Mollett v. Mullin, No. 01-6403.

• Decision Date: 05 November 2003
• Docket Number: No. 01-6403.
• Citation: 348 F.3d 902
• Parties: Lloyd Edward MOLLETT, Petitioner-Appellee, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

348 F.3d 902

Lloyd Edward MOLLETT, Petitioner-Appellee, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellant.

No. 01-6403.

United States Court of Appeals, Tenth Circuit.

November 5, 2003.

David M. Brockman, Assistant Attorney General, Criminal Division (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, OK, for Respondent-Appellant.

John M. Stuart of Stuart, Frieda & Hammond, P.C., Duncan, OK, for Petitioner-Appellee.

Before KELLY, HENRY and MURPHY, Circuit Judges.

HENRY, Circuit Judge.

Lloyd Edward Mollett was found guilty of first-degree murder and first-degree rape by an Oklahoma jury. At the trial's sentencing stage, the prosecution urged the jury to impose the death penalty. During the jury deliberations that followed, the jury sent the presiding judge a note asking the judge to "tell us if we find a sentence of [l]ife is the[re] any possibility of Mr. Mollett ever leaving prison for any reason whatsoever." The trial judge replied that "[m]atters of parole are beyond the purvue [sic] of the jury or the court to consider." The judge did not advise defense counsel or the prosecution of the question or his response. The jury later sentenced Mr. Mollett to death.

The Oklahoma Court of Criminal Appeals affirmed the convictions and sentences and, later, denied post-conviction relief. Subsequently, the United States District Court for the Western District of Oklahoma conditionally granted Mr. Mollett habeas relief, finding that Mr. Mollett is entitled to a new sentencing hearing on the grounds that (1) the trial court's reply to the jury denied Mr. Mollett due process under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), and (2) Mr. Mollett's trial counsel provided ineffective assistance of counsel during the trial's sentencing phase by failing to investigate and present mitigating evidence. As detailed below, we affirm on the Simmons due process issue and therefore do not reach the issue of ineffective assistance of counsel.

I. BACKGROUND

This tragic case arises out of Mr. Mollett's rape and murder of Sri Sedjati Sugeng. In 1993, Mr. Mollett and Ms. Sugeng lived in the same apartment complex in Stillwater, Oklahoma. Mr. Mollett lived with his girlfriend and her son; although he suffered from visual impairment, learning disability, and Attention Deficit Disorder, he was able to work at a printing press. Ms. Sugeng lived alone in the apartment complex; she had moved to the United States from Indonesia to attend Oklahoma State University, where she was studying interior design. During this time, Mr. Mollett and Ms. Sugeng became somewhat acquainted. The two owned Rottweiler dogs and would sometimes chat as they walked their dogs.

On the evening of October 22, 1993, Ms. Sugeng had plans to meet two friends for a movie. When Ms. Sugeng did not appear at the movie theater, her friends repeatedly attempted to telephone her and then went to her apartment. There, Ms. Sugeng's friends found her face down in the bathtub, unconscious. The attempts to resuscitate Ms. Sugeng were unsuccessful, and she died.

A subsequent investigation of Ms. Sugeng's apartment revealed, among other things, two blood stains on the living room floor. Near those blood stains was a baseball cap in which hairs were subsequently found. A pair of torn pink undergarments was found near Ms. Sugeng's bed, and bloodstains were found on her bed.

The baseball cap found in Ms. Sugeng's apartment was later traced to Mr. Mollett, who admitted that the cap was his. The bloodstains in the living room were identified as Ms. Sugeng's blood. The stain on the bed contained both Ms. Sugeng's blood and Mr. Mollett's semen. Mr. Mollett's semen was also detected on the vaginal swabs later taken by the medical examiner. A medical examiner examined Ms. Sugeng's body and found contusions and bruises on her cheek and under her chin and inner lips, a contusion on her chest, bruising on her hips, and lacerations both inside and just outside Ms. Sugeng's vagina. Injuries consistent with defensive wounds were found on Ms. Sugeng's hands, wrists, and forearms. Further, marks on Ms. Sugeng's throat, in conjunction with petechial hemorrhaging, indicated that she had been strangled. Ms. Sugeng's lungs and trachea were filled with fluid in a manner associated with drowning. The medical examiner ultimately concluded the cause of death to be asphyxia from either drowning or neck compression.

Mr. Mollett was arrested shortly thereafter and in 1995, he was tried by a Payne County, Oklahoma jury. After the jury convicted Mr. Mollett of rape and first-degree murder, the State sought the death penalty, arguing that three of the aggravating factors that can trigger the imposition of the death penalty under Oklahoma law were present: (1) that the murder was "especially heinous, atrocious or cruel;" (2) that Mr. Mollett committed the murder "to avoid lawful arrest or prosecution;" and (3) that Mr. Mollett was a "continuing threat to society." Okla. Stat. tit. 21, § 701.12.

Oklahoma law provides for three possibilities when a defendant is charged with a crime for which the prosecution seeks the death penalty. First, if the prosecution proves that a statutory aggravator is present, and the jury does not find that mitigating evidence outweighs the aggravator, the death penalty may be imposed. See Okla. Stat. tit. 21, § 701.11. Second and third, the jury, or, absent agreement between among the jurors, the trial judge, may "impose a sentence of [either] imprisonment for life without parole or imprisonment for life." Id. (emphasis supplied).

Approximately one month before Mr. Mollett's trial, Mr. Mollett's trial counsel requested that the jury be instructed under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994):

that [opinion] addresses life in prison without parole.... it stands for the proposition that there is a chance that a jury may believe it does not really mean life without parole. And we would request they be instructed on that issue. But I would like to put the Court on notice by virtue of Simmons.

Tr. of Dec. 6, 1999 Proceedings, at 8. Mr. Mollett's trial counsel followed that request with a written request that the court instruct the jury that:

when considering punishment that life imprisonment means imprisonment for life. You are further instructed that the death penalty means that the Defendant will be put to death. You are also instructed that life without parole means that the Defendant will be in the penitentiary for all of his life with no possibility of parole. You should draw no other conclusions concerning punishment other than what is stated in this instruction.

State Ct. Rec. vol. III, at 464 (Defendant's Requested Second Stage Jury Instructions filed Jan. 19, 1995).

The district court did not agree to the requested jury instruction. At the trial's sentencing stage, the State introduced evidence of Mr. Mollett's three prior felony convictions. Additionally, the State incorporated all guilt-stage evidence and presented victim-impact evidence from Ms. Sugeng's family. At the sentencing hearing, Mr. Mollett presented seven mitigation witnesses who testified to a variety of mitigating circumstances, including his health problems and also to various qualities of Mr. Mollett, such as that he is a good person who is loved, loving, helpful, thoughtful, generous, hard-working, kind, an animal lover, and non-violent.

After the conclusion of the presentation of evidence in the trial's sentencing stage, the trial judge instructed the jury. Over the objection of Mr. Mollett's counsel, the trial judge instructed that "[t]he crime of Murder in the First Degree is punishable by death or by imprisonment for life without parole, or by imprisonment for life." Id. at 441. No further definition of any of the sentencing options was given to the jury. See id. at 439-51.

During closing arguments, the prosecutor repeatedly stressed that the jury should find that Mr. Mollett constituted a continuing threat to society:

The State has alleged that this defendant is a continuing threat to society. He always will be [a continuing threat] is what the evidence establishes: .... Look at the nature of the crime itself when determining whether continuing threat exists, and the circumstances surrounding the entire picture of these crimes.

He stalked her. This was not a crime of rage committed in a heat of the moment. This was a crime of design, or premeditation, and of planning. The evidence was revealed that Mr. Mollett had copies of the pass keys to Forty North apartments. [Ms. Sugeng] would not have been safe from him even behind locked doors. And [Ms. Sugeng]... is no different from the rest of us.... Look at the severity of the injuries, the callous and brutal nature of the crime itself.

We have a torn vagina and hymen which we know a knife did not cause. We know there are two books of a sexual nature in that apartment. And according to the friends who have discussed more with [Ms. Sugeng] than her dog and the weather, they did not belong to her.

Because of the extent of the vaginal wounds one could reasonably infer that her assault involved repeated acts of rape and penetration. This was a rape of degradation, humiliation, and intense pain designed to punish her for refusing his attentions and rejecting his offers.

Let's examine more of the evidence to see the callousness of this crime before you. All evidence from the first stage has been introduced into this stage, including the testimony of the defendant himself. Usually in your experience have you not found that even in a lie there are tidbits and moments of truth, those things that reveal how a person's mind works?

Examine the terms the defendant used when describing his relationship and actions with [Ms. Sugeng.] I hit on her, we just got it on, I put her back and her butt on the bed with her...