239 F.3d 1156 (10th Cir. 2001), 99-6310, Romano v Gibson

Docket Nº:99-6310, 99-6323
Citation:239 F.3d 1156
Party Name:JOHN JOSEPH ROMANO AND DAVID WAYNE WOODRUFF, PETITIONERS-APPELLANTS, v. GARY GIBSON, WARDEN OF THE OKLAHOMA STATE PENITENTIARY, RESPONDENT-APPELLEE.
Case Date:February 13, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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239 F.3d 1156 (10th Cir. 2001)

JOHN JOSEPH ROMANO AND DAVID WAYNE WOODRUFF, PETITIONERS-APPELLANTS,

v.

GARY GIBSON, WARDEN OF THE OKLAHOMA STATE PENITENTIARY, RESPONDENT-APPELLEE.

Nos. 99-6310, 99-6323

United States Court of Appeals, Tenth Circuit

February 13, 2001

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. Nos. 96-CV-882-C & 96-CV-1076-C)

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Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbison & Lewis, (Gloyd L. McCoy of Coyle & McCoy, with him on the brief), Oklahoma City, Oklahoma, for Petitioner-Appellant John Joseph Romano.

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Randy Bauman, Assistant Federal Public Defender, Death Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for Petitioner-Appellant David Wayne Woodruff.

William L. Humes, Assistant Attorney General, and Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A. Drew Edmondson, Attorney General of Oklahoma, with them on the briefs), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before Seymour, Baldock, and Ebel, Circuit Judges.

Ebel, Circuit Judge.

These death penalty appeals1 present a number of issues. The most difficult, which we deal with at some length, include: 1) whether the State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose a detective's unrecorded recollection of the temperature of the victim's apartment; 2) what degree of mental torture or conscious serious physical abuse preceding death is necessary to satisfy Oklahoma's especially heinous, atrocious or cruel aggravating factor; and 3) the extent to which defense counsel, under Strickland v. Washington, 466 U.S. 668 (1984), is required to investigate and present psychiatric evidence and evidence of a defendant's early childhood during a capital sentencing proceeding. During the course of our analysis, we also clarify, with the approval of the en banc court, that the State does not need to appeal separately the district court's adverse procedural bar determination in order to reassert that defense on appeal.

I. FACTS

Romano and Woodruff were convicted of killing a jeweler, Roger Sarfaty, during the course of a robbery. Sarfaty, Romano's acquaintance, had been bound hand and foot and strangled, beaten about the head and stabbed five times. Because, at the time of this murder, Romano was serving a prison sentence and was only free on weekends, a critical issue in the case was how long Sarfaty had been dead before a friend first discovered his body, around 11:00 P.M. Tuesday, October 15, 1985. Romano had been out on weekend furlough from Friday evening, October 11 through Sunday evening, October 13. The State's theory was that the murder occurred on Saturday, October 12, between 2:00 A.M. and 2:00 P.M. Romano and Woodruff do not have alibis for at least part of that time period.

Evidence supporting the State's theory included the fact that Sarfaty usually went to a bar, the Celebrity Club, every night. The last time he was seen there was when he left the club about 2:00 A.M. Saturday, October 12. And at the time the body was discovered, the October 12 edition of the newspaper was found opened on Sarfaty's couch; the editions for October 13, 14, and 15 were left delivered, but unopened, on his patio.

There was also, however, evidence contradicting the State's theory. When Sarfaty's friend first discovered his body, the volume of the television in Sarfaty's apartment was turned way up, yet none of the neighbors had ever complained about the noise. In addition, Sarfaty's neighbor testified that he thought he saw Sarfaty arguing with a blonde woman early Sunday morning, October 13.

Scientific evidence concerning the time of death was not conclusive, although it generally supported the State's theory. The medical examiner's investigator believed Sarfaty had died two to three days before the body's discovery. The investigator based that determination, in part, on the apartment's sixty-degree temperature, which he noted on the night the body was found. The investigator recorded that temperature at approximately 4:30 A.M. Wednesday, October 16, although authorities had first entered the apartment two

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hours earlier. A police officer described the apartment, at the time they entered, as warm, but not hot.

Based in part on the sixty-degree temperature, the medical examiner, Dr. Choi, testified that Sarfaty had been dead between two days and one week. The doctor's best estimate was three or four days. Dr. Choi further testified, however, that, at a warmer temperature, Sarfaty might have been dead only twelve to twenty-four hours.

Apart from the opportunity to commit these crimes, the evidence linking Romano and Woodruff to the crime itself was primarily circumstantial. Sarfaty, a jeweler, often kept a great deal of jewelry with him or in his apartment. He also usually wore rings on each finger. On Thursday, October 10, a friend had seen Sarfaty with a bag of ten to twelve gold necklaces, some older looking. And late Friday, October 11, Sarfaty had shown the Celebrity Club's manager a "real big" diamond. Yet Sarfaty was not wearing any rings when his body was found and there were only a few items of costume jewelry in the apartment at that time. Detectives did find a diamond in the living room, near where the body was discovered, and a packet of seventeen diamonds in one of Sarfaty's suits.

On Sunday, October 13, Woodruff's girlfriend observed that Woodruff had a lot of jewelry, including some older looking gold necklaces and five or six rings. Although Woodruff was a trained gemologist, she had never before seen him with that much jewelry, nor did she think he had sufficient money at that time to buy such jewelry. Woodruff mailed this jewelry to an acquaintance in California.

Sarfaty also kept as many as six large containers of quarters in his apartment. There were, however, no such containers in the apartment following the murder. Further, on Saturday afternoon, October 12, Romano and Woodruff, who were then intoxicated, attempted to purchase a television at a mall store, using only quarters. Witnesses estimated the two had between ten and forty dollars' worth of quarters. A saleswoman testified that, at that time, Woodruff also had what appeared to be spots of blood on his jeans. She also noted a recent cut on Woodruff's hand and that Romano was limping. Others who saw the pair later that day, however, did not notice any injuries. When mall security took them into custody for being drunk and disorderly, Romano had a "lock blade" folding knife. He was also wearing an expensive-looking gold necklace.

Later that evening, Woodruff's girlfriend delivered the two men from police custody to Woodruff's car, still parked at the mall. When she dropped them off, she noticed diamond papers--special papers designed to hold gems securely--on the ground near Woodruff's car. Sarfaty usually carried thirty to forty such papers with him. Woodruff, however, as a gemologist, also used diamond papers in his work.

When police arrested Woodruff, ten months after Sarfaty's murder, he called his girlfriend and asked her to "clear" the house. In response, she removed a pair of gloves, a watch, and several pieces of rope. The medical examiner testified that these rope pieces could have caused the marks around Sarfaty's neck, hands and feet. Additionally, one of the rope pieces was fashioned like a garrote, which could be used to strangle a victim. The garrote would have left marks like those found on Sarfaty's neck--marks on the front and sides of the neck, but with an area at the back of the neck without any ligature marks at all.

In addition to this evidence linking Woodruff and Romano to these crimes, there was also evidence that at least Romano had a motive to rob and kill Sarfaty. A few weeks before the murder, Romano was in need of money and had asked a friend, Tracy Greggs, to help him rob Sarfaty. Romano was particularly interested in stealing the rings Sarfaty usually wore. Romano had told Greggs that, because Sarfaty knew and would recognize him, Romano would have to kill Sarfaty. Greggs had refused to help Romano.

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Romano had also previously stolen a former girlfriend's rings and had sold them to Sarfaty. When she discovered the jewelry was missing, the girlfriend threatened to report the theft to her insurance company and police. Although he had promised to get the rings back, Romano later told his former girlfriend that the man who had her rings had been killed.

The State jointly tried Woodruff and Romano. The jury convicted both of first degree malice murder and robbery with a dangerous weapon, sentencing each to 1000 years in prison on the robbery conviction, which was after former conviction of a felony for both. At the capital sentencing proceeding, the jury found three aggravating factors pertaining to both Woodruff and Romano: they had prior violent felony convictions; the murder was especially heinous, atrocious or cruel; and they were continuing threats to society. The jury also found that Romano had committed the murder to avoid arrest or prosecution for Sarfaty's robbery. The jury sentenced both Woodruff and Romano to death on the first degree murder convictions.

In a related matter, prior to the Sarfaty trial, the State had jointly tried Woodruff and Romano for murdering another Romano acquaintance, Lloyd Thompson. In that case, a jury also convicted both men of first degree murder and sentenced them to death. The State introduced evidence of those Thompson convictions and death sentences during sentencing in the Sarfaty trial. After...

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