Jones v. Gibson

• Citation: 206 F.3d 946
• Decision Date: 15 February 2000
• Docket Number: No. 98-6370,98-6370
• Parties: (10th Cir. 2000) DORSIE LESLIE JONES, JR., Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 946

206 F.3d 946 (10th Cir. 2000)

DORSIE LESLIE JONES, JR., Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees.

No. 98-6370

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

February 15, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. D.C. No. CIV-85-2789-T

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Vicki Ruth Adams Werneke, Assistant Federal Public Defender, Death Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondents-Appellees.

Before TACHA, BALDOCK, and EBEL, Circuit Judges.

TACHA, Circuit Judge.

A jury found petitioner guilty of first degree murder and two counts of assault and battery with a dangerous weapon and sentenced him to death for the murder conviction and to twenty and fifteen years' imprisonment for the other two convictions. The Oklahoma Court of Criminal Appeals affirmed the convictions and sentences. See Jones v. State, 648 P.2d 1251 (Okla. Crim. App. 1982), cert. denied, 459 U.S. 1155 (1983). That court also affirmed the state trial court's denial of petitioner's first application for post-conviction relief. See Jones v. State, 704 P.2d 1138 (Okla. Crim. App. 1985).

On November 18, 1985, petitioner filed a petition for writ of habeas corpus in federal district court. After directing petitioner to exhaust state court remedies on various claims, the district court administratively closed the case without prejudice to reopening. Petitioner filed a second state application for post-conviction relief. The state trial court denied relief, and the Oklahoma Court of Criminal Appeals affirmed, see Jones v. State, No. PC-91-0756 (Okla. Crim. App. Mar. 28, 1995) (unpublished order). Thereafter, petitioner filed a revised federal habeas petition, and the district court reopened the case. The court denied habeas relief and granted a certificate of probable cause.

On appeal, petitioner asserts the following grounds for relief: (1) there is insufficient evidence in the record to support the unconstitutionally applied heinous, atrocious, or cruel aggravating circumstance; (2) his right to remain silent and his right to confrontation were violated; (3) the prosecutor improperly questioned him, leading the jury to believe he would be released if found not guilty by reason of insanity; and (4) his appellate counsel provided ineffective assistance. We affirm.

STANDARD OF REVIEW

Because petitioner filed his initial federal habeas petition long before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA does not apply to this appeal. See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under pre-AEDPA law, this court affords a presumption of correctness to state court factual determinations. See Williamson v. Ward, 110 F.3d 1508, 1513 & n.7 (10th Cir. 1997); see also Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (per curiam) (holding federal courts may overturn state court factual determinations only upon concluding they are not fairly supported by record). This court reviews the district court's conclusions of law de novo and its factual findings for clear error. See Foster v. Ward, 182 F.3d 1177, 1183 (10th Cir. 1999). "When the district court's findings are based merely on a review of the state record, we do not give them the benefit of the clearly erroneous standard but instead conduct an independent review." Smallwood v. Gibson, 191 F.3d 1257, 1264 n.1 (10th Cir. 1999). "We may grant relief to a state prisoner only if state court error deprived him of fundamental rights guaranteed by the constitution of the United States." Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (quotations omitted).

FACTS

On August 14, 1979, petitioner was drinking beer with Betty Strain at the Wichita Lounge in Lawton, Oklahoma. Royce Linker, who worked at the bar, noticed a gun protruding from the top of petitioner's boot. She asked him to cover the gun with his pant leg. Petitioner told her to shut up or he would blow her head off. See Tr. vol. 2 at 402. He also stated that he came to kill everyone in the bar, and she would be first. See id. at 428, 432-33, 498. Immediately thereafter, petitioner pointed the gun at Ms. Linker, who ducked and crawled behind the bar to hide. Petitioner fired the gun, and the bullet hit Ms. Strain, who fled from the bar. See id. at 404.

Petitioner then turned to Stanley Buck, Sr. and his son Stanley Buck, Jr. and asked them what they were doing. See id. at 500. They indicated that they were shooting pool. Petitioner shot both of them.¹ See id. at 440, 502-03. Petitioner asked Mr. Buck, Sr., after the first shot, if he was dead and then shot him again. He died as a result of the gunshot wounds.

Petitioner testified at trial that on the day of the murder he had probably taken the prescription drug Ativan and had drunk two shots of whiskey and one beer. His defense was that the interaction of the drug and alcohol rendered him unconscious of his acts and therefore temporarily insane. He testified that he did not know if he had done the things about which the other witnesses had testified. See id. at 647.

The jury rejected petitioner's insanity defense and found him guilty of murder. At the sentencing stage, the jury found two aggravating circumstances: the murder was especially heinous, atrocious, or cruel and petitioner knowingly created a great risk of death to more than one person.

DISCUSSION

I. HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATOR

Petitioner argues there is insufficient evidence to support the unconstitutionally applied heinous, atrocious, or cruel aggravating circumstance. The trial court instructed the jury as follows:

You are further instructed that the term "heinous", as that term is used in these instructions means extremely wicked or shockingly evil, and that "atrocious" means outrageously wicked and vile; and "cruel" means designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the suffering of others; pitiless.

O.R. at 173. After petitioner's conviction, the Supreme Court held that this instruction was unconstitutional as applied. See Maynard v. Cartwright, 486 U.S. 356, 360 (1988); see also Cartwright v. Maynard, 822 F.2d 1477, 1485-91 (10th Cir. 1987). Subsequently, the Oklahoma Court of Criminal Appeals narrowed the aggravator, holding that it only applies to those murders which are preceded by torture or serious physical abuse. See Stouffer v. State, 742 P.2d 562, 563 (Okla. Crim. App. 1987); see also Phillips v. State, 989 P.2d 1017, 1039 (Okla. Crim. App. 1999). This narrowed construction is constitutionally permissible. See Duvall v. Reynolds, 139 F.3d 768, 792-93 (10th Cir.), cert. denied, 119 S. Ct. 345 (1998).

The Oklahoma Court of Criminal Appeals, in reviewing the denial of petitioner's second post-conviction application, properly applied this narrowed construction. See Walton v. Arizona, 497 U.S. 639, 653-54 (1990) (holding state appellate court may properly determine whether evidence supports a properly limited aggravator); see also Richmond v. Lewis, 506 U.S. 40, 47 (1992) (stating state appellate court can rely on adequate narrowing construction in curing error caused by unconstitutionally vague aggravating factor); Davis v. Executive Dir. of Dep't of Corrections, 100 F.3d 750, 767, 772 (10th Cir. 1996) (determining state court may properly cure error by correctly applying narrowed construction). Reweighing the evidence under the narrowed construction, the Oklahoma appellate court determined the murder was especially heinous, atrocious, or cruel. The court stated petitioner "was wholly indifferent to the pain inflicted upon the victim" and "'[t]he unarmed victim lay wounded and pleaded for his life, yet the [petitioner] coldly and deliberately shot him at point blank range and then continued to mock the victim as he bled to death.'" Jones, No. PC-91-0756, slip op. at 4 (quoting Jones, 648 P.2d at 1259). The court concluded the deceased was tortured and knew death was "eminent." Id. On habeas, the federal district court concluded there was sufficient evidence in the record to support finding this aggravator under a narrowed construction of the instruction, even though no evidence in the record supported the Oklahoma Court of Criminal Appeals' finding the victim pleaded for his life.

Petitioner argues the evidence does not support the Oklahoma Court of Criminal Appeals' determination that the murder was especially heinous, atrocious, or cruel, because no evidence supports that court's finding "[t]he unarmed victim lay wounded and pleaded for his life." Id. On federal habeas review of the state appellate court's determinations, this court reviews the state court's application of the narrowed construction under the "rational factfinder" standard of Jackson v. Virginia, 443 U.S. 307 (1979). See Davis, 100 F.3d at 767-68 (citing Richmond, 506 U.S. at 47); see also Lewis v. Jeffers, 497 U.S. 764, 783 (1990).² We will uphold the state appellate court's determination "so long as a rational factfinder could have found the elements identified by the construction here that the crime involved torture or physical abuse." Hatch v. Oklahoma, 58 F.3d 1447, 1469 (10th Cir. 1995). A challenge to the sufficiency of the evidence under Jackson presents a question of law. See Moore v. Gibson, 195 F.3d 1152, 1176 (10th Cir. 1999).

Under Oklahoma law, the torture or serious physical abuse required by the properly narrowed aggravator may include infliction of great physical anguish or extreme mental cruelty. See Phillips, 989 P.2d at 1039; Cheney v. State, 909 P.2d 74, 80 (Okla. Crim. App. 1995)....