Two cases originating out of Oklahoma lead off this week. In a solid analysis of the application of the Supreme Court's relatively recent decision in Crawford v. Washington, the Oklahoma Court of Criminal Appeals inMiller v. Oklahomareverses finding admission of a nontestifying codefendant's confession denied the right to cross-examination. InCannon v. Mullinthe Tenth Circuit orders a remand to determine whether the district court erred in denying relief as to trial counsel's failure to notify "the court of improper contacts between prosecution witnesses and jurors during trial recesses" and whether "his trial counsel prevented him from testifying in his own defense at trial;" court below, however, to first consider potential defenses of procedural default on remand.

Elsewhere, inWorkman v. Bella federal district court has granted a stay pending the outcome of the Sixth Circuit's en banc determination how it will treat Rule 60(b) motions in habeas corpus proceedings in Rahman v. Bell; the district court's stay appears to have survived appeal to the Sixth Circuit. In another Sixth Circuit matter,Hicks v. Collins, a sharply divided panel denies relief on highly inflammatory prosecutorial statements in the penalty phase that in many jurisdictions would have required a near automatic reversal. In a Fourth Circuit case,United States v. Moussaoui, a panel on an interlocutory appeal holds the district court erred in striking the ability of the United States to seek deathas an excessive sanction for alleged discovery abuses by the government. In what was another federal death penalty prosecution where the jury returned life,United States. v. Lentz, a panel remands for new trial as the jury was impermissibly given items of evidence explicitly excluded from its purview at trial, however, the panel reversed the findings of the court below which had found post-trial that the prosecutor had intentionally & surreptitiously given these items to the jury. Finally, the Arizona Supreme Court inState v. Murdaughdenies relief holding non-jury sentencing error under Ring v. Arizona in this case was harmless beyond a reasonable doubt.

Next week will (schedule permitting) include the annual Supreme Court preview. NACDL, acting as amici in one of the cases to watch next term, United States v. Booker, haspublished their amicus briefon the issue of the applicability of Blakely v. Washington to the federal sentencing guidelines.

As always, thanks for reading, - k

Archived on the internet athttp://capitaldefenseweekly.com/archives/040920.htm

EXECUTION INFORMATION

Since the last edition there have been the following executions in the United States:

September

21 Andrew Flores Texas

Pending execution dates believed to be serious include:

September

28 Ricky Dale Newman Arkansas----volunteer

30 David Hocker Alabama --- volunteer

October

5 Edward Green III Texas

6 Peter Miniel Texas

8 Sammy Perkins North Carolina

12 Donald Aldrich Texas

13 Adremy Dennis Ohio

20 Ricky Morrow Texas

22 Charles Roache North Carolina----volunteer

26 Dominique Green Texas

SUPREME COURT

No cases noted

CAPITAL CASES (Favorable Disposition)

Martinez v. Dretke, 2004 U.S. App. LEXIS 19509 (5th Cir 9/17/2004) (unpublished) Remand ordered on "whether counsel's investigation of Martinez's temporal lobe epilepsy was unreasonably deficient and, if so, whether counsel's failure to investigate this condition and produce evidence relating to it amounted to ineffective assistance of counsel."

Cannon v. Mullin, 2004 U.S. App. LEXIS 19224 (10th Cir 9/13/2004) (dissent) Remand ordered on whether "(1) his trial counsel failed to notify the court of improper contacts between prosecution witnesses and jurors during trial recesses, and (2) his trial counsel prevented him from testifying in his own defense at trial." " The issues before the district court will be procedural bar, Mr. Cannon's diligence in pursuing the factual development of his juror-contact claim in state court, the merits of Mr. Cannon's contentions, and whether any violation of Mr. Cannon's constitutional rights was harmless."

In re Amendments To Florida Rule of Criminal Procedure 3.853(d)(1)(A)(Postconviction DNA Testing), 2004 WL 2047658, 2004 Fla. LEXIS 1521 (Fla. 9/15/2004) DNA testing time limits for those already incarcerated extended until October 1, 2005.

Nika v. Nevada, 2004 WL 2071759, 2004 Nev. LEXIS 87 (Nev. 9/16/2004) Post-conviction trial court's dismissal order did not contain factual findings or legal conclusions, was deficient & rushed as to some claims.

Miller v. Oklahoma, 2004 WL 2073286, 2004 OK CR 29, 2004 Okla. Crim. App. LEXIS 32 (Okla.Crim.App., 9/17/2004) Remand ordered in light of Confrontation Clause problems with conviction as nontestifying codefendant's confession, in which he incriminated himself as well as defendant, was not sufficiently reliable to be admissible without allowing defendant to cross-examine codefendant.

Workman v. Bell, 2004 WL ------ (W.D.TN 9/13/2004) Stay granted pending outcome of Sixth Circuit's en banc determination of the scope of Rule 60(b) in habeas proceedings.

Petitioner asks the Court to stay his execution pending the United States Court of Appeal’s decision in Abdur’Rahman v. Bell,6th Cir. Nos. 02-6547, 02-6548, and this Court’s subsequent decision on Petitioner’s Fed. R. Civ. P. 60(b) motion. In Cooey v. Bradshaw, 216 F.R.D. 408, 414-15 (N.D. Ohio 2003), the court granted a stay of execution pending the Sixth Circuit’s ruling in Abdur’Rahman. See also In Re Holladay, 331 F.3d 1169, 1177 (11th Cir. 2003)(granting stay of execution to allow consideration of successive application for habeas corpus relief); Zeigler v. Wainwright, 791 F.2d 828 (11th Cir. 1986)(granting stay of execution pending resolution of Rule 60(b) appeal). Petitioner has established that he maintains a likelihood of success on his motion should this Court be permitted to consider his amended motion for relief from judgment. Accordingly, the Court GRANTS Petitioner’s motion for stay of execution pending the Sixth Circuit’s decision in Abdur’Rahman and this Court’s subsequent ruling on Petitioner’s Rule 60(b) motion. Petitioner’s execution is stayed therefore pending the outcome of this matter. (Affirmed on appeal in an unpublished order)

CAPITAL CASES (Other Than Favorable Disposition)

United States v. Moussaoui, 2004 U.S. App. LEXIS 19770, 2004 WL 2029733 (4th Cir. 9/13/2004) (dissent) District court erred in striking the ability of the United States to seek death for alleged discovery abuses. The panel additionally holds that enemy combatant witnesses in military custody located physically outside the boundaries of the United States are still within the reach of the compulsory process clause; the court below's ordering production of enemy combatant witnesses does note violate separation of powers principles; and government's exercise of its prerogative to protect national security interests by refusing to produce the witnesses warranted use of written summaries of the witness' statements.

Hicks v. Collins, 2004 WL 2049966 (6th Cir 9/15/2004) (dissent) Relief denied most notably on highly inflammatory prosecutorial statements in the penalty phase urging the jury to act as the community conscience. Relief also denied as (1) petitioner procedurally defaulted ineffective assistance of appellate counsel claims; (2) defense counsel did not render ineffective assistance in connection with use of state psychologist's testimony or was otherwise ineffective; (3) prosecutor did not violate Bradyby witholding inculpatory statemetns; (4) prosecutor did not improperly use victim impact statements; and (5) prosecutor's improper review of all statutory mitigating factors did not prejudice petitioner. On the only positive note from the decision representation by trial counsel on appeal precluded applicability of state rule requiring ineffective trial counsel claims to be raised on direct appeal thereby bypassing procedural bar to habeas claims concerning trial counsel's conduct. This is a high probability en banc or cert grant case in light of the prosecutorial comments, as the dissents notes:

In light of the presentation of mitigation evidence, there is no basis for a determination that the prosecution's extensive improper statements did not influence the jury in a function, the weighing of factors, that is inherently discretionary. To weigh aggravating and mitigating factors, the jury must decide what relative value to assign to each factor. The prosecution's comments advocated improper values for jurors to use, in their weighing function. Crowe forcefully pushed the jury to value the community's stake in deterrence of cocaine use, in sentencing a defendant who was not being tried for a drug crime. The trial judge gave no curative instructions to blunt the impact of these improper remarks. Given the extensive nature of Crowe's improper statements, a conclusion that there was no prejudice here would require more speculation than DePewpermits in a capital case.

Neville v. Dretke, 2004 WL 2049335 (N.D.Tex. 9/13/2004) Relief denied on claims that "he is actually innocent of the offense of capital murder, that trial counsel were ineffective in conducting voir dire of the jury panel, that the death penalty is inherently unconstitutional, and that the state clemency procedures are inadequate and violate an international treaty." All claims but the ineffectiveness claim held procedurally barred which was denied on the merits.

Arizona v. Murdaugh, 2004 WL 2066227, 2004 Ariz. LEXIS 97 (Ariz. 9/16/2004) Ring error held harmless beyond a reasoable doubt. Other claims denied included whether (1) delay of several years constituted cruel and unusual punishment; (2) competency to enter a guilty plea; (3) the use of the especially heinous and depraved aggravator; (4) sufficency of whether the defendant needlessly mutilated victim's body, senselessly murdered victim, & that the murder victim was helpless; and (6) defendant's ability to appreciate wrongfulness of his conduct was impaired by methamphetamine use.

Gray v. Mississippi, 2004 WL 2065362, 2004 Miss. LEXIS 1166(Miss. 9/16/2004) Relief denied as (1) the leave to file petition for postconviction relief was not sufficiently plead; (2) the petition was facially insufficient to warrant hearing on issue as to whether he was mentally retarded; and (3) defense counsel did not render ineffective assistance.

Brown v. Mississippi,2004 WL 1945528;2004 Miss. LEXIS 1104 (Miss 9/2/2004) Relief denied on issues including (1) sufficiency; (2) jury selection; (3) failure to give a sua sponte limiting instruction once other-crimes evidence had been admitted; (4) police testimony that certain interviewees were frightened; (5) witness's perjury with respect to his place of employment did not warrant new trial; and (6) use of "pecuniary gain" to elevatemurderto capitalmurderand as an aggravator.

South Carolina v. Hill, 2004 WL 2032222, 2004 S.C. LEXIS 223 (S.C. 9/13/2004) Relief denied on claims including whether (1) defendant's loss of memory due to his self-inflicted gunshot wound to his head rendered him incompetent to stand trial; (2) statement that he killed third victim "because she was black" was involuntary; and (3) jury selection issues.

Minor v. Alabama,2004 Ala. Crim. App. LEXIS 156; 2004 WL 1909380 (Ala.Crim.App. 8/27/2004) Relief denied as (1) statements given to police on the day the infant victim died were voluntarily; (2) admission of evidence of expert testimony as to the decedent's "hematocrit level"; (3) failure to remove juror or declare mistrial after juror's allegation of harassment by defendant's brother; (4) prosecutor's comment that jury should not let defendant "get away with killing" infant victim; and (5) use of HAC aggravator.

HOT LIST

Cannon v. Mullin, 2004 U.S. App. LEXIS 19224 (10th Cir 9/13/2004) Remand ordered on whether "(1) his trial counsel failed to notify the court of improper contacts between prosecution witnesses and jurors during trial recesses, and (2) his trial counsel prevented him from testifying in his own defense at trial." " The issues before the district court will be procedural bar, Mr. Cannon's diligence in pursuing the factual development of his juror-contact claim in state court, the merits of Mr. Cannon's contentions, and whether any violation of Mr. Cannon's constitutional rights was harmless."

We now turn to two claims that may be meritorious. Mr. Camnon claims that trial counsel was ineffective for failing to notify the court of improper contact between prosecution witnesses and jurors during trial recesses, and for usurping his decision whether to testify in his own defense. The OCCA has never addressed the merits of either claim. Mr. Cannon did not raise the claims on direct appeal to the OCCA; and when he raised them in post-conviction proceedings, the OCCA held them to be procedurally barred [*35] because they had not been raised on direct appeal. As we proceed to explain, however, (1) each claim has merit if Mr. Cannon's factual allegations turn out to be supported by persuasive evidence; (2) whether the claims are procedurally barred depends on findings that the district court must make on remand; and (3) if there is no procedural bar, Mr. Cannon is entitled to a hearing at which he can further develop evidence supporting his failure-to-testify claim and may be entitled to such a hearing on his improper-contact claim. We begin by discussing the merits of each claim, then procedural bar, and finally the propriety of an evidentiary hearing with respect to each claim.

1. Merits of the claims

a. Improper juror contact

Mr. Cannon alleges that counsel was ineffective for failure to inform the court of improper contact between prosecution witnesses and jurors during trial recesses. His affidavit of January 27, 1999, submitted to the OCCA as part of his post-conviction collateral attack, states:1. Trial counsel failed to take action or request a hearing concerning improper outside influences on the jury. Petitioner became aware that Larry Salzman, [*36] father of State witness Pam Salzman and himself an endorsed State witness, had improper contact with trial jurors during the trial. Petitioner believes in good faith that the following persons have actual knowledge that such contact did occur, that trial counsel was made aware of this improper contact, and failed to take proper steps to alert the court or remedy prejudicial influences upon the jury at trial.

2 Hamon Sallis, Lee Sallis, Betty Cannon, Tamoura Cannon, and Wade Johnson all witnessed improper contact between Larry Salzman and one or more of the trial jurors. These witnesses were also present when trial counsel was advised of the contact between Mr. Salzman and the trial jurors and would further corroborate Petitioner's testimony that trial counsel was aware of the improper contacts and did nothing. An evidentiary hearing is the only means necessary to discover the actual content of communications between Mr. Salzman and the jury and determine the extent of prejudice to petitioner.

3. These same witnesses also saw State witness Awanna Simpkins communicate verbally with jurors during a recess, at which time Ms. Simpkins made a statement that Petitioner had raped [*37] her. These witnesses would also testify that trial counsel was aware of this improper contact between the witness and the trial jurors but failed to make a record of the incident before the court or take other measures to determine the impact of the communication on members of the jury. An evidentiary hearing is necessary to present this evidence and summon witnesses to testify concerning the prejudicial impact of these errors.Pro Se Application for Post Conviction Relief, Exh. 1 at 4. Mr. Salzman was listed by the prosecution as a potential witness, although he did not testify. Ms. Simpkins testified during the trial's sentencing phase. In a pleading entitled "Request for Appointment of an Investigator" filed simultaneously with and referenced by his § 2254 application, Plaintiff supplemented the affidavit by stating that Ms. Simpkins' rape accusation occurred during the guilt phase of the trial. See Bryan v. Mullin, 335 F.3d 1207, 1214 (10th Cir. 2003) (en banc) (evidentiary hearing justified in part by allegations in habeas application).

If the allegations in Mr. Cannon's affidavit are true, he was likely rendered ineffective assistance of counsel, because [*38] of the probability that proof of such juror contact would have entitled him to relief from the trial court. If trial counsel was in fact informed about improper juror communications and did nothing, such inaction would appear to satisfy Strickland's first prong. As for Strickland's prejudice prong, in Remmer v. United States, 347 U.S. 227, 229, 98 L. Ed. 654, 74 S. Ct. 450 (1954), the Supreme Court held:

In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.See United States v. Scull, 321 F.3d 1270, 1280 n.5 (10th Cir. 2003). Although this court has declined to apply Remmer in a § 2254 proceeding to determine whether [*39] jury contact was prejudicial, see Crease v. McKune, 189 F.3d 1188, 1193 (10th Cir. 1999), that is not the issue before us. The question here is not whether we would find that the contact was prejudicial but whether the state court would have found prejudice had trial counsel raised the issue. If the state court had applied Remmer to the facts alleged by Mr. Cannon, it very likely would have found prejudice. Unfortunately, there is no definitive Oklahoma decision adopting or rejecting Remmer. The only reference in reported Oklahoma cases to the Supreme Court decision is a case distinguishing, but not criticizing, Remmer. See Silver v. State, 1987 OK CR 99, 737 P.2d 1221, 1224 (Okla. Crim. App. 1987). In this circumstance we believe the proper course is to assume that the Oklahoma court would have found Supreme Court authority to be persuasive, or, in any event, would have presumed prejudice here from an inflammatory allegation of rape and the other alleged improper communications.

Accordingly, if Mr. Cannon's assertions are true, he was likely prejudiced by his counsel's inaction. Whether Mr. Cannon has a meritorious claim will depend, however, on whether [*40] he is entitled to an evidentiary hearing on this claim and whether such a hearing elicits persuasive evidence supporting his assertions.

b. Right to testify

Mr. Cannon alleges that trial counsel would not allow him to take the stand in his own defense, despite his unequivocal expression of the desire to do so. The district court construed Mr. Cannon's allegations that he was denied the right to testify as an ineffective-assistance claim. Other courts also treat such claims as ineffective-assistance claims. See, e.g., United States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992) (en banc) ("the appropriate vehicle for claims that the defendant's right to testify was violated by defense counsel is a claim of ineffective assistance of counsel"). We agree that Mr. Cannon's claim is best treated as an ineffective-assistance-of-counsel claim and analyze it as such.

Mr. Cannon's affidavit to the OCCA states in relevant part:1. In more than one pre-trial conference petitioner informed trial counsel that the petitioner wished to testify on petitioner's own behalf. Trial counsel was against this decision. Through the course of several pre-trial discussions [*41] concerning this issue petitioner would never relent or change his position and desire to testify on his own behalf. Trial counsel also refused to relent or change the position of being against petitioner's desire to testify on his own behalf. At the beginning of trial petitioner reiterated to trial counsel his desire to testify on his own behalf.

2. Upon petitioner[']s request to trial counsel to testify on his own behalf, trial counsel became enraged and abandoned [her] previous finesse technique and went to an aggressive bulldog approach and responded to petitioner, "Judge Hopper assigned me to represent this case and I am the captain of the ship and I make all decisions concerning this case and I say you're not going to testify, besides our witness list is already in and you are not on it so you couldn't testify anyway." Petitioner still maintained his wish to testify.

3. When the State rested it[ ]s case and the Judge called for the defense to present it[ ]s side, Petitioner started to fix his jacket to get ready to take the witness stand to testify on his own behalf. Trial counsel was well aware of the petitioner[']s wish to testify. In order to purposely [*42] sabotage and subvert petitioner's right to testify on his own behalf when the Judge called for the defense, trial counsel quickly sprang out of the chair and said that the defense rests in order to cut the petitioner off[,] full well knowing the petitioner couldn't afford an[] incident in front of the jury. Petitioner's grandparents, Hamon Sallis, Lee Sallis; sister Tamoura Cannon, Mother Betty Scott (note: State Witness) and friend Wade Johnson all had prior knowledge of Petitioner's wish to testify on his own behalf and would testify to such knowledge if called to do so by the court.Pro Se Application for Post Conviction Relief, Exh. 1 at 5-6.

A criminal defendant has a constitutional right to testify in his own behalf at trial. Rock v. Arkansas, 483 U.S. 44, 49-52, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987). The decision whether to testify lies squarely with the defendant; it is not counsel's decision. Jones v. Barnes, 463 U.S. 745, 751, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983). Defense counsel should inform the defendant that he has the right to testify and that the decision whether to testify belongs solely to him. See Teague, 953 F.2d at 1533-34. Counsel [*43] should also discuss with the defendant the strategic implications of choosing whether to testify, and should make a recommendation to the defendant. See id. Yet counsel lacks authority to prevent a defendant from testifying in his own defense, even when doing so is suicidal trial strategy. See United States v. Janoe, 720 F.2d 1156, 1161 & n.10 (10th Cir. 1983).

If Mr. Cannon's affidavit is true, then counsel deprived him of the constitutional right to testify in his own defense. Such a dereliction of duty by counsel would satisfy the first prong of Strickland.

As discussed above, Strickland's second prong--prejudice--is established if there is a reasonable probability that defendant's testimony would have raised in a juror's mind a reasonable doubt concerning his guilt. Strickland, 466 U.S. at 694-95. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. We recognize that the jury had already heard a recording of Mr. Cannon's account of Sharonda Clark's death in his telephone conversation with Detective Fultz. In light of the physical evidence and other testimony, [*44] the jury rejected Mr. Cannon's account. We can be skeptical that the jury's view would have been changed by hearing Mr. Cannon's live testimony, particularly in light of what could have been elicited on cross-examination.

Nevertheless, the recorded account was hardly seamless. The recording contains long periods of silence (perhaps from editing the tape) and the 22-page transcript contains 64 "inaudibles." Such interruptions in the narrative could impact its persuasiveness. We are also cognizant of the power of a face-to-face appeal. Most importantly, however, Mr. Cannon's testimony would be of particular relevance to the claim presented by his trial attorney that his acts constituted only manslaughter. Even when the objective evidence appears to preclude a self-defense claim, the jury might still harbor a reasonable doubt whether Mr. Cannon actually believed that he was in danger, see Wood v. State, 1971 OK CR 232, 486 P.2d 750, 752 (Okla. Crim. App. 1971) (homicide may be found to be manslaughter where killing was motivated by defendant's "belief that he was in great danger, even if he was not warranted in such belief or where the slayer although acting in self-defense was not [*45] himself free from blame"), or was aroused by passion, see Cipriano v. State, 2001 OK CR 25, 32 P.3d 869, 874 (Okla. Crim. App. 2001) (listing elements of heat-of-passion manslaughter). Mr. Cannon's testimony, and his demeanor while testifying, could have special significance to the jury on this matter.

We conclude that the issue of prejudice is of sufficient doubt that it should not be resolved in the first instance by this court. On remand, resolution of the merits of the claim (which, of course, would not be necessary if the claim is procedurally barred) will require the district court to resolve factual disputes regarding whether Mr. Cannon's attorney actually prevented him from testifying and, if so, whether Mr. Cannon suffered the requisite prejudice. (Although the question is very close, we do not treat footnote 10 in the district court's opinion as dispositive on this point. The footnote recites the harm to Mr. Cannon that would have resulted from his testifying. The footnote does not, however, address whether his testimony would have been helpful on the manslaughter issue; nor does it state that absence of prejudice from not testifying is an alternative ground [*46] for the court's ruling. We note that the state's appellate brief makes no reference to the footnote. In the circumstances, we think it prudent that our remand for further consideration include this issue as well as the jury-contact issue.)

****

a. Juror contact

The allegations regarding improper juror contact contained in Mr. Cannon's affidavit are all hearsay. The affidavit references no first-hand knowledge of any improper contact between witnesses and jurors. It states that family members and friends of Mr. Cannon have actual knowledge of the underlying events, and that they would testify to that knowledge at an evidentiary hearing. Yet Mr. Cannon has not included affidavits by any of these family members or friends. A diligent person would have done as much, absent an impediment preventing him from doing so.

Whether or not there was an impediment, however, was not litigated below. The district court did not make an explicit finding of fact regarding Mr. Cannon's diligence. We therefore remand to the district court the question whether Mr. Cannon was diligent [*61] in trying to develop the facts underlying his juror-contact claim. The court may take further evidence and may, in its discretion, conduct a hearing on the matter. If the district court determines that Mr. Cannon was diligent, he should be granted an evidentiary hearing on the merits of his juror-contact claim (if it is not procedurally barred).

b. Right to testify

Mr. Cannon's affidavit, in which he alleges trial counsel usurped his decision whether to testify, provides a first-hand account of events based on his own personal knowledge. The only people who know the truth of Mr. Cannon's allegations are Mr. Cannon and his trial counsel. Mr. Cannon requested an evidentiary hearing on this issue in state court. We cannot see what more he could have done to pursue development of the record. Hence, he satisfies the diligence requirement. Under pre-AEDPA law he is entitled to an evidentiary hearing regarding the merits of the issue.

In sum, we reverse and remand with respect to Mr. Cannon's claims that he was denied effective assistance of counsel when counsel (1) failed to notify the court of improper juror contact and (2) prevented him from testifying at trial. Whether [*62] Mr. Cannon will ultimately prevail on either claim will depend on such matters as whether his claims are procedurally barred, whether his evidence in support of the claims is persuasive, and whether he is entitled to an evidentiary hearing to develop further evidence. We leave to the discretion of the district court the most efficient method of proceeding.

C. Alleged Ineffectiveness of Appellate Counsel

Finally, Mr. Cannon asserts that his appellate counsel was ineffective for failing to pursue on appeal the claims he now raises regarding ineffectiveness of trial counsel. Of course, appellate counsel is hardly ineffective for failure to pursue meritless claims, see Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999); so we need address only the failure to pursue the two ineffective-trial-counsel claims that we have already said may have merit.

With respect to those two trial-counsel claims, however, we are remanding to the district court for further proceedings that may moot the ineffective-appellate-counsel claims if the district court resolves the trial-counsel claims on the merits (either denying relief because they do not have merit or granting [*63] relief because they do). Therefore, we remand the corresponding two ineffective-appellate-counsel claims for further consideration by the district court.

Miller v. Oklahoma, 2004 WL 2073286, 2004 OK CR 29, 2004 Okla. Crim. App. LEXIS 32 (Okla. Crim. App., 9/17/2004) Remand ordered in light of Confrontation Clause problems with conviction as nontestifying codefendant's confession, in which he incriminated himself as well as defendant, was not sufficiently reliable to be admissible without allowing defendant to cross-examine codefendant.

P25 Traditionally, for purposes of the confrontation clause, all hearsay statements were admissible if (1) the declarant was unavailable to testify, and (2) the statement bore "adequate indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597 (1980). However, the United States Supreme Court recently overruled Roberts to the extent that it applies to "testimonial" hearsay. See Crawford v. Washington, 541 U.S. , 124 S. Ct. 1354, 1369-1374, 158 L. Ed. 2d 177 (2004). In Crawford, the Court concluded that the "adequate [*16] indicia of reliability" standard set forth in the second prong of the Roberts test is too amorphous to adequately prevent the improper admission of "core testimonial statements that the Confrontation Clause plainly meant to exclude." Id., 124 S. Ct. at 1371. The Court held that testimonial hearsay statements may be admitted as evidence against an accused at a criminal trial only when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant. Id., 124 S. Ct. at 1374.

P26 In Crawford, the Court drew a distinction between testimonial hearsay and non-testimonial hearsay, and noted that non-testimonial hearsay might still be admissible against an accused in a criminal trial if both prongs of Roberts were satisfied, regardless of whether the defendant had a prior opportunity to cross-examine the declarant. Id. Although the Court declined to define the terms "testimonial" and "nontestimonial," the Court discussed three types of "testimonial" statements: ex parte in-court testimony, extrajudicial statements contained in formalized testimonial materials, and statements made under circumstances [*17] which would lead an objective witness to reasonably believe that such statement would be available for use at a later trial. Id., 124 S. Ct. at 1364. "Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id., 124 S. Ct. at 1374 (emphasis added).

P27 The statement at issue in this case is nontestimonial. It was not admitted through affidavit, a formalized deposition and was not a confession resulting from a custodial interrogation. Accordingly, we read Crawford to allow the admission of such a nontestimonial statement over the defendant's right of confrontation if the hearsay is inherently trustworthy and reliable.

P28 Reliability can be inferred in a case where the evidence falls within a firmly rooted hearsay exception; in other cases, the evidence must be excluded absent a showing of particularized guarantees of trustworthiness. Ohio v. Roberts, 448 U.S. at 65-66, 100 S. Ct. at 2538. While we continue to apply this test to nontestimonial hearsay, we keep in mind that the Supreme Court [*18] certainly recognized in Crawford the inherent problem with courts replacing constitutional guarantees with subjective balancing tests and making reliability determinations "whether a statement is deemed reliable depends heavily on which factors the judge considers and how much weight he accords each of them." Crawford, 124 S. Ct. at 1371. One court might attach significance to a fact another court would not. Id.

P29 In addition to Crawford, we consider the Supreme Court's relatively recent ruling in Lilly v. Virginia, 527 U.S. 116, 134, 119 S. Ct. 1887, 1899, 144 L. Ed. 2d 117 (1999) to be controlling. There, the Supreme Court examined a similar case where the State of Virginia introduced the confession of a non-testifying codefendant which implicated the defendant on trial. The non-testifying codefendant's statements to the police were admitted against the defendant under the "statements against penal interest" exception to the hearsay rule. The Supreme Court of Virginia found the defendant's right of confrontation was not violated because the statements fell within a firmly rooted exception to the hearsay rule and because the statements [*19] were reliable; the Virginia court noted the declarant also implicated himself and the statements were independently corroborated at trial. Id., 527 U.S. at 122; 119 S. Ct. at 1893.

P30 The United States Supreme Court disagreed and held that "accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." Id., 527 U.S. at 134, 119 S. Ct. at 1899. The Court observed this particular type of hearsay [a statement against penal interest offered by the prosecution to establish the guilt of an alleged accomplice of the declarant] "encompasses statements that are inherently unreliable." Id., 527 U.S. at 131, 119 S. Ct. at 1897.

and found admission of the non-testifying co-defendant's confession violated Lilly's right of confrontation. "When deciding whether the admission of a declarant's out-of-court statements violates the Confrontation Clause, courts should independently review whether the [*20] government's proffered guarantees of trustworthiness satisfy the demands of the clause." P31 The Supreme Court examined Virginia's application of the residual trustworthiness test de novoId., 527 U.S. at 137, 119 S. Ct. at 1900. n13 The Supreme Court reiterated that it has rejected the notion that separate evidence corroborating a hearsay statement may properly support a finding that the statement bears particularized guarantees of trustworthiness. "To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." Id., 527 U.S. at 138, 119 S. Ct. at 1901, quoting Idaho v. Wright, 497 U.S. at 822, 110 S. Ct. at 3150 (emphasis added).

In Wright, the Court noted certain factors which state and federal courts had identified which "properly relate to whether hearsay statements made by a child witness in child sexual abuse cases are reliable." Id., 497 U.S. at 821, 110 S. Ct. at 3150. These factors include but are not limited to spontaneity and consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. Id.

P33 In this case, the State urges this Court to find Hanson's statements to Barnes were admissible under a "firmly rooted exception" to the hearsay rule. Although it could be more clearly stated in the record before us, the State argues the "against penal interest" exception to the hearsay rule constitutes a proper basis for admission of the evidence.

P34 Title 12, Section 2804(B) provides certain evidence is not excluded under the hearsay rule if the declarant is unavailable as a witness. These exceptions include "[a] statement which was at the time of its making contrary to the declarant's pecuniary or proprietary interest, or which tended to subject him to civil or criminal liability and which [*22] a reasonable man in his position would not have made unless he believed it to be true." n14 12 O.S.2001, § 2804(B)(3). Subsection 5, the "residual exception" to the hearsay rule, provides that a statement not specifically covered by any of the "foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness," may be admitted if the court determines the statement is offered as evidence of a material fact, the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and the general purposes of this Code [the Evidence Code] and the interests of justice will best be served by admission of the statement into evidence. 12 O.S.2001, § 2804(B)(5).

P35 Neither of these exceptions are "firmly rooted" hearsay exceptions. See Lilly, 527 U.S. at 134, 119 S. Ct. at 1899; Wisdom v. State, 1996 OK CR 22, P 29, 918 P.2d 384, 393. Hanson's statements to Barnes were not admissible under either of these exceptions.

P36 Alternatively, the State submits the trial court properly admitted Hanson's statements to Barnes after finding Hanson's "comments regarding petitioner's guilt were so reliable that there was no need to subject them to adversarial testifying in a trial setting." At the hearing on the Motion in Limine, the trial court stated it looked at the following factors in reaching its determination: "spontaneity and consistent repetition, mental state of the declarant, lack of motive to fabricate, personal knowledge, time, relevance, [and] the custodial or noncustodial setting." The trial court said it had read "all of the statements of Rashad Barnes," and determined Hanson's statements were made of his own volition; Hanson inculpated himself as well as Appellant; his statements "did not shift blame, but rather acknowledged responsibility for those criminal acts attributed to Hanson and described [*24] those alleged criminal acts attributed to Mr. Miller"; and Hanson revealed this information to a friend.

P37 We independently review the State's proffered guarantees of trustworthiness to determine whether they satisfy the demands of the Confrontation Clause. See Lilly, 527 U.S. at 137, 119 S. Ct. at 1900. We do not agree with the trial court's determination that admission of Hanson's statements did not violate Appellant's right of confrontation.

P38 The trial court stated it read all of Rashad Barnes statements and testimony and noted his consistent repetition. We believe this "consistent repetition" is a factor more worthy of consideration when the hearsay is made by a child declarant in a child sexual abuse case. See e.g. Idaho v. Wright, 497 U.S. at 821, 110 S. Ct. at 3150. It is not the witness testifying to the declarant's statements whose consistent repetition is important; it is the consistent repetition of the same statements by the declarant. That Rashad Barnes testified on more than one occasion and spoke with police officers on more than one occasion does not make Hanson's statements to Barnes on a single occasion more reliable [*25] because Barnes consistently repeated them.

P39 We note that every time Barnes spoke of his conversation with Hanson, his statements or testimony about what Hanson said became more detailed. Is a statement consistent when it is more or less detailed? Cross-examination of Hanson was crucial to test the accuracy and reliability of what Barnes said Hanson said.

P40 The trial court noted the "mental state" of the declarant that Hanson voluntarily approached Barnes and engaged "in an oratory of sort, recounting events leading up to his unannounced visit to the home of a friend." Barnes said Hanson came to his home in early September 1999, around 3:30 or 4:00 p.m., acting nervously and said, "It went all bad." Barnes said Hanson said "he had to kill somebody." Barnes of course had already heard on the street that his "homey" had killed somebody. Perhaps the trial court interpreted Barnes' testimony that Hanson was "acting nervously" as reflecting on Hanson's "then existing" mental state and interpreted his comments to Barnes as excited utterances.

P41 Affording weight to Hanson's nervousness is not supported by the record where Barnes' testimony concerning the time and place of the conversation [*26] is inconsistent with the State's theory that the murders occurred on August 31st, 1999, between 4:00 and 6:00 p.m. The conversation could not have happened immediately following the carjacking and murders as Barnes implied it did. Any alleged nervousness Barnes said Hanson showed cannot be attributed to the stress or excitement of an event immediately preceding the conversation. See 12 O.S.2001, § 2803(1) and (2).

P42 The trial court also said it considered Hanson's "personal knowledge" of the events. This factor is really not helpful. A codefendant's knowledge of the events only suggests the codefendant was there; it does not make his statement implicating someone else more. According to Barnes, Hanson said Appellant drove Bowles' car after the carjacking and Hanson remained in the back seat at all times with Bowles. This detail is not consistent with the forensic evidence recovered by the State from Bowles' car specifically Appellant's fingerprint found on the passenger side safety buckle and Hanson's print on the driver's side buckle. This detail is the type of information defense counsel could have explored had Hanson been available for cross-examination. [*27]

P43 Another factor the trial court considered was that Hanson's statements to Barnes "inculpated himself" and Appellant "and did not shift blame, but rather acknowledged responsibility for those criminal acts attributed to Hanson and described those alleged criminal acts attributed to Mr. Miller." This was the State's pretrial argument to the trial court. However, during closing argument, the prosecutor argued that Hanson "was mitigating his statement" as he told Barnes they initially intended to let Bowles go. n15 Whether Hanson shifted blame to Appellant, or mitigated his involvement, is a matter of perspective certainly from a defense perspective, Hanson's statement that he only killed Bowles after Appellant told him "he knew what he had to do" shifts responsibility, through encouragement and pressure to kill, to Appellant and attempts to minimize Hanson's involvement.

P44 By the time of closing argument, the State had changed its position that Hanson's statement was mitigating. This type of inculpatory confession which shifts responsibility to a codefendant is exactly the type of admission of a non-testifying accomplice's confession which the Supreme Court has held "plainly denied the right of cross-examination secured by the Confrontation Clause." See e.g., Douglas v. Alabama, 380 U.S. 415, 419, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); Lilly, 527 U.S. at 131-132, 119 S. Ct. at 1897; see also McElmurry v. State, 2002 OK CR 40, P 43, 60 P.3d 4, 20 (Non-testifying co-defendant wife's statement inculpating herself and husband/defendant would have been inadmissible hearsay; "it was just as likely that Vickie McElmurry was exaggerating her own involvement to help her husband as it was the other way around").

(P45 Just because a person makes "a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts." Lilly, 527 U.S. at 139, 119 S. Ct. at 1901citing Williamson v. United States, 512 U.S. 594, 599, 114 S. Ct. 2431, 2435, 129 L. Ed. 2d 476 (1994)). [*29] "One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature." Williamson, 512 U.S. at 600, 114 S. Ct. at 2435. Simply that Hanson voluntarily made a statement to a friend which exposed himself to criminal liability does not make his statement inherently trustworthy and reliable or obviate the need and value of thorough cross-examination. n16

P46 As in Lilly, neither the words Hanson allegedly spoke nor the setting in which he made them provides a sufficient basis for concluding his comments concerning Appellant's guilt were so reliable that there was no need to subject them to adversarial testing in a trial setting. While Hanson was not in a custodial setting as the declarant was in Lilly, this single factor does not mandate a finding that his statement to Barnes was so inherently reliable that cross-examination would have been superfluous. If Barnes testified truthfully, Hanson inculpated himself and mitigated his own involvement to place responsibility for the murders on Appellant. Barnes was not shown to be a close and trusted friend; Barnes was shown to be a street-wise acquaintance who allowed Hanson to live in a car parked in his parent's yard.

P47 Hanson's confession to Barnes was the most critical evidence in the State's case. It not only was t he only evidence directly connecting Appellant with the carjacking and subsequent murders, it was also the only evidence implicating Appellant as the controller of the events, the decision maker, and the evidence which placed responsibility for the incidents beyond [*31] the carjacking upon Appellant. From the record before us, we cannot conclude that Hanson's statement to Barnes was so inherently reliable that cross-examination would have been superfluous. Under the facts presented here, we find the admission into evidence of Hanson's statement to Barnes violated Appellant's Sixth Amendment right to confrontation.

P48 Because this error is of constitutional magnitude, Appellant's conviction cannot stand unless we find that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-711 (1967). Without the admission of Hanson's statements to Barnes implicating Appellant, the evidence in this case connecting Appellant to the murders of Bowles and Thurman consisted of a single fingerprint found in Bowles' car, a ballistics match from a bullet recovered from Thurman to a gun found in Appellant and Hanson's possession after a robbery, and Appellant's act of "wiping down" Bowles' car some time after the murder. We cannot say, beyond a reasonable doubt, that admission of Hanson's untested statement through the testimony of Rashad Barnes did not affect the jury's [*32] determination of guilt. Accordingly, this error requires this case to be reversed and remanded for a new trial. n17

OTHER NOTABLE CASES

United States. v. Lentz, 2004 WL 2035326 (4th Circuit 9/14/2004) (dissent) Panel remands for new trial as the jury was impermissibly given items of evidence explicitly excluded from its purview at trial. Court below had dismissed following its findings in this capital case that the prosecutor had intentionally & surreptiously given these items to the jury.

FOCUS

Returning soon

FROM AROUND THE WEB

TheDeath Penalty Information Center(Deathpenaltyinfo.org) notes:

NEW RESOURCE: More Blacks Deprived of Vote Because of Felony Convictions

A new report by The Sentencing Project, "The Vanishing Black Electorate: Felony Disenfranchisement in Atlanta, Georgia," examines the racial effects of depriving citizens of voting rights because of criminal convictions. The report reveals sharp disparities in voting eligibility by race and neighborhood. Among the report's key findings are the following:

One out of every seven African American males in Atlanta is disenfranchised as a result of a felony conviction;

One-third of the black male disenfranchisement rate in Georgia is a result of drug offense convictions;

Black males in Atlanta are registered to vote at an 11% lower rate than other demographic groups, but more than two-thirds of this differential is a result of high rate of disenfranchisement.

The report also contains a series of recommendations for change in criminal justice policy and disenfranchisement practices that would close the racial gap in voter registration and result in greater electoral participation. ("The Vanishing Black Electorate: Felony Disenfranchisement in Atlanta, Georgia," The Sentencing Project, September 2004; Washington Post, Sept. 23, 2004) In many cases, disenfranchisement can also affect jury composition in capital cases. See Resources.

Innocence Protection Act Advances in U.S. House and Senate

Just one day after the U.S. Senate Judiciary Committee passed the "Advancing Justice Through DNA Technology Act," a measure that includes the Innocence Protection Act and that ensures access to post-conviction DNA testing for those in prison with claims of innocence, the bill has been incorporated into legislation introduced in the House Judiciary Committee. As part of the "Justice for All Act of 2004," the DNA bill is anticipated to quickly advance to the House floor for a vote, after which point it can move to the full Senate for consideration next week. It has already been passed by the House Judiciary Committee. Among other provisions, the "Advancing Justice Through DNA Technology Act" authorizes $25 million over five years to help states pay the costs of post-conviction DNA testing, including death penalty cases, and it provides grants to states for capital prosecution and defense training to improve the quality of death penalty trials and assist families of murder victims. The bill is the product of a bi-partisan, bicameral negotiations led by Senate Judiciary Chairman Orrin Hatch of Utah and Ranking member Patrick Leahy of Vermont. The bill reference number in the House is H.R. 3214 and in the Senate it is S. 1700. (Washington Post, Sept. 22, 2004; see also Press Release from The Justice Project, September 22, 2004) Read Senator Leahy's remarks following the Judiciary Committee's passage of the "Advancing Justice Through DNA Technology Act." See Innocence.

Report Analyzes Washington Death Penalty System

A new report from the Washington Death Penalty Assistance Center reviews the efficiency of Washington State’s death penalty system. The report includes an overview of Washington’s statute and an explanation of the differences between capital and non-capital cases, demonstrating why capital cases require significantly greater resources. The authors report that:

• Of death penalty cases that completed the appeals process, 81% were overturned after errors were found. When those cases were tried a second time, not one of the inmates received a death sentence.
• For cases between 1999 and 2003, on average a death penalty trial cost twice ($432,000) as much as a non-death penalty murder trial ($153,000).
• From the arrest of the defendant through sentence, death penalty cases take longer (20 months) than non-death penalty cases (15 months). Appellate review for non-death penalty cases lasts an average of two years; death penalty reviews last seven.
• Since the death penalty was reinstated in Washington, four cases resulted in executions; three of those four inmates gave up part of their appeal. Only one case resulted in an execution after all review was exhausted, which took 11 years.

The reversals resulted from a variety of errors, including errors by trial judges, prosecutors, and defense lawyers. The reversals were not attributable to one identifiable factor, and the authors concluded that they are due to systemic problems with capital punishment. They note that Washington State has spent millions of dollars, numerous years, and a significant amount of resources on this flawed system.

Mark A. Larranaga and Donna Mustard, Washington’s Death Penalty System: A Review of the Costs, Length, and Results of Capital Cases in Washington State (2004) Read the report. See Costs.

Autopsies of Executed Inmates by State Medical Examiners Reveal Probability of Botched Procedures

An autopsy of the last man executed in Kentucky, Edward L. Harper, found only 3 to 6.5 milligrams per liter of barbiturate in Harper’s blood – a level leaving a high chance that Harper was conscious throughout the execution and that he felt pain when he was injected with subsequent drugs that paralyzed and suffocated him, and then stopped his heart. Dr. Mark Dershwitz, the prosecution expert who developed the standards that Kentucky relies upon, said the low level of barbiturate found in Mr. Harper’s body was potentially troubling, stating “[t]he blood level should be a lot higher than seven,” the level at which about 50 percent of people are unconscious and 50 percent conscious. Applying the same standards, autopsies conducted by state medical examiners after 23 executions in South Carolina and 11 in North Carolina, would indicate a 50 percent or greater chance that eight of the condemned men were conscious throughout their executions. In one of those cases, the likelihood of consciousness would have been 90 percent. In four, it would have been 100 percent. (N.Y. Times, Sept. 16, 2004). See other Botched Executions.

RESOURCES: BJS Report Finds Murder Rate Unchanged

In the latest National Crime Victimization Survey, the Bureau of Justice Statistics reported that the U.S. murder rate for 2003 was about 5.6 per 100,000 persons, unchanged from 2001 and 2002. Of the victims of murder, approximately 49% were white and 49% were black. (DPIC note: While the report found that the race of victims is evenly split nationally, victims in death penalty cases are mostly white (about 81%)). In murder cases, 76% of the offenders were known to the victim, and 24% of offenders were strangers. Firearms were used in 71% of murders and homicides were mostly intraracial (victim and offender of same race). The most cited circumstance leading to murder was an argument (28%). Read the full report. (Bureau of Justice Statistics Criminal Victimization, 2003, (September 2004)). Even though the 2001-2003 murder rate remained steady, death sentences continued their five-year decline in 2003. See Deterrence and Race.

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