Brown v. Sirmons
| Decision Date | 14 February 2006 |
| Docket Number | No. 00-CV-91-TCK-SAJ.,00-CV-91-TCK-SAJ. |
| Citation | 415 F.Supp.2d 1268 |
| Parties | Darwin BROWN, Petitioner v. Marty SIRMONS, Warden, Oklahoma State Penitentiary, |
| Court | U.S. District Court — Northern District of Oklahoma |
James L. Hankins, Hankins Law Ofc, Enid, OK, Stephen James Greubel, Tulsa, OK, for Petitioner.
Jennifer Barnes Miller, Office of the Attorney General, State of Oklahoma, Oklahoma City, OK, for Respondent.
This matter comes before the Court on a Petition for Writ of Habeas Corpus (Dkt.# 12) filed by Oklahoma death row inmate Darwin Demond Brown, pursuant to 28 U.S.C. § 2254. Petitioner, who appears through counsel, challenges his conviction and sentencing in Tulsa County District Court Case No. CF-95-1024. Respondent Gary Gibson filed a response to the Petition denying its allegations (Dkt.# 14), and Petitioner filed a Reply (Dkt.# 17). For the reasons discussed below, the Court finds the Petition should be denied.
As a preliminary matter the Court notes that Marty Sirmons is now the Warden at Oklahoma State Penitentiary. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, the Court finds that Marty Sirmons is the proper substituted Respondent and the Court Clerk shall be directed to note such substitution on the record.
The Court has reviewed: (1) the Petition for Writ of Habeas Corpus, the Response to the Petition, and the Reply to the Response; (2) transcripts of the motion hearing held on October 30, 1996, motion hearing held on January 27, 1997, motion hearing held on January 30, 1997, motion hearing held on February 3, 1997, jury pool proceedings held on February 3, 1997 in front of Brown jury pool only, voir dire of Brown jury on February 6-7, 1997 (three volumes), motion hearing held on February 10, 1997, and hearing held in chambers on February 11, 1997, after opening statement in Wilson case; (3) transcript of the first stage of jury trial proceedings, held February 11-14, 1997 (five volumes); (4) transcript of the second stage of the jury trial proceedings held on February 18-20, 1997 (five volumes); (5) all documents and exhibits (photographs of certain items of physical evidence submitted in lieu of actual items) admitted in jury trial proceedings, including one audio tape of Darwin Brown's statement to police and two video tape exhibits; (6) transcript of the sentencing proceedings held on April 9, 1997; (7) Original Record (O.R.) in Tulsa County Case No. CF-95-1024, Volumes I, II and III; and (8) all other records before the Oklahoma Court of Criminal Appeals which were transmitted to this Court and certified by the parties.
Petitioner and three other co-defendants were convicted for the February, 1995, brutal killing of QuikTrip employee, Richard K. Yost. Pursuant to 28 U.S.C § 2254(e)(1), the historical facts as found by the state court are presumed correct. In Petitioner's state court direct appeal, the Oklahoma Court of Criminal Appeals adopted the following facts.1
Brown's codefendant Michael Wilson was employed at the QuikTrip convenience store located at 215 North Garnett Road in Tulsa, Oklahoma, where Richard Yost also worked. Brown and the codefendants came into the store during the early morning hours of February 26 and waited for the most opportune time to accost Yost. The QuikTrip surveillance camera captured the events as they unfolded. The video of the events is quite telling.
Yost was cleaning the windows on the coolers with all of the defendants surrounding him. As Yost was walking near a passage-way to the back room, all four defendants attacked him and dragged him to the back room. One of the defendants, Billy 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, Alverson and Richard Harjo walked out the front door of the store. While they were going out, Yost was yelling and screaming for help, possibly thinking that a customer had entered the store. Alverson and Harjo re-entered the store with Harjo carrying a black aluminum baseball bat. He carried the bat to where Yost had been taken. The surveillance camera picked up the sounds of the bat striking Yost. Circumstantial evidence showed that the baseball bat struck the handcuffs on Yost's wrists which Yost was holding above his head to ward off the blows. As the blows were being struck, 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 Wilson was behind the counter, several customers came in. Wilson greeted them with a friendly greeting, sold them merchandise, then said "thank you, come again" or "have a nice day."
All this time Wilson continued to try and pull the safe from underneath the counter. He took money from the cash drawer and pulled money out of the currency change machine. At some point after this, Wilson left the counter area and the video went blank as the video was taken from the recorder. Brown was never seen exiting the back room between the times Yost was dragged into the room until the video recorder was stopped. The defendants then loaded two safes into Wilson's car using a dolly from QuikTrip.
Yost's body was discovered by customer Larry Wiseman at about 6:00 a.m. Yost was laying on the floor in a pool of blood, milk and beer. Yost's ankles were taped together with duct tape. One handcuff was found near Yost's body. The other cuff was missing from the scene. Detectives learned that Wilson was at the store between the hours of 4:00 a.m. and 6:00 a.m.
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 Wilson's house, and at about 4:00 p.m. he spotted Wilson get into a gray vehicle. The vehicle was stopped. All four defendants were taken into custody. A large number of five dollar bills was recovered from Harjo at the site of the stop. Later, at the police station, money was recovered from all of the defendants except Wilson.
Officers searched Alverson's place of abode where they discovered the drop safe, the dolly, QuikTrip glass cleaner, money tubes and the store surveillance videotape. A search was conducted of Wilson's house but nothing of value was discovered. The next day 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 Yost's name on it, Wilson's Nike jacket matching the one worn in the store video and the other cuff of the set of handcuffs.
Brown v. Oklahoma, 989 P.2d 913, 919-20 (Okla. Crim.App.1998).
Petitioner, Darwin Edmond Brown, was convicted following a jury trial in the District Court of Tulsa County, Oklahoma, Case No. CF-95-1024, of Murder in the First Degree (malice aforethought and felony murder) and Robbery With a Dangerous Weapon. His trial was held jointly with co-defendant Michael Wilson's trial, in front of separate juries. Petitioner was represented at trial by attorney Allen Smallwood. At the conclusion of the sentencing stage, Petitioner's jury found three aggravating circumstances: (1) the murder was especially heinous, atrocious or cruel; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (3) Brown would constitute a continuing threat to society. Petitioner was, on April 9, 1997, sentenced to death on the murder conviction and sentenced to life imprisonment on the robbery conviction.
Petitioner filed a direct appeal of his convictions and sentences to the Oklahoma Court of Criminal Appeals ("OCCA") in case No. F-97-493. The OCCA rejected Petitioner's alleged errors by affirming the conviction and sentence on the murder count. The judgment and sentence for robbery with a dangerous weapon was reversed and remanded to the district court for dismissal. The OCCA denied a rehearing on February 22, 1999. Brown, 989 P.2d at 913. Petitioner did not seek certiorari review from the United States Supreme Court.
Petitioner sought post-conviction relief from the Oklahoma Court of Criminal Appeals in case No. PC-98-1251, but all requested relief was denied on November 9, 1999, in an unpublished opinion. (Dkt.# 12, Exh. B) (Opinion Denying Post-Conviction Relief).
Petitioner initiated the instant habeas corpus proceedings on February 2, 2000. He claims constitutional violations arising from the trial court's unauthorized use of dual juries, a warrantless arrest without probable cause, the trial court's refusal to instruct on second degree murder, errors in the trial court's dismissal of certain veniremen for cause, prosecutorial misconduct, insufficient evidence to support the heinous, atrocious and cruel aggravator, unconstitutional application of continuing threat and "avoid arrest" aggravators, improper victim impact evidence, and cumulative errors.
Federal habeas corpus relief is generally not available to a state prisoner unless all state court remedies have been exhausted prior to the filing of the petition. 28 U.S.C. § 2254(b). Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir.1994). See also Wainwright v. Sykes, 433 U.S. 72, 80-81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (). In every habeas case, the court must first consider exhaustion. Harris, 15 F.3d at 1554. "[I]n a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Supreme Court has long held that a federal habeas petitioner's claims should be dismissed if the petitioner has not exhausted...
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