nation, does not provide links to its opinions; Lexisone.com has all the opinions at no costs.

In the news DPIC reports that "twenty-seven people were exonerated and released from prison this year, including some who had been on death row, according to a new report from The Innocence Project, a national litigation and public policy organization dedicated to exonerating wrongfully convicted people." Likewise DPIC notes that "county estimates in Texas indicate that the death penalty system is much more expensive than sentencing inmates to life imprisonment."

As always, thanks for reading. - k

Pending Executions
January 2010
7 Abdullah Sharif Kaazim Mahdi (f/k/a Vernon Lamont Smith)* (Ohio)
7 Gerald Bordelon * (LA)(vol)
7 Kenneth Mosley* (Texas)
8 Quincy Allen* (SC)(vol)
12 Gary Johnson* (Texas)
14 Julius Young* (Okla)
February
4 Mark Brown* (Ohio)
24 Hank Skinner* (Texas)

* "serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may exclude any recently added execution date
(note that none of the Pennsylvania dates listed are likely actual execution dates)

Week of December 21, 2009:In favor of the Accused or Condemned (initial list)

  • Zachary Wilson v. Beard, 2009 U.S. App. LEXIS 28244 (3rd Cir 12/23/2009) The prosecution failed to turn over large amounts of impeachment evidence at trial. As often happens those documents subsequently surfaced. The district court granted relief under Brady as the evidence critically undermined the Commonwealth's chief witnesses.

Week of December 21, 2009:In Favor of the State or Government (initial list)

  • People v. Keith Taylor, 2009 Cal. LEXIS 13168 (Ca 12/24/2009) Relief denied on a grab bag of claims. Case is perhaps most noteworthy for its docket sheet and counsel's ability, both for the People and the Defense, to get extensions granted by the Court for briefing. (still working through the opinion)

Week of December 14, 2009:In favor of the Accused or Condemned

  • People v. Brian Nelson, 2009 Ill. LEXIS 2308 (Ill 12/17/2009) Trial court erred in removing deliberating penalty phase juror simply because the juror wouldn't go along with the majority who sought death. "Based upon the record, we conclude that had the jury been allowed to continue to deliberate with Juror 20 as a member of the jury, a nonunanimous verdict would likely have been rendered. According to the jury foreperson's notes and interview, the jury was at loggerheads because of Juror 20's position opposing a sentence of death for defendant. Several of the jurors refused to sign the nonunanimous verdict. Had the trial court not dismissed Juror 20, it would have sent the jury back for further deliberations, with or without a Prim instruction. Eventually, the nonunanimous verdict would most likely have been signed and defendant would not have been sentenced to death. To remand this matter for a new capital sentencing hearing under these circumstances would deprive defendant of that one vote that would have resulted in a sentence other than death. We conclude therefore that remand for a second capital sentencing hearing would be inappropriate. Instead, we must remand the matter to the trial court for imposition of a sentence of imprisonment."

  • David Dwayne Riley v. State, 2009 Ala. Crim. App. LEXIS 172 (Ala. Crim. App. 12/18/2009) "[W]e conclude that the trial court should have given the jury a limiting instruction regarding the proper use of evidence about Riley's prior convictions. We cannot assume that the jury would have understood, without instruction, that it could use evidence about Riley's prior convictions only for impeachment, particularly after the prosecutor's rebuttal closing argument and his inference that Riley was a bad person who could not be rehabilitated. Rather, we must conclude that, under these circumstances, as was the case in Ex parte Minor, the evidence about Riley's prior convictions was presumptively prejudicial and its impact was egregious and that the trial court's failure to instruct the jury regarding the proper use of evidence about Riley's prior convictions rose to the level of plain error."

  • Rueben Gutierrez v. State, 2009 Tex. Crim. App. Unpub. LEXIS 817 (Tex. Crim. App 12/16/2009)(unpub) "We therefore order the parties to brief the following issue: Whether an order denying appointed counsel under Article 64.01(c) is an immediately appealable order. 2 The parties shall also address whether the absence of a certification of the right to appeal in the record has any bearing on this issue."

Week of December 14, 2009:In Favor of the State or Government

  • Burney (Shaun Kareem) on H.C., 2009 Cal. LEXIS 12979 (Ca 12/17/2009) Denial of relief without a substantive discussion of the issues raised.

  • Bobby Baker, Jr. v. State, 2009 Ala. Crim. App. LEXIS 173 (Ala. Crim. App. 12/18/2009) Relief denied on claims relating to: (A) failure to excuse for cause or explore in sufficient depth a veniremember's purported hostility to criminal defendants; (B) "that the trial court erroneously admitted a recording of a 911 telephone call into evidence;" (C) "the trial court erred in admitting evidence about a prior act of domestic violence involving him and the victim;" (D) "trial court erred in allowing the prosecutor to play a recording of a 911 telephone call and to display photographs during his opening statement;" (E) "trial court abused its discretion when it refused to allow the defense to read the redirect examination of Eady from a previous proceeding into evidence" (F) "the trial court erred in allowing the prosecutor to read into evidence, during the guilt phase of the trial, a letter [the condemned] had written to the victim's mother in which he stated that he would plead guilty and seek the death penalty;" (G) "the trial court erred in overruling his objection to the admission of the victim's statements;" (H) admission of prior bad act testimony; (I) admission of certain "volunteered" testimony of a psychologist as it relates to the defendant's record; (J) " trial court erred in instructing the jury on the especially heinous, atrocious, or cruel aggravating circumstance;" and (K) "the propriety of Baker's conviction and sentence of death. "

  • Christopher Thomas Johnson v. State, 2009 Ala. Crim. App. LEXIS 163 (Ala. Crim. App. 12/18/2009) Relief denied on claims relating to waiver of both trial and appellate counsel; "sufficiency of the State's evidence to sustain Johnson's guilty-plea conviction;" and "propriety of Johnson's convictions and his sentence of death."

  • Esaw Jackson v. State, 2009 Ala. Crim. App. LEXIS 167 (Ala. Crim. App. 12/18/2009) Relief denied on claims relating to lethal injection, "that charging him with three counts of capital murder was multiplicitous and that his resulting convictions and sentence of death for all three counts violated principles of double jeopardy;" and statutory review for plain error, as well as proportionality.

  • Kim Vanpelt v. State, 2009 Ala. Crim. App. LEXIS 166 (Ala. Crim. App. 12/18/2009) Relief denied over claims relating to: [A] jury selection (removal of juror for cause, death-qualifying the jury produced a conviction-prone jury and disproportionately excludes minorities and women, failed to use juror questionnaires or to individually question the prospective jurors, failing to grant a pretrial motion to require the State to reveal any exculpatory information about the prospective jurors; "using only the licensed drivers list as the source for the master jury list and master jury box;" failure to sequester the jury); [B] Batson("State used 5 of its 25 peremptory challenges to strike 5 of 9 black jurors"); [C] introduction of life insurance policy (failure to provide a proper foundation & best-evidence rule); [D] use of hearsay testimony that two of the Decedents coworkers had told her after she signed the insurance policy that Vanpelt was going to kill her; [E] trial court permitting the Appellant's ex-fiancee to testify that he proposed to her less than one month before he married the decedent; [F] admission of testimony regarding the canine search; [G] admission of DNA testimony concerning blood discovered in the Vanpelts' mobile home; [H] testimony regarding tire tracks in the grass near where the body was found; [I] "the State's medical examiner . . . should not have been allowed to testify to the results of a toxicological report she had not prepared;" [J] "the circuit court erred in allowing the State to introduce several letters that were identified as having been written by Vanpelt" (who wrote the letters, the State obtained a handwriting sample from him without his attorney being present); [K] overruling a motion for a mistrial after one juror had contact with a deputy sheriff; [L] "erroneous rulings" (circuit court erred in not declaring a mistrial or imposing another "adequate" remedy when one of the jurors was sleeping during part of the cross-examination of the medical examiner; allowing the State to introduce the contents of a label from a cleaning solution that was found in the Vanpelts' mobile home; allowing a State witness to remain in the courtroom after the defense had invoked the Rule; denying his motion to allow Vanpelt to view the scene where victims body was found); [M] denying his motion to exclude prejudicial photographs; [N] prosecutor committed reversible error by vouching for the police investigation; [O] jury instructions on reasonable doubt were erroneous; [P] trial court and prosecutor erred by misinforming the jury that its verdict in the penalty phase was a recommendation; [R] Ring (jury did not unanimously find that an aggravating circumstance existed and because the jury did not unanimously find that the aggravating circumstance outweighed the mitigating circumstances); [S] denying his motion to bar the imposition of the death penalty ("1) Alabama's death-penalty statute is overbroad and fails to narrow the class of murders eligible for a sentence of death; 2) there is a risk that he is innocent; and 3) Alabama's death-penalty sentencing scheme is arbitrary and violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it leads to geographic and racial differences in its impact."); [T] circuit court erred in sentencing him without a complete presentence report; [U] finding that an element of the capital offense was also an aggravating circumstance; [V] lethal injection; [W] prosecutorial misconduct (prosecutor improperly suggested to the jury that it could not consider mitigating evidence that had been presented in the penalty phase; prosecutor improperly suggested that his office had already determined that Vanpelt deserved to be sentenced to death; cumulative effect of the individual instances of prosecutorial misconduct); [X] jury instructions ("instructions on mitigating circumstances were erroneous because the court instructed the jury that they must "avoid the influence of any passion, prejudice, or any other arbitrary factor;" "the circuit court improperly failed to instruct the jury regarding what to do if it found that the aggravating circumstance and the mitigating circumstances were equally balanced;" [Y] "failed to instruct the jury on the use of victim-impact evidence in the penalty phase;" "failed to reinstruct the jury on the definition of reasonable doubt during the penalty phase"); [Z] cumulative error; and [AA] propriety of death sentence.

  • Darick Demorris Walker v. Kelly, 2009 U.S. App. LEXIS 27545 (4th Cir 12/16/2009)(dissent) Relief denied on Brady related claims. "In habeas proceedings, defendant's conviction and death sentence are affirmed where: 1) the district court properly conducted an evidentiary hearing on the Brady issue and rendered a decision on the merits; and 2) the district court properly determined that, even if defendant were able to show that the evidence at issue was withheld and that it was favorable to him, the alleged Brady material does not undermine confidence in the guilty verdict. " [via FindLaw]

  • Jason Farrell McGehee v. Norris, 2009 U.S. App. LEXIS 27434 (8th Cir 12/16/2009) "The district court erred in considering mitigation evidence which was not before the state courts; the Arkansas Supreme Court's decision rejecting McGehee's mitigation argument was not unreasonable or contrary to established law, and the district court erred in granting habeas relief on the ground that the state court improperly excluded certain mitigation evidence during the sentencing phase of defendant's death penalty prosecution; any error in excluding the evidence was harmless in light of the other mitigating evidence concerning McGehee's dysfunctional family background which was admitted and the overwhelming and horrific evidence of the crime; McGehee was not entitled to an Ake expert as he did not make an initial showing that his mental state was likely to be a significant factor at trial; claims that sentence was disproportionate and that the state relied on unconstitutional victim impact testimony are foreclosed by Eighth Circuit precedent and AEDPA; district court did not abuse its discretion in denying McGehee's request for an evidentiary hearing; grant of habeas relief reversed and case remanded with directions to dismiss the habeas petition." [via 8th Circuit Clerk's Office]

  • Timothy Wayne Kemp v. State, 2009 Ark. 631; 2009 Ark. LEXIS 831 (Ark 12/17/2009) "[A]ppellant was required to ask this court to recall our mandate and allow him to pursue a second Rule 37 [postconviction[ petition. This court has consistently upheld the rule that a petitioner is limited to one petition for postconviction relief unless the first petition was specifically denied without prejudice to allow the filing of a second petition."

  • Joseph Smith v. State, 2009 Fla. LEXIS 2067 (FL 12/17/2009) Relief denied on claims relating to: "the State violated the Confrontation Clause of the Sixth Amendment to the United State Constitution when it failed to present the biologists who performed the DNA tests on the known sample taken from Smith and the unknown semen sample taken from the victim‘s shirt;" the trial court erred when it permitted [State's expert] to present opinion testimony that the victim had been sexually assaulted;" and ""the trial court erred when it refused to suppress statements by his brother....which related to comments made by Smith with regard to the sexual battery and murder of the victim." [Note: still reviewing.]

  • State v. Christopher Cameron, 2009 Ohio 6479(Ohio 10th App. 12/10/2009) Relief denied on claims relating to: "1. The conviction is contrary to the manifest weight of the evidence. 2. Christopher was denied effective assistance of counsel when his counsel failed to give closing argument regarding the only charge of which Christopher was convicted. [and] 3. The trial court abused its discretion in overruling Christopher's pre-trial motion for separate trial on the only charge of which he was convicted."

  • Anthony Castillo Sanchez v. State, 2009 OK CR 31 (Okla. Crim. App. 12/14/2009) Relief denied on claims including: (A) shackling before the jury; (B) life/death qualification; (C) " admission of evidence tending to show that shoe prints at the scene of the Busken murder were similar to a pair of Nike shoes owned by Appellant;" (D) admission in to evidence a the calendar note held admissible as a recorded recollection (harmless error); (E) sufficiency; (F) admission of prior rape conviction; (G) State's penalty phase closing; (H) denigration of the Defendant in the State's closing; (I) Use of G-d in closing by the State; (J) use of the continuing threat aggravator; (K) instruction on mitigation; (L) iac for the defense closing " by all but conceding Appellant’s guilt of rape and sodomy;" (M) cumulative error; and (N) statutory review. [Evidence prof blog has more]

  • Antonio Lee Williams v. State, 2009 Tex. Crim. App. LEXIS 1751 (Tex. Crim. App 12/16/2009) "Evidence was sufficient to sustain a capital murder conviction under Tex. Penal Code Ann. 19.03 because defendant engaged in a continuous and uninterrupted chain of conduct over a very short period of time; a witness testified that when defendant was shooting victim 1, the shots were coming 'rapidly, nonstop, with no break'." [via Lexisone]

  • Richard Lee Tabler v. State, 2009 Tex. Crim. App. Unpub. LEXIS 830 (Tex. Crim. App 12/16/2009) Relief denied on claims relating to: 1) "sentence of death is unconstitutional because the Eighth and Fourteenth Amendments of the United States Constitution preclude the death penalty for the mentally ill;" 2) "prosecutor's closing argument at punishment violated Tennard v. Dretke;" 3) "trial counsel was ineffective when he failed to object to the prosecutor's closing argument at the punishment phase that there had to be a nexus between the mitigating evidence and the offense;" 4) "the trial court erred at the guilt phase when it denied his request for jury instructions on self-defense, defense of a third person, and the lesser-included offense of murder;" 5) "trial court erred in failing to suppress appellant's statements because they were the fruits of his illegal arrest;" and 6) the use of the "10-12 rule."

  • Ex parte Terry Darnell Edwards, 2009 Tex. Crim. App. Unpub. LEXIS 808 (Tex. Crim. App 12/16/2009)(unpub) Relief denied in near summary fashion and without a meaningful discussion of the merits.

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