Pickens v. Gibson

Decision Date07 March 2000
Docket NumberNo. 99-5021,99-5021
Citation206 F.3d 988
Parties(10th Cir. 2000) DARRIN LYNN PICKENS, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee. Originally filed
CourtU.S. Court of Appeals — Tenth Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. D.C. No. 96-CV-984-H

[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.

Robert L. Whittaker, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma with him on the brief), Criminal Division, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before TACHA, BALDOCK, and EBEL, Circuit Judges.

TACHA, Circuit Judge.

Petitioner appeals the district court's denial of habeas relief, see 28 U.S.C. § 2254, from his Oklahoma first degree felony murder conviction and death sentence. Petitioner received a certificate of appealability, see 28 U.S.C. § 2253(c), on the following issues: 1) his post-arrest statement was unconstitutionally obtained; 2) the trial court admitted an unconstitutionally obtained videotaped confession during sentencing; 3) prosecutorial misconduct; and 4) ineffective assistance of trial counsel. We affirm petitioner's conviction, but we vacate his death sentence.

I. FACTS

An armed robbery occurred at a convenience store in Tulsa County, Oklahoma (the Berryhill Circle K) at approximately 10:30 P.M. on February 8, 1990. The clerk was shot several times and eventually died from her wounds. The robber got away with thirty-two dollars.

At approximately 5:15 A.M. the next morning, another Tulsa convenience store was robbed (the Union Circle K). The clerk there was also shot several times, but survived and was able to call police and describe the gunman. Police apprehended petitioner minutes later, after a car chase. Petitioner matched the wounded clerk's description of the robber. Inside petitioner's car, police found a Circle K bag with the thirteen dollars cash and postage and food stamps taken from the Union Circle K, as well as $160 taken from the clerk. In addition, police found a gun and two pairs of gloves purchased from that store immediately prior to the robbery. After his arrest, petitioner confessed to committing both armed robberies and shooting both clerks.

The jury convicted petitioner of first degree felony murder, resulting from the first robbery, and robbery with a firearm shooting with intent to kill, and assault with intent to kill, all after former conviction of a felony, resulting from the second robbery.

At sentencing, the State charged, and the jury found, three aggravating circumstances: 1) petitioner had previously been convicted of a violent felony; 2) he committed the murder to avoid a lawful arrest or prosecution; and 3) he presents a continuing threat to society. The jury sentenced petitioner to death on the felony murder conviction. In addition, the jury sentenced petitioner to fifty years' imprisonment for the robbery, and ninety-nine years each for assault and shooting with intent to kill. The Oklahoma Court of Criminal Appeals affirmed the convictions and sentences on direct appeal, see Pickens v. State, 850 P.2d 328 (Okla. Crim. App. 1993), cert. denied, 510 U.S. 1100 (1994), and also affirmed the denial of state post-conviction relief, see Pickens v. State, 910 P.2d 1063 (Okla. Crim. App. 1996).

II. STANDARDS OF REVIEW

Because petitioner filed his habeas petition on October 28, 1996, after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that Act governs this appeal. See, e.g., Medlock v. Ward, 200 F.3d 1314, 1318 (10th Cir. 2000). Petitioner will not be entitled to habeas relief unless he can establish that a habeas claim adjudicated by the state courts "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established" Supreme Court law, or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) & (2).1 This court will presume the correctness of state court findings of fact, unless petitioner is able to rebut that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

"If the claim was not heard on the merits by the state courts, and the federal district court made its own determination in the first instance, we review the district court's conclusions of law de novo and its findings of fact, if any, for clear error." LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).

III. POST-ARREST STATEMENT

Petitioner argues that police obtained his inculpatory post-arrest statement in violation of his constitutional rights to remain silent and have an attorney present during questioning, see Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), and that his statement was not voluntary, knowing and intelligent. See Oregon v. Bradshaw, 462 U.S. 1039, 1044, 1046 (1983) (plurality) (recognizing these two distinct issues).

The record indicates that, after petitioner's arrest, Tulsa police officer Dale White gave petitioner his Miranda warnings. Petitioner refused to speak with police. He did ask about the charges against him and asserted that he had not killed anyone. Officer White then took petitioner to the police station for booking. There Officer White again advised petitioner of his Miranda rights. Petitioner indicated that he understood his rights, but declined to sign an acknowledgment and waiver form. Petitioner asked several more times with what he was being charged.

While he was awaiting booking, several Tulsa County sheriff's detectives had a brief conversation with petitioner, after again advising him of his Miranda rights. (The first robbery had occurred within the jurisdiction of the Tulsa sheriff's department; the second, in the Tulsa police department's jurisdiction.) Petitioner refused to talk to these detectives.

When the sheriff's detectives left, petitioner asked Officer White if they had been from Creek County. Officer White told him they were not. Officer White then indicated that he was ready to book petitioner into jail. Petitioner asked again on what charges he would be booked. After responding, Officer White noted that petitioner was facing some pretty heavy charges and asked petitioner if he would like to talk to any of the officers so he could explain his side of the story. Petitioner agreed to talk to Sergeant Allen, who previously had taken blood samples from petitioner. Petitioner eventually confessed to Sergeant Allen.

A. Miranda Rights

The trial court found that petitioner had invoked his right to counsel during his brief discussion with the Tulsa County detectives. This is a factual finding, which this court presumes to be correct. See Hawkins v. Hannigan, 185 F.3d 1146, 1153 (10th Cir. 1999).

"[H]aving expressed his desire to deal with the police only through counsel, [an accused] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see also, e.g., Davis v. United States, 512 U.S. 452, 458 (1994). If police initiate subsequent contact without the presence of counsel, petitioner's statement will be presumed involuntary, even where his statements would otherwise be deemed voluntary under traditional standards. See McNeil v. Wisconsin, 501 U.S. 171, 177 (1991). It is of no moment that a police officer seeking to interrogate the suspect further is unaware of the suspect's prior invocation of his right to counsel. See Arizona v. Roberson, 486 U.S. 675, 687-88 (1988).

The trial court determined that it was petitioner who had reinitiated communication with police, after previously invoking his right to counsel, by asking Officer White what charges were being brought against him. This a factual finding, to which this court affords a presumption of correctness under 28 U.S.C. § 2254(e). See Cooks v. Ward, 165 F.3d 1283, 1288 (10th Cir. 1998) (in pre-AEDPA case, reviewing for clear error district court's finding that suspect initiated conversation with police), cert. denied, 120 S. Ct. 94 (1999). On direct appeal, the Oklahoma Court of Criminal Appeals, applying Edwards and Bradshaw, affirmed. See Pickens, 850 P.2d at 333-34.

In Bradshaw, the accused invoked his right to counsel, terminating police interrogation. See 462 U.S. at 1041-42. As he was being transported to jail, however, the suspect asked a police officer "'Well, what is going to happen to me now?'" Id. at 1042. The officer reminded the suspect that he did not have to talk, noting the suspect had requested an attorney. See id. The suspect indicated he understood and then discussed with the officer where the officer was taking him and with what crimes he was being charged. See id. The officer suggested, and the suspect acquiesced, to a polygraph test, which ultimately led to the suspect's confession. See id.

A plurality of the Supreme Court held that "[t]here can be no doubt in this case that in asking, 'Well, what is going to happen to me now?', [the defendant] 'initiated' further conversation . . . ." Id. at 1045. The Court further held that [a]lthough ambiguous, the [defendant's] question . . . evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of a custodial relationship. It could reasonably have been interpreted by the officer as relating generally to the investigation. . . . On these facts we believe that there was not a violation of the Edwards rule.

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