September 3, 2002

Appeal from the United States District Court for the Western District of Oklahoma (No. CIV-99-74-T)

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.

Lewis Eugene Gilbert, an Oklahoma state prisoner sentenced to death, appeals the district court's denial of his petition for a writ of habeas corpus. This court has granted Gilbert a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c) with respect to three of his claims of legal error: (1) that his right to a fair trial was violated by a coerced verdict at the sentencing stage of the trial; (2) that he was improperly denied his request for a competency evaluation in state court; and (3) that there was insufficient factual support for the jury's finding of the existence of the "avoid arrest" and "continuing threat" aggravating circumstances. We have independently reviewed the record and conclude that Gilbert is not entitled to habeas relief on any of these claims. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm.

Gilbert and a co-defendant were convicted of the 1994 murder of Roxanne Ruddell, a security guard at Lake Stanley Draper in Oklahoma.(1) Prior to this murder, Gilbert and his co-defendant had killed an elderly woman in Ohio, stolen her car, and driven it to Missouri. In Missouri they had killed an elderly couple, stolen their car, and driven it to Oklahoma. The two took the second stolen car to Lake Stanley Draper, where they saw Ruddell fishing alone.

Intending to steal her pickup, they tied Ruddell's hands and made her walk a short distance to sit in the "vee" at the base of a tree. Gilbert then shot her three times in the head. Approximately three days later, Gilbert and his co-defendant were apprehended in New Mexico sleeping in a ditch. Ruddell's pickup was found nearly a mile away.

During the sentencing stage of the trial the prosecutor argued, and the jury found the existence of, two aggravating circumstances: that there was a probability that Gilbert would commit criminal acts of violence such that he constituted a "continuing threat to society," and that the murder was committed for the purpose of "avoiding or preventing a lawful arrest or prosecution." Gilbert v. State, 951 P.2d 98, 103, 122 (Okla. Crim. App. 1997). The jury recommended that Gilbert be sentenced to death for Ruddell's murder, and the trial court sentenced him in accordance with this recommendation.

Gilbert appealed, raising thirteen propositions of error, but his convictions and death sentence were affirmed by the Oklahoma Court of Criminal Appeals ("OCCA"). He subsequently filed an application for post-conviction relief before the OCCA, urging eight grounds and requesting an evidentiary hearing, but this application was denied. In September 1999, Gilbert filed a petition for a writ of habeas corpus in federal district court, seeking relief on seven grounds. The petition was denied and this appeal followed.

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Gilbert's final claim is that the evidence was insufficient to support a finding by the jury of the two aggravating circumstances in this case--that the murder was committed to avoid arrest and that Gilbert was a continuing threat to society.

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Under Oklahoma law, the focus of the aggravating circumstance that the murder was committed to avoid lawful arrest or prosecution is on the state of mind of the murderer; it is he who must have the purpose of avoiding or preventing lawful arrest or prosecution. See Carter v. State, 879 P.2d 1234, 1250 (Okla. Crim. App. 1994).

This aggravator also requires a predicate crime, separate from the murder, for which the appellant seeks to avoid arrest or prosecution. Id. The OCCA, in concluding that there was sufficient evidence to support the jury's finding of the "avoid arrest" aggravator, stated that Gilbert admitted to killing one woman in Ohio and stealing her car, driving it to Missouri where an elderly couple was killed for their car, driving that car to Oklahoma where Mrs. Ruddell was killed and her pickup taken by [Gilbert] and his co-defendant to New Mexico. This is ample evidence to support the jury's finding the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution.

Gilbert, 951 P.2d at 122. Further evidence in the record in support of the "avoid arrest" aggravating circumstance includes testimony that Gilbert admitted that the victim pleaded with him to take her car and swore she would not notify police, but that Gilbert disbelieved her and killed her. (June 11, 1995 Tr. at 371.)

The jury could easily have concluded from this evidence that there was no reasonable doubt that Gilbert's intent in killing Ruddell was to take her truck in order to avoid arrest for the previous murders and to eliminate a potential witness to his stealing of Ruddell's truck.

Testimony as to the conversation between Gilbert and Ruddell specifically supports such an inference as to Gilbert's intent. We therefore conclude that a rational trier of fact could have found the essential elements of this aggravating circumstance beyond a reasonable doubt and that the OCCA's determination in this regard was not unreasonable.

In order to support the "continuing threat" aggravating circumstance, the State must demonstrate a defendant will continue to present a threat to society after sentencing. Cudjo v. State, 925 P.2d 895, 902 (Okla. Crim. App. 1996). "A defendant's criminal history, the callousness of the crime, threats against others, lack of remorse, and attempts to prevent calls to the police are all factors this Court has previously considered when addressing this issue." Id.

The following evidence was in the record in support of the "continuing threat" aggravating circumstance: the unadjudicated murders committed in Ohio and Missouri; prior convictions for child endangerment, theft, and breaking and entering in Ohio; and prior convictions for the unauthorized use of a motor vehicle and for embezzlement by bailee in Oklahoma. Gilbert, 951 P.2d at 122. We conclude that this evidence was likewise sufficient for a rational trier of fact to have found the essential elements of this aggravating circumstance beyond a reasonable doubt, and that the OCCA's determination in this regard was not unreasonable.

The district court's dismissal of Gilbert's petition for a writ of habeas corpus is AFFIRMED.

Gilbert v. State, 951 P.2d 98, 103 (Okla. Crim. App. 1997).

Defendant was convicted in the District Court, Cleveland County, Tom A. Lucas, J., of first-degree malice aforethought murder, kidnapping, and robbery with firearms, and sentenced to death. Defendant appealed. The Court of Criminal Appeals, Lumpkin, J., held that: (1) district court's failure to order pretrial competency evaluation was not error; (2) defendant's confession to murder was voluntary; (3) defendant was not entitled to aiding and abetting instruction; (4) any error resulting from causation instruction focusing on whether defendant's conduct was substantial factor in bringing about victim's death was harmless error; (5) evidence was sufficient to support murder conviction; (6) Allen instruction given to deadlocked jury during sentencing deliberations was not per se coercive; and (7) sentence of death was appropriate. Affirmed. Chapel, P.J., and Strubhar, V.P.J., concurred in result.

LUMPKIN, Judge.

Appellant Lewis Eugene Gilbert was tried by jury and convicted of First Degree Malice Aforethought Murder (Count I) (21 O.S.1991, § 701.7), Kidnapping (Count II) (21 O.S.1991, § 741), Robbery with Firearms (Count III) (21 O.S.1991, § 801), Case No. CF-94-1125, in the District Court of Cleveland County. In Count I the jury found the existence of two (2) aggravating circumstances and recommended the punishment of death. In each of Counts II and III, the jury recommended as punishment life imprisonment and fines of ten thousand dollars ($10,000.). The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.

Appellant and co-defendant Eric Elliott (Co-defendant Elliott appeals separately) were convicted of the premeditated murder of Roxanne Ruddell, a security guard at Lake Stanley Draper.

Appellant and Elliott were in the midst of a multi-state crime spree when they arrived in Oklahoma. They had killed an elderly lady in Ohio and stolen her car which they drove to Missouri. There, they killed an elderly couple and stole their car which they drove to Oklahoma.

Driving that car to the area near Lake Stanley Draper, Appellant and Elliott saw the victim fishing alone near Point 6. Intending to steal her pickup, the defendants tied the victim's hands, made her walk a short distance and sit in the "v" at the base of a tree. Appellant then shot her three times in the head.

Approximately three days later, Appellant and Elliott were apprehended in New Mexico sleeping in a ditch. The victim's pickup was found approximately one mile away.

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Accordingly, finding no error warranting reversal or modification, the judgment and sentences for First Degree Murder, Kidnapping and Robbery with Firearms are AFFIRMED.

Gilbert v. State, 955 P.2d 727 (Okla.Crim.App. 1998) (PCR).

Following affirmance of conviction for murder and other offenses, 951 P.2d 98, defendant filed original action for postconviction relief. The Court of Criminal Appeals, Lumpkin, J., held that: (1) Simmons was not an intervening change in law so as to warrant postconviction review of counsel's alleged failure to challenge constitutionality of jury instruction on sentencing option of life without parole; (2) appellate counsel's omission of claim did not constitute ineffective assistance; (3) issues which were raised or could have been raised on direct appeal were barred; (4) proposition that Court adopt recommendation of American Bar Association and impose moratorium on executions was not properly raised under postconviction statute; (5) there was not cumulative error; (6) defendant was not entitled to evidentiary hearing; (7) proposition that state's clemency scheme, as currently applied, denies death sentenced petitioners due process was not properly raised under postconviction statute; (7) response to application for postconviction relief was not necessary; and (8) defendant was not entitled to additional discovery. Applications denied. Chapel, P.J., and Lane, J., concurred in result.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF, EVIDENTIARY HEARING AND DISCOVERY

LUMPKIN, Judge:

Petitioner Lewis Eugene Gilbert was convicted of First Degree Malice Aforethought Murder (Count I) (21 O.S.1991, § 701.7) , and Robbery with Firearms (Count III) (21 O.S.1991, § 801) , Case No. CF-94-1125, in the District Court of Cleveland County. In Count I, the jury found the existence of two (2) aggravating circumstances and recommended the punishment of death. In each of Counts II and III, the jury recommended as punishment life imprisonment and fines of ten thousand dollars ($10,000). This court affirmed the convictions and sentences in Gilbert v. State, 951 P.2d 98 (Okl.Cr.1997). Petitioner filed his Original Application for Post-Conviction Relief in this Court on October 27, 1997, in accordance with 22 O.S.Supp.1995, § 1089.

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After carefully reviewing Petitioner's Application for post-conviction relief and his requests for discovery, evidentiary hearing and other requests, we conclude (1) there exists no controverted, previously unresolved factual issues material to the legality of Petitioner's confinement; (2) Petitioner could have previously raised collaterally asserted grounds for review; (3) grounds for review which are properly presented have no merit; and (4) the current post-conviction statutes warrant no relief. 22 O.S.Supp.1995, § 1089(D)(4)(a)(1), (2) & (3). Accordingly, Petitioner's Application for Post- Conviction Relief and Application for an Evidentiary Hearing and Discovery are DENIED.