Thornburg v. Mullin
| Decision Date | 07 September 2005 |
| Docket Number | No. 04-6086.,04-6086. |
| Citation | 422 F.3d 1113 |
| Parties | Richard Alford THORNBURG, Jr., Petitioner-Appellant, v. Mike MULLIN, Warden of the Oklahoma State Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Steven M. Presson (Robert W. Jackson with him on the brief), of Jackson & Presson, P.C., Norman, OK, for Petitioner-Appellant.
Robert Whittaker, Assistant Attorney General (W.A. Drew Edmonson, Attorney General, with him on the brief), Oklahoma City, OK, for Respondent-Appellee.
Before KELLY, HARTZ, and McCONNELL, Circuit Judges.
Applicant Richard Allen Thornburg was convicted in Oklahoma state court on three counts of first-degree murder and sentenced to death. After the Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions on direct appeal and denied his application for state postconviction relief, he filed in the United States District Court for the Western District of Oklahoma an application for writ of habeas corpus under 28 U.S.C. § 2254. The district court rejected his application.
The district court and a member of this court have each granted certificates of appealability (COA), see 28 U.S.C. § 2253(c)(1) (), permitting Mr. Thornburg to raise challenges to his conviction and sentence based on the following alleged errors: (1) the admission of testimony by a witness that he had passed a polygraph examination; (2) the failure of the trial court to give voluntary-intoxication and lesser-included-offense instructions; (3) the admission of hearsay testimony; (4) the admission of photographs of the deceased; (5) prosecutorial misconduct; (6) ineffective assistance of trial counsel; (7) ineffective assistance of appellate counsel; (8) the presence of a carving behind the judge's bench that contained eye-for-an-eye language; and (9) the denial of his request for an evidentiary hearing. We affirm.
Between 3:00 and 4:00 a.m. on September 28, 1996, Thornburg, along with codefendants Glenn Anderson and Roger Embrey, went to Marvin Matheson's trailer. All three were armed. As they hovered over Matheson, Thornburg accused him of being responsible for shooting Thornburg the month before. Also suspecting Jim Poteet of a role in the shooting, they drove Matheson to Poteet's house, telling him on the way not to worry about locking his trailer, because he was not coming back.
When the four men arrived at Poteet's house, Thornburg and Embrey went inside while Matheson and Anderson remained in the car. After hearing gun shots from the house, Anderson took Matheson inside. As Matheson entered he saw Terry Shepard sitting on a chair outside the bathroom door and Poteet sitting on the bed in the back bedroom. Poteet, held at gunpoint by Thornburg, had been shot in the foot and his forehead was bruised and bloody. Matheson saw Thornburg shoot again at Poteet's feet as he attempted to get Poteet to tell him who had shot him.
Anderson then instructed Thornburg to take Matheson to Poteet's rental unit near the house and get Jimmy Scott. Thornburg escorted Matheson to the rental unit with a gun to his back, but he was interrupted when Kevin Smith arrived at Scott's house to retrieve his girlfriend's purse. Thornburg instructed Smith to knock on Scott's door. The door was answered by Donnie Scott, the brother of Jimmy, who was not home. Thornburg forced Scott, Smith, and Matheson to go to Poteet's house.
Once they were inside Poteet's house, Anderson held the men at gunpoint in the kitchen while Thornburg went to the back bedroom. Matheson could hear Thornburg and Poteet arguing about drugs and money. Then Anderson instructed Embrey to bring everyone back to the bedroom. The men injected Matheson and Poteet with drugs, as Anderson commented that he intended to "OD" them. Tr. III at 94. Anderson and Thornburg also injected themselves. Thornburg continued arguing with Poteet about whether Poteet shot him. He told Poteet that he was going to shoot him, but then said "better yet, I ain't gonna shoot you," and instructed Matheson to shoot Poteet. Tr. III at 97. Embrey and Anderson pointed their guns at Matheson, threatening to shoot him if he did not shoot Poteet. When Matheson refused to shoot Poteet, Thornburg shot Poteet in the side.
Thornburg then told Matheson that Matheson was "going to shoot somebody and that it had a lot to do with if [Matheson left] the house or not." Tr. III at 100. Matheson was told to shoot one of the men in the bathroom. He attempted to shoot Scott in the head, but the gun did not have a bullet. Anderson took the gun into the hallway, presumably to put a bullet in it, and returned, insisting that Matheson shoot Scott or he would kill Matheson. Matheson shot Scott in the chest.
Embrey then gave his gun to Anderson, telling him that he did not want to be involved in shooting anyone, and escorted Matheson back to the car. Matheson heard three or four more shots coming from the house. As Matheson was sitting in the car, Embrey opened the trunk and Matheson could smell gas as if Embrey was siphoning gasoline. The men removed a sack of "Longneck Budweiser" bottles from the back seat. Id. at 107. Then Matheson heard someone throw something through a window and saw that Poteet's bedroom window was broken. After setting the house on fire, the men drove away.
Thornburg dropped Anderson and Embrey off by the side of the road so that they could stash their guns. After driving further, Thornburg told Matheson to get out of the car, hide for a bit, and keep his mouth shut or the others would blame him for killing everyone.
Scott, still alive in the burning house, attempted to help Poteet crawl out but was unsuccessful. He made it out himself and lay down in the grass. A man and his son drove past the burning house shortly after 5 a.m. and saw Scott. They took him to a convenience store and called the police. Scott survived, but Smith, Poteet, and Shepard perished in the fire.
When Matheson heard that officers wanted to arrest him in connection with the murders, he turned himself in. He gave the above account of his activities to officers once he learned that his family was under police protection.
During the guilt phase of Mr. Thornburg's trial, the prosecution presented the above account through the testimony of Marvin Matheson and Donnie Scott. The prosecution also called several other witnesses.
Richard Goss, a Deputy Inspector with the Oklahoma State Bureau of Investigation (OSBI), testified that Scott had identified Thornburg in a photographic line-up on September 28th, the day of the murders, as the "one that was giving the orders." Tr. III at 208.
To place the three perpetrators — Thornburg, Anderson, and Embrey — together at the time of the murders, and to confirm the time, the state provided four witnesses. Eric Huber was living with Anderson, who was his boss at a trailer manufacturing company. Huber testified that he, Anderson's wife, and Anderson's son joined Anderson, Thornburg, and Embrey at a bar until it closed about 2 a.m. the morning of the 28th. They then went to the house of Dana Nath, but left there by 3 a.m. Thornburg, Anderson, and Embrey left in Thornburg's car, while Huber, Mrs. Anderson, and the Andersons' son returned home. About 6 a.m. Huber was awakened when Thornburg dropped Anderson off at the home. Huber also testified that Anderson moved to a hotel "right after the homicides," Tr. II. at 231, and that while living at the Andersons' he discovered a box with newspaper clippings about the murders. In addition, he testified that at the Andersons' instructions he had originally told the police that Anderson went home with his family and Huber after they all went to the bar. He said that he had not told the truth to authorities until two days before his testimony.
Dana Nath agreed with Huber that the group came to her house after 2 a.m. the morning of the 28th, and stayed about half an hour. She thought Thornburg, Anderson, and Embrey left together between 2:30 and 2:45 a.m.
Roy Scott, the uncle of Donnie and Jimmy Scott, testified that he drove past the Poteet residence as he was on his way to his nephews' house about 4:30 a.m. on the 28th to pick up Jimmy to go to Oklahoma City. He noticed a light-colored car pulling into Poteet's drive (Thornburg's car was gold). At the time of his testimony, Roy Scott was in jail on a charge of possessing a stolen vehicle.
Jatone Kennedy, victim Smith's girlfriend at the time, testified that she and Jimmy Scott had been out drinking on the 27th. She passed out at the Scott residence. Smith, angry because she had not come home, woke her around 2:00 a.m. on the 28th, and they fought as they walked back to their house. Once they reconciled, she told him that she had left her purse with his marijuana in it at Scott's house. About 4 a.m. he left to go to the Scott residence to get the purse. He never returned. Kennedy was on probation at the time of her testimony.
The state also called Loyd Keagans, one of the passers-by who rescued Scott. Keagans testified that he and his son left home at 5:05 a.m. on the 28th to see a football game in College Station, Texas. Shortly before 5:30 a.m. they passed by Poteet's house fully ablaze. They stopped to help. While Mr. Keagans approached the burning house, his son went to the neighboring house to use the telephone. On the way, the son discovered Scott, who insisted they take him to a hospital. They drove him to a nearby convenience store, where they called the Sheriff's Department. Although Scott's condition worsened while he was waiting for assistance at the convenience store, he was able to tell them that three white men were responsible, one "big" and one with "sandy hair," Tr. II at 112, and that there were three other people in the burning house who...
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