Coleman v. Brown

• Decision Date: 30 September 1986
• Docket Number: No. 85-1094,85-1094
• Citation: 802 F.2d 1227
• Parties: Charles Troy COLEMAN, Petitioner-Appellant, v. John N. BROWN, Warden, Oklahoma State Penitentiary at McAlester, Oklahoma; Larry Meachum, Director, Department of Corrections, State of Oklahoma; and the Attorney General of the State of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1227

802 F.2d 1227

Charles Troy COLEMAN, Petitioner-Appellant, v. John N. BROWN, Warden, Oklahoma State Penitentiary at

McAlester, Oklahoma; Larry Meachum, Director, Department of

Corrections, State of Oklahoma; and the Attorney General of

the State of Oklahoma, Respondents-Appellees.

No. 85-1094.

United States Court of Appeals, Tenth Circuit.

Sept. 30, 1986.

Edward L. Munson, Tahlequah, Okl., for petitioner-appellant.

David W. Lee, Asst. Atty. Gen., Chief, Criminal & Federal Divisions (Michael C. Turpen, Atty. Gen. of Oklahoma, Robert A. Nance, Deputy Chief, Federal Div., Hugh A. Manning, Asst. Atty. Gen., and Susan Stewart Dickerson, Asst. Atty. Gen., with him on the briefs), Oklahoma City, Okl. for respondents-appellees.

Before HOLLOWAY, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

Petitioner, Charles Troy Coleman, appeals from the district court's denial of his application for a writ of habeas corpus and his motions for a stay of execution and an evidentiary hearing.

The issues on appeal are (1) whether prospective jurors for Coleman's trial were excused for cause improperly because of their opposition to the death penalty; (2) whether the exclusion of prospective jurors opposed to the death penalty from the guilt stage of the trial denied Coleman a jury representing a cross-section of the community and resulted in a conviction-prone jury; (3) whether Coleman was denied effective assistance of counsel in the sentencing stage of his trial, the guilt stage of his trial, or in the trial as a whole; (4) whether Coleman had a constitutional right to the appointment of an investigator to aid his attorney; (5) whether the prosecutor's remarks in closing arguments in both stages of the trial denied Coleman a fair trial; and (6) whether the district court erred in not granting Coleman an evidentiary hearing. We affirm.

Coleman was convicted of first-degree murder and sentenced to death by an Oklahoma jury on October 12, 1979. Evidence at trial showed that while Coleman was burglarizing the home of Dale and Delthea Warren, John and Roxie Seward walked in on him. John Seward was the brother of Delthea Warren. Coleman shot and killed the Sewards with a .28 gauge shotgun, apparently after he took them into the basement. Although there were no witnesses to the murders, the circumstantial evidence was overwhelming. There was evidence that this particular gauge shotgun was very rare and that Coleman owned one. Several hours after the murders, Coleman was stopped for a traffic violation and found in possession of Mrs. Seward's wallet. The police discovered in Coleman's truck sixty-four pounds of meat marked "Hogle, Not for Sale." Lon Hogle testified that he had given this meat to the Warrens. The police also found Mrs. Warren's watch beneath the back seat of the police car. Coleman's wife testified that Coleman gave her this watch while they were in the back seat of that vehicle. There was also testimony placing Coleman's truck at the Warren's home at the estimated time of the murder. None of this evidence was refuted.

The Oklahoma Court of Criminal Appeals affirmed Coleman's conviction and sentence. Coleman v. State, 668 P.2d 1126 (Okla.Crim.App.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 986, 79 L.Ed.2d 222 (1984). After the United States Supreme Court denied certiorari, Coleman filed an application for post-conviction relief in the state district court in Muskogee County. See Okla.Stat. tit. 22, Secs. 1080-1088. That court denied the application, and the Oklahoma Court of Criminal Appeals affirmed. Coleman v. State, 693 P.2d 4 (Okla.Crim.App.1984).

Coleman then filed in federal district court these applications for a writ of habeas corpus, an evidentiary hearing, and a stay of execution. The district court denied each of Coleman's applications. ¹ This court granted a stay of execution, 753 F.2d 832, and has given full consideration to the appeal after briefing and oral argument.

I

Coleman first contends that the trial court erred in excluding four jurors for cause under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon the Supreme Court indicated that prospective jurors in a capital case could be excluded if they made it

"unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. "

Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21 (original emphasis). Many lower courts treated this as an absolute standard which had to be met fully before jurors could be excluded on the grounds of their scruples against the death penalty. But in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court rejected this restricted view of exclusion and adopted language from Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), as the exclusive standard:

"[A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court."

Id. 469 U.S. at 420, 105 S.Ct. at 850 (quoting Adams, 448 U.S. at 45, 100 S.Ct. at 2526 and adding emphasis); accord Darden v. Wainwright, --- U.S. ----, ----, 106 S.Ct. 2464, 2468, 91 L.Ed.2d 144 (1986). ²

To be excluded from service, therefore, it is not necessary that prospective jurors would vote automatically against the death penalty or that their opinions on capital punishment would prevent them from rendering an impartial verdict. If a prospective juror conscientiously disapproves of the death penalty, that juror can be eliminated if any of that person's jury duties would be "substantially impaired." We must apply this standard to petitioner's case.

Of the four prospective jurors the trial court excused, the most questionable voir dire involved Larry Halpain:

"Court: [I]f you were sitting on a jury and in a case where the law and the evidence warranted and you were told it was a proper case to consider the death penalty, could you, if you felt it was proper, agree to a death penalty that did not [sic] without doing violence to your own conscience?"

Juror: No, I don't think I could.

Court: In other words, you're telling me that if you find beyond a reasonable doubt that the Defendant was guilty of Murder in the First Degree and if under the law and the evidence and all the circumstances you could consider a death penalty, you tell me that you have such reservations that you just simply could under no circumstances impose a death penalty upon another human being?

Juror: I don't think I could, no."

R. VI, 23. Halpain's responses sufficiently demonstrated that his beliefs about capital punishment would "substantially impair" his ability to serve as a juror. ³ His answers were markedly similar to those of the juror in Witt, whom the Court found justifiably excluded for cause. Witt, 469 U.S. at 412, 105 S.Ct. at 846, 850. In effect Halpain stated that he did not believe he would be able to apply the law as instructed.

Notably, the Witt Court ceded a great deal of authority to state trial judges to determine whether a juror should be excluded. A trial judge's finding that a prospective juror is biased is a "factual finding." Id. at 418, 105 S.Ct. at 849-50; Darden, --- U.S. at ----, 106 S.Ct. at 2468. Accordingly, a federal court, when reviewing a state decision pursuant to a petition for habeas corpus, must accord such findings a "presumption of correctness." 28 U.S.C. Sec. 2254(d). We see no grounds for overturning the trial judge's decision in this case.

II

Coleman claims that the exclusion of jurors opposed to the death penalty from the guilt/innocence phase of his trial violated his right to a jury comprised of a fair cross-section of the community, and to a fair and impartial jury, in violation respectively of the Sixth and Fourteenth Amendments. The Supreme Court's recent decision in Lockhart v. McCree, --- U.S. ----, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), forecloses these arguments.

III

Coleman next claims that he was denied his Sixth Amendment right to effective assistance of counsel. He asserts that his representation was inadequate in both the guilt and sentencing stages of his trial.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court adopted a two-part test for determining whether a criminal defendant has been denied reasonably effective counsel. The defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. at 2064. The defendant must meet both of these requirements to succeed on an ineffective assistance of counsel claim. Id. A claim may thus be disposed of by a failure to show either of them. Id. at 697, 104 S.Ct. at 2069.

A

Coleman raises several issues concerning the adequacy of his representation during the guilt stage of his trial; the essence of the claim is inadequate time to prepare. Specifically, Coleman asserts as error his counsel's failure to (1) investigate and present alibi evidence; (2) submit written briefs on particular motions; (3) prepare adequately for cross-examination of a particular witness; and (4) request an instruction that Coleman's refusal to testify should not be used against him. Although several of these claims are based on statements taken out of context, we have reviewed each of the...