Selsor v. Kaiser
| Decision Date | 08 April 1996 |
| Docket Number | No. 94-5223,94-5223 |
| Citation | 81 F.3d 1492 |
| Parties | Michael B. SELSOR, Plaintiff-Appellant, v. Stephen W. KAISER, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 91-C-826-E).
Regina Stephenson, Assistant Federal Public Defender (Stephen J. Knorr, Federal Public Defender, with her on the brief), Tulsa, Oklahoma, for Plaintiff-Appellant.
Diane L. Slayton, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with her on the brief), Oklahoma City, Oklahoma, for Defendant-Appellee.
Before EBEL, HOLLOWAY and KELLY, Circuit Judges.
Petitioner-Appellant Michael B. Selsor appeals from the district court's denial of his petition for a writ of habeas corpus. The judge rejected Selsor's constitutional claim of denial of effective assistance of counsel where two public defenders were required by the state trial court to represent the interests of both Selsor and his codefendant Richard Dodson despite timely objections by the attorneys and Selsor that Dodson's and Selsor's interests conflicted. We disagree with the ruling below.
On September 15, 1975, a U-Tote-M store in Tulsa, Oklahoma, was robbed. One of the store employees, Clayton Chandler, was shot to death and the other, Ina Morris, was shot and wounded. Selsor and Dodson were arrested for the robbery and shootings. Selsor At trial Ina Morris, the U-Tote-M employee wounded in the robbery, testified about the ordeal. She stated that she had gone into the store's walk-in cooler, and that while in there "[a] man walked up to the first window [of the cooler] and opened it up and looked at me." State Tr. at 183. She said the man then walked around to the big walk-in door and pointed a revolver at her. Id. at 184, 186. He told her to get on her knees on the floor. Id. at 186. She testified that she "just looked at him" because she "couldn't believe it." Id. She said to the gunman "You've got to be kidding." Id.
was charged in state court with robbery with firearms in violation of 21 O.S.Supp.1973, § 801; shooting with intent to kill in violation of 21 O.S.1971, § 652; and murder in the first degree in violation of 21 O.S.Supp.1973, § 701.1. Dodson was charged with robbery with firearms, after former conviction of a felony in violation of 21 O.S.Supp.1973, § 801; shooting with intent to kill, after former conviction of a felony in violation of 21 O.S.1971, § 652; and murder in the first degree in violation of 21 O.S.Supp.1973, § 701.1. Selsor and Dodson were tried together and were both jointly represented by the same two public defenders from the same office. One attorney conducted both defenses while the other attorney supervised that attorney. Selsor v. Kaiser, 22 F.3d 1029, 1031 (10th Cir.1994) (Selsor I )
The gunman then fired a shot at her, hitting her in the right shoulder. State Tr. at 187. She got down on her knees. The gunman told her that if she looked up he would kill her. Id. at 188. Three to five minutes later Morris raised her head and saw the gunman standing outside the window, holding both hands on the gun. Id. at 190-91. She then saw him pull the trigger and heard the bullets hit the window. She ducked. Id. at 191. She heard more than two bullets fired. Her body went numb. Id. at 192. She lay down and lost consciousness. She was wounded in her right shoulder, on the right side of the back of her head, on top of her head, underneath her jaw, in her back and in her neck. Id. at 199. Two bullets were left in her neck. Id.
Morris regained consciousness approximately five to seven minutes later. State Tr. at 193. She walked north in the cooler and looked out to see Clayton Chandler lying on the floor of the U-Tote-M. Id. at 194. Mr. Chandler died as a result of his injuries.
Morris identified Dodson as the man who shot her. Id. at 204. She gave no testimony about seeing any assailant other than Dodson, nor did she testify that she heard any shots other than those from Dodson. She did state, however, that the door to the walk-in cooler was closed and that she heard the cooler fan, a noise she described as "[v]ery loud." Id. at 189.
Ms. Morris was the only eyewitness to the crime and her testimony did not implicate Selsor. The evidence against Selsor instead was based on his and Dodson's confessions as presented through the testimony of two police officers, Officer Evans, a major crimes investigator for the Santa Barbara, California Police Department, and Officer Roberts of the Tulsa Police Department.
Officer Evans testified that on September 22, 1975, he and a Sergeant Williams interviewed Dodson at the Santa Barbara Police Department. State Tr. at 238. Officer Evans testified that
[Dodson] stated that he and Mr. Selsor were driving a green '67 Pontiac.... He stated that they had been together in this car on the evening of September 15th around 11:00 P.M. and had passed by this U-TOTE-M store which he thought was located at 66th and 33rd, in that vicinity. He stated that both of them were in the car as they passed by this store a couple of times and Mr. Dodson stated that he noticed that the traffic was light around the store and the outlying area and that there was a light fog or something. He then stated that they both were armed.
....
Q And, what did he say in that regard?
A Mr. Dodson was armed with a nine shot .22 caliber revolver, black and silver and Mr. Selsor was armed with a .22 automatic Lugger Blackhawk.
Q Now, did he say anything in regard to any plan concerning this matter on 33rd A Yes, he did.
West Avenue other than what you have thus far related?
Q What did he say in that regard?
A He stated that prior to entering the store in a conversation with Mr. Selsor there was discussion of taking these people out.
....
Q Did he ever indicate in the conversation what he meant by taking them out?
A Later in the conversation it was shown that taking them out meant killing them.
Q And, when you use the expression, taking these people out, did you know at the time he told you this who he had reference to?
A By name or incident?
Q Well, by perhaps position with the store?
A Yes, meaning the proprietors of the store.
Officer Evans also testified about an interview that he and a Detective Martin had with Selsor subsequent to the interview with Dodson. Officer Evans stated that Selsor said "that he and Mr. Dodson had approached the U-Tote-M store at 61st and 33rd Street and they were in a green '67 Pontiac of [sic] which belonged to Mr. Selsor." State Tr. at 283. Selsor stated that they "didn't intend to have any witnesses around and had planned on killing the proprietors after the robbery." Id. Evans testified that Selsor said "that he was armed with a .22 caliber Lugger Blackhawk automatic, had a nine shot clip, and that Mr. Dodson was armed with a nine shot .22 caliber revolver." Id. at 284.
Officer Evans then recounted Selsor's description of the robbery:
Mr. Selsor stated he demanded the money in a sack and he said the elderly gentleman complied and gave him the money from the cash drawer, the cash register and the safe. Mr. Selsor stated that he told the guy to quit piddling with the change as he was putting the money in, he wasn't interested in that. I asked Mr. Selsor what then occurred and he stated that he had off-set his position, showing me in the interview room, and fired several shots from this .22 automatic into the elderly man.
Id. at 285. According to Evans, Selsor "stated that all the bullets went into the chest area and it [sic] must have hit the heart." Id. at 286.
In addition to the testimony of Officer Evans, Officer D.A. Roberts of the Tulsa Police Department testified about a conversation he had with Dodson at the Tulsa County Jail on September 30, 1975. Officer Roberts said that
We started the conversation off, I advised him I'd like to know how it went down and the order that it happened. He related it started with a conversation between himself and Selsor, that Selsor had said, We got to take out the witnesses involved in this case.
....
At that time I asked him if he felt Selsor really meant that. He said, Well, he convinced me of it. He said, I thought he did, he looked serious.
The state introduced the .22 caliber revolver used by Dodson. Id. at 288, 305. The .22 caliber automatic allegedly used by Selsor was not introduced. However, Officer Roberts testified that Dodson told him Selsor threw the gun into some body of water along Interstate 80. In addition, the state introduced spent shell casings recovered from the crime scene which an expert testified came from an automatic weapon. State Tr. at 227-29, 376-77.
The defense made no opening statement. The only witness called by the defense was Dr. Garcia, a forensic psychiatrist from Eastern State Hospital at Vinita, Oklahoma, who testified only about Dodson's mental condition. State Tr. at 381-86. The defense closing argument was brief, constituting a mere two pages of the trial transcript and in essence simply asserting that the jury should not take the defendants' lives. Id. at 406-07.
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