Dutton v. Brown

• Decision Date: 19 February 1987
• Docket Number: No. 85-2115,85-2115
• Citation: 812 F.2d 593
• Parties: Lonnie Joe DUTTON, Petitioner-Appellant, v. John N. BROWN and the Attorney General of the State of Oklahoma, Respondents-Appellees. Oklahoma Criminal Defense Lawyers Association, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 593

812 F.2d 593

Lonnie Joe DUTTON, Petitioner-Appellant, v. John N. BROWN and the Attorney General of the State of

Oklahoma, Respondents-Appellees.

Oklahoma Criminal Defense Lawyers Association, Amicus Curiae.

No. 85-2115.

United States Court of Appeals, Tenth Circuit.

Feb. 19, 1987.

James W. Berry of James W. "Bill" Berry and Associates, Oklahoma City, Okl. (Julius L. Chambers and John Charles Boger, New York City, with him on the Supplemental Brief of petitioner-appellant on Rehearing En Banc), for petitioner-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 respondents-appellees.

Mary E. Bane, Oklahoma City, Okl., filed an amicus curiae brief for the Oklahoma Criminal Defense Lawyers Ass'n.

Before BARRETT, McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA and BALDOCK, Circuit Judges.

ON REHEARING EN BANC

BALDOCK, Circuit Judge.

Lonnie Joe Dutton (petitioner) filed a petition for a writ of habeas corpus in the United States District Court for the District of Oklahoma after exhausting all his state remedies. He contends that his conviction for first degree murder and death sentence violated various provisions of the federal Constitution. The district court denied his petition, and a panel of this court affirmed that denial. 788 F.2d 669 (10th Cir.1986). That decision was vacated when the majority of the active judges of the circuit voted to have the appeal determined by an en banc panel. We reverse the district court and direct the issuance of a writ of habeas corpus.

I.

Petitioner was arrested and charged with the January 1977 murder of Carl Eugene Gray. The evidence presented 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, Gray, and severely wounded Gray's mother.

Petitioner was tried in the District Court of Oklahoma County, Oklahoma. At the beginning of the trial, petitioner's attorney requested the sequestration of witnesses. Responding to this request, the trial judge cautioned that "anyone who expects to testify in this case remain outside the courtroom subject to call. You're admonished not to discuss your testimony, one with the other. If you remain here, you may not be allowed to testify. Counsel is on notice, look after your own witnesses." Record vol. I at 208. Jean Dutton (Mrs. Dutton), petitioner's mother, attended the trial despite this caution.

Dutton was convicted of murder in the first degree. Oklahoma law provides for a separate sentencing proceeding whereby the same jury which considered guilt determines whether a defendant should be sentenced to death or life imprisonment. Okla.Stat. tit. 21, Sec. 701.10 (West 1983). ¹ During this sentencing phase, Mrs. Dutton was called to testify on behalf of the defense. The trial judge, sua sponte, prohibited Mrs. Dutton from testifying because she had attended the trial. Thereafter, the defense rested, and petitioner was sentenced to death by lethal injection.

Petitioner's conviction and sentence were affirmed by the Oklahoma Court of Criminal Appeals and a petition for writ of certiorari to the United States Supreme Court was denied. Dutton v. State, 674 P.2d 1134 (Okla.Crim.App.1984), cert. denied, 467 U.S. 1256, 104 S.Ct. 3548, 82 L.Ed.2d 850 (1984). He then sought relief pursuant to Oklahoma's Post-Conviction Procedure Act, Okla.Stat.Ann. tit. 22, Sec. 1081 (West 1986), in the District Court of Oklahoma County, Oklahoma, which was denied. Post-conviction relief also was denied by the Oklahoma Court of Criminal Appeals, Record vol. I at 19, and the United States Supreme Court again denied certiorari. Dutton v. Oklahoma, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). The present federal habeas corpus proceeding was then instituted by Dutton.

The issues before this court are (1) whether the state trial court improperly excused a venireman because of his views on the death penalty; (2) whether the prosecutor's closing argument was improper; (3) whether petitioner was denied effective assistance of counsel at his trial; and (4) whether the state trial judge improperly excluded the testimony of petitioner's mother in the sentencing proceeding. We address these issues seriatim.

II.

A. Exclusion of Venireman ²

Petitioner argues that a venireman was improperly excused for cause because he expressed reservations about the death penalty. The record indicates, however, the prospective juror stated that his consideration of the evidence of guilt would be colored by the possibility he might be called upon to impose the death penalty. Thus, he was excused, not because he would not impose the ultimate penalty, but because he might not be able to base a verdict of guilt or innocence solely upon the evidence.

The crucial inquiry is whether the venireman could follow the court's instructions and obey his oath, notwithstanding his views on capital punishment. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). While a prospective juror cannot be excused simply for expressing reservations about the death penalty, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), such is not this case. This venireman was excused because he candidly admitted that he would not be able to consider the question of guilt separate from the death penalty. Consequently he raised doubts whether he could follow the court's instructions and impartially determine the basic issue. His excusal was not prejudicial.

B. Prosecutor's Remarks

Petitioner argues the prosecutor made improper remarks in his closing argument to the jury. In response to petitioner's closing argument, the prosecutor said:

First of all, [Defense Counsel] argues that the final decision is yours, and of course, to some degree it is. But you are, as I am, as Judge Theus is, as all the courts are, part of the process. We are not functioning as individuals. I am not here as Andy Coats. I am here as the District Attorney.

And you are not here in your individual capacities. You are here as the jury. And Judge Theus is not our good friend, Harold, off the Bench. He is his Honor, Judge Harold Theus, when he is in this Courtroom.

And we are all part of the law and it is the law that makes us work. So it has to be in that attitude, in that frame of mind, that you approach the problem.

He challenges these remarks on the basis of the Supreme Court's ruling in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell, the Court held it "constitutionally impermissible" for a prosecutor to suggest to a jury that the ultimate responsibility for the imposition of the death penalty did not rest with the jury but with the appellate court.

We begin by noting that petitioner's counsel did not object to these remarks at trial, and they are challenged for the first time in this habeas appeal. Under Oklahoma law, error of this nature must be raised by objection at trial, or it is waived. Smith v. State, 727 P.2d 1366 (Okla.Crim.App.1986). Additionally, failure to raise the issue on direct appeal bars it from being raised at a later time. Cartwright v. State, 708 P.2d 592, 593 (Okla.Crim.App.1985), cert. denied, --- U.S. ----, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986). A preliminary issue, therefore, is whether petitioner defaulted his constitutional claim by failing to raise it at trial and pursue it on appeal.

A federal habeas court evaluates the failure to preserve a claim at trial and appellate defaults ³ under the same standard. Smith v. Murray, --- U.S. ----, 106 S.Ct. 2661, 2665, 91 L.Ed.2d 434 (1986). In order to obtain review of a defaulted constitutional claim, a federal habeas petitioner must show cause for the procedural default and prejudice attributable thereto. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977); Murray v. Carrier, --- U.S. ----, 106 S.Ct. 2639, 2644, 91 L.Ed.2d 397 (1986). We believe cause existed for the procedural default because trial counsel, at the time of trial in 1979, could not have known that the prosecutor's remarks might have raised constitutional questions. The law petitioner relies on did not become established until the Caldwell decision in 1985. We cannot expect trial counsel "to exercise extraordinary vision or to object to every aspect of the proceeding in the hope that some aspect might mask a latent constitutional claim." Engle v. Isaac, 456 U.S. 107, 113, 102 S.Ct. 1558, 1564, 71 L.Ed.2d 783 (1982). In Reed v. Ross, 468 U.S. 1, 17, 104 S.Ct. 2901, 2911, 82 L.Ed.2d 1 (1984), the Court ruled that cause exists for defense counsel's failure to raise an issue when a subsequent Supreme Court decision articulates a constitutional principle that had not been recognized previously. Consequently, the failure of counsel to raise a constitutional issue reasonably unknown to him satisfied the "cause" requirement. Id. at 14, 104 S.Ct. at 2909. Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986) (reaching the same conclusion in a case also involving a Caldwell defense). We also conclude that the alleged error would be prejudicial, if valid, and therefore turn to the merits of the issue.

It is clear that, when taken in context, the statement of the prosecutor was not constitutionally impermissible. The statement was not designed to, nor did it, suggest to the jury that it was not ultimately responsible for deciding Mr. Dutton's punishment. The prosecutor merely underscored that the jury was part of the whole system of justice, and within that system it had a grave responsibility. Indeed, the tenor of the remainder of the closing was that the crucial determination of punishment was the sole function of the jury....