Howell v. Trammell
| Decision Date | 05 September 2013 |
| Docket Number | 12–6014.,Nos. 02–6324,s. 02–6324 |
| Citation | 728 F.3d 1202 |
| Parties | Michael Wayne HOWELL, Petitioner–Appellant, v. Anita TRAMMELL,Warden, Oklahoma State Penitentiary, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Steven M. Presson, Presson Law Office, Norman, OK (Robert W. Jackson, Jackson & Presson, P.C., Norman, OK, with him on the briefs in 02–6324), and Paul R. Bottei (Amy D. Harwell and Kelley J. Henry, Office of the Federal Public Defender, Middle District of Tennessee, Nashville, TN, and Steven M. Presson, Presson Law Office, Norman, OK, with him on the motion in 12–6014), Office of the Federal Public Defender, Middle District of Tennessee, Nashville, TN, for Appellant.
Jennifer J. Dickson, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the supplemental brief, and W.A. Drew Edmondson, Attorney General of Oklahoma, and Jennifer B. Miller, Assistant Attorney General, on the opening brief), Office of the Oklahoma Attorney General, Oklahoma City, OK, for Appellee.
Before LUCERO, TYMKOVICH, and GORSUCH, Circuit Judges.
This appeal considers two petitions for habeas relief arising from the murder conviction and death sentence of Michael Wayne Howell. Howell's first petition came before us in 2002. After the Supreme Court ruled that states could not impose capital punishment on persons with mental impairments, we abated that petition and allowed Howell to pursue a mental-disability challenge to his sentence in Oklahoma state court.
In 2005, a state court jury found that Howell was not mentally retarded. 1 Howell then filed a second petition, alleging seventeen grounds for relief from his mental-disability trial, in addition to the five grounds remaining from his first petition that were never considered by this court.
We now conclude that Howell is not entitled to habeas relief on either petition. The state provided him a fundamentally fair mental retardation trial, and both his guilt phase and second penalty phase were free from prejudicial error. The one cognizable error from his first penalty phase—inappropriate contact between sheriff's deputies and a juror—was corrected when Oklahoma's appellate court reversed Howell's first death sentence and remanded for a new penalty trial, which also resulted in a sentence of death. In sum, there is no ground on which we can disturb Howell's conviction or sentence.
Therefore, exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we affirm the district court's denial of Howell's first habeas petition, and we deny a certificate of appealability (COA) as to Howell's second petition in case number 12–6014 and dismiss that appeal.
Howell and his girlfriend, Mona Lisa Watson, commenced a crime spree on November 2, 1987, that led to the deaths of two people. It began in a Shelby County, Tennessee, 7–Eleven market. As Watson was on her way out of the store with a six-pack of beer, Howell pulled out a silver .38 revolver and shot the store clerk, Alvin Kennedy, in the head, killing him. Howell and Watson then left the store and drove off.
The two traveled west to Oklahoma. While driving, they drank beer and used cocaine. When they reached Del City, Oklahoma, Howell decided to exit the highway and stop at a convenience store, where he purchased lighter fluid. According to Watson's preliminary hearing testimony, their truck was low on gas, so the two were looking for another vehicle. Driving around town, they spotted a woman, later identified as United States Air Force Sergeant Charlene Calhoun, standing outside of an apartment complex next to her 1987 Toyota Tercel. Howell stopped his truck and approached her. He then shot Calhoun in the face.2
Watson helped Howell load Calhoun's body into the Tercel. The two then poured the lighter fluid into the truck and set it on fire before driving off with the body in Calhoun's car. A few miles down the highway, in a deserted area, they exited. After driving down a dirt road, they found what looked to be an abandoned trailer, and there they dumped the body. Back in the Tercel, Howell and Watson returned to Tennessee before continuing south to Florida.
The Del City police found the abandoned, burnt truck by the apartment complex and learned that the truck, owned by the Lynn Whitsett Corporation of Memphis, Tennessee (Howell's former employer), had been reported stolen. The police also found blood by the truck and began searching for Calhoun. Finally, on November 17, they found her badly decomposed body where Howell had left it—by a deserted trailer over four miles from the apartment complex.
About two weeks later, on November 29, police officers in Panama City, Florida, spotted a 1987 Toyota Tercel with Tennessee plates that did not match the vehicle. When the officers tried to stop the car, Howell—sitting in the passenger seat—pulled out his revolver and fired at them. The police fired back, and Watson, in the driver's seat, sped off. The police gave chase until Watson and Howell, who was shot in the leg and out of bullets, finally surrendered. The police later confirmed that the revolver Howell used during the car chase was the same silver .38 that he had used to kill Kennedy and Calhoun. The police also confirmed that the Tercel belonged to Calhoun.
Howell and Watson stood trial in Oklahoma state court for the murder of Charlene Calhoun in 1988. They both were convicted. Howell received a sentence of death, and Watson received life in prison. Tennessee then tried Howell for the murder of Alvin Kennedy in 1989; Howell was convicted and again sentenced to death. This appeal concerns alleged errors in the Oklahoma trial and in that case's subsequent proceedings.3
Howell and Watson were tried together before a jury in Oklahoma state court for the first-degree murder of Sgt. Calhoun. The guilt phase began on November 28, 1988, and concluded on December 6, 1988, when the jury rendered a guilty verdict as to both Howell and Watson. At that point, because the prosecution was seeking a death sentence, the trial court sequestered the jury in a local motel for the penalty phase. After two more days of hearing evidence and argument, the jury recommended a sentence of death for Howell and life in prison for Watson. The court followed both recommendations.
A few months after the trial, Howell's defense attorneys learned that one of the jurors, Diana Smith, claimed to have engaged in inappropriate conduct with two sheriff's deputies during the jury sequestration at the penalty phase. Juror Smith alleged that she had visited the deputies' motel room at night and discussed the case with them. She also alleged intimate contact with one of the deputies.
Based on these allegations and other purported errors during both phases of the trial, Howell appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals (OCCA).
Howell alleged numerous errors in this appeal, including juror misconduct; the trial court's admission of Watson's preliminary hearing transcript; its admission without a limiting instruction of testimony from Watson's former attorneys, whom the prosecution called to rebut Watson's claim that the State had coerced her preliminary hearing testimony; and the failure of one juror to reveal his employment history with the CIA during his voir dire. We discuss these allegations in more detail below.
The OCCA affirmed the guilty verdict, finding no prejudicial error. See Howell v. State, 882 P.2d 1086 (Okla.Crim.App.1994)( Howell I ). First, the OCCA concluded that the admission of Watson's preliminary hearing transcript did not violate the Confrontation Clause, in part because the preliminary hearing testimony “was given in circumstances closely approximating those of a typical trial,” thereby satisfying the criteria articulated in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), “to adequately safeguard [Howell]'s right of confrontation.” Howell I, 882 P.2d at 1091 (citing Green, 399 U.S. at 165, 90 S.Ct. 1930). Further, the court observed that “cross examination at a preliminary hearing can ... satisfy the confrontation requirement.” Id. (citing Ohio v. Roberts, 448 U.S. 56, 72, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)).
Second, Howell claimed that the trial court had “an affirmative duty to instruct the jury sua sponte that [the testimony of Watson's former attorneys] could be used only for impeachment purposes and not for substantive purposes.” Id. at 1094. The OCCA rejected that claim, saying the trial court's failure to give a limiting instruction sua sponte “does not automatically constitute reversible error,” and that the failure did not rise to the level of “plain error” in Howell's case. Id.
Third, citing a prior OCCA decision, Tibbetts v. State, 698 P.2d 942 (Okla.Crim.App.1985), Howell argued that a juror's “deliberate” withholding of his full employment history was inconsistent with fundamental fairness. Howell I, 882 P.2d at 1089. The OCCA summarily rejected this argument, saying only, “[Howell]'s reliance on Tibbetts is misplaced, and the proposition is denied.” Id.
But based on the alleged juror misconduct during the penalty phase, the OCCA reversed Howell's death sentence and remanded for resentencing. The court described the alleged misconduct in some detail, including that the juror met with the deputies in their motel room during the penalty phase, that they discussed her guilt-stage deliberations, that they drank alcoholic beverages together, and that, on at least one night, they engaged in “some form of sexual activity.” Id. at 1094. Acknowledging the “ impermissive, unauthorized and improper contacts by the deputies with” the juror, the court concluded that it “must remand this case for resentencing.” Id. at 1095 (emphasis in original).
A second penalty phase trial was held in 1996.4 The jury found...
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