Dutton v. Brown, 85-2115

• Decision Date: 11 April 1986
• Docket Number: No. 85-2115,85-2115
• Citation: 788 F.2d 669
• Parties: Lonnie Joe DUTTON, Plaintiff-Appellant, v. John N. BROWN and Attorney General of the State of Oklahoma, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 669

788 F.2d 669

Lonnie Joe DUTTON, Plaintiff-Appellant, v. John N. BROWN and Attorney General of the State of Oklahoma Defendants-Appellees.

No. 85-2115.

United States Court of Appeals Tenth Circuit.

April 11, 1986.

James W. Berry, Oklahoma City, Okl. (James W. Bill Berry & Associates, Oklahoma City, Okl., with him on briefs), for plaintiff-appellant.

David W. Lee, Asst. Atty. Gen., Chief, Criminal & Federal Divisions, Oklahoma City, Okl. (Michael C. Turpen, Atty. Gen. of Oklahoma and Tomilou Gentry Liddell, Asst. Atty. Gen., Deputy Chief, Crim. Div., Oklahoma City, Okl., with him on brief), for defendants-appellees.

Before MOORE, ANDERSON and BALDOCK, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

This is an appeal from a judgment denying appellant's petition for a writ of habeas corpus. The petitioner, Lonnie Joe Dutton, was convicted by a state jury of first-degree murder. In accordance with Oklahoma's bifurcated trial statute, the same jury subsequently sentenced him to death by lethal injection.

Petitioner raises four issues on appeal regarding the constitutional validity of his state trial: (1) whether he was denied effective assistance by his trial counsel, who allegedly failed to properly prepare for the sentencing phase of the case; (2) whether the state trial judge improperly excluded the testimony of petitioner's mother in the sentencing phase because of a sequestration order entered at trial; (3) whether a prospective juror who indicated during voir dire that it would be difficult for him to separate the possible sentencing consequences from his deliberations on the evidence of guilt was improperly excused for cause; and (4) whether the prosecutor's closing argument was improper. We answer these questions in the negative and affirm the judgment of the district court.

Petitioner's state court-appointed trial counsel, petitioner's mother and father, and an expert on criminal defense testified at an evidentiary hearing before the district court. In addition, the court requested and reviewed certain medical records pertaining to petitioner which had not been introduced in evidence in the state proceedings. After reviewing all the evidence, the court denied the petition and this appeal followed.

The prosecution's evidence at the state trial established that petitioner and Carl Morgan planned to rob a bar in Oklahoma City. While Morgan waited in a car, petitioner went into the bar and ultimately shot and killed the proprietor and wounded the proprietor's mother. According to the evidence established at the habeas hearing, the defense strategy at trial was to call petitioner to the stand to elicit testimony that Mr. Dutton had acted under the duress of Morgan, who was twenty years his senior. However, during trial, petitioner became agitated and ultimately refused to testify or to communicate with his attorney and with the court. The defense, therefore, rested without calling witnesses.

During the sentencing phase of the trial, the prosecution, in keeping with its statutory burden to establish aggravating circumstances under Okla.Stat.Ann. tit. 21 Sec. 701.10, presented evidence that Mr. Dutton had admitted involvement with Morgan in another robbery-murder and a robbery-assault. Defense counsel called one witness, through whom was introduced a previously suppressed confession containing a statement by Mr. Dutton that he was afraid of Morgan. However, when counsel attempted to call petitioner's mother, the state court, acting on its own, refused to allow her to testify. The court ruled that because the mother had attended the first phase of the trial, her testimony would violate the sequestration order entered at the beginning of trial. Although defense counsel objected to this ruling, he failed to make an offer of proof. Again, because petitioner would not respond to a call to the stand, the defense rested without his testimony. The jury sentenced petitioner to death after deliberating for approximately six hours.

I.

Petitioner contends his Sixth Amendment right to counsel was contravened because the performance of his court-appointed trial counsel fell below acceptable standards. Petitioner claims counsel failed to adequately investigate, prepare, and present a case in mitigation during the sentencing phase of the trial, and had he done so, the jury would have sentenced Mr. Dutton to life imprisonment rather than death. Mr. Dutton asserts that defense counsel failed to secure, let alone introduce, evidence that he had been hospitalized for psychiatric treatment and that the records from the hospitalization indicate he suffered from a mental impairment. He further asserts that no effort was made by defense counsel to confer with Mr. Dutton's mother and others to gain insight into his history that would have been helpful in the sentencing phase.

To support the contention that trial counsel's performance did not meet acceptable standards, Mr. Dutton called an Oklahoma public defender to testify at the habeas hearing as an expert on criminal defense. The expert expressed the opinion that trial counsel had not prepared and did not have a strategy to present evidence of mitigating circumstances to the jury. The expert contended that defense counsel should have presented evidence to show Mr. Dutton was unstable and had a history of mental problems. He concluded that trial counsel did not properly investigate and prepare for the sentencing phase because he failed to talk to petitioner's family and employer. The expert expressed the belief that defense counsel in a capital offense case must make every possible effort to contact those who knew the background and character of the accused in order to provide pertinent evidence of mitigation, and this was not done.

Despite these expert opinions, however, the inquiry before us is particularized. We must determine whether there was a breakdown in the adversarial system of justice caused by the acts or omissions of counsel and whether we can now say that absent those acts or omissions, the outcome of the punishment phase of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While it is petitioner's contention that trial counsel omitted investigation and presentation of a number of factors, the question we must answer is whether those factors would have been relevant to the issue of mitigation and would have resulted in a different outcome under the instructions given by the state court.

The jury was instructed there were eight factors it should consider in determining whether mitigating circumstances existed in the evidence. In substance, the instructions enumerated the following factors:

1. Whether the defendant has no significant history of prior criminal activity;

2. Whether the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;

3. Whether the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act;

4. Whether the murder was committed under circumstances in which the defendant believed to provide a moral justification or extenuation for his conduct;

5. Whether the defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor;

6. Whether the defendant acted under duress or the domination of another person;

7. Whether, at the time of the murder, the capacity of the defendant to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental diseases or intoxication; and

8. The age of the defendant at the time of the crime. ¹

After reviewing the record, we conclude the only mitigating circumstance available to the defense was that of duress, the sixth factor. Even if we accept petitioner's hypotheses of how trial counsel failed, we are still convinced that none of those failures resulted in the omission of facts leading to proof of the enumerated mitigating circumstances.

Recognizing Oklahoma liberally treats the admissibility of evidence to support a contention of mitigation, ² petitioner argues the circumstances of his past life should have been brought to the attention of the jury. For example, while he does not contend that he was suffering from "extreme mental or emotional disturbance," as that term was used in the instructions, he suggests that the records from two hospitalizations several years before his conviction should have been produced and explored during the punishment phase to establish his mental impairment. Yet, the court examined those records at the habeas hearings and concluded:

I find no indication in the Baptist Hospital records that Dutton is mentally ill and there is no recommendation for confinement or additional psychiatric treatment.

The medical records from South Community Hospital re[f]lect that Dutton was admitted there on more than one occasion, but the reason[s] for those admissions were varied, e.g., drug overdosages, accidents, infectious hepatit[i]s, etc. The South Community Hospital records are completely void of any indication of mental illness or disorder.

Our own review of those hospital records leads us to agree with the district court.

Petitioner's expert contended trial counsel had no strategy for the punishment phase of the trial, but the record clearly indicates the contrary. As it did during the guilt phase of the trial, the defense focused on the conduct of Morgan in an effort to demonstrate the older man had a dominating influence upon petitioner. This strategy is in keeping with the mitigating circumstance of duress defined in the instructions, and it is the only one which is factually supportable within the framework of this case.

Despite the efforts of trial counsel, the jury did not accept the defense theory. Yet, that is not an indication counsel was ineffective, ...