Mitchell v. Gibson, No. 99-6364

• Decision Date: 13 August 2001
• Docket Number: No. 99-6364
• Citation: 262 F.3d 1036
• Parties: (10th Cir. 2001) ALFRED BRIAN MITCHELL, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1036

262 F.3d 1036 (10th Cir. 2001)

ALFRED BRIAN MITCHELL, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 99-6364

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 13, 2001

Appeal from the United States District Court for the Western District of Oklahoma.(D.C. No. 97-CV-283-T) [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Randy A. Bauman, Assistant Federal Public Defender, Death Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for Petitioner/Appellant.

William L. Humes, Assistant Attorney General, Oklahoma City, Oklahoma (W. A. Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, Oklahoma, with him on the brief), for Respondent/Appellee.

Before SEYMOUR, LUCERO and MURPHY, Circuit Judges.

SEYMOUR, Circuit Judge.

Alfred Brian Mitchell, a state prisoner sentenced to death, appeals the disposition of his petition for habeas corpus relief under 28 U.S.C. 2254. For the reasons set out below, we affirm the district court's ruling that Mr. Mitchell's conviction was not constitutionally infirm, but we reverse the district court's decision upholding the imposition of the death penalty and grant Mr. Mitchell's petition for habeas relief on his claim that the sentence violated his right to due process.

I Background

The facts underlying Mr. Mitchell's conviction and sentence are set out in the opinion disposing of his direct criminal appeal, see Mitchell v. Oklahoma, 884 P.2d 1186, 1191-92 (Okla. Crim. App. 1994), and will be recited in this opinion in detail when necessary to our consideration of the individual issues before us. To begin, we relate only an overview of the trial evidence.

Mr. Mitchell was adjudicated a juvenile offender for the rape of a twelve-year-old neighborhood girl and was incarcerated in a juvenile correctional facility for approximately three years prior to the events at issue here. He was released on December 23, 1990, when he reached his eighteenth birthday, and he returned to his family residence.

The victim in this case, Elaine Scott, was a college student who worked and volunteered at the Pilot Recreation Community Center. The Center served disadvantaged youth and was located near Mr. Mitchell's home in Oklahoma City. On January 7, 1991, the day of the crime, Ms. Scott was working at the Center with its director, Carolyn Ross. Ms. Ross took her lunch break at about 1:35 p.m. and left Ms. Scott alone in the Center. As Ms. Ross was leaving, she met Mr. Mitchell by the Center's door and spoke with him briefly. She testified that Mr. Mitchell was wearing a rust or reddish colored stocking cap. When Ms. Ross returned to the Center at 2:50 that afternoon, she noticed that Ms. Scott's car was gone and that the Center was not locked properly. After entering the Center, Ms. Ross discovered Ms. Scott's nearly nude body on the floor of the inner office, lying face down in a pool of blood. The victim had received a fatal injury to the back of the head caused by four or five blows with a wooden coat rack. In addition she had sustained blows from a metal golf club, puncture wounds from a drawing compass, and several blows to her face from a fist.

Allen Biggs, a roofer employed to fix a leaking roof in the Center's gym, went by the Center at about 1:40 to 1:45 to check on his work crew. He saw the victim's car in the parking lot with the engine running, but did not notice anyone in the car. As Mr. Biggs walked up to the door of the Center, Mr. Mitchell was standing in the doorway. He told Mr. Biggs that the Center was closed because the bathrooms were being cleaned, and that a crew had come by and put a trash can under the leak. Mr. Biggs had the impression that Mr. Mitchell did not want him to enter the building, and he did not do so. A member of the roofing crew dispatched by Mr. Biggs stated that when the crew arrived at the Center at about 2:20, there were no cars in the parking lot and the building was empty. The crew took cans into the gym to place under the leaks, passing by the closed door to the office. They spent about forty minutes cleaning up the gym floor.

A witness who lived across from the Center saw Ms. Scott's car leave the parking lot between 1 and 2 p.m. the day of the crime. When first interviewed, the witness stated that she saw a black man wearing a red stocking cap alone in the car, although at trial she testified that the hat was green. Andre Wilson, an acquaintance of Mr. Mitchell who lived in the neighborhood, saw Mr. Mitchell the afternoon of the crime about a half-block away from the victim's car, which had been parked with two wheels up on the curb. Mr. Mitchell, who was walking away from the car, said he was wet and cold and did not want to talk. Another neighborhood resident, William Tuimalu, also saw Mr. Mitchell late that afternoon. Mr. Mitchell said that he had been at the Center earlier but left because a couple of guys were giving the girl working there a hard time. Mr. Tuimalu told the police to talk to Mr. Mitchell.

The police went to Mr. Mitchell's home and he agreed to help them find the two men he stated were at the Center with the victim when he left. The police at that point considered him a witness. They took him back to the Center to show the crime scene officers where the men might have left fingerprints and then drove him to several homeless shelters looking for the men. When this search was unsuccessful, the police took Mr. Mitchell home. He agreed to go to the police station the next morning to give a statement and help with identification drawings. He also gave the police the tennis shoes he had been wearing that afternoon.

The next morning, Mr. Mitchell called the police to arrange for transportation to the station, where he was interviewed for several hours and agreed to give body samples. Most of the interview was videotaped and presented to the jury. The officers conducting the interview were given updates on the criminal investigation as it proceeded, and they began to consider Mr. Mitchell a suspect when they learned that the tennis shoes he had given them the night before had tested positive for blood and that the distinctive pattern on the soles of the shoes appeared to match a footprint left in the victim's blood. Over the course of the interviews, Mr. Mitchell responded to this and other new information by reciting several versions of the events culminating in Ms. Scott's death. Although in some versions Mr. Mitchell admitted participating in the crime in some manner, all of the versions involved at least one other actor who was more culpable than Mr. Mitchell. At trial, Mr. Mitchell gave yet another account of events in which he took no part in the crime but was merely present when a gang member named C. Ray assaulted Ms. Scott, killed her, and took her car and her purse.

Mr. Mitchell was charged with premeditated murder, first degree rape, and forcible anal sodomy in the death of Ms. Scott.¹ The state sought the death penalty in connection with the murder charge on the basis of three aggravating circumstances, alleging that the murder was especially heinous, atrocious or cruel; that it was committed for the purpose of avoiding arrest; and that Mr. Mitchell would commit future acts of violence, thereby constituting a continuing threat to society. The jury convicted Mr. Mitchell on all charges, found that the state had established all three aggravating circumstances, and sentenced Mr. Mitchell to death. After his convictions and sentence were affirmed on direct appeal, see Mitchell, 884 P.2d 1186, and his petition for state post-conviction relief was denied, see Mitchell v. Oklahoma, 934 P.2d 346 (Okla. Crim. App. 1997), Mr. Mitchell sought federal habeas corpus relief.

Following discovery and an evidentiary hearing, the federal district court granted relief on the convictions for rape and forcible anal sodomy. The state had presented evidence at trial through the testimony of Joyce Gilchrist, a forensic chemist with the Oklahoma City Police Department, that Mr. Mitchell's sperm had been found on the victim through anal and vaginal swabs. In fact, as discussed more fully below, DNA testing performed prior to trial by the FBI at Ms. Gilchrist's request established that no sperm was present on the anal and vaginal swabs and that sperm found on the victim's panties matched the DNA of her boyfriend, Phillip Taylor. In light of this evidence, the district court held that the rape and sodomy convictions were based on testimony that was misleading, if not false, and obtained in violation of Brady v. Maryland, 373 U.S. 83 (1963). Although the court struck down these convictions as constitutionally infirm, it declined to invalidate the death penalty, stating that sufficient evidence remained to support the three aggravating circumstances found by the jury to justify that sentence.²

On appeal, Mr. Mitchell seeks habeas relief on six grounds, contending that (1) his competency determination was made under an unconstitutional standard and is therefore invalid; (2) he was denied a lesser included offense instruction in violation of Beck v. Alabama, 447 U.S. 625 (1980);³ (3) evidentiary rulings at trial denied him the right to a fair trial and to present his defense; (4) statements made during his police interrogation were erroneously admitted against him at trial; (5) the admission of victim impact statements violated the Ex Post Facto Clause; and (6) the invalid rape and sodomy convictions require vacation of the death sentence.

II Standards of Review

Mr. Mitchell filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and his case is therefore governed by its provisions. See Williams v. Taylor, 529 U.S. 420, 429 (2000).

When reviewing the...