Harmon v. Sharp
Decision Date | 29 August 2019 |
Docket Number | No. 16-6360,16-6360 |
Citation | 936 F.3d 1044 |
Parties | Marlon Deon HARMON, Petitioner - Appellant, v. Tommy SHARP, Warden, Oklahoma State Penitentiary, Respondent - Appellee. |
Court | U.S. Court of Appeals — Tenth Circuit |
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.
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.
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:
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).
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:
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 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:
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:
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