Brown v. Sirmons
| Decision Date | 05 February 2008 |
| Docket Number | No. 06-5071.,06-5071. |
| Citation | 515 F.3d 1072 |
| Parties | Darwin Desmond BROWN, Petitioner-Appellant, v. Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James L. Hankins, Oklahoma City, Oklahoma, for Petitioner-Appellant.
Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), for Respondent-Appellee.
Before HENRY, Chief Judge, LUCERO and HARTZ, Circuit Judges.
An Oklahoma County district court jury convicted Darwin Brown of one count of first-degree murder, OKLA. STAT. tit. 21, § 701.7(A) & (B), and one count of robbery with a dangerous weapon, OKLA. STAT. tit. 21, § 801. As to the murder conviction, the jury found three aggravating circumstances, and imposed the death penalty. The jury sentenced Mr. Brown to life imprisonment for the robbery conviction. The Oklahoma Court of Criminal Appeals (OCCA) affirmed Mr. Brown's convictions and sentences on direct appeal, see Brown v. State, 989 P.2d 913 (Okla.Crim.App. 1998), and also denied his motion for postconviction relief.
Subsequently, Mr. Brown filed a 28 U.S.C. § 2254 habeas corpus petition in the United States District Court for the Northern District of Oklahoma, asserting ten grounds for relief:
(1) the use of dual juries constituted structural error;
(2) the trial court conducted improper voir dire by excusing improperly for cause six jurors whose views on the death penalty would not substantially impair their ability to consider all punishment options;
(3) the introduction of evidence arising out of Mr. Brown's warrantless arrest violated his 4th, 8th, and 14th Amendment rights;
(4) Mr. Brown's convictions and death sentence were the product of a fundamentally unfair adjudicatory process infused with prosecutorial misconduct and unfairly prejudicial photographic evidence in violation of the 8th and 14th Amendments;
(5) the trial court committed constitutional error in denying his requested jury instructions on non-capital offenses;
(6) the State introduced insufficient evidence to support the "especially heinous, atrocious, or cruel" aggravating factor in violation of his rights under the 8th and 14th Amendments, and the aggravator itself is unconstitutional;
(7) the "continuing threat" aggravating circumstance is unconstitutional and was not supported by the evidence;
(8) the "avoid arrest" aggravating circumstance was applied in an unconstitutional manner;
(9) victim impact evidence violated his 8th and 14th Amendment rights; and
(10) cumulative error.
The district court denied Mr. Brown's petition, but, pursuant to 28 U.S.C. § 2253(c)(1)(A), granted a certificate of appealability on each of his claims. Upon thorough review of the record and the applicable law, and under the standard of review imposed by Congress, we conclude that Mr. Brown is not entitled to relief on any of his claims. We therefore affirm the district court's denial of his § 2254 petition.
The following facts are largely taken from the direct appeal opinion of the OCCA. See Brown, 989 P.2d at 919-20. One of Mr. Brown's three codefendants, Michael Wilson, was employed at the Quik-Trip convenience store located at 215 North Garnett Road in Tulsa, Oklahoma, where Richard Yost also worked. Mr. Brown, Mr. Wilson, Billy Alverson, and Richard Harjo came into the store during the early morning hours of February 26, 1995, and waited for the most opportune time to accost Mr. Yost. The QuikTrip surveillance camera captured the events as they unfolded.
Mr. Yost was cleaning the windows on the coolers when all of the defendants surrounded him, attacked him, and dragged him to the back room. Mr. Alverson came back out and picked up some items that were knocked from the shelves. He also kept watch for customers. A few moments later, Mr. Alverson and Mr. Harjo walked out the front door of the store. While they were going out, Mr. Yost was yelling and screaming for help, possibly thinking that a customer had entered the store. Mr. Alverson and Mr. Harjo reentered the store and returned to the back room with Mr. Harjo carrying a black aluminum baseball bat. The surveillance camera picked up the sounds of what appeared to be the bat striking Mr. Yost. Circumstantial evidence showed that the bat struck the handcuffs on Mr. Yost's wrists, which he was holding above his head to ward off the blows.
During this time, Mr. Wilson walked from the back room, checked his hands, put on a QuikTrip jacket, got behind the counter, and tried to move the safe. While Mr. Wilson was behind the counter, several customers came in. Mr. Wilson greeted them, sold them merchandise, then said "thank you, come again" or "have a nice day." 989 P.2d at 920.
All this time, Mr. Wilson continued to try to pull the safe from underneath the counter. He took money from the cash drawer and the currency change machine. At some point after this, Mr. Wilson left the counter area, and the video went blank as the tape was taken from the recorder. Mr. Brown was never seen exiting the back room from the time that Mr. Yost was dragged into the room until the video recorder was stopped. The defendants then loaded two safes into Mr. Wilson's car using a dolly from QuikTrip.
At about 6:00 a.m., Larry Wiseman, a customer, discovered Mr. Yost's body lying on the floor in a pool of blood, milk, and beer. Duct tape bound Mr. Yost's ankles. There was one handcuff near his, body.
Detectives learned that Mr. Wilson was at the store between the hours of 4:00 am. and 6:00 a.m. Mr. Wilson failed to show up for work at the scheduled time of 3:00 p.m. on the same day. Officer Allen set up surveillance on Mr. Wilson's house, and at about 4:00 p.m., he saw Mr. Wilson get into a gray vehicle. The officers stopped the vehicle and took the four defendants into custody. The officers recovered a large number of five dollar bills from Mr. Harjo at the site of the stop. Later, at the police station, the authorities recovered money from all of the defendants except Mr. Wilson.
The officers searched Mr. Alverson's home, where they discovered the drop safe, the dolly, QuikTrip glass cleaner, money tubes, and the store surveillance videotape. The officers searched Mr. Wilson's house but found nothing of value.
The next day Mr. Wilson's mother called Officer Makinson to come to her house. Once there, the detectives found several items of evidence on the front porch, including the baseball bat, a bloody QuikTrip jacket with Mr. Yost's name on it, Mr. Wilson's Nike jacket matching the one worn in the store video, and the other cuff of the set of handcuffs.
The majority of Mr. Brown's claims were adjudicated by the OCCA. Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Mr. Brown may only obtain federal habeas relief on these claims if the OCCA's decision is "contrary to, or involved an unreasonable application of, clearly established Federal law," or is "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Maynard v. Boone, 468 F.3d 665, 669 (10th Cir.2006), cert. denied, ___ U.S.____, 127 S.Ct. 1819, 167 L.Ed.2d 328 (2007). As to the claims that the OCCA has already adjudicated on direct appeal, we apply this standard from § 2254(d).
In conducting this inquiry, we presume the factual findings of the state trial and appellate courts are correct, and we place the burden of rebutting this presumption by clear and convincing evidence on the petitioner. 28 U.S.C. § 2254(e)(1). "When reviewing a state court's application of federal law, we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly." McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). "Rather, we must be convinced that the application was also objectively unreasonable." Id.
As to claims that the OCCA did not decide on the merits and that are not procedurally barred, we may exercise our independent judgment. See LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir.1999). Because § 2254's deferential standard of review does not apply, we review the district court's legal conclusions de novo and its factual findings for clear error. Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir.2001). If the district court's factual findings depend entirely on the state court record, we independently review that record. Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir.2000).
The Oklahoma County District Court tried Mr. Brown and Mr. Wilson together, but submitted the charges to two different juries. Mr. Brown contends that the use of this dual jury approach is structural error. In the alternative, he contends that the use of dual juries prejudiced his defense in this case.
Under Oklahoma's Guidelines Governing Juries in Criminal Trials, when using this dual-jury procedure,
Both juries will be seated in the jury box and the evidence pertaining to both defendants will be presented to both juries simultaneously. Evidence admissible as to one co-defendant shall be presented to that defendant's jury only.
See Cohee v. State, 942 P.2d 211, 213 (Okla. Crim.App.1997) (quoting the Guidelines).
We consider Mr. Brown's structural error argument first, because if we find such error, it is not amenable to harmless error review. Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ().
Mr. Brown argues that the use of the dual jury approach constitutes structural error because it is experimental,...
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