Richie v. Mullin

• Decision Date: 25 July 2005
• Docket Number: No. 04-5072.,04-5072.
• Citation: 417 F.3d 1117
• Parties: Lonnie Wright RICHIE, Petitioner-Appellee, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

417 F.3d 1117

Lonnie Wright RICHIE, Petitioner-Appellee, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellant.

No. 04-5072.

United States Court of Appeals, Tenth Circuit.

July 25, 2005.

Randy Bauman and Scott W. Braden, Assistant Federal Public Defenders, Death Penalty Federal Habeas Corpus Division, Oklahoma City, OK, for Petitioner-Appellee.

Preston Saul Draper, Assistant Attorney General (and W.A. Drew Edmondson, Attorney General of Oklahoma, on the briefs), Oklahoma City, OK, for Respondent-Appellant.

Before KELLY, HARTZ, and McCONNELL, Circuit Judges.

KELLY, Circuit Judge.

Respondent Mike Mullin, Warden of the Oklahoma State Penitentiary, appeals the district court's order granting conditional habeas corpus relief in the form of a new trial to Petitioner Lonnie Richie, an Oklahoma state prisoner convicted of first degree murder and sentenced to death. The sole issue on appeal is whether defense counsel rendered ineffective assistance of counsel in cross-examining Dr. Robert Hemphill, a medical examiner employed by the State of Oklahoma. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse.

Background

On August 28, 1991, Mrs. Laura Launhardt was kidnaped from a K-Mart parking lot in Tulsa, Oklahoma. She was then taken to an abandoned, storm-damaged home in a rural area. There her kidnappers bound Mrs. Launhardt's hands and feet, tied a strap around her neck, and secured the strap to a clothes rod in a closet. On September 1, 1991, Mrs. Launhardt's decomposing body was discovered by police investigators.

At trial, the state introduced testimony affirmatively linking Mr. Richie and an accomplice to the scene of the abduction and the subsequent sighting of Mrs. Launhardt at a location not far removed from the home where her body was eventually found. The state also introduced evidence implicating Mr. Richie in the use of the victim's bank and credit cards in the days following her abduction to secure a hotel room for himself and his accomplice, finance a shopping spree, and pay for a trip to New Orleans with his former girlfriend.

In its efforts to obtain a first degree murder conviction, the state advanced the theory that Mr. Richie seized and lifted his victim's ankles while she was bound and secured to the clothes rod, causing death by strangulation. The state presented evidence through Officer Roy Heim establishing that Mrs. Launhardt's body was found with her hands bound behind her back and her dress pulled above her hands. The state argued repeatedly during its closing that the position of the body supported its theory of death. The state also solicited testimony from Dr. Hemphill establishing that the medical evidence was consistent with the state's theory. We discuss Dr. Hemphill's testimony extensively below.

Attempting to avoid a conviction predicated on malice aforethought, and therefore death penalty eligible, Mr. Richie's defense largely rested on the contention that his victim was left alive, though restrained, by her kidnappers. In support, Mr. Richie offered expert testimony by Dr. Bernard Greenburg, a noted expert in forensic entomology, establishing Mrs. Launhardt's time of death at 7:00 p.m. on August 30. Dr. Greenburg based his conclusion on the size of the maggots found on Mrs. Launhardt's body and recorded during Dr. Hemphill's medical examination. In addition, the defense solicited testimony on cross-examination from two police officers, Corporal Gary Meek and Officer Roy Heim, tending to support the "left-alive" theory.

Mr. Richie was subsequently convicted in the District Court of Tulsa County, Oklahoma, of first degree murder with malice aforethought, and alternatively felony murder, and other lesser offenses. He was sentenced to death. On direct appeal, the Oklahoma Court of Criminal Appeals ("OCCA") affirmed his conviction and sentence for malice aforethought murder, but reversed the conviction for felony murder on the grounds that the judge had failed to properly instruct the jury. Richie v. State, 908 P.2d 268, 275, 280 (Okla.Crim. App.1995). Mr. Richie raised, inter alia, the issue of ineffective assistance of counsel for the first time in an application for post conviction relief. Mr. Richie's application was denied.¹ Richie v. State, 957 P.2d 1192 (Okla.Crim.App.1998).

Thereafter, Mr. Richie sought habeas relief before the district court pursuant to 28 U.S.C. § 2254. Mr. Richie raised twenty-one grounds for relief in his petition. The district court granted Mr. Richie an evidentiary hearing as to four grounds relating to assertions of ineffective assistance. Following the hearing, the magistrate judge filed a report and recommendation concluding that Mr. Richie was denied effective assistance of counsel at trial and recommending that the district court grant the petition for a conditional writ of habeas corpus. Over the objections of the state, the district court adopted the report and recommendation, entering an order conditionally granting habeas relief. This appeal followed.

Discussion

On appeal from the grant of habeas relief, we review the district court's factual findings for clear error and its legal conclusions de novo. Sallahdin v. Mullin, 380 F.3d 1242, 1247 (10th Cir.2004). The district court concluded in this case that Mr. Richie's counsel was constitutionally deficient in cross-examining the medical examiner, Dr. Hemphill, and that this deficiency so prejudiced the defendant as to necessitate a new trial.

The Supreme Court enunciated the now familiar test for ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To succeed on such a claim, the convicted defendant first has the burden to demonstrate that his counsel's performance was "deficient," i.e., that the "representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. Next, the defendant must show that his "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. 2052. A reviewing court need not address the Strickland prongs sequentially. Bryan v. Mullin, 335 F.3d 1207, 1216 (10th Cir.2003). Moreover, a determination that the defendant fails to satisfy one prong precludes further analysis. Id.

With respect to the first prong of the Strickland test, the Court emphasized that "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. 2052. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688, 104 S.Ct. 2052. The inquiry must embrace all relevant circumstances of the case, and there is a strong presumption that counsel has rendered effective assistance and made decisions in the exercise of reasonable judgment. Id. at 690, 104 S.Ct. 2052. Finally, those decisions alleged to be deficient must not be viewed in a vacuum; the court must assess such actions from the vantage point of counsel at the time of their making and with all relevant facts in mind. Id.

Having carefully reviewed the record, we hold that the district court erred in concluding that defense counsel's cross-examination of Dr. Hemphill was constitutionally deficient. The district court failed to accord sufficient deference to counsel's performance and appropriately consider all relevant circumstances attending Mr. Richie's trial. Based on the evidence presented at trial and all relevant circumstances attending thereto, defense counsel's cross-examination of Dr. Hemphill was reasonable and entitled to deference.

I. Defense Counsel's Communications with Dr. Hemphill

Mr. Richie's claims center almost exclusively on Dr. Hemphill's testimony. According to the testimony of defense counsel and the deposition of Dr. Hemphill received at the evidentiary hearing, the two met prior to trial to discuss Mr. Richie's case. III Aplt.App. at 610, 882. While counsel's and Dr. Hemphill's accounts of the meeting differ, counsel evidently left the meeting under the impression that the medical examiner viewed the state's theory of death as improbable, while viewing the defense's theory as plausible. Id. at 610; but see id. at 886-88 (providing Dr. Hemphill's recollection). Proceeding on the assumption that Dr. Hemphill was a "defense witness," Mr. Richie's counsel chose not to prepare another expert witness for trial. Id. at 612. In recalling this decision, defense counsel noted that the alternate witness was in basic agreement with Dr. Hemphill's conclusions. Id.

During trial, but prior to testifying, Dr. Hemphill pulled defense counsel aside and informed her that, after considering a statement made by Mr. Richie's co-defendant, Danny Waller, he did not want "to blind-side her, so-to-speak" and intended to testify that the state's theory of the manner of death was consistent with the evidence.² Id. at 613, 890-93. Again, accounts of the conversation differ. While Dr. Hemphill minimized the significance of the conversation by explaining that this testimony would be responsive to those questions posed by the state, whatever they might be, id. at 891-95, defense counsel testified at the evidentiary hearing that the conversation left her "devastated."³ Id. at 614.

II. Dr. Hemphill's Trial Testimony

Dr. Hemphill testimony at trial was somewhat limited. On direct examination, he testified that the cause of death was "asphyxiation by ligature." VII Aplt.App. at 2078. Elaborating, Dr. Hemphill noted:

Based on the circumstances under which the body was found, that is that it was partially suspended by this ligature being tied to a clothes bar or something like that in a closet, that she was lying face down with her face slightly off the floor, partially suspended in that sense, it's my opinion that suspension or partial suspension as in hanging probably played a major part in the mechanism, that is in putting enough pressure from...