Richie v. Workman

• Decision Date: 25 March 2010
• Docket Number: No. 08-5095,No. 08-5091,08-5091,08-5095
• Parties: Lonnie Wright RICHIE, PetitionerAppellant/Cross-Appellee, V. Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

599 F.3d 1131

Lonnie Wright RICHIE, PetitionerAppellant/Cross-Appellee, V. Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee/Cross-Appellant.

No. 08-5091

No. 08-5095

United States Court of Appeals Tenth Circuit.

Decided: March 25, 2010.

Randy A. Bauman (Timothy R. Payne with him on the briefs), Assistant Federal Public Defenders, Oklahoma City, OK, for Petitioner-Appellant/Cross-Appellee.

Seth S. Branham, Assistant Attorney General, (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the briefs), Oklahoma City, OK, for Respondent-Appellee/Cross-Appellant,

Before TACHA, LUCERO, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Lonnie Richie was convicted in Oklahoma state court of the first-degree murder of Laura Launhardt and sentenced to death. He was also convicted of kidnapping for extortion, robbery with a firearm unauthorized use of a debit card, and larceny of a vehicle. After unsuccessfully seeking relief in state court, Mr. Richie filed an application for habeas corpus relief under 28 U.S.C. § 2254 in the United States District Court for the Northern District of Oklahoma. The district court set aside the murder conviction on the ground that the trial court should have instructed the jury on the lesser-included offense of second-degree depraved-mind murder. It also ruled that even if the conviction were upheld, the death sentence should be set aside because Mr. Richie's trial counsel was ineffective at the trial's penalty phase for not exploring or presenting mitigating evidence of his brain damage. See Richie v. Sirmons, 563 F.Supp.2d 1250 (N.D.Okla.2008). The court granted no relief with respect to Mr Richie's other convictions.

The state appeals, urging reversal of the relief granted below. Mr. Richie crossappeals, raising five grounds for relief that were rejected by the district court, We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court's judgment.¹

We agree with the district court that Mr. Richie's conviction of first-degree murder must be set aside because he was entitled to an instruction on the lesserincluded offense of second-degree depraved-mind murder. Mrs. Launhardt's body was found in an abandoned house with her arms and legs bound and a cord around her neck that was tied to a clothes rod. On the evidence at trial a rational juror (1) could have voted to acquit Mr Richie of first-degree murder because of a reasonable doubt that he intended to kill Mrs. Launhardt but (2) still have found beyond a reasonable doubt that he caused her death by depraved conduct creating an imminent danger of her death. Because our ruling on this issue will require a new trial on the charge of first-degree murder we need not address any of the other issues that relate only to Mr. Richie's conviction or sentence for that offense. There remains only one issue. Mr. Richie contends that all his convictions must be set aside because several jurors were biased against him for not testifying but concealed this bias during voir dire. We reject this contention because it is not supported by admissible evidence.²

I. BACKGROUND

At about 1 p.m. on August 28, 1991, Mr. Richie and his accomplice Daniel Waller, who was 16 at the time, robbed and kidnapped Mrs. Launhardt at the parking lot of a Kmart in Tulsa, Oklahoma. Her hus band reported her missing to Tulsa police late that afternoon. When the police did not immediately begin an investigation, he called the vendors of some of his wife's credit cards to see if the cards had been used since her disappearance. He discovered that his wife's ATM card had been used at a Git-N-Go store in Muskogee, Oklahoma, about 40 miles from Tulsa. The store had a surveillance camera, and Muskogee police retrieved the tape, which Mr. Launhardt reviewed. He did not recognize the two men using his wife's credit card. This was reported to Tulsa police, who became more actively involved. Their investigation led to a motel near the GitN-Go where Mr. Richie had used an assumed name in renting a room for himself and Mr. Waller. While officers were searching that room on September 1, Mr. Waller arrived. He admitted to the kidnapping, and then led the officers to an abandoned house where they found Mrs. Launhardt's body in a walk-in closet.

Mrs. Launhardt's body was on the floor lying face-down, with her head raised slightly by a "cargo strap" around her neck that was tied to the closet's horizontal clothes rod. Id. at 2040. The closet was otherwise empty. The strap was about five feet long, not quite long enough for Mrs. Launhardt to lie on the floor without being choked. Her ankles were tied together two to three inches apart with a "sash cord" that appeared to match cordfound elsewhere in the house. Id, at 204142. Her hands were tied tightly together behind her back by the same type of sash cord. A carpet knife lay on the floor of the adjacent bathroom.

Tulsa police officer Roy Heim testified about the location and neighborhood of the abandoned house:

The area that we were led to is, I think called West Port, it's a small undeveloped area or very sparsely developed, it's got a few houses in it. The roads there are small and rugged, gravel roads, in some cases, partially paved. There had been a lot of storm damage in the area and a lot of debris that was still left on the ground, a lot of repairs going on in the neighborhood. Of the houses, most of them were damaged, it appeared, of some sort or another.

It was nighttime when we arrived there and we were directed down the small roads into the addition about a block, 2 blocks to the right and down a very small road to the left about a block and then left again and right at the corner or turn in the road, was an abandoned house.

Aplt.App., Vol. VII at 2038. He described the house as a tri-level with severe damage to the back side. It contained no furniture. The closet and bathroom were in disrepair. The closet ceiling had an 18inch-square opening to the outside.

Meanwhile, Mr. Richie had left Oklahoma with a former girlfriend, Christy Windle. He had called her the evening of August 28 (the day of Mrs. Launhardt's abduction) and then visited her home in Muskogee, showing her Mrs. Launhardt's van, which he claimed to have bought. They then departed on August 30, apparently in the morning, and drove in the van to New Orleans. He had a pistol in the van. Mr. Richie was arrested at a Greyhound bus terminal in New Orleans on September 5, 1991. A search of the van, which was parked by the terminal, discovered ammunition usable by the pistol.

At trial the state contended that Mr. Richie had killed Mrs. Launhardt by deliberately strangling her. Its theory was that after Mr. Richie and Mr. Waller tied her up, they lifted her feet and held them in the air until the weight of her body on the ligature around her neck caused her to die of asphyxiation. Mr. Richie's counsel argued that he had intended only to restrain Mrs. Launhardt and had left her alive in the abandoned house.

The jury found Mr. Richie guilty of firstdegree murder and rendered its deathpenalty verdict on September 27, 1993. He was also convicted of kidnapping for extortion, robbery with a firearm, unauthorized use of a debit card, and larceny of a vehicle. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the convictions and sentences, see Richie v. State, 908 P.2d 268, 280 (Okla.Crim.App.1995), and the United States Supreme Court denied a petition for a writ of certiorari, see Richie v. Oklahoma, 519 U.S. 837, 117 S.Ct. 111, 136 L.Ed.2d 64 (1996). Mr. Richie's petition to the OCCA for postconviction relief was likewise denied. See Richie v. State, 957 P.2d 1192, 1198 (Okla.Crim.App.1998).

Mr. Richie filed his § 2254 application in federal district court on February 10, 1999. After an evidentiary hearing the court granted habeas relief on April 26, 2004, ruling that his first-degree murder conviction must be set aside because his trial counsel was ineffective in cross-examining the medical examiner who testified for the state. We reversed and remanded. See Richie v. Mullin, 417 F.3d 1117, 1125 (10th Cir.2005). The district court then addressed the remaining grounds for relief raised by Mr. Richie. See Richie, 563 F.Supp.2d at 1268-1315. It rejected 19 grounds, but (1) set aside his first-degreemurder conviction on the ground that the trial court did not instruct the jury on the lesser-included offense of second-degree murder, see id. at 1281-86, and (2) set aside the sentence of death (in the event that the district court was reversed on the first ground for relief) because Mr. Richie's trial counsel was ineffective in not properly investigating whether he was brain-damaged, see id. at 1288-92. The state appealed and Mr. Richie cross-appealed. As previously stated, we need address only two issues: (1) Mr. Richie's entitlement to a lesser-included-offense instruction on second-degree depraved-mind murder and (2) jury bias regarding his failure to testify.

II. DISCUSSION

A. Standard of Review

Before addressing the merits of the issues on appeal, we set forth the appropriate standard of review. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), when a claim has been adjudicated on the merits in state court, a federal court can grant habeas relief only if the applicant establishes that the state-court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) (2). "Under the 'contrary to' clause, we grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts." Gipson v. Jordan, ...