560 F.3d 1156 (10th Cir. 2009), 01-6094, Douglas v. Workman

Docket Nº:01-6094, 06-6091, 06-6093, 06-6102.
Citation:560 F.3d 1156
Party Name:Yancy Lyndell DOUGLAS, Petitioner-Appellant, v. Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee. Paris LaPriest Powell, Petitioner-Appellee/Cross-Appellant, v. Randall G. Workman,
Case Date:March 26, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1156

560 F.3d 1156 (10th Cir. 2009)

Yancy Lyndell DOUGLAS, Petitioner-Appellant,

v.

Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

Paris LaPriest Powell, Petitioner-Appellee/Cross-Appellant,

v.

Randall G. Workman, [*] Warden, Oklahoma State Penitentiary, Respondent-Appellant/Cross-Appellee.

Nos. 01-6094, 06-6091, 06-6093, 06-6102.

United States Court of Appeals, Tenth Circuit.

March 26, 2009

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Randy A. Bauman, Assistant Federal Public Defender, Oklahoma City, OK (John M. Stuart of Stuart, Frieda & Hammond, P.C., Duncan, OK, with him on the briefs), for Petitioner-Appellant Douglas.

Robert L. Whittaker, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with him on the briefs), State of Oklahoma, Oklahoma City, OK, for the State.

Jack Fisher of Edmond, OK, for Petitioner-Appellee/Cross-Appellant Powell.

Before HENRY, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.

PER CURIAM.

Following the death of Shauna Farrow and the wounding of Derrick Smith, Yancy Lyndell Douglas and Paris LaPriest Powell were each convicted of first degree malice murder and shooting with intent to kill. Mr. Douglas and Mr. Powell were tried separately, almost two years apart,1 and both juries found that their respective defendants knowingly created a great risk of death to more than one person. Both juries also assessed the death penalty to their defendants for the murder of Shauna Farrow, and sentenced them to life imprisonment for the shooting of Derrick Smith. Smith was the key witness at both trials.

Both defendants exhausted their state court remedies. Douglas v. State, 951 P.2d 651 (Okla.Crim.App.1997) ( Douglas I ) (direct appeal); Douglas v. State, 953 P.2d 349 (Okla.Crim.App.1998) ( Douglas II ) (collateral review); Powell v. State, 995 P.2d 510 (Okla.Crim.App.2000) (direct appeal) ( Powell I ); Powell v. State, PCD-1999-719 (Okla.Crim.App. Mar. 17, 2000) ( Powell II ) (collateral review). The defendants then initiated federal habeas proceedings.

In his federal habeas petition filed on August 2, 1999, Mr. Douglas asserted that numerous constitutional errors infected his trial. The district court denied the petition. Douglas v. Gibson, No. CIV-99-75-C (W.D.Okla. Jan. 10, 2001)( Douglas III ).

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Before Mr. Douglas's appeal was heard in this court, however, Smith recanted his identification of Mr. Douglas and Mr. Powell and alleged that the prosecuting attorney, Brad Miller, had suborned perjured testimony from him, which he provided in exchange for favorable treatment, and that Miller had also elicited false testimony from him denying the existence of any deal for his testimony. On December 12, 2001, we granted Mr. Douglas's request to file a second habeas petition pursuant to 28 U.S.C. § 2244(b)(3)(c) and we abated his pending appeal of the first petition. 2

On September 20, 2001, Mr. Powell filed his federal habeas petition incorporating allegations concerning the newly discovered evidence. After a joint evidentiary hearing was held on the new allegations in the Douglas and Powell petitions, the district court granted Mr. Powell's petition 3 and denied Mr. Douglas's.4

On appeal, Mr. Douglas asserts, inter alia, due process claims relating to the prosecutor's egregious conduct when he vouched for the credibility of the key witness, Derrick Smith, by using false testimony he elicited from Smith, suppressed exculpatory evidence of his agreement to assist Smith with his numerous legal difficulties in exchange for his favorable testimony, and failed to correct Smith's false testimony that no deals were made. The State of Oklahoma appeals the grant of Mr. Powell's petition, and Mr. Powell cross-appeals the conditional nature of the writ granted to him. We consolidated the appeals. We affirm the district court's order granting Mr. Powell conditional habeas relief. We reverse the district court's refusal to grant habeas relief to Mr. Douglas, and we remand to the district court with instructions to grant the writ as to Mr. Douglas's convictions and sentence, subject to the State's right to retry him.

I

The Murder5

Derrick Smith, a member of the Southeast Village Crips, spent the afternoon and evening of June 24, 1993, with his friends at the Ambassador Court Apartments in Oklahoma City. Smith, then seventeen, was drinking alcohol and smoking numerous marijuana joints with his gang associates. Fourteen-year-old Shauna Farrow was also at the apartment complex. Around 11:00 p.m., Smith began riding his bike home. When he caught up with Farrow, who had left shortly before, he dismounted his bike to walk along with her. Other than the light from nearby porch lamps, it was a dark night.

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According to Smith's testimony at the trials, he and Farrow were passed from behind by a grey Datsun hatchback playing loud rap music. The car turned around at the end of the block and came slowly back toward them, the music no longer playing. Just as the car passed Smith and Farrow, it stopped and the driver's side door opened. Smith saw the driver and front passenger were crouched forward, as though to let the rear passenger exit the car.6 Smith saw something chrome in the driver's hand aimed at him, and then saw flashes as gunfire came from the car's occupants.

Smith was hit once in the left hip and fell over his bicycle onto the nearby grass. Farrow was backing away with her hands raised when she was hit in the chest and killed. When Smith saw Farrow collapse, he glanced quickly at the car, saw continued gunfire, and buried his face in the ground and closed his eyes. Smith was carrying a loaded .380 semiautomatic pistol; however, he was so inebriated that he forgot he was armed. After the shooting stopped, Smith heard the car door shut and one of the shooters say " Fuck ‘ em" as the car drove away. Smith testified at trial that he recognized the voice as Mr. Douglas's.

Smith crawled behind a camper trailer parked in a nearby driveway. From there, he testified he saw the assailants' car stop at a driveway seven houses down the street. The car doors opened and closed again, and the car drove away. As Smith was crawling, a bag of crack cocaine fell out of his pocket. Smith threw his gun into the backyard of the house and laid in the yard between the houses until the police and ambulance arrived. Later investigation of the crime scene revealed bullets and casings from three different weapons used in the assault. Smith's weapon was never recovered.

Earlier on the night of June 24, LaDana and Winter Milton and their friend Ebony Rhone saw Yancy Douglas and other members of the 107 Hoover Crips at Pitts Park. The young men were excited and were talking of shooting someone on the south side of Oklahoma City. The girls watched Mr. Douglas leave the park in a two-door hatchback. As he left, he fired his gun out of the window of the vehicle.

Between 12:00 and 1:00 a.m. on June 25, Yancy Douglas drove Paris Powell to the home of Lawrence Kuykendoll. Mr. Powell had been shot in the left hand, and Kuykendoll took him to the hospital. Mr. Douglas left Kuykendoll's home in the blue two-door Plymouth hatchback in which he and Mr. Powell had arrived. Mr. Powell was hospitalized for two days and then released into police custody. On the afternoon of June 25, Mr. Douglas drove the blue hatchback to Leon Washington's body shop, apparently at Mr. Powell's request. Douglas IV at 21.

Pre-Trial Developments

Smith made several statements to the Oklahoma City police shortly after the shooting. At 12:50 a.m. on June 25, he told Officer Williams that four black men in a four-door blue or grey Datsun shot at him and Farrow, and he identified Paris Powell, a member of the 107 Hoover Crips, as the car's driver. Before his surgery later that day, Smith repeated to Detective Mullenix his identification of Mr. Powell as the driver, although Smith said he was

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only fifty percent certain Mr. Powell was in the car. He also told Detective Mullenix that Anthony Hishaw and Yancy Douglas were passengers in the car. Finally, shortly after his surgery, Smith gave Officer Dycus several conflicting versions of the previous night's events. First he stated that Mr. Powell was driving the vehicle, then that Mr. Douglas was. Smith also said he believed the car was Hishaw's and that Hishaw was in the vehicle the night of the shooting. Hishaw was, in fact, in prison on June 24 and 25, 1993. Smith testified he had seen Mr. Powell in the vehicle before as well. He told Officer Dycus he thought there were seven or eight people in the car, but then changed his story when the officer said he did not believe Smith was telling the truth. Smith finally said there were four occupants, that Mr. Powell was driving, that Mr. Douglas was in the front passenger seat, and that there were two other passengers he could not identify. In none of his statements to the police did Smith mention the car stopping in a nearby driveway.

At the preliminary hearing on August 27, 1993, Smith testified in a manner largely consistent with what his later trial testimony would be: that he was certain Mr. Powell was the driver and one of the shooters, that the car stopped in a driveway up the street from the shooting, and that he guessed the car stopped to allow a change of driver. However, Smith described the assailants' car as a grey Datsun with black louvers on the rear window. Based on how the car sounded as it drove away, Smith was certain that it had a standard transmission. At the time of the preliminary hearing, the police had not located the vehicle used during the shooting.

At the time...

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