869 F.2d 1401 (10th Cir. 1989), 87-1657, Davis v. Maynard

Docket Nº:87-1657.
Citation:869 F.2d 1401
Party Name:Charles William DAVIS, Petitioner-Appellant, v. Gary MAYNARD, Warden, Oklahoma State Penitentiary at McAlester, Oklahoma, Respondent-Appellee.
Case Date:March 14, 1989
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1401

869 F.2d 1401 (10th Cir. 1989)

Charles William DAVIS, Petitioner-Appellant,

v.

Gary MAYNARD, Warden, Oklahoma State Penitentiary at

McAlester, Oklahoma, Respondent-Appellee.

No. 87-1657.

United States Court of Appeals, Tenth Circuit

March 14, 1989

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[Copyrighted Material Omitted]

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Robert A. Ravitz, Public Defender, Oklahoma County Public Defender's Office, Oklahoma City, for petitioner-appellant.

Susan Stewart Dickerson, Asst. Atty. Gen. (Robert H. Henry, Atty. Gen., of Oklahoma, with her on the brief), Oklahoma City, Okl., for respondent-appellee.

Before MOORE and BALDOCK, Circuit Judges, and O'CONNOR, District Judge. [*]

BALDOCK, Circuit Judge.

Petitioner-appellant, Charles William Davis, was charged by information in the District Court of Oklahoma County, Oklahoma, with the first degree murders of Dennis McLaughlin and Robert Wayne Jones in violation of 21 Okla.Stat. Sec. 701.7. The State alleged that on the morning of August 13, 1977, Davis mortally wounded McLaughlin and Jones with a .38 caliber pistol at his home in Oklahoma City. The cases, CRF-77-2905 and CRF-77-2906, were consolidated, and trial ensued on February 21, 1978. On February 27, 1978, the jury returned a verdict of guilty. Later that day, the jury in a separate proceeding under 21 Okla.Stat. Sec. 701.10, sentenced Davis to death.

Davis at the time of the incident was a fifty-two year old parolee from the State of Missouri. He had been convicted there in 1942 of murder in the first degree and sentenced to life imprisonment. On June 22, 1977, Davis married twenty-four year old Kathy Mae Rogers. She lived with him at his apartment in Oklahoma City for twelve days before moving back to her prior home in Sapulpa, Oklahoma, on August 3. At around 5:30 a.m. on August 13, 1977, Kathy returned to the apartment along with her brothers, Henry and Robert Wayne Jones, and a friend, Dennis McLaughlin, to gather her personal belongings which Davis had threatened to burn. Davis was at home when they arrived. After the four had completed packing Kathy's belongings onto Henry's truck, they returned to the apartment for a final check. Davis, who was outside at that moment, then entered the apartment holding a gun. Kathy testified that Davis said "I thought I told you to bring the car back," and fired. Trial Tr. at 348. (Kathy and Davis had purchased a car which Kathy subsequently wrecked in Sapulpa). Davis continued to aim and pull the trigger even after all

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available rounds were spent. Kathy and Henry were each shot once in the head but survived. Dennis McLaughlin died as a result of two gunshot wounds through the head. Robert Wayne Jones suffered fatal gunshot wounds to the head and back. Davis immediately fled the scene. He was apprehended carrying a loaded .38 caliber pistol in California two days later.

Davis' sole defense at trial was self-defense. Although firearms were never visible on any of the four, Davis testified that immediately prior to the shooting, he believed both Henry and Dennis were reaching for concealed weapons. As a result, Davis opened fire. Davis claimed that he loved Kathy and did not intend to kill anyone. His probation officer testified, however, that while Davis stated he believed the murders were justified, "he would rather that Kathy had died." Trial Tr. at 858.

Davis unsuccessfully appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals. Davis v. State, 665 P.2d 1186 (Okla.Cr.), cert. denied, 464 U.S. 865, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983). He then unsuccessfully sought relief under the State's "Post-Conviction Procedure Act," 22 Okla.Stat. Secs. 1080-88. Davis v. State, Nos. CRF-77-2905 & CRF-77-2906 (D.Ct.Okla.Cty. Dec. 28, 1984), aff'd, No. PC-85-55 (Okla.Cr. March 21, 1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 900 (1986). Having exhausted his available state court remedies as prescribed by 28 U.S.C. Sec. 2254(b), Davis filed this action under Sec. 2254(a) in the Western District of Oklahoma seeking a writ of habeas corpus. In a thorough opinion, the district court denied Davis relief.

Upon a certificate of probable cause pursuant to Fed.R.App.P. 22(b), Davis appeals from the judgment of the district court alleging seven state trial errors of constitutional magnitude. See 28 U.S.C. Sec. 2254(a) (federal court shall entertain application for a writ only on ground that petitioner is incarcerated in violation of the Constitution or laws of the United States). Davis claims, as he has throughout the course of post-trial review, that (1) the jury instructions tendered in the guilt phase of his trial improperly shifted the burden of proof, (2) the trial court improperly denied his request for a psychiatric examination at state expense to assist in his defense, (3) the trial court improperly excluded for cause members of the venire based upon their response to inquiries about the death penalty, (4) the prosecutor's closing argument in the sentencing phase of his trial improperly diluted the jury's sense of responsibility for the sentence imposed, (5) the jury instructions tendered in the sentencing phase of his trial improperly defined the nature and function of mitigating circumstances, (6) the anti-sympathy instruction improperly led the jury to discount mitigating evidence presented in the sentencing phase of his trial, and (7) the State applied the "especially heinous, atrocious or cruel" aggravating circumstance instruction in an improperly vague and overbroad manner. Our jurisdiction to review these points arises under 28 U.S.C. Sec. 2253. We affirm the denial of the writ but vacate the sentence of death as constitutionally impermissible on the record before us.

I.

Davis' only challenge to his conviction is aimed at the instructions provided the jury in the guilt phase of his trial. According to Davis, certain instructions required him to come forth with evidence to reduce the homicides from first degree murder to manslaughter in violation of the rule established in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), that "the Due Process Clause protects the accused against a conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In deciding the role that the contested instructions played in Davis' conviction, we are mindful that instructions "may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). The burden Sec. 2254 imposes upon Davis is not insignificant:

The burden of demonstrating that an erroneous instruction was so prejudicial

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that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," not merely whether "the instruction is undesirable, erroneous, or even 'universally condemned.' "

Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (quoting Cupp, 414 U.S. at 146-47, 94 S.Ct. at 400); accord Hunt v. State, 683 F.2d 1305, 1310 (10th Cir.1982). Because we find no such error in the instructions to the jury in the guilt phase of Davis' trial, we sustain his conviction.

The trial court in this case instructed the jury on first degree murder and first degree manslaughter, as well as self-defense, as defined by Oklahoma law. After informing the jury in instruction three of the presumption of innocence, and of the State's burden to prove Davis guilty beyond a reasonable doubt, the court defined the elements of each offense. In instruction five, the court first quoted the definition of murder contained in 21 Okla.Stat. Sec. 701.7: "A person commits murder in the first degree when he unlawfully and with malice aforethought causes the death of another human being." In the same instruction, malice was defined as a "deliberate intention, a premeditated design to take away the life of a human being which is manifested by external circumstances capable of proof." The court then charged the jury in instruction seven that the crime of murder in Oklahoma embraces the lesser included offense of manslaughter: "[T]he statutes of this State define homicide as manslaughter in the first degree when perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitutes justifiable homicide." See 21 Okla.Stat. Sec. 711. The court defined "heat of passion" in instruction eight as "anger, rage, resentment, fear or terror," and stated: "In order to reduce a homicide to first degree manslaughter, this passion must have existed to such a degree as would naturally destroy the sway of reason and render the mind incapable of cool reflection, and thus exclude malice aforethought." In instruction ten, the court distinguished malice from heat of passion and charged the jury that "[m]alice and heat of passion cannot co-exist."

Davis' claim that instruction 5A placed an unconstitutional burden upon him to show the absence of a "design to effect death" is nonsense. Instruction 5A reads:

You are further instructed that a design to effect death may be inferred from the fact of the killing when that killing is done by the use of a dangerous weapon in such a manner as naturally and probably to cause death unless the circumstances raise a reasonable doubt whether such design existed [emphasis added].

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