Robison v. Maynard

• Decision Date: 25 September 1987
• Docket Number: No. 86-2087,86-2087
• Citation: 829 F.2d 1501
• Parties: Olan Randle ROBISON, Petitioner-Appellant, v. Gary MAYNARD, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma; Larry Meachum, Superintendent, Department of Corrections, State of Oklahoma; and Attorney General of the State of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1501

829 F.2d 1501

Olan Randle ROBISON, Petitioner-Appellant, v. Gary MAYNARD, Warden, Oklahoma State Penitentiary McAlester, Oklahoma; Larry Meachum, Superintendent Department of Corrections, State of Oklahoma; and Attorney General of the State of Oklahoma, Respondents-Appellees.

No. 86-2087.

United States Court of Appeals Tenth Circuit.

Sept. 25, 1987.

Rehearing Denied Nov. 13, 1987.

Randy Alan Bauman, Oklahoma City, Okl., for petitioner-appellant.

Robert A. Nance, Asst. Atty. Gen., Deputy Chief, Federal Div. (Michael C. Turpen, Atty. Gen. of Okl.), Oklahoma City, Okl., for respondents-appellees.

Before MOORE, SETH, and TACHA, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

This is an appeal from an order denying federal habeas corpus to a state prisoner. Olan Randle Robison (Petitioner) sought relief from his conviction of three counts of first degree murder upon which three death sentences were imposed in Stephens County, Oklahoma. ¹ Petitioner raises several issues, including denial of the right to offer evidence in mitigation of the death penalty; prosecutorial misconduct; the introduction of testimony by witnesses whose statements were taken under hypnosis; and denial of the right to effective assistance of counsel. Finding need for further development of facts on the issue of the effectiveness of Petitioner's state appellate counsel, we remand for the purpose of a limited evidentiary hearing. We affirm on the remaining issues, however.

Respondents have defended some of the issues raised on appeal on the grounds of procedural bypass. Because the issues could have been raised in the state appeal but were not, the Oklahoma courts considered the issues waived and refused to decide them in the postconviction proceedings. Accordingly, Respondents argue, the federal court is barred from entertaining them. Respondents raised the same defense in the federal district court which held to the contrary. Respondents did not appeal from this ruling; hence, the issue cannot be raised as an argument on appeal. 28 U.S.C. Sec. 2107; Fed.R.App.P. 3. See also Averitt v. Southland Motor Inn, 720 F.2d 1178, 1180 (10th Cir.1983).

I.

At dusk, on June 12, 1980, Petitioner and two accomplices drove in a car belonging to Petitioner's girlfriend, Sharon Briscoe, to the residence of Averil Bourque, Robert Swinford, and Julie Lovejoy in search of valuable gold jewelry they believed belonged to Ms. Bourque. Entering the house, the trio found Ms. Lovejoy, at whom Petitioner fired a single shot in the head, killing her instantly. Petitioner then went to a room occupied by Ms. Bourque and Mr. Swinford where he gained entry by smashing a locked door. Petitioner encountered Ms. Bourque and fired shots into her body and head. These wounds were not immediately fatal, because Petitioner later told a friend that one of his accomplices "finished her off" with two bullets between the eyes. Mr. Swinford, in an apparent effort to avert death, grasped Petitioner from behind in a "bear-hug," but Petitioner was able to fire a mortal shot into Mr. Swinford's side. After Mr. Swinford collapsed, Petitioner fired another shot into Mr. Swinford's prostrate body.

Petitioner and his accomplices then ransacked the house but failed to find several items of gold jewelry hidden under Ms. Bourque's body. Nonetheless, they took other items, including photographs of Ms. Bourque and Mr. Swinford.

Returning to Ms. Briscoe's car, the trio started to back onto the roadway only to find another car bearing down upon them. The driver of that car, Terry Henderson, later identified the Briscoe car and testified defendant was riding in the front passenger seat. Testimony revealed investigators attempted to enhance Ms. Henderson's recall of the encounter with the use of hypnosis. ²

Petitioner and his friends returned to the Briscoe home from which they had set out, arriving in a state of high agitation. Petitioner instructed the group to pack for an immediate trip to Texas. Meanwhile, the photographs of the victims were displayed in the midst of laughter from the Petitioner and others. Petitioner then removed a bloodstained shirt and later had his niece clean a bloodstain from his boot.

Upon arrival in Texas, Petitioner, in the company of one of his accomplices and Patricia Higdon, disposed of one of the weapons and a suitcase taken from the murder scene. Ms. Higdon later testified that Petitioner threw a .380 caliber automatic pistol off a bridge into water below. Police divers subsequently recovered from the spot described by Ms. Higdon a .380 pistol identified as the murder weapon.

Petitioner and his accomplices were eventually arrested and tried. After deliberating some three and a half hours, the jury returned guilty verdicts on each count. The next day, in accordance with Oklahoma's statutory bifurcated procedure, the same jury was called upon to consider imposition of the death penalty.

In this second phase, neither side called witnesses. ³ Nevertheless, upon the prosecution's motion, the trial court admitted all the evidence from the first phase for consideration by the jury. Counsel for both sides made their summations, and the jury retired to deliberate. In accordance with state procedure, the jury was called upon to make findings of aggravating and mitigating circumstances. The jury found the existence of three aggravating circumstances which applied to all three killings: (1) Petitioner was previously convicted of a felony involving the use or threat of violence to a person; (2) Petitioner knowingly created a risk of death to more than one person; and (3) Petitioner probably would commit criminal acts of violence that would constitute a continuing threat to society. In the case of Ms. Bourque, the jury also found the killing was "especially heinous, atrocious or cruel." No mitigating circumstances were found to exist. Upon these specific findings, the jury returned death verdicts on all three counts.

II.

During an en camera discussion with the state trial judge prior to the sentencing phase of the trial, the district attorney moved for an order instructing witnesses "not to express any kind of an opinion, to be asked any kind of a question or express any kind of opinion as to whether or not they feel the death penalty should be imposed." Chief defense counsel responded that he was disposed to call "relatives" of Averil Bourque and Sheila Lovejoy who had "expressed to me a desire to ask the jury not to impose the death penalty in this case." ⁴ The defense contended this testimony would present proper mitigating factors for the consideration of the jury. The trial court granted the State's motion on the ground that allowing the testimony "would be no more proper" than allowing the State to put on testimony that the penalty should be invoked.

Petitioner contends the refusal of this testimony deprived him of due process, citing Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). He contends that one of the reasons underlying imposition of the death penalty is the sanction of retribution. Assuming the validity of that contention, Petitioner argues testimony of a family member of the victim urging the jury to reject the death penalty would have been strong evidence mitigating that sanction.

In our view, the answer to this issue turns upon the relevancy of the evidence in the context in which it would have been presented. Additionally, we are disinclined towards Petitioner's argument because the obvious consequence of allowing this kind of testimony by the defense would be to permit the State to present witnesses who would testify the penalty should be imposed, thus reducing the trial to a contest of irrelevant opinions.

Even though the Oklahoma law mandates presentation of "any mitigating circumstances" in the sentencing phase of a capital trial, Okla.Stat.Ann. tit. 21, Sec. 701.10, our consideration of the issue in the context of the federal constitution is constrained by the limitation of relevance. In short, the Petitioner's federal constitutional guarantees give him the right to present "any aspect of [his] character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). Yet, the corollary to that rule is the exhortation that the sentencer may not refuse to consider or be precluded from considering "any relevant mitigating evidence." Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (emphasis added).

We are thus initially confronted with the question of whether the testimony of a victim's relative who did not wish the death sentence imposed is relevant to the issue of mitigation. ⁵ As Petitioner acknowledges, relevant evidence is that which tends to make the existence of a fact more probable or less probable than it would be without the evidence. Fed.R.Evid. 401. Translated into terms which relate to the issues before a sentencing jury, relevant mitigating evidence is that which suggests the penalty should not be imposed. Additionally, however, the universe of that evidence is circumscribed by Lockett's holding that mitigating evidence is that which applies to either the character or record of the defendant or to any of the circumstances of the offense.

Petitioner seeks to expand the universe with evidence which the state judge correctly perceived to be misdirected. An individual's personal opinion of how the sentencing jury should acquit its responsibility, even though supported by reasons, relates to neither the character or record of the defendant nor to the circumstances of the offense. Such testimony, at best, would be a gossamer veil which would blur the jury's focus on the issue it must decide.

Moreover, allowing any person to opine whether the death penalty should be invoked would interfere with the jury's performance of its...