Thomas v. Gibson

• Citation: 218 F.3d 1213
• Decision Date: 18 July 2000
• Docket Number: No. 99-5030,99-5030
• Parties: (10th Cir. 2000) DARRELL LYNN THOMAS, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1213

218 F.3d 1213 (10th Cir. 2000)

DARRELL LYNN THOMAS, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 99-5030

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 18, 2000

Appeal from the United States District Court for the N. District of Oklahoma (D.C. No. CV-96-494-K) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Vicki Ruth Adams Werneke, Assistant Federal Public Defender, Death Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for Appellant.

Robert L. Whittaker, Assistant Attorney General, Criminal Division, Oklahoma City, Oklahoma, (W. A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), for Appellee.

Before TACHA, BRORBY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

An Oklahoma state jury found Darrell Thomas guilty of first degree murder and robbery by force. The jury sentenced Thomas to death for the murder and to a term of ten years in prison for the robbery. Thomas unsuccessfully challenged his convictions and death sentence on direct appeal and state collateral review. See Thomas v. State, 811 P.2d 1337 (Okla. Crim. App. 1991) ("Thomas I"); Thomas v. State, 888 P.2d 522 (Okla. Crim. App. 1994) ("Thomas II"). Thomas thereafter filed the instant 28 U.S.C. 2254 habeas corpus petition in federal district court attacking the constitutionality of his convictions and death sentence. The district court denied the petition in toto.

On appeal, Thomas raises three challenges each to the validity of his convictions and the validity of his death sentence. As to the validity of his underlying convictions, Thomas argues as follows: (1) his trial counsel provided constitutionally ineffective assistance by failing to investigate evidence supporting Thomas' innocence and, in particular, evidence supporting the likely guilt of the victim's husband; (2) the prosecutor deprived Thomas of his right to due process by failing to endorse three witnesses in a timely manner; and (3) the introduction of inadmissible hearsay rendered his trial fundamentally unfair. After a thorough review of Thomas' contentions, this court concludes that his claims of error regarding the guilt phase of his trial are either procedurally barred or without merit. Accordingly, we affirm the district court's denial of relief as to these three issues.

In addition to his challenges to the validity of the underlying convictions, Thomas also asserts that his death sentence is unconstitutional. In particular, Thomas asserts: (1) the sole aggravating circumstance found by the jurythat the murder was especially heinous, atrocious, and cruelis not supported by sufficient evidence; (2) the verdict form used during the guilt phase directed a verdict of death, thereby depriving Thomas of a fair and individualized sentencing determination; and (3) the state trial court deprived Thomas of a fundamentally fair sentencing proceeding when it precluded Thomas from presenting to the jury evidence that the prosecutor had offered Thomas a life sentence in exchange for a guilty plea. Upon review of the record in this case, we conclude that no reasonable fact finder could conclude that the murder in this case was heinous, atrocious, or cruel, as that term is defined by Oklahoma law. This court further concludes, therefore, that the decision of the Oklahoma Court of Criminal Appeals holding that there was sufficient evidence to support the aggravator is unreasonable. See 28 U.S.C. 2254(d), (e). In light of that conclusion, this court need not address Thomas' remaining contentions of error regarding the validity of his death sentence.

This court exercises jurisdiction pursuant to 28 U.S.C. 1291 and 2253(c), affirms the denial of habeas relief as to those issues relating to the guilt phase of Thomas' trial, reverses the denial of habeas relief as to Thomas' sentence of death, and remands to the district court to grant the writ consistent with this opinion.

II. BACKGROUND

On April 28, 1987, Darrell Kinnich discovered the body of Glenda Jane Powell in her home. Kinnich, who lived in a trailer two hundred feet from Powell's home, was the stepfather of Powell's estranged husband, Kenneth Powell. Powell had been severely beaten. She was laying on her back, with her legs bent underneath her, on the living room floor. The medical examiner concluded the cause of death was multiple blunt force, including manual strangulation, and shock force injuries. There were four stab wounds, two of which were inflicted after death. The time of death was estimated at no later than 5:00 a.m. on the morning the body was found, and as early as the last time Powell was seen alive, at 7:00 p.m. on April 27th.

An investigation by the authorities in Creek County, Oklahoma, revealed the following, all of which was presented at Thomas's trial. On April 27th, Powell went to the VFW bar in or around Sapulpa, Oklahoma, sometime between 4:30 and 5:00 p.m. After consuming two drinks, Powell called Kenneth Powell and asked him for money to make her car payment. Powell told the bartender at the VFW she would be back; she left the bar and went to Kenneth Powell's house. Kenneth Powell gave her three $100 bills and a $20 bill so she could make her car payment.

Shortly after 6:00 p.m., Powell returned to the bar. While she consumed two more drinks, Powell sat at the bar talking to two men, Kenneth Worrall and Thomas. After Powell told Worrall and Thomas she was building a new home, Thomas asked if Powell's new home had been treated for termites, indicated that he worked for a pest-control company, and offered to give her an estimate. After negotiating a price for termite control treatment and a discussion of directions to Powell's home, Powell and Thomas left the bar together.

Kinnich testified he saw Powell arrive home in her pickup at "6:30 [p.m.] or later"; a gold-colored car with no hubcaps on the driver's side arrived at approximately the same time. A white male exited the gold-colored car, walked around Powell's house, and then entered the house with Powell. Kinnich testified the man was wearing a dress shirt with the sleeves cut off at the shoulder seam. Carolyn Barnes, a waitress and bartender at the VFW bar, testified that Thomas was wearing such a shirt the night of the murder and that Powell left the bar with Thomas. Kinnich testified he observed the man leave Powell's house approximately thirty minutes later carrying a small, white object. Powell's small, envelope-shaped, white purse was found to be missing after the murder.

The next day, Thomas went to the Mustang Lounge in Tulsa, Oklahoma. Thomas approached the owner of the bar and the owner's daughter and asked if they would like to purchase some jewelry. The owner eventually allowed Thomas to pawn the jewelry for $80.00. At trial, Thomas' counsel stipulated that the jewelry belonged to Powell. Thomas also showed the owner's daughter several one hundred dollar bills that he had in his wallet. As noted above, Powell had received three one hundred dollar bills from her estranged husband Kenneth Powell on the night of the murder.

Thomas was eventually apprehended by the authorities at the Coppa Motel in Durant, Oklahoma. At the time of his arrest, officers seized Thomas' car; the car matched the description given by Kinnich and the patterns in the tire treads matched the tracks found at the scene of the crime. At a lineup conducted on May 28, 1987, Kinnich picked Thomas out of a group of five but indicated that he was "not sure" Thomas was the person he saw at Powell's house the night of the murder. Kinnich expressed a similar hesitancy when he testified at the preliminary hearing. Nevertheless, at trial, Kinnich testified he was "pretty sure" the man he saw walking around Powell's house was Thomas. Kinnich explained he was more certain of his identification because he had "seen [Thomas] more times" since the night of the murder.

Thomas' strategy at trial was to cast doubt on the prosecution case by adducing evidence that police investigators suspected that others, either in addition to or apart from Thomas, were involved in the murder of Powell. In fact, Thomas adduced testimony that officers suspected he had conspired with Kenneth Powell or, more specifically, that Kenneth Powell had hired him to kill Powell. Thomas also adduced testimony that Powell feared for her life months before the murder and had indicated that some unidentified individual or group was going to kill her.

After hearing two days of evidence, a jury found Thomas guilty of first degree murder and robbery by force. The sentencing stage for the murder conviction commenced immediately after the conclusion of the guilt phase of the trial. No additional evidence was presented by either the prosecutor or Thomas' trial counsel. Instead, the prosecution incorporated the evidence it adduced during the guilt phase of the trial in support of the "heinous, atrocious, or cruel" aggravating circumstance, the only aggravating circumstance advanced by the prosecution. The jury returned a sentence of death that same evening.

Thomas appealed his conviction and death sentence to the Oklahoma Court of Criminal Appeals ("OCCA"), raising numerous claims of error as to both the guilt and penalty phases of his trial. The OCCA affirmed Thomas' conviction and death sentence in 1991. See Thomas I, 811 P.2d at 1352. The OCCA affirmed the denial of Thomas' state petition for post-conviction relief in 1994. See Thomas II, 888 P.2d at 527-28. Thomas filed the instant 2254 petition in federal district court on June 3, 1996. The district court entered an order denying Thomas' petition in December of 1998 and entered an order granting Thomas a certificate of appealability ("COA") as to all issues raised in the petition. See 28 U.S.C. 2253(c)(1) (providing that no appeal can be taken from the denial of relief "in a habeas corpus proceeding in which the...