Smith v. Gibson

• Decision Date: 23 November 1999
• Docket Number: No. 98-7066,98-7066
• Parties: (10th Cir. 1999) PHILLIP DEWITT SMITH, Petitioner-Appellant, v. GARY E. GIBSON, Warden, Oklahoma State Penitentiary; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 454

197 F.3d 454 (10th Cir. 1999)

PHILLIP DEWITT SMITH, Petitioner-Appellant, v. GARY E. GIBSON, Warden, Oklahoma State Penitentiary; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees.

No. 98-7066

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 23, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA. D.C. No. CV-95-79-S

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Randy Bauman, Assistant Federal Public Defender, Death Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for Petitioner-Appellant.

William L. Humes, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for Respondents-Appellees.

Before BALDOCK, PORFILIO, and MURPHY, Circuit Judges.

BALDOCK, Circuit Judge.

Petitioner-appellant Phillip DeWitt Smith appeals from the district court's denial of his petition for habeas relief, see 28 U.S.C. § 2254, from his Oklahoma first degree murder conviction and death sentence. On appeal, he raises seven grounds for relief: 1) prosecutorial misconduct; 2) an evidentiary harpoon resulting from a witness volunteering that petitioner had kidnaped his daughter; 3) the lack of a cautionary instruction regarding an informant's testimony; 4) ineffective representation at sentencing; 5) the trial court's failure to instruct the jury on lesser included offenses; 6) double counting of aggravating circumstances; and 7) the unconstitutionality of the continuing threat aggravating circumstance. We affirm the denial of habeas relief.

I. FACTS

Petitioner was convicted of bludgeoning to death an acquaintance, Matthew Taylor. Taylor was murdered in his apartment during the early morning hours of November 4, 1983. He had been beaten with a blunt object, most likely a hammer. When he was found the following afternoon, the victim's front pants pockets had been turned inside out.

During a party at the victim's home the previous evening, petitioner had agreed with the victim to share some marijuana. The victim had taken a twenty dollar bill from his front pants pocket, noting it was the smallest bill he had, and gave it to petitioner to go purchase the marijuana. Petitioner never returned to the party.

At approximately midnight, petitioner borrowed a hammer from another acquaintance, indicating he was helping a friend fix a car. Petitioner then had Victor Hickman drive him to the victim's apartment. Petitioner told Hickman that he was trying to collect money people owed him because he wanted to purchase a bus ticket to California. According to Hickman, petitioner went into the victim's apartment, while Hickman waited in the car. When petitioner returned, he had a small stain of what appeared to be blood on his shirt.

In addition to this evidence, petitioner's cellmate, Billy Joe Dickson,¹ testified that petitioner admitted to him that petitioner had killed the victim. The jury convicted petitioner of first degree murder.

During sentencing, the jury found the existence of three aggravating circumstances: 1) petitioner had been convicted of a prior violent felony; 2) the murder was especially heinous, atrocious or cruel; and 3) petitioner was a continuing threat to society. After weighing those aggravating circumstances with petitioner's mitigating evidence, the jury sentenced petitioner to death.

The Oklahoma Court of Criminal Appeals affirmed his conviction and sentence on direct appeal. See Smith v. State, 737 P.2d 1206 (Okla. Crim. App.), cert. denied, 484 U.S. 959 (1987). The Oklahoma appellate court also affirmed the denial of two applications for state post-conviction relief. See Smith v. State, 826 P.2d 615 (Okla. Crim. App.), cert. denied, 506 U.S. 952 (1992); Smith v. State, 878 P.2d 375 (Okla. Crim. App.), cert. denied, 513 U.S. 1061 (1994).

Petitioner filed his federal habeas petition February 21, 1995, prior to the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA). That Act, therefore, does not apply in this case. See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997).

II. PROSECUTORIAL MISCONDUCT

Petitioner alleges the prosecutor knowingly misled the jury into believing Dickson was not testifying pursuant to a deal with prosecutors, when in fact he was. See Gray v. Netherland, 518 U.S. 152, 165 (1996) (noting prosecution is forbidden from deliberately deceiving court and jury, citing Mooney v. Holohan, 294 U.S. 103, 112 (1935)); see also Giglio v. United States, 405 U.S. 150, 153 (1972); Napue v. Illinois, 360 U.S. 264, 269 (1959). Petitioner bears the burden of establishing this claim, which this court reviews de novo. See Foster v. Ward, 182 F.3d 1177, 1191-92 (10th Cir. 1999).

At the time he testified against petitioner, Dickson had been charged, in an unrelated case, with burglary, after former conviction of a felony. If convicted, he faced a possible twenty year prison sentence. In his testimony at petitioner's trial, Dickson asserted that he had no deal with prosecutors in exchange for his testimony, but that he was testifying against petitioner because petitioner had threatened Dickson while the two were jailed together. A few days after petitioner's trial, the State dropped the after former conviction of a felony portion of Dickson's pending burglary charge. He pled guilty and was released based on time already served.

Petitioner, however, asserts no credible evidence that prosecutors ever offered Dickson leniency in exchange for his testimony against petitioner. "The mere fact that . . . [a] witness[] w[as] subsequently allowed to plead on favorable terms is not evidence that . . . [a] plea agreement[] w[as] secretly reached prior to the witness['s] testimony . . .." United States v. Molina, 75 F.3d 600, 602 (10th Cir. 1996) (direct criminal appeal).

At his state post-conviction hearing, two inmates did testify that Dickson admitted to them that he had lied at petitioner's trial, about both not having a deal with prosecutors in exchange for his testimony and petitioner's jailhouse confession. Petitioner's post-conviction counsel and his investigator also asserted that Dickson had told them that his trial testimony was false and that he had testified against petitioner pursuant to an understanding with the district attorney's office.

Nonetheless, Dickson testified at that same evidentiary hearing, affirming the truth of his trial testimony and denying any agreement with the prosecution in exchange for his testimony. The district attorney also testified, acknowledging that his office had a policy of offering lenient treatment in exchange for testimony, but asserting that he had never spoken with Dickson about his testimony prior to petitioner's trial.²

The Oklahoma Court of Criminal Appeals implicitly found Dickson's testimony credible. See Smith, 826 P.2d at 617. See generally Marshall v. Lonberger, 459 U.S. 422, 433-34 (1983) (even though state court did not make express credibility finding, federal court could assume state court found petitioner not credible, in light of that court's ruling); Newsted v. Gibson, 158 F.3d 1085, 1091 (10th Cir. 1998), cert. denied, 119 S. Ct. 1509 (1999) (deferring to implicit findings underlying state appellate court's determination that circumstances of case did not warrant giving lesser included offense instruction). Generally, we must presume that court's factual findings are correct. See 28 U.S.C. § 2254(d) (pre-AEDPA). See generally Sumner v. Mata, 455 U.S. 591, 592-93 (1982) (affording presumption of correctness to state appellate court's factfinding); Sumner v. Mata, 449 U.S. 539, 545-47 (1981) (same).

Petitioner, nevertheless, argues this court should not presume that the state court's credibility determination is correct in this case because he had no opportunity for discovery in the state post-conviction proceedings. See 28 U.S.C. § 2254(d) (pre-AEDPA). Review of the record, however, establishes that the state trial court did permit discovery in the post-conviction proceeding. Petitioner received all requested documents that existed, in addition to obtaining the state trial court's in camera inspection of the prosecutor's file to determine if there was any other relevant material that had not been produced. We, therefore, presume the state appellate court's credibility determination was correct.

Petitioner asserts that the district court erred in denying him further discovery on this issue in federal court. A federal habeas petitioner, however, will be entitled to discovery only "if, and to the extent that, the [district court] judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Rule 6(a), Rules Governing Section 2254 Cases; see, e.g., Bracy v. Gramley, 520 U.S. 899, 908-09 (1997). Because petitioner had discovery and an opportunity to develop this evidence during the state post-conviction proceedings, the district court did not abuse it discretion in denying further discovery in this federal habeas action. See Bracy, 520 U.S. at 909.

Lastly, petitioner challenges as false Dickson's testimony at sentencing that petitioner possessed a shank while in jail awaiting trial. In order to recover on this claim, petitioner had to establish that the prosecutor knowingly presented false testimony. See, e.g., Medina v. Barnes, 71 F.3d 363, 367 (10th Cir. 1995); see also Gray, 518 U.S. at 164-65. Petitioner, however, fails to allege any evidence tending to show that prosecutors knew this testimony was false.

III. EVIDENTIARY HARPOON

Within his prosecutorial misconduct argument, petitioner also challenges the evidentiary "harpoon" resulting when Dickson, at trial, volunteered that petitioner had been charged with kidnaping his daughter. The State had previously agreed not to present evidence regarding this incident, in response to petitioner's motion in limine. At the close of the first stage, the trial court did instruct...