OK Capital Petitioner's Arguments, Including Prosecutorial Misconduct and Ineffective Assistance Claims, Rejected

Glissop v. Trammell, 2013 WL 3822119 (7/25/13) (Okl.) (unpub'd) - Another Oklahoma death penalty upheld. It was not fundamentally unfair to allow the prosecution to use posters detailing prosecution witness testimony and let the posters remain visible to the jurors throughout the trial. The posters with the various inconsistent post-murder statements of the petitioner were not much of a problem because the defense didn't really dispute them [the defense was the petitioner tried to hide the murder that someone else committed]. The posters with the accomplice's accusations came near the end of the case and the jury didn't need to be reminded of his testimony. And the jury didn't see the posters during deliberations and the petitioner used posters as well. It was reasonable for the state appellate court to review the poster issue without looking at the posters. Using the words "due process" twice in his state court brief challenging the posters probably did not exhaust the constitutional issue.

None of the prosecutorial misconduct issues rendered the trial fundamentally unfair, including: arguing the complete absence of defendant's fingerprints in the motel room where the murder took place indicated the petitioner, who was the motel manager, [Best Budget Inn, if that might influence your choice of motels in the future], wiped off all his prints to hide evidence; mislead the jury by saying the state never charged the petitioner with the lesser offense of accessory after the fact when it actually initially did; implied the lesser-offense defense is a typical underhanded defense tactic [that was wrong but harmless; the trial court made the prosecutor clarify the matter]; the wife of the victim, who was the petitioner's boss, testified about the tragedies that befell her husband before the murder, his diabetes, and how nice he was [the overwhelming bulk of evidence was relevant to explain why the motels had gone into disrepair [his tragedies] or his wife became worried so soon after she hadn't heard from him [the diabetes] and the irrelevant stuff was no big deal]; questioning of a prosecution witness implied she had said other unhelpful things to the police but had forgotten them [the purpose was to show the witness was testifying from memory and not from the irrelevant police report]; saying that in Oklahoma we punish cold-blooded murderers with death, placing the victim's photograph on the defense table and indicating the petitioner befriended mitigation witnesses so that they would testify for him at the penalty phase [the 10th can't substitute its views for the state court's view that the prosecutor's comments were proper commentary regarding the continuing threat aggravator; the jury didn't find that aggravator; the prosecutor's statement indicating a personal belief that petitioner's death was appropriate was not the major focus of the argument and was "not overly dramatic"].

The ineffective assistance claims fail as well, including: not using the main witness's videotape to impeach even though the petitioner's conviction had been reversed due to prior counsel's failure to use the videotape and the witness fudged regarding some of the statements he made on the videotape [counsel got out some of the inconsistent statements and the leading nature of the interrogation on cross, making the point that the witness had changed the story in ways that helped the prosecution; the 10th thought the officers' questioning on the video was "not sufficiently manipulative to make it evidence that the witness would not have implicated the petitioner except for the officer's suggestive questioning"]; not introducing the main witness's prior competency evaluation indicating he got kicked out of school for fighting and carried out a burglary and a bomb threat [the evidence was so overwhelming that the witness was totally dependent on the petitioner that the evaluation would have made no difference, especially since it wasn't clear the witness committed his prior offenses on his own].

The main witness was not so incredible that there was insufficient evidence to establish the aggravating factor of employing the witness to murder for remuneration [$10,000, in case you're interested in the price of such a thing these days]. The federal court cannot second-guess the state courts and the jury regarding credibility. There was no clearly established S. Ct. law that the Confrontation Clause applies to capital sentencing hearings. So no relief for a witness reading some of the victim's family's statements regarding the impact of the murder on them. The 10th may find a principle not clearly established even if the state court finds a constitutional violation.