Rojem v. Gibson

• Decision Date: 30 March 2001
• Docket Number: Nos. 00-6056,s. 00-6056
• Citation: 245 F.3d 1130
• Parties: (10th Cir. 2001) RICHARD NORMAN ROJEM, Petitioner-Appellee/ Cross-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellant/ Cross-Appellee. & 00-6060
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1130

245 F.3d 1130 (10th Cir. 2001)

RICHARD NORMAN ROJEM, Petitioner-Appellee/ Cross-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellant/ Cross-Appellee.

Nos. 00-6056 & 00-6060

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

March 30, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. (D.C. No. CIV 96-CV-1337-M)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] K. Leslie Delk, Norman, Oklahoma, for Petitioner-Appellee/Cross-Appellant.

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

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

BALDOCK, Circuit Judge.

Richard Norman Rojem was convicted of the first degree rape, kidnaping and murder of seven-year-old Layla Dawn Cummings, his former step-daughter. He received the death penalty for the murder and one thousand years' imprisonment for both the kidnaping and rape. The Oklahoma Court of Criminal Appeals affirmed on direct appeal, Rojem v. State, 753 P.2d 359 (Okla. Crim. App.), cert. denied, 488 U.S. 900 (1988), and denied post-conviction relief, Rojem v. State, 829 P.2d 683 (Okla. Crim. App.), cert. denied, 506 U.S. 958 (1992); Rojem v. State, 925 P.2d 70 (Okla. Crim. App. 1996). On federal habeas corpus review, see 28 U.S.C. 2254, the district court upheld the convictions, but conditionally granted relief from the death sentence because the trial court failed to instruct the jury to weigh the aggravating and mitigating evidence when deciding whether to impose the death penalty. Both parties appeal. We affirm.

FACTS

Between 10:00 p.m. on July 6, 1984, and 1:15 a.m. on July 7, Layla was abducted from the apartment where she lived with her mother, Mindy Cummings, and her brother, Jason Cummings. Rick Quimby, who worked at a motel across the street, notified Mindy at work that when he went to check on the children Layla was missing. Jason went to sleep when his mother went to work, but he woke up when he heard a noise. He testified that he heard no cries or struggle but saw "Rick."¹ Don Cummings, Layla's and Jason's father, testified that Jason told him he thought Layla was with "Rick," but he did not see or hear anything.

A farmer found Layla's body in a field the morning of July 7. She died of stab wounds to her neck. She also had been stabbed in the vaginal area. There was blood on the crotch area of her nightgown, and blood had soaked the soil two to three inches under her neck and chest. Her buttocks skin was torn, consistent with fingernail scratches. There was blunt force trauma to her hymen, but no sperm were found in her body.

Most evidence connecting Rojem to the crime was circumstantial. He recently had been divorced from Mindy and had tried to reconcile with her. He knew her work schedule and of the broken lock to the apartment door. A plastic cup with his fingerprint on it was found near the apartment. Upon leaving a bar between 11:50 p.m and 12:20 a.m., his beer had been placed in a similar cup. At 1:14 a.m., Rojem called his employer and asked the dispatcher to log the call at 12:35 a.m. Later, he requested the call be logged at the correct time.

The police found the outer wrappings of a condom in the folds of Layla's nightgown. Also at the crime scene was an order form packed with that brand of condoms. When police searched Rojem's room, they found a condom package and a used condom containing semen. All of this amounted to one complete condom package. This common brand of condoms was sold in a dispenser in the restroom at the bar where Rojem had been. He had gone to the restroom immediately before leaving the bar.

Tire track impressions near the body were consistent with the two rear tires and one front tire on Rojem's car. The other front tire track impression was inconsistent with the corresponding tire on Rojem's car. The State, however, presented evidence that Rojem had changed that tire the morning of July 7. That tire was a fourteen inch radial, whereas the others were fifteen inch non-radials.

Rojem had asked a co-worker to tell police that the co-worker and another had changed Rojem's tire after a blowout. Rojem told the co-worker that "'[t]he police have got a tire and it may be the tire they put me in jail with'" and if the co-worker did not tell he had changed a tire it would be "capital punishment" and "two lives instead of one." Tr. vol. II at 211-12. The co-worker refused to lie. Rojem told another co-worker that his car was used in a homicide and that he had the car the whole time.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to this appeal. See Williams v. Taylor, 529 U.S. 362, 402 (2000). Under AEDPA, if a claim is adjudicated on its merits in state court, a petitioner is entitled to federal habeas relief only if he can establish that the state court decision "was contrary to, or involved an unreasonable application of, clearly established" Supreme Court precedent or "was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. 2254(d)(1), (2). We presume state court factual findings are correct, absent clear and convincing evidence rebutting that presumption. Id. 2254(e)(1). "If [a] claim was not heard on the merits by the state courts, and the federal district court made its own determination in the first instance, [this court] review[s] the district court's conclusions of law de novo and its findings of fact, if any, for clear error." LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).

APPEAL NO. 00-6056

The trial court failed to give the Oklahoma uniform jury instruction² directing the jury to weigh the aggravating and mitigating circumstances when deciding whether to impose the death penalty. The federal district court held the failure to provide this instruction denied Rojem his Eighth Amendment right to a reliable sentence and his Fourteenth Amendment right to due process. The court therefore ordered the State to provide Rojem with a new capital-sentencing proceeding. The State argues that despite the omission of this instruction, the instructions actually given and the context of the entire trial show no reasonable probability the jury applied the instructions in a way that allowed it to ignore mitigating evidence, act outside the scope of its sentencing authority, or sentence Rojem to death without determining the aggravating circumstances outweighed the mitigating evidence.

On direct appeal rehearing, Rojem first argued the trial court violated his constitutional rights by failing to give the weighing instruction. After determining Rojem waived this claim because he failed to raise it on direct appeal, the Oklahoma Court of Criminal Appeals then rejected it on its merits.³ Citing only Davis v. State, 665 P.2d 1186, 1203-04 (Okla. Crim. App. 1983), the court decided the instructions properly informed the jury it was authorized to consider imposing the death penalty if it found aggravating circumstances and allowed the jury to fairly consider life or death punishment.

Davis, however, is distinguishable. The trial court in that case gave a proper weighing instruction. Id. at 1202.

The federal district court found that Oklahoma law requires a weighing instruction and its omission violated the Fourteenth Amendment, allowing the jury to act outside the scope of its statutory authority and permitting it to sentence Rojem to death without finding the aggravating circumstances outweighed the mitigating circumstances. The court interpreted the entire instructions as indicating the jury could sentence Rojem to death once it unanimously agreed upon the existence of at least one aggravating circumstance. Without a weighing instruction, the court determined the mitigating instruction suggested consideration of mitigating circumstances was optional. Also, the court decided the instruction informing the jury to record the aggravating circumstances it found may have suggested to the jury the aggravators, not the mitigators, were the important consideration. The court found no reference to a weighing requirement anywhere in the trial transcript which could have possibly cured the omission.

In addition, the court found an Eighth Amendment violation because there was a reasonable likelihood the jury applied the instructions in a way that it was prevented from considering the mitigating evidence and in fact failed to consider Rojem's constitutionally relevant mitigating evidence. The court noted the second-stage instructions did not inform the jury it should consider all evidence. Furthermore, it found no clarification of the jury's obligation to consider mitigating evidence within the entire context of the trial and the mitigating evidence, comprising only twenty-nine pages of the transcript, was not so voluminous that there could be no reasonable likelihood the jury failed to consider it.

The State argues the district court's finding of an Eighth Amendment violation is contrary to Boyde v. California, 494 U.S. 370 (1990), and Buchanan v. Angelone, 522 U.S. 269 (1998). Rather, it maintains there is no reasonable likelihood the jury applied the instructions in a way that prevented consideration of constitutionally relevant mitigating evidence. The State points to instructions permitting the jury to select life imprisonment, even upon a finding of aggravating circumstances; authorizing the jury to consider imposing a death sentence only upon a unanimous finding of one or more aggravators; defining mitigating circumstances as "those which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame," O.R. vol. II at 575; and informing the jury it must decide what circumstances are mitigating under the facts and circumstances of the case. Also, ...