Welch v. Workman, No. 07-5061.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtO'BRIEN, Circuit
Citation607 F.3d 674
PartiesGary Roland WELCH, Petitioner-Appellant,v.Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
Decision Date07 June 2010
Docket NumberNo. 07-5061.

607 F.3d 674

Gary Roland WELCH, Petitioner-Appellant,
v.
Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 07-5061.

United States Court of Appeals,
Tenth Circuit.

June 7, 2010.


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James L. Hankins of Ogle & Welch, P.C. (Robert L. Wyatt, IV, of Wyatt Law Office with him on the briefs), Oklahoma City, OK, for Petitioner-Appellant.

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

Before O'BRIEN, TYMKOVICH, and HOLMES, Circuit Judges.

O'BRIEN, Circuit Judge.

Gary Welch was sentenced to death after his conviction for the first degree murder of Robert Hardcastle. After his conviction and sentence were affirmed on appeal and his request for post-conviction relief was denied, Welch petitioned for writ of habeas corpus under 28 U.S.C. § 2254. The district court denied his petition but granted a certificate of appealability on ten issues involving both the guilt and sentencing phase of his trial. We affirm.

I. EVIDENCE AT TRIAL
A Guilt Phase

Welch and his co-defendant, Claudie Conover, were charged with murdering Robert Hardcastle on August 25, 1994. At around 4:00 p.m. that day, Welch and Conover drove to the home of Johnny Rogers. Stephen St. John, Rogers' brother-in-law, testified he was present when they arrived. St. John saw his brother-in-law walk to Welch's car and heard Welch ask for a “bump” (a drug injection). (Vol. 5 at 1116, 1119.) When Rogers said he had none, Welch got out of the car and, pointing a knife at Rogers, said “Give me a god damned bump!” ( Id. at 1120.) Welch turned

607 F.3d 681
the knife on St. John and told him to “look the other way.” ( Id. at 1121.) Welch continued to demand drugs until Conover patted him on the back and said “let's get out of here.” ( Id. at 1121-22.)

Approximately one hour later, Conover appeared at Larry Davis' home located in a duplex owned by Hardcastle. Davis and his wife lived in the front part of the duplex while Hardcastle resided in the back. Davis testified his friend was cooking dinner and Conover accepted an invitation to join them. Davis noticed a car parked toward the back, but saw only Conover at the time.

At some point, Davis went into the kitchen to help cook. While there, he heard banging noises coming from Hardcastle's residence. When he returned to the living room, Davis said he “wondered if [Hardcastle] was winning his wrestling match.” ( Id. at 1161.) Conover jokingly replied, “I wouldn't worry about it. Somebody's probably getting a spanking over a deal.” (Vol. 7 at 1563.) A few minutes later, Davis heard his living room window break. Turning, he saw Hardcastle running by the window yelling, “I don't have any” or “I didn't do it.” (Vol. 5 at 1167.) Hardcastle then ran to Davis' porch; there was blood on his hands, forearms, face and bare chest. Both Conover and Davis went towards the door but when Conover went out first, Davis shut the door and returned to his distraught wife.

Patricia and Donnie Nading testified they were driving their children to football practice when, in Patricia's words, they “noticed a commotion at the side of the road.” (Vol. 6 at 1255.) They saw three men run across the street in front of them. As the Nadings pulled even with the men, they saw Hardcastle crouched in a fetal position in the roadside ditch while Conover punched him and Welch stabbed and punched him. The Nadings pulled up to the next house and Donnie used the neighbor's telephone to call the police. While on the telephone, he spoke from a window with an unobstructed view of the activity. He saw the men continue to beat Hardcastle, as another car stopped and backed up toward the fracas. He saw Conover leave the victim and stride to the car. Banging on the back window and screaming profanities, Conover told the driver to leave. In the meantime, Welch continued to stab Hardcastle until, at one point, Welch left to retrieve a beer bottle five to seven feet away. Welch smashed the bottle and used it to stab and slash at Hardcastle.

While Conover was yelling at the first driver, a second car pulled up driven by Rachelle Campbell. She saw Conover leave the first car and run toward a nearby house. The next thing she knew, a car pulled out and stopped to pick up Welch. Conover was driving; he drove the car toward her at a high speed, causing her to back into a ditch to avoid a collision. As the car drove by, Conover yelled profanities and told her to get out of the way. As the two men drove away, Campbell saw Hardcastle, covered with blood, come out of the ditch.

Officer Jim Gambill was the first officer to arrive at the scene. He had known Hardcastle since they were children. Hardcastle said, “Jim, Gary Welch did this shit to me.” ( Id. at 1411.) He then asked for water and collapsed. Gambill radioed the ambulance and asked the paramedics to hurry, then radioed in to report Welch as a suspect. Hardcastle died a few minutes later.

As they made their escape, Welch and Conover were seen by an officer who testified the car and its occupants matched the descriptions provided over the radio dispatch. Because the officer was in an unmarked car, he called for a marked backup and followed them. When the backup arrived,

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the officers stopped the car and arrested Welch and Conover. The officers then retrieved a broken knife which had been thrown out of the vehicle prior to its stop. At booking, a knife scabbard was taken from Welch's belt and another knife was found in the car. A search of Hardcastle's duplex revealed a major fight had taken place in the kitchen and inside the front door.

The autopsy report stated Hardcastle bled to death after receiving at least ten stab wounds, three of which penetrated his lungs, and numerous incision (slice) wounds. Some of the wounds were consistent with the broken knife thrown from the vehicle and the superficial wounds were consistent with those caused by a broken beer bottle.

At trial, Welch testified he fought Hardcastle in self-defense. He explained that two weeks before the incident Hardcastle, who knew Welch did “skin illustrations,” had spoken to him about getting a tattoo. (Vol. 8 at 1796.) Welch decided to visit with Hardcastle about the tattoo while Conover visited with Davis. According to Welch, he and Hardcastle had a pleasant visit until Hardcastle asked Welch to show him the knife he was carrying. When Welch handed Hardcastle the knife, Hardcastle's attitude abruptly changed. Welch stated that Hardcastle held the knife in a threatening way and said “you've been stepping on my old lady's toes,” but he had no idea what Hardcastle was talking about. (Vol. 8 at 1825.) Hardcastle then tried to stab him.

Welch claimed they began to fight while Hardcastle repeatedly tried to stab him. As Welch attempted to defend himself, Hardcastle eventually “went down” while still holding the knife. ( Id. at 1838.) Welch escaped through the front door and hid behind the cars in the driveway. Hardcastle came out of the house and ran to the front duplex. Seeing Conover come out on the porch, Welch revealed his position and called to Conover for assistance. Hardcastle ran towards Welch, who fled across the street and then, in his own words, “turned, you know, to face the problem.” (Vol. 8 at 1846.)

Obviously rejecting Welch's account of the situation, the jury found him guilty of first degree murder.


B. Sentencing Phase

The State alleged three aggravating circumstances: (1) a previous felony conviction involving the use or threatened use of violence; (2) a probability of future criminal acts of violence constituting a continuing threat to society; and (3) the murder was especially heinous, atrocious and cruel. After incorporating the evidence from the guilt phase, the State introduced evidence of two prior felony convictions-aggravated assault and battery upon a police officer (1981) and assault and battery with a dangerous weapon after a former felony conviction (1982).

In support of the continuing threat aggravator, the State introduced testimony from several police officers recounting an incident from several years before in which Welch attacked an officer while being booked for driving under the influence. In addition, an officer from the Ottawa County Jail testified Welch had threatened him during Welch's present incarceration. A fellow inmate also testified Welch assaulted him while they were being held in the same cell.

The state presented evidence of a history of domestic violence. Two women testified Welch had assaulted them in the past. One stated Welch, while living in her home with his girlfriend, broke down her door, hit her and threw her against the Christmas tree. Welch's former girlfriend recounted

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one time Welch came to her home and demanded sex. When she refused, Welch beat her in the presence of her two minor children. Welch told the children to lie down and be quiet or he would kill them. He then tore her clothes off and put her head through a cabinet and a wall. Another time, she believed Welch was going to kill her so she fired a shotgun at him. When she missed, he took the gun, bent it, and hit her in the head with it. Yet another time, he found her in her yard and dragged her inside her home. There, Welch stuck her head in a washing machine, threw her down on a coffee table and held a knife to her throat.

The State's final witnesses were three members of Hardcastle's family. We discuss these statements in detail infra. Each family member characterized Welch as an “animal” or a “parasite” and implored the jury to impose death. (Vol. 9 at 2116, 2117, 2123, 2130.)

In mitigation, Welch presented the testimony of Dr. Phillip Murphy. He opined Welch's...

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15 practice notes
  • Bauberger v. Haynes, No. 09–8111.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 11, 2011
    ...also unreasonably applied Chapman, as most circuits since Fry have explicitly or implicitly recognized. See Welch v. Workman, 607 F.3d 674, 686 (10th Cir.2010); Wesbrook v. Thaler, 585 F.3d 245, 255–56 (5th Cir.2009); [632 F.3d 105] Ruelas v. Wolfenbarger, 580 F.3d 403, 411–13 (6th Cir.2009......
  • Wood v. Ercole, Docket No. 09–2905–pr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 4, 2011
    ...Dep't of Corr., 610 F.3d 568, 571 (11th Cir.2010) (applying Brecht to assess state court's harmlessness determination); Welch v. Workman, 607 F.3d 674, 686 (10th Cir.2010) (“[The state court] determined the admission of the statement was harmless error. Therefore, we review only whether the......
  • Welch v. Workman, No. 07–5061.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 10, 2011
    ...The panel's original opinion will be amended to do so. The opinion in this case dated June 07, 2010, [639 F.3d 987] Welch v. Workman, 607 F.3d 674 (10th Cir.2010), is withdrawn and the attached opinion is substituted in its place. In all other respects, the petition for panel rehearing is d......
  • Selsor v. Workman, No. 09–5180.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 2, 2011
    ...family member to comment, during second-stage proceedings, on the appropriate sentence for a capital defendant. See Welch v. Workman, 607 F.3d 674, 695 (10th Cir.2010). Thus, we conclude that Selsor's Eighth Amendment rights were violated by admission of the challenged testimony from Huggin......
  • Request a trial to view additional results
15 cases
  • Bauberger v. Haynes, No. 09–8111.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 11, 2011
    ...also unreasonably applied Chapman, as most circuits since Fry have explicitly or implicitly recognized. See Welch v. Workman, 607 F.3d 674, 686 (10th Cir.2010); Wesbrook v. Thaler, 585 F.3d 245, 255–56 (5th Cir.2009); [632 F.3d 105] Ruelas v. Wolfenbarger, 580 F.3d 403, 411–13 (6th Cir.2009......
  • Wood v. Ercole, Docket No. 09–2905–pr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 4, 2011
    ...Dep't of Corr., 610 F.3d 568, 571 (11th Cir.2010) (applying Brecht to assess state court's harmlessness determination); Welch v. Workman, 607 F.3d 674, 686 (10th Cir.2010) (“[The state court] determined the admission of the statement was harmless error. Therefore, we review only whether the......
  • Welch v. Workman, No. 07–5061.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 10, 2011
    ...The panel's original opinion will be amended to do so. The opinion in this case dated June 07, 2010, [639 F.3d 987] Welch v. Workman, 607 F.3d 674 (10th Cir.2010), is withdrawn and the attached opinion is substituted in its place. In all other respects, the petition for panel rehearing is d......
  • Selsor v. Workman, No. 09–5180.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 2, 2011
    ...family member to comment, during second-stage proceedings, on the appropriate sentence for a capital defendant. See Welch v. Workman, 607 F.3d 674, 695 (10th Cir.2010). Thus, we conclude that Selsor's Eighth Amendment rights were violated by admission of the challenged testimony from Huggin......
  • Request a trial to view additional results

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