Dodd v. Trammell

Citation753 F.3d 971
Decision Date16 October 2013
Docket NumberNo. 11–6225.,11–6225.
PartiesRocky Eugene DODD, Petitioner–Appellant, v. Anita TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

753 F.3d 971

Rocky Eugene DODD, Petitioner–Appellant,
Anita TRAMMELL, Warden, Oklahoma State Penitentiary,* Respondent–Appellee.

No. 11–6225.

United States Court of Appeals,
Tenth Circuit.

Oct. 16, 2013.

Held Unconstitutional

21 Okl.St.Ann.
§ 142A–8(A)

[753 F.3d 976]

Randy A. Bauman, Assistant Federal Public Defender, Western District of Oklahoma, Oklahoma City, Oklahoma, (Samuel J. Glover, Village, Oklahoma, with him on the briefs), for Petitioner–Appellant.

Seth S. Branham, Assistant Attorney General, (E. Scott Pruitt, Attorney General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for Respondent–Appellee.

Before BRISCOE, Chief Judge, KELLY and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Rocky Eugene Dodd was convicted on two counts of first-degree murder in Oklahoma state court and received two death sentences. The two victims were his next-door neighbors in an apartment complex in Edmond, Oklahoma. They were found in their apartment with their throats cut. The prosecution case was circumstantial; there were no eyewitnesses, no confession, and no fingerprint, blood, or DNA evidence linking Defendant to the killings.

Defendant applied for relief from his convictions and sentences under 28 U.S.C. § 2254 in the United States District Court

[753 F.3d 977]

for the Western District of Oklahoma. All 15 claims in his application were denied. He appeals the denial of four claims: (1) that the evidence of guilt was insufficient to sustain his convictions; (2) that the trial court denied him the rights to present a complete defense and confront witnesses when it excluded evidence that somebody else had committed the murders; (3) that prosecutorial misconduct denied him a fair trial; and (4) that testimony by the victims' relatives recommending the death penalty violated the Eighth Amendment's ban on cruel and unusual punishment. We affirm the denial of relief on the first three claims. But we reverse on the fourth. Accordingly, we remand the case to the district court with instructions to grant relief on Defendant's sentences, subject to the State's right to resentence him within a reasonable time. We deny Defendant's request for a certificate of appealability on three additional claims.


After his first convictions were set aside on appeal, Defendant was retried, convicted, and sentenced to death in Oklahoma state court for the 1994 murders of Keri Sloniker and Shane McInturff. See Dodd v. State, 100 P.3d 1017, 1024 (Okla.Crim.App.2004). The opinion of the Oklahoma Court of Criminal Appeals (OCCA) affirming the convictions and sentences described most of the key facts surrounding the murders and second trial:

On the afternoon of Monday, November 7, 1994, the bodies of Shane McInturff and his fiancé[e], Keri Sloniker, were found lying side by side, face-down in a pool of blood, in the bedroom of their Edmond apartment. [Defendant] lived in an apartment immediately next door to the victims with his wife, Shelly Dodd, and their infant daughter. [Defendant] and Shane McInturff were also co-workers at a local business. The bodies were found by Shane's father, Robert McInturff, after [Defendant] reported that Shane had not shown up for work that day. [Defendant] accompanied Robert McInturff as he gained entry into the apartment. Upon seeing the bodies, Robert McInturff called for help; emergency personnel and police arrived within minutes.

Detectives began processing the scene and interviewing witnesses. McInturff and Sloniker had not been seen by anyone since the early morning hours of Sunday, November 6, 1994. They had spent much of Saturday in the company of two friends, Brian Brown and Lisa Way. Brown testified that while at the victims' apartment on Saturday afternoon, he saw [Defendant] come over and hand McInturff a check for $70.00. McInturff later showed Brown another $70.00 check that [Defendant] had given him earlier in the day. Brown stated that the checks were payments for methamphetamine that McInturff had supplied to [Defendant].

Later that evening, Brown, Lisa Way, and the two victims went to a local pool hall after smoking marijuana and methamphetamine at the victims' apartment. Lisa Way testified that the victims kept a stash of drugs in a box under their living room couch, and that the box was under the couch when the foursome left to play pool. They arrived at the pool hall at approximately 10:30 p.m. and left at approximately 1:30 a.m. Brown dropped off the rest of the group at the victims' apartment and went home; the victims invited Way to come up and watch a movie and spend the night at their apartment, and Way accepted. Upon entering the apartment, McInturff asked Keri to roll a joint. According to Way's testimony, when Keri pulled the box from under the couch, she saw that

[753 F.3d 978]

the cache of drugs was missing. McInturff became extremely angry and loud, kicking the common wall between his and [Defendant's] apartment, and loudly accusing [Defendant] of stealing the drugs. McInturff then went next door to [Defendant's] apartment, where a heated exchange took place. Soon after McInturff returned to his apartment, [Defendant] followed and told McInturff to keep the noise down because his child was trying to sleep.

Part of the confrontation between [Defendant] and McInturff was also witnessed by Dennis Kersh, who lived in an apartment across the breezeway of the small complex. At approximately 2:00 a.m. Sunday morning, Kersh was awakened by a loud noise outside. He then heard someone yell “fuck” from the direction of the victims' apartment. From his window, Kersh saw [Defendant] run over to the victims' apartment. According to Kersh, as [Defendant] entered the apartment he yelled, “what the fuck is going on.”

According to Lisa Way, after [Defendant] left the apartment, the victims began discussing a plan to cash the two checks [Defendant] had given McInturff earlier that day, and tell [Defendant's] wife that he was still using drugs. They believed this would cause problems for [Defendant], because [Defendant's] wife (who happened to be out of town at the time) had threatened to leave [Defendant] if she ever found out he was using drugs again. Way decided not to stay the night after all, and left the victims' apartment at about 3:00 a.m. on Sunday. This was the last time anyone saw Shane McInturff and Keri Sloniker alive. Later that Sunday, Brown found McInturff's paycheck in his car. At approximately 5:00 p.m., Brown went by the victims' apartment to return the paycheck, but no one answered when he knocked on the door. [Defendant], who was sitting outside his apartment, told Brown he had not seen Shane or Keri that day.

[Defendant] told police that on the morning of Monday, November 7th, he went by the victims' apartment to give McInturff a ride to work. No one responded to his knocks, and McInturff did not report to work that day. Because the victims did not have a telephone, [Defendant] left several messages throughout the day on the answering machine of Shane McInturff's parents, expressing concern about Shane and Keri's whereabouts. [Defendant] was off work and at the apartment complex later that afternoon when Robert McInturff arrived to check on his son. The front door was locked, and Mr. McInturff first tried to enter the apartment through a front window, which the victims were known to routinely leave unlocked; however, the window was locked as well, so he obtained a key to the apartment from the landlord.

Upon entering the apartment, Mr. McInturff observed two bodies face-down on the bedroom floor. Mr. McInturff testified that he did not turn on the bedroom light and that [Defendant] remained near the front door. McInturff yelled for [Defendant] to call 911. Because of the location and position of the bodies, Mr. McInturff stated that he was unable to determine the manner in which Shane and Keri were killed. He noticed that Shane's wallet was lying open in the living room.

The earliest that any of the emergency personnel or police were able to tell the manner in which the victims had been killed was approximately 9:25 p.m. Monday evening, several hours after the discovery, when the bodies were moved

[753 F.3d 979]

for the first time by the medical examiner, who determined that the victims had their throats cut with a very sharp bladed instrument. Before that, the assumption had been that the victims were shot in the head. [Defendant] was being questioned at the police station at the time the true cause of death was revealed. In a key piece of evidence, [Defendant] spoke with Dale Ketler, his supervisor at work, at 6:41 p.m. on Monday evening—a half-hour after the bodies had been found—and informed him that Shane and Keri had been murdered and that their throats had been cut. In another key piece of evidence, at work earlier that day, [Defendant] returned a large, fixed-blade hunting knife that he had borrowed from a co-worker, Al Ames. He left the knife at Ames' workstation, with a note of thanks for getting to borrow the knife and adding that he never had a chance to use it. When news of the murders spread around the workplace on Tuesday, Ames turned the knife and the note over to police.

Investigation of the crime scene revealed trace evidence that someone may have washed blood down the victims' bathroom sink. A missing hand towel from that bathroom was found in the apartment complex dumpster, stained with blood. DNA analysis could not exclude either victim as the source of that blood. Except for the fact that Keri's purse had been dumped out, the victims' apartment was intact, with nothing of known value taken; Keri's engagement ring was still on her finger. No sign of a weapon was found, and although the victims were positioned as if they might have been bound by the wrists, no ligatures or ligature marks were discovered. No traces of blood were found on the knife [Defendant] had borrowed from Al Ames. There was no sign of a struggle...

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