486 F.3d 655 (10th Cir. 2007), 05-6282, Young v. Sirmons

Docket Nº05-6282.
Citation486 F.3d 655
Party NameKevin YOUNG, Petitioner-Appellant, v. Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
Case DateMay 15, 2007
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 655

486 F.3d 655 (10th Cir. 2007)

Kevin YOUNG, Petitioner-Appellant,

v.

Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 05-6282.

United States Court of Appeals, Tenth Circuit.

May 15, 2007

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Mark Barrett, Norman, OK, for Petitioner-Appellant.

Page 659

Preston Saul Draper, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma with him on the briefs), Oklahoma City, OK, for Respondent-Appellee.

Before KELLY, LUCERO, and TYMKOVICH, Circuit Judges.

LUCERO, Circuit Judge.

Kevin Young was convicted of first degree murder for shooting and killing Joseph Sutton during a robbery at the Charles Steak House (the "Steak House"). A unanimous jury sentenced him to death. He filed a 28 U.S.C. § 2254 petition in federal district court in Oklahoma, seeking relief from both his conviction and sentence. The court denied Young's petition, but granted him a certificate of appealability ("COA"), pursuant to 28 U.S.C. § 2253(c), on the following claims: (1) There was insufficient evidence to support his conviction; (2) His constitutional rights were violated when the trial court failed to instruct the jury on the lesser-included offenses of second degree murder and first degree manslaughter; (3) Counsel was ineffective during the guilt stage of the trial in failing to obtain the services of a crime-scene reconstructionist; and (4) Counsel was ineffective during the sentencing stage of the trial in failing to proffer certain mitigation evidence. We granted Young a COA on an additional issue: Whether witness testimony identifying Young as the assailant was improperly admitted due to law enforcement's use of a flawed identification procedure. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we AFFIRM.

I

We are required to presume, subject to rebuttal by clear and convincing evidence, that the factual findings of the Oklahoma Court of Criminal Appeals ("OCCA") are correct. 28 U.S.C. § 2254(e)(1). Those facts are as follows:

This case arose from a shooting during an attempted robbery at the Charles Steak House in Oklahoma City in the early morning hours of May 14, 1996, where Joseph Sutton ran a gambling operation in a back room. Sometime after midnight on May 14, 1996, two African-American men, armed with guns, entered the Charles Steak House, and walked into the gaming room.

Karl Robinson testified the taller man said "all you SOBs are going to die." George Edwards heard the same man say he was going to kill everyone. When Edwards saw the taller man pull a gun, Edwards grabbed the gun and held it in the air while the taller man fired it repeatedly until the gun was emptied. At this same time, the shorter of the two men pulled his gun, pointed it in the air and said "we come for the money." Joseph Sutton threw something on the floor, pulled his own gun, pointed it at the shorter man and tried to fire it, but a bullet was not chambered and the gun did not fire. The shorter man then fired on Sutton.

Sutton was shot four times and died as a result of a gunshot wound to his abdomen. Quintin Battle, who was in between Sutton and the shorter gunman, was shot twice during the gunfire. Battle testified he dropped to the floor when the shooting began, because he feared he would be shot and killed. George Edwards suffered powder burns on his arms and face while struggling with the taller gunman.

Both gunmen ran from the Charles Steak House after the shooting. One ran down North Lottie, away from the restaurant, holding his arm.

Page 660

Within minutes of the shooting, Appellant arrived at Presbyterian Hospital emergency room with three gunshot wounds. He told emergency personnel his name was "Roy Brown." He had a bullet in his left chest, another bullet wound to his right thigh, and a third grazing wound to his right shoulder. Hospital personnel reported the gunshot victim to the police.

Officer Cook, who was responding to the Charles Steak House shooting, heard dispatch report a gunshot victim at Presbyterian Hospital. He went to the hospital and asked "Roy Brown" if he was at the Charles Steak House. Appellant told officer Cook he had not been there and said he was shot near a 7-11 convenience store and an Autozone store. Appellant told officer Cook he rode a bus to the hospital and did not know where he was shot because he was from out of state. Officer Cook testified he knew Metro Transit buses did not operate after midnight and he suspected "Roy Brown" had in fact been involved in the Charles Steak House shooting. He contacted officers at the shooting scene and asked if any witnesses there could identify the shooter.

Appellant also spoke with Officer Smith at the hospital and gave him a different date of birth than he gave officer Cook. He told officer Smith he was shot near a 7-11 convenience store and an Autozone store, but said he did not know how he got to the hospital.

Within thirty (30) minutes of the shooting, Karl Robinson and Ben Griffin were brought separately to the hospital to see if they could identify the person in the emergency room. Karl Robinson saw Appellant lying on a gurney. Robinson was unsure whether Appellant was one of the gunmen until he saw Appellant's shirt on the floor. He told the officers the shirt looked the same. Robinson was unable to identify Appellant at the preliminary hearing, but positively identified Appellant at trial.

Ben Griffin thought Appellant was one of the shooters and asked to see the shirt he was wearing. After he saw the shirt, he too affirmatively identified Appellant as one of the shooters. Griffin could not identify Appellant at preliminary hearing and did not try to identify him at trial.

No weapons were recovered at the scene of the shooting. However, a .38 caliber Smith and Wesson revolver containing six spent shell casings was found in a trash can about two blocks from Presbyterian Hospital. The woman who found the gun heard someone drop it in her curbside garbage can around 12:30 a.m. on May 14, 1996. The deceased's Sphinx .380 semiautomatic pistol was given to police officers by the owner of the restaurant a couple of days after the shooting. The owner obtained the gun from the restaurant manager who had hidden the gun and taken the deceased's wallet and money from his pockets immediately after the shooting. Police officers also recovered a .9mm [sic] handgun and $500.00 from a van belonging to Ben Griffin.

Ballistics and firearms testing were done on the recovered weapons, projectiles and casings found at the scene and recovered from the deceased. Four full metal jacket bullets recovered from the shooting scene were .380 caliber and were determined to have been fired from the deceased's gun. Eight .380 caliber auto fired casings were found to be consistent with having been fired from the deceased's gun. Two lead projectiles found at the scene had insufficient markings for ballistics comparison. Two copper jacket projectiles could not have been fired from any gun recovered.

Page 661

One projectile found at the scene was consistent with having been fired from the .38 caliber Smith and Wesson revolver that was found in the trash can. Two bullets recovered from the deceased were consistent with having been fired from the .38 caliber Smith and Wesson revolver. All six casings found in the .38 caliber Smith and Wesson were positively identified as having been fired from that gun.

Blood samples were collected from the shooting scene and were also taken from the deceased Joseph Sutton, Quintin Battle, the codefendant Antwuan Jackson, and from Appellant. Of three blood swabbings collected from the scene, one positively matched the deceased's blood sample, another did not match any known sample, and the third positively matched Appellant's blood sample. DNA testing confirmed a positive match of the blood sample collected from the shooting scene with Appellant's blood sample. Two DNA forensic chemists testified to the positive match, and one estimated the combined probability results of a match would occur in the African-American population only one in one hundred thirty-two million times (1:132,000,000).

Around 6:30 a.m. on May 14, Appellant was released to Oklahoma City police custody. A bullet remained in his back left side, below his shoulder blades. Over a year later, Appellant saw the county jail doctor complaining of pain and drainage from where the bullet was embedded. The doctor prescribed antibiotics, but Appellant never returned to have the bullet removed. Dr. Jett, a surgeon, saw Appellant about four weeks later for the purpose of removing the bullet, and determined the bullet was no longer there. Dr. Jett testified a fresh wound was present where the bullet should have been.

Young v. State, 12 P.3d 20, 27-31 (Okla.Crim.App.2000) (footnotes and alterations omitted).

On May 22, 1996, Young and his co-defendant, Antwuan David Jackson, were each charged with Murder in the First Degree (malice aforethought), in violation of Okla Stat. tit. 21, § 701.7(A) ("Count One"), Attempted Robbery with Firearms in violation of Okla. Stat. tit. 21, § 801 ("Count Two"), and Shooting with Intent To Kill in violation of Okla. Stat. tit. 21, § 652 ("Count Three"). Young and Jackson were tried separately, and Jackson was acquitted on all counts. A jury convicted Young on all three counts.

During the second stage of the trial, the state sought the death penalty based on three aggravating factors: (1) Young had been previously convicted of a felony involving the use or threat of violence to a person; (2) There was a strong probability that Young would commit criminal acts of violence that would constitute a continuing threat to society; and (3) Young knowingly engaged in conduct that posed a great risk of death to multiple persons. Young...

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  • 510 F.3d 1280 (10th Cir. 2007), 06-4208, United States v. Rakes
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • 26 de Dezembro de 2007
    ...the task of sifting the wheat from the chaff, discerning which (if any) of Ms. Dowding's accounts merited belief. See Young v. Sirmons, 486 F.3d 655, 666 (10th Cir. 2007) ("[It is] the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the eviden......
  • United States v. Browner, 110508 OKWDC, CR-03-242-D
    • United States
    • Federal Cases United States District Courts 10th Circuit Western District of Oklahoma
    • 5 de Novembro de 2008
    ...assistance of trial counsel, Defendant bears the burden to prove his claim by a preponderance of the evidence. See Young v. Sirmons, 486 F.3d 655, 674-75 (10th Cir. 2007); Sallahdin v. Mullin, 380 F.3d 1242, 1248 (10th Cir. 2004). If Defendant's proof fails either prong of the Strickland te......
  • 689 F.3d 1148 (10th Cir. 2012), 03-6049, Hooks v. Workman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • 3 de Agosto de 2012
    ...S.Ct. 2060, 2062, 182 L.Ed.2d 978 (2012) (per curiam). We call this standard of review " deference squared." Young v. Sirmons, 486 F.3d 655, 666 n. 3 (10th Cir.2007) (quoting Torres v. Lytle, 461 F.3d 1303, 1313 (10th Cir.2006)) (internal quotation marks In two respects, however, ......
  • 808 F.3d 1224 (10th Cir. 2015), 13-9601, De Leon v. Lynch
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • 22 de Dezembro de 2015
    ...defining the bounds of Oklahoma criminal law. See, e.g., United States v. Trent, 767 F.3d 1046, 1062 (10th Cir. 2014); Young v. Sirmons, 486 F.3d 655, 672 n.8 (10th Cir. 2007); Townsend v. State, 2006 OK CR 39, 144 P.3d 170, 171 (Okla.Crim. App. 2006); Brown v. State, 1989 OK CR 33, 777 P.2......
  • Request a trial to view additional results
75 cases
  • 510 F.3d 1280 (10th Cir. 2007), 06-4208, United States v. Rakes
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • 26 de Dezembro de 2007
    ...the task of sifting the wheat from the chaff, discerning which (if any) of Ms. Dowding's accounts merited belief. See Young v. Sirmons, 486 F.3d 655, 666 (10th Cir. 2007) ("[It is] the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the eviden......
  • United States v. Browner, 110508 OKWDC, CR-03-242-D
    • United States
    • Federal Cases United States District Courts 10th Circuit Western District of Oklahoma
    • 5 de Novembro de 2008
    ...assistance of trial counsel, Defendant bears the burden to prove his claim by a preponderance of the evidence. See Young v. Sirmons, 486 F.3d 655, 674-75 (10th Cir. 2007); Sallahdin v. Mullin, 380 F.3d 1242, 1248 (10th Cir. 2004). If Defendant's proof fails either prong of the Strickland te......
  • 689 F.3d 1148 (10th Cir. 2012), 03-6049, Hooks v. Workman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • 3 de Agosto de 2012
    ...S.Ct. 2060, 2062, 182 L.Ed.2d 978 (2012) (per curiam). We call this standard of review " deference squared." Young v. Sirmons, 486 F.3d 655, 666 n. 3 (10th Cir.2007) (quoting Torres v. Lytle, 461 F.3d 1303, 1313 (10th Cir.2006)) (internal quotation marks In two respects, however, ......
  • 808 F.3d 1224 (10th Cir. 2015), 13-9601, De Leon v. Lynch
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • 22 de Dezembro de 2015
    ...defining the bounds of Oklahoma criminal law. See, e.g., United States v. Trent, 767 F.3d 1046, 1062 (10th Cir. 2014); Young v. Sirmons, 486 F.3d 655, 672 n.8 (10th Cir. 2007); Townsend v. State, 2006 OK CR 39, 144 P.3d 170, 171 (Okla.Crim. App. 2006); Brown v. State, 1989 OK CR 33, 777 P.2......
  • Request a trial to view additional results