936 F.3d 1044 (10th Cir. 2019), 16-6360, Harmon v. Sharp

Docket Nº:16-6360
Citation:936 F.3d 1044
Opinion Judge:CARSON, Circuit Judge
Party Name:Marlon Deon HARMON, Petitioner-Appellant, v. Tommy SHARP, Warden, Oklahoma State Penitentiary,[*] Respondent-Appellee.
Attorney:Patti Palmer Ghezzi (Emma Victoria Rolls with her on the briefs), Office of the Federal Public Defender, Western District of Oklahoma, Oklahoma City, OK, for the Respondent-Appellee. Jennifer Crabb, Oklahoma Attorney General’s Office, Oklahoma City, OK, for the Respondent-Appellee.
Judge Panel:Before HARTZ, HOLMES, and CARSON, Circuit Judges. HARTZ, J., Circuit Judge, concurring
Case Date:August 29, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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936 F.3d 1044 (10th Cir. 2019)

Marlon Deon HARMON, Petitioner-Appellant,

v.

Tommy SHARP, Warden, Oklahoma State Penitentiary,[*] Respondent-Appellee.

No. 16-6360

United States Court of Appeals, Tenth Circuit

August 29, 2019

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Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:13-CV-00080-M)

Patti Palmer Ghezzi (Emma Victoria Rolls with her on the briefs), Office of the Federal Public Defender, Western District of Oklahoma, Oklahoma City, OK, for the Respondent-Appellee.

Jennifer Crabb, Oklahoma Attorney General’s Office, Oklahoma City, OK, for the Respondent-Appellee.

Before HARTZ, HOLMES, and CARSON, Circuit Judges.

Opinion

CARSON, Circuit Judge

Marlon Harmon ("Petitioner" or "Harmon") is a state prisoner in Oklahoma. After a bifurcated proceeding, the jury convicted him of first-degree felony murder and sentenced him to death. The Oklahoma Court of Criminal Appeals affirmed his conviction and sentence on direct appeal and later denied two applications for postconviction relief. Harmon then filed a petition for relief in the United States District Court for the Western District of Oklahoma under 28 U.S.C. § 2254, which the district court denied. He now appeals the district court’s denial of his petition. Our jurisdiction arises under 28 U.S.C. § § 1291 and 2253. We affirm.

I. Factual and Procedural History

A. Factual History

Under the Anti-Terrorism and Effective Death Penalty Act of 2006 (AEDPA), we presume the factual findings of the Oklahoma Court of Criminal Appeals (OCCA) are correct absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). The OCCA found the following facts: On August 17, 2004, Appellant Harmon picked up his friend, Jasmine Battle, and asked her to go with him to rob a nearby convenience store.1 Harmon was driving a green Honda Accord, and had brought a gun. As they neared the Q & S convenience store at 26th Street and Independence in Oklahoma City, Harmon got out of the car and walked to that store while Battle drove around the block. Shortly, she heard three gunshots and saw that Harmon had blood on his hands when he came running back to her. A frightened Battle abandoned the car and left.

FN1 Battle entered into a plea agreement, cooperated with the State and testified against Harmon.

A young girl riding her bicycle across from the store saw Harmon run out of the store. He was clutching money in one hand and a gun in the other. She watched him run away and saw Kamal Choudhury, the owner of the store, run out and fall to the ground. She tried to call 911 from a pay phone outside the store. Unsuccessful, she then ran home to tell her mother what she had witnessed. Lance Nicholas arrived just as Choudhury emerged from the store. He heard Choudhury calling for help and

Page 1051 saw a red substance on his clothes. He called 911 and tried to help Choudhury. When Nicholas asked Choudhury to describe the man who shot him, Choudhury pointed to Nicholas’ baseball cap, worn backwards.2 Choudhury was alert and responsive when he was transported to the hospital, but died early the next morning as a result of the gunshot wounds he sustained during the robbery.

FN2 Neighbors in the area saw a man fitting Harmon’s description walking toward the store, a green Honda driven by a young African American woman circling the block, and a man running back to the car. Witnesses described Harmon as wearing shorts, a shirt, tennis shoes and a "scarf", "do-rag" or "beanie."

Inside the store responding police officers found a large amount of blood and what appeared to have been the contents of a wallet: money, an I.D. card, and notes. Choudhury’s wallet and credit cards were missing. Harmon’s palm print was identified on a blood stained piece of paper found among the contents of the wallet. By the following day, Choudhury’s credit cards had been used sixteen times. A card was first used fifteen minutes after the shooting at a gas station located a block away from the apartment Harmon shared with his girlfriend. Cards were also used at gas stations in El Reno and Chandler; witnesses placed Harmon in both towns after the shooting. Battle identified Harmon and one of his friends on the security videotape obtained from the Chandler gas station.

Tyrone Boston provided information to the police about Harmon’s involvement in the robbery-murder. Learning of Boston’s statement, Harmon responded by saying Boston was a "snitch" and voicing his regret that he had not killed him. Boston claimed to suffer from memory problems at trial, but acknowledged that Harmon had told him that he (Harmon) had been required to "plug" a man.

Harmon v. Oklahoma, 248 P.3d 918, 926-27 (Okla.Crim. App. 2011).

B. Procedural History

Petitioner ultimately confessed to the robbery and murder. After he confessed, he spoke with Battle at the Oklahoma City Police Department homicide office. During that conversation, which police recorded, he indicated to Battle that the police had them on camera and knew everything.

The State of Oklahoma subsequently charged Petitioner with first-degree felony murder and sought the death penalty. At Petitioner’s preliminary hearing, the court expressed concern that police violated Petitioner’s right to remain silent and refused to consider his confession to the police.

At trial, the prosecutor entered Petitioner’s recorded conversation with Battle into evidence and elicited testimony from Battle regarding the conversation. During the guilt phase, the following conversation occurred between the prosecutor and Battle: State: Do you recall hearing or seeing on that video [of the conversation] it’s over, I’m through?

Battle: Yes.

State: What did you understand [Harmon] to mean by that?

Battle: That he had confessed to it.

The judge admonished the jury that Battle’s statement was "total and pure speculation and fiction," that it was to be ignored, and that it was "not to be considered during deliberations."

The prosecutors also replayed the video for the jury twice during closing arguments in the guilt phase— first during the initial closing argument and then again during the prosecution’s rebuttal argument. After playing the video during its

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initial closing argument, the prosecution stated: Now, that’s a piece of evidence. You can, of course, play it during your deliberations. I know you have to play it a few times to hear what it says, but he’s not saying, oh my God, what are they talking about, why are they saying we did this? What is he saying? It’s over. Candid camera got us. They know about El Reno.1

After playing the tape for the second time, the prosecution argued: Hardly the words of an innocent man, I think. Listen to what he says there. They know every mother fucking thing. They got everybody. It’s over for me. I’m through. Not, my goodness, I can’t figure out what’s going on here, they’re framing us, things are falling apart, none of that. That, Ladies and Gentlemen, is the tone; that, Ladies and Gentlemen, is the choice of words of resignation. He is straight there. It’s over. They describe everything, he says. And she says everything what? What have they got? Everything. Candid camera in El Reno. They saw you getting out of the car.

You’re witnessing two things right there on that video. The obvious one that we have talked so much about. There is something more suttle [sic] here and it came from that witness stand the other day when Jasmine Battle was testifying to you. She told you that she did not cooperate with the police and didn’t tell them anything until that happened, right?

The jury subsequently convicted Harmon of first-degree felony murder.

The State moved the evidence from the guilt phase into evidence during the sentencing phase of the trial. The State also introduced evidence that the victim had consciously suffered before he died; that Petitioner had previously robbed individuals and threatened them with firearms both before and after the murder; that Petitioner had, with several other prisoners, attempted to sexually assault another prisoner (although the evidence did not show that Petitioner had sexually assaulted anyone); that Petitioner had stabbed another prisoner; and that Petitioner had committed the charged crime while on parole.

The district court described the mitigation evidence presented by Petitioner: Four of the nine witnesses who testified on behalf of Petitioner were family members. Petitioner’s cousin, Jason Murphy, testified that he and Petitioner grew up together and that Petitioner had a tough home life. Mr. Murphy told the jury that Petitioner’s mother used drugs and was not really there for him. Because of her, Petitioner saw things "a small kid shouldn’t see[,]" including domestic abuse. Petitioner spent many nights away from home in an attempt to avoid his unstable home environment. Mr. Murphy testified that Petitioner attended school about half of the time. When Petitioner was released from prison, Mr. Murphy tried to help him. Petitioner moved in with him, and Mr. Murphy continually encouraged Petitioner to get a job and quit hanging around with the wrong crowd. Mr. Murphy testified that he contacted the police when he learned of Petitioner’s involvement in Mr. Choudhury’s death. Mr. Murphy kept in contact with Petitioner while he was in jail. Petitioner regretted not taking Mr. Murphy’s advice....

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