Neill v. Gibson

• Citation: 278 F.3d 1044
• Decision Date: 07 December 2001
• Docket Number: No. 00-6024.,00-6024.
• Parties: Jay Wesley NEILL, Plaintiff-Appellant, v. Gary GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1044

278 F.3d 1044

Jay Wesley NEILL, Plaintiff-Appellant, v. Gary GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 00-6024.

United States Court of Appeals, Tenth Circuit.

December 7, 2001.

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James L. Hankins of Hankins Law Office, Enid, OK, for Petitioner-Appellant.

Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A. Drew Edmondson, Attorney General, with her on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before TACHA, Chief Judge, BALDOCK, and LUCERO, Circuit Judges.

ORDER

Appellant's petition for rehearing by the panel is granted. The opinion on rehearing is filed with this order.

The suggestion for rehearing en banc was transmitted to all of the judges of the court who are in regular active service as required by Fed.R.App.P. 35, with the exception of Judge Robert H. Henry, who was recused in this matter. Judge Carlos F. Lucero voted to grant, and all other judges of the court voted to deny rehearing en banc.

Therefore, the appellant's petition for rehearing en banc is denied.

TACHA, Chief Judge.

Petitioner-appellant Jay Wesley Neill appeals the denial of habeas relief, see 28 U.S.C. § 2254, from four death sentences. This appeal presents, among other issues, the question of whether Oklahoma can constitutionally apply its statute permitting introduction of victim impact evidence during a capital sentencing proceeding at a trial for crimes occurring prior to that statute's enactment. We conclude Oklahoma can do so without violating the Ex Post Facto or Due Process Clauses. We, therefore, affirm the denial of relief on this, and the remainder of Neill's habeas claims.

I. FACTS

A jury sentenced Neill to death after convicting him of four counts of first degree malice murder stemming from Neill's armed robbery of a Geronimo, Oklahoma bank in December 1984. Neill did not contest his guilt during the trial's first stage. The State's evidence established that Neill, then age nineteen, and his co-defendant, Grady Johnson, age twenty-one, were roommates involved in a homosexual relationship. In 1984, they were having serious financial difficulties. During the week before the bank robbery, the pair purchased two knives, obtained a gun permit, bought a .32 caliber handgun and ammunition, and made plane reservations to San Francisco for Friday afternoon, December 14. On that Friday, shortly after 1:00 P.M., Neill robbed the bank. During the robbery, Neill stabbed three bank employees to death. All three women died from multiple stab wounds to their head, neck, chest and abdomen. One woman was seven months pregnant. Neill also attempted to decapitate each woman with a knife.

Five customers entered the bank during the robbery. Neill forced all five to lie face down in the back room where the employees had been stabbed. He then shot each customer in the head, killing one and wounding the other three. Neill denied attempting to shoot the fifth, an eighteen-month-old child. The child's father testified, however, that he saw someone point a gun at his child's head and fire several times. The weapon, by this time, was out of ammunition.

Neill and Johnson then flew to San Francisco, where they spent some of the approximately $17,000 stolen from the bank on expensive jewelry and clothing, hotels, limousines and cocaine. FBI agents arrested the pair there three days after the robbery.

Prior to this trial, Neill gave a videotaped interview to a religious television program, "The 700 Club," and wrote several letters to an author writing a book about the murders. Neill also wrote letters and made telephone calls apologizing to several victims. In these communications,¹ Neill admitted committing the crimes. Based on this evidence, the jury convicted Neill of four counts of first degree malice murder, three counts of shooting with intent to kill and one count of attempted shooting with intent to kill.

At sentencing, the State charged and the jury found, as to each murder, three aggravating factors: Neill had created a great risk of death to more than one person; he had committed the murders to avoid arrest and prosecution; and the murders were especially heinous, atrocious or cruel. The jury imposed four death sentences, as well as twenty years' imprisonment for each non-capital conviction.

The Oklahoma Court of Criminal Appeals affirmed Neill's convictions and death sentences, and denied post-conviction relief. See Neill v. State, 896 P.2d 537 (Okla. Crim.App.1994), cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996); Neill v. State, 943 P.2d 145 (Okla. Crim.App.1997).

II. STANDARDS OF REVIEW

Because Neill filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that Act governs this appeal. See Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Neill, therefore, will not be entitled to habeas relief unless he can establish that the state court resolved his claims "contrary to," or based on "an unreasonable application of," clearly established Supreme Court precedent, 28 U.S.C. § 2254(d)(1), or "on an unreasonable determination of the facts in light of the evidence," id. § 2254(d)(2). We presume state court factual findings are correct, absent clear and convincing evidence to the contrary. See id. § 2254(e)(1).

Where the state court did not address the merits of a habeas claim, however, this court reviews the district court's decision de novo, reviewing any factual findings only for clear error. See, e.g., Thomas v. Gibson, 218 F.3d 1213, 1220 (10th Cir.2000).

III. DISCUSSION

A. Application of Oklahoma's newly enacted victim impact legislation at Neill's retrial. In 1991, after Neill's first trial, the United States Supreme Court, reversing its earlier precedent, held that states could constitutionally admit victim impact evidence during capital sentencing proceedings. See Payne v. Tennessee, 501 U.S. 808, 824-27, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Oklahoma, in 1992, enacted legislation permitting introduction of such evidence. See Okla. Stat. tit. 21, § 701.10(C); see also id. tit. 22, §§ 984, 984.1, 991a(D). Neill argues that applying this statute retrospectively to permit the State to introduce victim impact evidence at his 1992 retrial for these 1984 crimes violated the Ex Post Facto and Due Process Clauses. Specifically, Neill asserts that applying this statute at his retrial implicated the fourth category of ex post facto legislation recognized in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) — "[e]very law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender." See also Carmell v. Texas, 529 U.S. 513, 521-22, 525, 534, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (reaffirming validity of Calder's fourth ex post facto category). Although the state appellate court rejected this claim, it did not specifically address Calder's fourth category. See Neill, 896 P.2d at 553-54.

Neill relies on Carmell. That case, however, is distinguishable. In Carmell, the Supreme Court addressed the retrospective application of a Texas law providing that certain sex offenses could be established solely on the victim's testimony, when previously they would have required additional corroborating evidence. See 529 U.S. at 516, 120 S.Ct. 1620. The Court, applying Calder's fourth category, see Carmell, 529 U.S. at 522, 120 S.Ct. 1620, held retrospective application of this Texas statute violated the ex post facto prohibition because this legislation "changed the quantum of evidence necessary to sustain a conviction." Id. at 530, 120 S.Ct. 1620; see also id. at 531, 532-33, 546, 120 S.Ct. 1620. This change in the quantum of evidence "subverts the presumption of innocence." Id. at 532, 120 S.Ct. 1620. In addition, the Court noted that the Texas statute did not simply regulate the mode by which the parties could place facts before the jury, but rather "govern[ed] the sufficiency of those facts for meeting the burden of proof." Id. at 545, 120 S.Ct. 1620; see also id. at 546-47, 120 S.Ct. 1620.

In contrast, Oklahoma's victim impact statute does not change the quantum of evidence necessary for the State to obtain a death sentence, nor does it otherwise subvert the presumption of innocence. See id. at 530-34, 120 S.Ct. 1620; see also Thompson v. Missouri, 171 U.S. 380, 387, 18 S.Ct. 922, 43 L.Ed. 204 (1898). Further, the Oklahoma statute leaves for the jury to determine the victim impact evidence's sufficiency or effect. See Carmell, 529 U.S. at 545-47, 120 S.Ct. 1620; see also Thompson, 171 U.S. at 387, 18 S.Ct. 922. Moreover, "[v]ictim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities." Payne, 501 U.S. at 825, 111 S.Ct. 2597.

This case is more analogous to Thompson, upon which the district court relied to deny Neill habeas relief. In Thompson, the Court held that retrospectively applying a state statute permitting handwriting experts' testimony did not violate the Ex Post Facto Clause. See 171 U.S. at 380-82, 386-88, 18 S.Ct. 922.

"Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not ... alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed.... The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his...