Norman Lee Newsted was
condemned for the Feb. 20, 1984, killing of Lawrence Donnell Buckley,
He hailed Buckley, who had only
been driving a cab for a couple of months, at the Tulsa International
Airport and asked the driver to take him to his sister's house, but
they had trouble finding the address.
Testimony at trial indicated they
stopped at Calvary Temple Assembly of God to ask for directions, where
Newsted made a phone call, then returned to the cab and shot Buckley
twice in the back of the head.
The church pastor found the cab,
with Buckley's body inside, partially submerged in a creek near the
church the next day.
Investigators said Newsted was
arrested at his sister's home with Buckley's empty wallet nearby.
Newsted maintained he shot Buckley in self-defense.
Norman Lee Newsted, 45,
In Oklahoma early Thursday, a man
convicted of killing a Tulsa taxi driver in 1984 during a robbery was
executed by injection.
Norman Lee Newsted, 45, was
condemned for the Feb. 20, 1984, killing of Buckley, 26. He hailed
Buckley at Tulsa International Airport and asked the driver to take
him to his sister's house.
Testimony at trial indicated they
stopped at Calvary Temple Assembly of God to ask for directions, where
Newsted made a phone call, then returned to the cab and shot Buckley
twice in the back of the head.
The church pastor found the cab,
with Buckley's body inside, in a creek near the church the next day.
Investigators said Newsted was
arrested at his sister's home with Buckley's empty wallet nearby.
Newsted maintained he shot Buckley in self-defense.
The state Pardon and Parole Board
denied clemency after a June 15 hearing.
In a statement, Buckley's survivors
said they hoped the execution would bring closure to 15 years of pain,
anger and grief.
"Larry will always be in our
prayers and hearts and only now will he rest in peace," the family
Newsted claimed he shot Buckley
because the cabbie tried to rob him.
Newsted becomes the 4th condemned
inmate to be put to death this year in Oklahoma, and the 17th overall
since the state resumed capital punishment in 1990.
Associated Press and Rick Halperin)
Oklahoma Court of
1986 OK CR 82
720 P.2d 734
NEWSTED v. STATE
Appeal from the
District Court of Osage County; Mermon H. Potter, District Judge.
NEWSTED, appellant, was convicted of Murder in the First Degree, in
the District Court of Osage County, Oklahoma, Case No. CRF-84-26,
sentenced to death, and appeals. AFFIRMED
[720 P.2d 736]
Norman Lee Newsted, the appellant herein, was charged, tried, and
convicted in the District Court of Osage County, Case No. CRF-84-26,
for the offense of Murder in the First Degree. His punishment was
assessed by the jury at death. Judgment and sentence was imposed by
the District Court in accordance with the jury's verdict.
the evening of February 20, 1984, the appellant arrived at Tulsa
International airport. He hailed a taxi cab driven by Larry Donnell
Buckley, and asked to be driven to an address appellant apparently
believed was his sister's. When they were unable to locate the
address, Mr. Buckley stopped at a gas station to ask directions.
Appellant purchased a pack of cigarettes and a beer. Although
appellant paid for his purchases, a cashier saw no money in
appellant's billfold when he pulled it out. Appellant and Mr. Buckley
next stopped at Calvary Temple of God church to again ask directions.
Appellant asked to use the telephone and made a call. Witnesses at the
church saw appellant leave the building, and saw the taxi cab driver
under an awning at the church. Soon thereafter they heard two loud
noises. The appellant's sister soon arrived at the church to pick up
her brother. His pants were wet and he explained that the cab driver
had pulled a knife and attempted to rob him. He said he shot the taxi
cab driver. When they arrived at her house, appellant's sister left
with her children and later called police.
The next morning a pastor at the church discovered the taxi cab
partially submerged in a creek near the church parking lot. Mr.
Buckley was found in the cab, dead from two gunshot wounds to the back
of the head.
Based on their investigation and information that appellant was wanted
by Utah authorities in connection with a mass murder there, police
located appellant at his sister's house and arrested him. Appellant
told police that he shot Mr. Buckley only [720 P.2d 737] after the
victim pulled a knife and attempted to rob him. He admitted that he
took the victim's wallet. Evidence showed that the appellant had
$40.00 in his possession at the time of his arrest. Appellant
testified at trial and repeated his story that he shot the victim when
Buckley attempted to rob him with a knife.
THE GUILT STAGE
his second assignment of error, the appellant alleges that the trial
court erred in failing to instruct the jury that it was required to
unanimously find that the appellant committed murder in the first
degree either with malice aforethought or while committing robbery
with a dangerous weapon. The record regarding this issue reflects that
an Information was filed in this case alleging that the appellant did
"with premeditated design and malice aforethought . . . or in the
alternative . . . while . . . committing the crime of robbery with a
dangerous weapon, although without a premeditated design to effect
death" kill Mr. Buckley. This method of alleging alternative legal
theories for the same offense is permitted by 22 O.S. 1981 § 404
[22-404]. See Cosby v. State, 85 Okl.Cr. 159, 186 P.2d 844 (1947).
Appellant contends, and the record reflects, that the jury, although
instructed that their verdict had to be unanimous, was not instructed
that their finding of the factual basis supporting one of the two
theories also had to be unanimous. Appellant alleges this procedure
denied him the due process of law. We disagree.
This question was settled by our opinion in James v. State, 637 P.2d
862 (Okl.Cr. 1981). In James, the defendant was charged with murder in
the first degree in connection with a fatal shooting during the
attempted robbery of a candy store in Oklahoma City. The defendant was
charged by alternative theories, as herein. He also raised a claim
identical to that made here, and it was rejected for the following
The due process clause of the
Constitution demands that each element of a crime be proven. Mullaney
v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In Re
Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). However,
all of the elements of this crime were proven. The State established a
prima facie case of murder in the first degree by proving, first, that
the homicide occurred during an armed robbery, and, therefore, fell
within felony murder; and second, that the appellant had committed the
homicide with premeditation. No violation of due process occurred.
A unanimous verdict is guaranteed
by this State's Constitution. Okla. Const., art. 2, § 19 [2-19]. In
1961, this Court construed that right to mean that a verdict of guilt
on a charge of two distinct acts of rape had to reflect a unanimous
finding of guilt based upon one specific act or on both acts, but not
on either one or the other act. See Cody v. State, 361 P.2d 307
However, the question now before
this Court is one of first impression. Unlike Cody, there are not two
separate offenses, but like Cody there is no indication of the jury's
findings in determining guilt. The issue for resolution is whether the
Cody rule applies to the case at hand where there are two alternative
theories upon which to base the conviction for first degree murder,
each of which was alleged and proven.
Other jurisdictions have
encountered this problem, often in reviewing convictions based upon
alternative theories of premeditated murder and felony murder. In
Connecticut v. Edwards, 163 Conn. 527, 316 A.2d 387 (1972), the
defendant was indicted conjunctively with premeditated and felony
murder in the first degree, based upon an underlying robbery. The jury
was then charged disjunctively, as was the jury in the case before
this Court. The conviction was affirmed because there was but a single
crime charged and the alternatives went to the factual basis of the
crime, not the crime itself.
[720 P.2d 738]
In People v. Taggart, 621 P.2d 1375
(Colo. 1981), the Colorado court held that the defendant was not
denied a unanimous verdict by merit of the fact that the general
verdict did not specify which alternative was the cause of the crime.
And, in State v. Hazelett, 8 Or.App. 44, 492 P.2d 501 (1972), the
Oregon Court upheld a jury instruction that the verdict must be
unanimous as to the guilt or innocence of murder in the first degree
but that they need not reach a unanimous decision on its foundation in
either felony murder or premeditated murder. See also State v. Wilson,
220 Kan. 341, 552 P.2d 931 (1976); and Wells v. Commonwealth, Ky., 561
S.W.2d 85 at 88 (1978).
Having examined these decisions,
and having found that the State did prove both premeditation and
felony-based murder, this Court finds that the failure of the jury to
indicate the basis of their finding of guilt was not error.
at 865-66. We find that our holding in James v. State, is dispositive
of this issue. Accordingly, this assignment of error is without merit.
Next, appellant claims the trial court unduly restricted his opening
statement to the jury by sustaining objections made by the prosecutor.
The purpose of the opening statement is to advise the jury what
evidence will be presented, and to prepare them for it. Carson v.
State, 529 P.2d 499 (Okl.Cr. 1974). The trial court may control the
scope of opening statement in its informed discretion. Shipman v.
State, 639 P.2d 1248 ((Okl.Cr. 1982). Our careful examination of the
record reveals that on several occasions defense counsel exceeded the
scope of proper opening statement by arguing the merits of the case.
The trial court properly disallowed such arguments. Furthermore,
although at least one of the prosecutors' side-bar comments were
improper, these comments, standing alone do not require either
reversal or modification. This proposition is wholly without merit.
STAGE OF TRIAL
now turn to those assignments of error challenging the death sentence.
In support of the death penalty, the State alleged, and the jury
found, two aggravating circumstances, to-wit: (1) that the appellant
was previously convicted of a felony involving the use or threat of
violence to the person; and, (2) the existence of a probability that
the appellant would commit criminal acts of violence that would
constitute a continuing threat to society. 21 O.S. 1981 § 701.12
[21-701.12](1) and (7). The State supported the first aggravating
circumstance with the admission of evidence that appellant was
previously convicted in Nevada upon a plea of guilty for robbery and
use of a deadly weapon in the commission of a crime, and second degree
kidnapping. In its attempt to prove that the crimes were of a violent
nature, the State submitted copies of the preliminary hearing
transcript for those cases. The State offered proof of the second
aggravating circumstance by producing evidence linking appellant to in
an unadjudicated offense in Utah which resulted in the death of three
Appellant's first and fourth assignments of error deal with similar
issues regarding notice. We therefore combine our discussion of them.
In his first assignment of error, appellant contends that he was
entitled to a preliminary hearing on the allegations contained in the
Bill of Particulars filed by the State. The Bill of Particulars
announced the State's intention to seek the death penalty, and listed
those aggravating circumstances enumerated in 21 O.S. 1981 § 701.-12
[21-701.-12] which the State hoped to prove. Failure to provide a
preliminary hearing on this issue deprived the District Court of
jurisdiction to impose the death sentence, according to appellant's
argument. We disagree.
We first note that 21 O.S. 1981 § 701.10 [21-701.10] does not require
any type of [720 P.2d 739] pretrial hearing regarding the validity of
the State's aggravating circumstances; its provisions are satisfied if
evidence in aggravation is made known to the defendant prior to trial.
See Jones v. State, 660 P.2d 634 (Okl.Cr. 1983). We have repeatedly
held, therefore, that a preliminary hearing on the aggravating
circumstances alleged by the State is not required. E.g., Brewer v.
State, 650 P.2d 54, 61 (Okl.Cr. 1982); and Dutton v. State, 674 P.2d
1134, 1140 (Okl.Cr. 1984). Appellant has failed to present a
compelling reason for us to abandon this precedent.
Appellant contends in his fourth assignment of error that no
disclosure was made by the State of the evidence it intended to use in
support of the aggravating circumstance that appellant constituted a
continuing threat to society. In a related argument, appellant asserts
that the Bill of Particulars was not timely filed.
The facts surrounding this issue reveal that on May 16, 1984, the
State filed its Bill of Particulars. The Bill announced the State's
intention to prove the two aggravating circumstances previously
mentioned. In support of its claim that the appellant had suffered
prior convictions involving the use or threat of violence to the
person, the Bill listed, in detail, those convictions upon which the
State was relying. Regarding the claim of future dangerousness, the
Bill simply recited "[t]hat from past behavior of the defendant" the
aggravating circumstance would be proven. On June 18, 1984, the State
filed a "Notice of State's Intention to Introduce Evidence of Other
Crimes," the so-called "Burks notice."1 This notice listed, in detail,
the unadjudicated offense in Utah. The notice advised that the
evidence was admissible, in the first stage of trial, to "prove lack
of mistake or accident and motive for killing." When trial commenced
on June 18, 1984, the State did not offer evidence of the Utah
killings in the first stage. Instead, the State was allowed to present
this evidence in the punishment phase of trial to support its claim of
We agree with appellant that the Bill of Particulars contained
insufficient notice of the evidence intended in support of the
allegation of future dangerousness. We have previously held that
"[t]he purpose of the [notice] requirement in Section 701.10 is to
allow the accused an opportunity to prepare a defense." Jones v.
State, 660 P.2d at 639. See also Johnson v. State, 665 P.2d 815, 823
(Okl.Cr. 1982). The statement in the Bill of Particulars that the
State would prove future dangerousness "from the past behavior of the
defendant" provides no clue regarding what alleged past behavior the
accused would be called to defend against. As we stated in Johnson,
"[a]dmitting evidence of unadjudicated criminal offenses requires the
defendant to defend against more than one charge in the sentencing
proceeding. Fair play and substantial justice mandates that a
defendant be provided with notice when the State intends to offer
evidence of unadjudicated criminal offenses." Id.
However, an error, constitutional or statutory, which does not result
in prejudice to the defense will not result in reversal of a
conviction. 20 O.S. 1981 § 3001.1 [20-3001.1] Appellant has failed to
demonstrate unlawful prejudice from the admission of this evidence.
The Burks notice, though technically limited in this case to the first
stage of trial, did contain detailed information regarding this
unadjudicated offense. We have previously held that proof of an
unadjudicated offense is admissible to show the existence of a
probability that the accused would commit future acts of violence
constituting a continuing threat to society. See Johnson v. State, 665
P.2d at 823. And, evidence from the first stage of trial is typically
incorporated into the punishment phase to provide proof of aggravating
circumstances. See, e.g., Stout v. State, 693 P.2d 617, 627 (Okl.Cr.
1984). This is not a case in which counsel was wholly unaware prior to
trial of relevant proof regarding an unadjudicated offense. It appears
from the record that defense counsel [720 P.2d 740] was quite familar
[familiar] with the facts of the Utah murders, and was able to limit
somewhat the damaging effect of the evidence through a probing
cross-examination of the State's witnesses. We are therefore compelled
to deny this claim.
Finally, we reject appellant's contention that the Bill of Particulars
was not timely filed. In this case, the appellant was informed more
than a month before trial of the aggravating circumstances the State
intended to prove and the proof supporting the first aggravating
circumstance. Evidence of the second aggravating circumstance was made
known to appellant ten days before trial. We hold that in this context
the Bill of Particulars was timely filed. Cf. Jones v. State, 660 P.2d
at 639 (Appellant informed eighteen days prior to trial what
aggravating circumstances the State intended to prove, and evidence of
the aggravating circumstances was disclosed five days before trial.
Held: notice sufficient).
In his sixth assignment of error, the appellant asserts that the
instructions offered in the punishment phase did not provide
particularized guidance to the jury's consideration of mitigating
evidence. We disagree. We held in Brogie v. State, 695 P.2d 538, 544
(Okl.Cr. 1985) that "[s]pecific standards for the balancing of the
aggravating and mitigating circumstances are not constitutionally
required." See also Cartwright v. State, 695 P.2d 548, 552-53 (Okl.Cr.
1985). The jury was instructed that it could not impose the death
sentence unless it found that the aggravating circumstances clearly
outweighed any mitigating circumstances it might find. The trial court
did not in any way limit the jury's consideration of mitigating
circumstances. The instructions herein, therefore, were entirely
proper and correct. See Chaney v. State, 612 P.2d 269, 279-80 (Okl.Cr.
1980). This assignment of error is without merit.
Appellant also contends the trial court erred in failing to instruct
the jury that, if they were unable to reach a unanimous verdict as to
punishment within a reasonable time, they would be dismissed, and the
judge would enter a sentence of life imprisonment. We previously
rejected this same argument in Brogie v. State, 695 P.2d at 547, and
we adhere to that holding today. This assignment of error is without
Finally, pursuant to 21 O.S. 1981 § 701.13 [21-701.13](C), which was
in effect at the time this appeal was filed,2 we are required to make
the following determinations in all capital cases:
1. Whether the sentence of death
was imposed under the influence of passion, prejudice, or any other
2. Whether the evidence supports
the jury's or judge's finding of a statutory aggravating circumstance
as enumerated in this act; and
3. Whether the sentence of death is
excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
We have carefully examined the record for any indication that the
sentence of death was imposed under the influence of passion or
prejudice. Both the trial judge's report and the record disclose that
the jury was instructed to avoid any influence of passion, prejudice
or other arbitrary factor when imposing sentence. Report of Trial
Judge at 5. Furthermore, the trial judge [720 P.2d 741] made a
specific finding that the jury was not so influenced. Id.
¶21 We also find
that the evidence was adequate to support both aggravating
circumstances. Regarding the claim that appellant had sustained prior
convictions for felonies involving the use or threat of violence to
the person, the State produced evidence that appellant had been
convicted of a robbery and kidnapping in Nevada. Also admitted were
preliminary hearing transcripts revealing the violent circumstances
surrounding those crimes. The allegation of future dangerousness was
supported by evidence that appellant participated in a robbery which
resulted in the brutal death of three people. The aggravating
circumstances were adequately proven.
¶22 We have
compared the sentence imposed herein with those previous cases either
affirmed3 or modified4 by this Court, and we find the sentence is
proportionate. Accordingly, for the foregoing reasons, the judgment
and sentence of the trial court is AFFIRMED.
¶23 BRETT and
BUSSEY, JJ., specially concur.
1 Burks v.
State, 594 P.2d 771 (Okl.Cr. 1979)
2 Although the
Legislature has revised this statute somewhat in 1985 Okla. Sess.
Laws, Ch. 265, codified at 21 O.S. 1981 § 701.13 [21-701.13], we held
that to apply this new statute to cases pending on appeal at the time
the statute was enacted would render the new provision ex post facto
law. Green v. State, 713 P.2d 1032, 1041 n. 4 (Okl.Cr 1985).
3 Ross v. State,
717 P.2d 117 (Okl.Cr. 1986); Foster v. State, 714 P.2d 1031 (Okl.Cr.
1986), Green v. State, 713 P.2d 1032 (Okl.Cr. 1985); Liles v. State,
702 P.2d 1025 (Okl.Cr. 1985); Cooks v. State, 699 P.2d 653 (Okl.Cr.
1985); Banks v. State, 701 P.2d 418 (Okl.Cr. 1985); Cartwright v.
State, 695 P.2d 548 (Okl.Cr. 1985), Brogie v. State, 695 P.2d 538
(Okl.Cr. 1985), Bowen v. State, 715 P.2d 1093, 55 O.B.J. 2520 (Okl.Cr.
1985); Stout v. State, 693 P.2d 617 (Okl.Cr. 1984); Nuckols v. State,
690 P.2d 463 (Okl.Cr. 1984); Robison v. State, 677 P.2d 1080 (Okl.Cr
1984); Dutton v. State, 674 P.2d 1134 (Okl.Cr 1984); Stafford v.
State, 669 P.2d 285 (Okl.Cr. 1983); Coleman v. State, 668 P.2d 1126
(Okl.Cr. 1983); Stafford v. State, 665 P.2d 1205 (Okl.Cr. 1983); Davis
v. State, 665 P.2d 1186 (Okl.Cr 1983); Ake v. State, 663 P.2d 1
(Okl.Cr. 1983) Parks v. State, 651 P.2d 686 (Okl.Cr. 1982); Jones v.
State, 648 P.2d 1251 (Okl.Cr. 1982), Hays v. State, 617 P.2d 223
(Okl.Cr. 1980); and, Chaney v. State, 612 P.2d 269 (Okl.Cr. 1980),
modified on other grounds, sub nom., Chaney v. Brown, 730 F.2d 1334
(10th Cir. 1984).
4 Parker v.
State, 713 P.2d 1032 (Okl.Cr. 1985); Eddings v. State, 616 P.2d 1159
(Okl.Cr. 1980), as modified, 688 P.2d 342 (Okl.Cr. 1984), Morgan v.
State, No. F-79-487 (Okl.Cr. Nov. 14, 1983) (Unpublished); Johnson v.
State, 665 P.2d 815 (Okl.Cr. 1982); Glidewell v. State, 663 P.2d 738
(Okl.Cr. 1983); Jones v. State, 660 P.2d 634 (Okl.Cr. 1983); Driskell
v. State, 659 P.2d 343 (Okl.Cr. 1983); Boutwell v. State, 659 P.2d 322
(Okl.Cr. 1983); Munn v. State, 658 P.2d 482 (Okl.Cr. 1983); Odum v.
State, 651 P.2d 703 (Okl.Cr. 1982); Burrows v. State, 640 P.2d 533
(Okl.Cr. 1982); Franks v. State, 636 P.2d 361 (Okl.Cr. 1981); and
Irvin v. State, 617 P.2d 588 (Okl.Cr. 1980).
¶1 I agree that
the judgment and sentence in this case should be affirmed. However, I
am of the opinion that a proportionality review of death sentences is
unnecessary. Such was our holding in Foster v. State, 714 P.2d 1031
(Okl.Cr. 1986) and Ross v. State, 717 P.2d 117, which were decided
subsequent to Green v. State, 713 P.2d 1032 (Okl.Cr. 1985).
¶1 I concur that
the judgment and sentence in this case should be affirmed, but I agree
with the special concurrence of Judge Bussey, that the proportionality
review of death sentences is now unnecessary.
¶2 IT IS SO
Court of Appeals
158 F.3d 1085
NEWSTED, Petitioner - Appellee/ Cross-Appellant
GARY E. GIBSON, Warden, Oklahoma State Penitentiary,
Respondent - Appellant/ Cross-Appellee
Appeal from the
United States District Court for the Northern District of Oklahoma
TACHA, and BALDOCK, Circuit Judges.
¶1 Norman Lee
Newsted was convicted in Oklahoma of the first degree murder of taxi
driver Lawrence D. Buckley and sentenced to death. After pursuing all
available state remedies, Mr. Newsted filed this 28 U.S.C. § 2254
habeas petition, which the district court conditionally granted on two
issues, ordering that the writ would issue unless the Oklahoma Court
of Criminal Appeals granted Mr. Newsted a new appeal within six months
of the date of the order. The state has appealed that decision, and
Mr. Newsted has cross-appealed the district court's denial of relief
on numerous other issues raised in the petition. The district court
granted a stay pending the resolution of these appeals. We reverse the
grant of the writ and remand for entry of an order denying the
petition in its entirety.
¶2 On February
20, 1984, Mr. Newsted arrived by plane at the Tulsa, Oklahoma,
airport, where he summoned a cab driven by Mr. Buckley. Mr. Newsted
directed Mr. Buckley to drive him to his sister's house at an address
in west Tulsa. After driving around for some time unsuccessfully
trying to locate the address, Mr. Buckley stopped at a gas station to
ask for directions. Mr. Newsted purchased a beer, and the clerk
noticed he appeared to have no money in his wallet. Mr. Buckley
purchased a packet of cigarettes.
¶3 Mr. Buckley
next stopped at the Calvary Temple of God Church, where Mr. Newsted
telephoned his sister and asked her to pick him up. Witnesses leaving
the church reported seeing Mr. Newsted and Mr. Buckley in the
northeast corner of the parking lot standing beside the taxi cab with
the trunk open. Other witnesses reported hearing two loud noises
¶4 When Mr.
Newsted's sister arrived at the church, Mr. Newsted approached her car
from the east end of the parking lot and told her that the cab driver
had pulled a gun and attempted to rob him. While his sister drove him
to her house, Mr. Newsted told her that he had shot someone.
¶5 The next
morning the church minister discovered Mr. Buckley's cab partially
submerged in a creek running beside the east end of the church parking
lot. He notified police, who discovered Mr. Buckley inside, dead from
two gunshot wounds to the back of his head. After he was arrested, Mr.
Newsted told police that he had shot Mr. Buckley after Mr. Buckley
pulled a knife on him and attempted to rob him.
¶6 Mr. Newsted
was subsequently charged with the premeditated or felony murder of Mr.
Buckley. The jury found him guilty of first degree murder in the
guilt/innocence phase of the trial and, following the sentencing
phase, recommended imposition of the death penalty. In imposing the
death penalty, the jury found two aggravating circumstances: (1) Mr.
Newsted had been convicted of a previous felony involving the use or
threat of violence against a person, and (2) the existence of a
probability that Mr. Newsted would commit criminal acts of violence
that would constitute a continuing threat to society. His conviction
and sentence were affirmed on direct appeal. Newsted v. State, 720
P.2d 734 (Okla. Crim. App. 1986), cert. denied, Newsted v. Oklahoma,
479 U.S. 995 (1986). He thereafter filed an application for
post-conviction relief in state court, and an evidentiary hearing was
held, focused primarily on Mr. Newsted's claim of ineffective
assistance of counsel. His application was denied. Mr. Newsted
thereafter filed a supplemental application for post-conviction
relief, which was also denied. The Oklahoma Court of Criminal Appeals
affirmed the denials of his post-conviction applications, and the
United States Supreme Court again denied certiorari. Newsted v.
Oklahoma, 501 U.S. 1259 (1991).
¶7 On November
26, 1991, Mr. Newsted filed a petition for writ of habeas corpus along
with a motion to hold the petition in abeyance pending exhaustion of
state remedies. The federal district court ordered the petition held
in abeyance. Mr. Newsted then filed a second application for
post-conviction relief in state court, an evidentiary hearing (the
second) was held, and the application was denied. The Oklahoma Court
of Criminal Appeals affirmed that denial. Newsted v. State, 908 P.2d
1388 (Okla. Crim. App. 1995). On April 22, 1996, Mr. Newsted filed an
amended petition for a writ of habeas corpus, alleging ten claims for
relief arising out of the guilt/innocence and the sentencing phases of
the trial, as well as ineffective assistance of appellate counsel. The
federal district court held a hearing and ordered supplemental
briefing on Mr. Newsted's claims for relief under Mills v. Maryland,
486 U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990).
¶8 The district
court denied relief on all claims relating to the sentencing phase
except for Mr. Newsted's claim that the court's instructions on
mitigating circumstances created a "reasonable likelihood that the
jurors . . . understood the instructions to preclude consideration of
mitigating evidence unless it was found unanimously," in violation of
Mills and McKoy. Order at 37, R. Vol. III at Tab 36. On that ground
the court concluded that Mr. Newsted's "death penalty was imposed
unconstitutionally." Id. The district court also denied relief on all
claims arising out of the guilt/innocence phase of the trial except
Mr. Newsted's claim that his appellate counsel was ineffective for
failing to raise on direct appeal the omission of a lesser included
offense instruction on manslaughter committed in the heat of passion,
which the court concluded would have been a "dead-bang winner" on
appeal. Thus, the district court concluded:
that the instructions given to the
jury during the sentencing phase violated the requirements of the
Eighth Amendment, as articulated in Mills v. Maryland, and that
Petitioner's appellate counsel was constitutionally ineffective in
violation of the Sixth Amendment as articulated in Strickland v.
Washington. As a result of these constitutional violations, the Court
holds that Petitioner is entitled to habeas corpus relief in the form
of a new direct appeal . . . .
Id. at 61-62
¶9 As indicated,
both parties appeal. The state appeals the district court's conclusion
that Mr. Newsted's appellate counsel was ineffective in failing to
raise on direct appeal the argument that the jury was entitled to an
instruction on heat of passion manslaughter and its conclusion that
the jury instructions on mitigating circumstances were
unconstitutional. Mr. Newsted cross-appeals, arguing the district
court erred in: (1) finding that, although the state violated Brady v.
Maryland, 373 U.S. 83 (1963), when it failed to disclose prior
allegedly inconsistent statements of a state witness at the penalty
phase, Mr. Newsted was not prejudiced thereby; (2) finding that,
although the state failed to provide notice of its intention to
introduce evidence of unrelated homicides at the penalty phase of the
trial, Mr. Newsted was not prejudiced thereby; (3) finding that,
although Mr. Newsted's counsel provided constitutionally deficient
representation during the penalty phase, Mr. Newsted was not
prejudiced thereby; (4) failing to vacate Mr. Newsted's conviction
after concluding that the trial court erred in failing to instruct the
jury on heat of passion manslaughter and the evidence supported such
an instruction; and (5) finding that, although the state violated
Brady when it failed to disclose to Mr. Newsted a police report
allegedly corroborating his account of the crime, Mr. Newsted was not
prejudiced thereby and that Brady did not apply at all to a police
officer's statements concerning a knife at the crime scene.
¶10 In reviewing
the grant or denial of a habeas petition we accept the district
court's factual findings unless they are clearly erroneous, and we
review its legal conclusions de novo. Wildermuth v. Furlong, 147 F.3d
1234, 1236 (10th Cir. 1998). Because this case was filed prior to the
enactment of the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), and because Oklahoma is not a qualifying state for purposes
of the special provisions of the AEDPA applicable to capital cases, we
apply pre-AEDPA law to this case.
1. State's Appeal
assistance of appellate counsel in connection with failure to instruct
on heat of passion manslaughter
indicated, Mr. Newsted was charged with first degree murder. His basic
defense was that he shot Mr. Buckley after Mr. Buckley attempted to
rob him. The jury was instructed on the defense of self defense and on
manslaughter in the first degree as a lesser included offense. The
court did not give a heat of passion manslaughter instruction, as
permitted by Okla. Stat. Ann. tit. 21, § 711(2).1 On direct appeal
from his conviction, Mr. Newsted's counsel did not argue that it was
error to fail to give such an instruction. In his second state
post-conviction proceeding, Mr. Newsted raised the issue for the first
time. The Oklahoma Court of Criminal Appeals considered it technically
barred, but reviewed it in the context of Mr. Newsted's claim of
ineffective assistance of appellate counsel and held that it failed to
"meet both requirements of Strickland." Newsted, 908 P.2d at 1393. The
federal district court held that appellate counsel was
constitutionally ineffective under Strickland v. Washington, 466 U.S.
668 (1984), for failing to raise the heat of passion manslaughter
instruction issue on direct appeal, and that Mr. Newsted suffered
¶12 Claims of
ineffective assistance of counsel present mixed questions of law and
fact which we review de novo. Moore v. Reynolds, No. 97-6065,1998 WL
387452, at *5 (10th Cir. July 13, 1998). When claiming ineffective
assistance of counsel, a petitioner must establish both
constitutionally deficient performance and prejudice—"a reasonable
probability that, but for counsel's errors, the outcome of the
proceedings would have been different." Id. When a petitioner argues
ineffective assistance of appellate counsel by failing to raise an
issue on appeal, we first examine the merits of the omitted issue to
determine if counsel's performance was deficient and, if it was, if
the deficiency caused prejudice. If the omitted issue is meritless,
appellate counsel's failure to raise it does not constitute
constitutionally ineffective assistance of counsel. See United States
v. Cook, 45 F.3d 388, 392-93 (10th Cir. 1995).
¶13 At the time
of Mr. Newsted's trial, Oklahoma law provided that "in every . . .
prosecution for murder, wherein the evidence necessitates an
instruction upon self-defense, the trial court shall also instruct
upon voluntary or first degree manslaughter committed in the heat of
passion as a lesser included offense." Morgan v. State, 536 P.2d 952,
959 (Okla. Crim. App. 1975). An exception to the rule existed in cases
where there was "uncontroverted proof from which the law presumes
malice, e.g., homicide perpetrated in the commission of a felony." Id.
Subsequent to Mr. Newsted's direct appeal, the Morgan rule was
overturned as "too inflexible." Walton v. State, 744 P.2d 977, 978
(Okla. Crim. App. 1987). As explained by Judge Parks in his special
concurrence in Walton, the preferred approach "allows for a
case-by-case analysis . . . [under which] the trial court must closely
scrutinize each individual case to determine whether the facts warrant
instructions on both self-defense and heat of passion." Id. at 979.
¶14 Mr. Newsted
argues, and the district court held, that the Morgan rule in effect at
the time of his trial and direct appeal provided him with a "dead-bang
winner" and his appellate counsel's failure to argue it necessitates
the grant of the writ.2 The state argued that the district court
should not reach the merits of this issue because Mr. Newsted failed
to raise it on direct appeal and it is therefore procedurally barred.
This issue was raised in Mr. Newsted's second state post-conviction
proceeding, and the Oklahoma Court of Criminal Appeals considered it
only in the context of Mr. Newsted's claim of ineffective appellate
counsel. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("State
procedural bars are not immortal . . . ; they may expire because of
later actions by state courts. If the last state court to be presented
with a particular federal claim reaches the merits, it removes any bar
to federal court review that might otherwise have been available.").
The state responds: (i) the Oklahoma Court of Criminal Appeals already
held that the issue was not meritorious, and certainly not a "dead
bang winner," when it concluded that Mr. Newsted's counsel was not
ineffective in failing to raise the issue and we should defer to that
conclusion; (ii) Lockhart v. Fretwell, 506 U.S. 364 (1993), compels us
to examine whether Mr. Newsted suffered any prejudice from his
appellate counsel's ineffectiveness in light of current law and, since
Morgan's absolute rule has been overturned, and the propriety of a
heat of passion manslaughter instruction therefore requires an
analysis of the evidence in the particular case, the issue is no
longer a "dead-bang winner"; and (iii) the propriety of jury
instructions in a state trial is a matter of state law, and therefore
not a ground for granting habeas relief. We reject Mr. Newsted's
argument, and the district court's conclusion, for multiple reasons.
I. Oklahoma Court
of Criminal Appeals' decision
¶15 The Oklahoma
Court of Criminal Appeals' ruling on this issue was cursory. The issue
involving the failure to give the heat of passion manslaughter
instruction was denominated "Claim B" by that court. The court ruled
summarily as follows: "[w]e have further considered the issues
presented in Claims B, C, H, and L. Without addressing each on its
merits, we find that none of them meet both requirements of
Strickland. Consequently, appellate counsel was not ineffective in
failing to raise these issues, and the issues are barred from further
review." Newsted, 908 P.2d at 1393-94 (emphasis added).
¶16 Implicit in
that conclusion is the determination that the issue was not
meritorious under Oklahoma law, that is, the circumstances of the case
did not warrant the giving of the instruction. That necessarily
encompassed factual findings about the evidence in this case. Federal
habeas courts must give great deference to state factual findings. See
Williamson v. Ward, 110 F.3d 1508, 1513 n.7 (10th Cir. 1997) ("'[A]
determination after a hearing on the merits of a factual issue, made
by a State court of competent jurisdiction . . . shall be presumed
correct' unless one of  eight enumerated circumstances is
established.") (quoting 28 U.S.C. § 2254(d)). Thus, we could end our
analysis here, deferring to the state court's findings about this
case. However, it may also be argued that the court's conclusory
finding that the issue does not meet "both" requirements of Strickland
means that it does meet one requirement (either deficient performance
or prejudice) but not both. This ambiguity compels us to proceed
further with our analysis.
¶17 We first
consider whether appellate counsel's performance was deficient. In
light of the Morgan rule in effect at the time of Mr. Newsted's
appeal, we assume his counsel provided ineffective assistance by
failing to raise it. Thus, the deficient performance part of
Strickland has been met. We then turn to prejudice under Strickland.
¶18 In Lockhart
v. Fretwell, the Supreme Court held that counsel's failure to make an
objection which was supported by a case which was later overruled did
not constitute prejudice under Strickland. Thus, the Court held that
the prejudice inquiry under Strickland is conducted under current law,
not under the law at the time of the original allegedly deficient
performance. See Lucas v. Johnson, 132 F.3d 1069, 1078 (5th Cir. 1998)
(noting that "the prejudice prong of the Strickland test is measured
at the time the ineffectiveness assistance claim is raised"), petition
for cert. filed, (U.S. June 8, 1998) (No. 97-9463). We must
accordingly evaluate Mr. Newsted's allegation of prejudice from
counsel's failure to argue on appeal the heat of passion manslaughter
instruction issue in terms of current Oklahoma law.3 To find
prejudice, we must find that counsel's ineffectiveness created a
"reasonable probability" that the outcome of the case would have been
different. The essential question is "whether counsel's deficient
performance renders the result of the trial unreliable or the
proceeding fundamentally unfair." Lockhart, 506 U.S. at 372.
In evaluating whether a petitioner claiming ineffective assistance of
appellate counsel has established prejudice, we agree with the Fifth
Circuit that our focus, with respect to the Lockhart prejudice
analysis, must be on the reliability and fairness of the trial itself
and the resulting conviction. "[T]he presence or absence of prejudice,
both with respect to claims of ineffective assistance of counsel at
the trial and appellate levels, hinges upon the fairness of the trial
and the reliability of the judgment of conviction resulting
therefrom." Goodwin v. Johnson, 132 F.3d 162, 174 (5th Cir. 1998). We
do not simply examine whether the petitioner was likely to obtain a
reversal of his conviction or a new trial on appeal. As the Supreme
Court stated in Lockhart, "an analysis focusing solely on mere outcome
determination, without attention to whether the result of the
proceeding was fundamentally unfair or unreliable, is defective."
Lockhart, 506 U.S. at 369.4
¶20 We conclude
that appellate counsel's failure to make an argument concerning the
trial court's failure to give a heat of passion manslaughter
instruction did not render "the result of the trial unreliable or the
proceeding fundamentally unfair." Id. at 372. We reach this conclusion
for two related reasons. First, under Walton, Mr. Newsted would only
have the right to ask for a heat of passion manslaughter instruction,
and the court would only be obligated to give such an instruction, if
the evidence supported it. We have carefully reviewed the record in
this case and conclude that the evidence would not have supported the
giving of such an instruction. Second, we conclude that, had such an
instruction been given, the jury would have reached the verdict that
it did and convicted Mr. Newsted of first degree murder. There is no
reasonable probability that it would have reached any other verdict,
because the evidence overwhelmingly supported a first degree murder
conviction. Indeed, the jury rejected the lesser offense of
manslaughter, on which it was instructed. We have no doubt that it
would have also rejected a heat of passion manslaughter option.
¶21 In reaching
these dual conclusions, we rely on the following, as revealed by the
record in this case: The only evidence supporting Mr. Newsted's claim
that he shot Mr. Buckley after Mr. Buckley attempted to rob him was
his own testimony to that effect. Against that, there was the evidence
of the nature of Mr. Buckley's injuries—two gunshot wounds to the back
of the head—which are inconsistent with Mr. Newsted's version of
events; Mr. Newsted's own contradictory statements that Mr. Buckley
had pulled a gun or a knife on him; evidence supporting the fact that
Mr. Newsted took Mr. Buckley's billfold with him at the time of the
murder and discarded it later, near his sister's house; evidence
suggesting Mr. Newsted had no money prior to the Buckley murder but
had cash when he was arrested not long thereafter; testimony by
witnesses who observed Mr. Newsted and Mr. Buckley minutes before the
murder; testimony concerning Mr. Newsted's conduct and demeanor
immediately following the crime; and the fact that there was little
other objective evidence supporting Mr. Newsted's claim that he shot
Mr. Buckley while he defended himself against a robbery attempt.5 The
evidence is simply insufficient for a reasonable jury to conclude that
Mr. Newsted acted in a heat of passion. See Duvall v. Reynolds, 139
F.3d 768, 787 (10th Cir. 1998), petition for cert. filed, (U.S. July
31, 1998) (No. 98-5487) (reviewing the evidence and concluding that it
did not support the giving of a heat of passion manslaughter
We therefore conclude that Mr. Newsted suffered no prejudice from the
failure of his appellate counsel to raise the heat of passion
manslaughter instruction issue. There is no "reasonable probability"
that the outcome of the case would have been different; the claimed
ineffectiveness did not render "the result of the proceeding . . .
fundamentally unfair or unreliable." Lockhart, 506 U.S. at 369; see
also Goodwin, 132 F.3d at 174 (holding that the claimed
ineffectiveness did not undermine the "fairness of the trial and the
reliability of the judgment of conviction resulting therefrom").6
B. Adequacy of
instructions on mitigating circumstances
¶23 The jury was
given, in part, the following jury instructions in the penalty phase
of the trial:
Mitigating circumstances are those
which, in fairness and mercy, may be considered as extenuating or
reducing the degree of moral culpability or blame. The determination
of what are mitigating circumstances is for you as jurors to resolve
under the facts and circumstances of this case.
7, R. Vol. II at Tab 32.
If you unanimously find that one or
more of the aggravating circumstances existed beyond a reasonable
doubt, the law requires that you reduce such findings to writing by
stating specifically what aggravating circumstances existed, if any.
This finding must be made a part of your verdict.
You must indicate this finding by
checking the box next to such aggravating circumstances on the
appropriate form furnished you, and such verdict must be signed by
The law does not require you to
reduce to writing the mitigating circumstances you find, if any.
If you unanimously find that one or
more of the aggravating circumstances existed beyond a reasonable
doubt, unless you also unanimously find that such aggravating
circumstance or circumstances outweigh the finding of one or more
mitigating circumstances, the death penalty shall not be imposed.
¶24 The district
court held that "there is a 'reasonable likelihood' that the jury
interpreted the instructions to require it to find mitigating
circumstances unanimously," Order at 36, R. Vol. III at Tab 36, in
violation of Mills, McKoy, and Boyde v. California, 494 U.S. 370
(1990). The state argues that the district court erred in refusing to
apply a procedural bar to this claim and in concluding, on the merits,
that the claim warranted granting the writ. Specifically, on the
merits of the claim, the state argues our recent decision in Duvall,
in which we upheld virtually identical instructions against an
identical challenge, compels the reversal of the district court's
decision. We agree.
expressing any opinion on the procedural bar argument, about which
there is considerable confusion and multiple sub-issues, we hold that
Duvall directly controls the merits of this argument and requires us
to uphold the validity of the instructions given. Mr. Newsted asks us
to reconsider Duvall. We do not, inasmuch as one panel of this court
cannot overturn another panel's decision. See Aramark Corp. v. NLRB,
Nos. 97-9535, 97-9550, 1998 WL 646974, at *10 (10th Cir. Sept. 22,
2. Mr. Newsted's
A. Brady v.
¶26 Mr. Newsted
claims the district court correctly held that the state committed
several violations of Brady v. Maryland, 373 U.S. 83 (1963), but that
it erred in finding no prejudice therefrom. The Supreme Court held in
Brady that "the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution." Id. at 87; see also Duvall,
139 F.3d at 785. The materiality requirement is satisfied only "'if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.'. . . A 'reasonable probability' of a different result is
accordingly shown when the government's evidentiary suppression
'undermines confidence in the outcome of the trial.'" Kyles v.
Whitley, 514 U.S. 419, 433-34 (1995) (quoting United States v. Bagley,
473 U.S. 667, 682, 678 (1985). We review de novo allegations of Brady
violations. United States v. Woodlee, 136 F.3d 1399, 1411 (10th Cir.
1998), petition for cert. filed, (May 22, 1998) (No. 97-9239).
¶27 In this
case, on March 5, 1984, Mr. Newsted's attorney filed a written request
for "[a]ny sworn statements pertaining to this cause of any person
taken by the District Attorney or his assistants, or any of their
agents, including, but not limited to members of . . . the Cedar City,
Utah Police Department . . . ." Ex. 18 at ¶ 1, R. Vol. II at Tab 11.
He also sought "[a]ny and all evidence which exculpates or tends to
exculpates [sic] the defendant . . . ." Id. at ¶¶ 2, 10. The state
responded that it "is not in possession of and is totally unaware of
any sworn statements of any person having as its subject matter the
subject of the above-captioned action." The state then listed three
items of exculpatory evidence: (1) "Defendant's own exculpatory
statements toward police officers"; (2) Mr. Buckley's license to
purchase a pistol; and (3) "[m]inor discrepancies in details of all
witnesses [sic] testimony." Id., Ex. 19.
¶28 At issue in
Mr. Newsted's cross-appeal are: (i) statements made by Cynthia
Brosemer, who participated, along with Mr. Newsted, in the robbery and
murder of three people in the Playhouse Bar in Cedar City, Utah,
shortly before Mr. Buckley's murder; (ii) a Tulsa police report
stating that there were signs of a struggle at the Buckley murder
scene; and (iii) statements made later by a police officer at the
scene that he remembered finding an open knife in the taxi. The state
apparently did not disclose the above information to Mr. Newsted's
counsel, who was unaware of it at trial.
¶29 On February
14, 1984, Mr. Newsted, along with Doug Kaye and Cynthia Brosemer,
robbed the Playhouse Bar in Cedar City, Utah. Ms. Brosemer turned
herself in three days later, received immunity, and provided three
statements to Cedar City police officer Roy Houchen and others
concerning the crime. Details of her statements will be provided as
relevant, but the essence of her statements as they relate to Mr.
Newsted was that he participated in the robbery, he fired two
non-fatal shots into the arm or shoulder of one of the victims, and
that Doug Kaye executed the three victims by shooting them in the back
of the head while Mr. Newsted and Ms. Brosemer looked on.
¶30 At the
sentencing phase of Mr. Newsted's trial for the Buckley murder, the
state called only Officer Houchen and Ms. Brosemer as witnesses. The
state's apparent plan was to use evidence of the Utah murders to
establish the aggravating circumstance that there was a probability
that Mr. Newsted would commit acts of violence that would constitute a
continuing threat to society. Mr. Newsted's counsel objected, citing
the Oklahoma rule providing that the state may not introduce evidence
at a sentencing hearing unless it has given the defense adequate
notice. The court permitted the witnesses to testify over defense
¶31 Mr. Newsted
argues that Ms. Brosemer's testimony during the penalty phase varied
from her prior three statements, and permitted the inference that Mr.
Newsted actually killed people in Utah. He further claims that the
unavailability of her prior statements made it impossible to impeach
her during the penalty phase. Thus, he argues the state's failure to
disclose Ms. Brosemer's statements to him both severely hampered his
ability to effectively cross-examine her during the penalty phase and
gave the jury an inaccurate picture of Mr. Newsted's involvement in
the Utah murders and thus an inaccurate impression of his future
¶32 The district
court concluded that, although the statements were Brady statements
and were not turned over to Mr. Newsted,8 "had the Brosemer statements
been disclosed to the defense, there is not a reasonable probability
that the result of the sentencing phase would have been different."
Order at 19, R. Vol. III at Tab 36. After carefully reviewing the
Brosemer statements and her testimony at the sentencing phase of Mr.
Newsted's trial, we affirm. We agree with the state and the district
court that, while Ms. Brosemer's trial testimony was not identical to
her prior statements, it was substantially the same, and adequately
and accurately conveyed to the jury Mr. Newsted's involvement in the
Utah murders.9TrTr. Part II at 822. Officer Houchen confirmed the
accuracy of that statement of her testimony. Id. at 833-34.
Particularly in light of counsel's forceful argument on the issue, we
have also reviewed the entire closing argument of the prosecutor, and
we do not conclude that he was able to use Ms. Brosemer's statements
to mislead the jury as to Mr. Newsted's involvement in the Utah
Hunt's statements about knife
¶33 Mr. Newsted
also argues the state violated Brady v. Maryland in failing to
disclose to him evidence suggesting that an open knife was found at
the murder scene which, he argues, would have bolstered his claim of
self-defense. As indicated, Mr. Newsted's defense in this case was
that Mr. Buckley tried to rob him at knife point, and he shot Mr.
Buckley in self-defense in the ensuing struggle.
¶34 While a
knife apparently belonging to Mr. Buckley was found at the crime
scene, there was considerable confusion and conflicting testimony as
to where it was found and who found it. As the district court stated,
"from the beginning, the police officers who testified about the knife
testified in a way that relieved each of them of the responsibility of
finding or touching the knife at the scene." Order at 50, R. Vol. III
at Tab 36. Our review of the record confirms the accuracy of the
district court's recitation of the tortured history of this particular
piece of evidence:
The evidence log, prepared by
Officer Ellis, states that the knife was recovered by John Ross of the
Medical Examiner's office in the decedent's coat pocket. Mr. Ross
stated that he never touched the knife. On February 28, 1984, the
District Attorney asked Officer Moreland to determine whether the
knife was found open or closed. On March 1, 1984, Officer Moreland
reported that the knife was found closed in the decedent's pants
Two weeks later, at the preliminary
hearing, Officers Moreland, Park and Applegate testified about the
knife. Officer Moreland testified that he saw the knife closed on the
floor of the car, and that the knife was removed from the car by
Officer Park. The District Attorney never disclosed Officer Moreland's
March 1 report. Officer Moreland also testified that the knife was wet
and muddy when it was recovered after the taxi was pulled out of the
water. The knife was clean at the time of the preliminary hearing, and
no one could explain how the knife came to be cleaned up. Officer Park
testified that he saw the knife closed on the floor of the car, and
that it was wet and muddy. Officer Applegate testified that the knife
was found closed in the decedent's coat pocket, and that Officer Park
handed the knife to Officer Applegate. No officer admitted to being
the person that recovered the knife.
At trial, Officers Moreland and
Applegate repeated their testimony from the preliminary hearing,
namely that Officer Park recovered the knife. Officer Park testified
that he saw the knife closed on the floor of the car, and that Officer
Applegate or Officer Ellis recovered the knife. Officer Park
specifically denied that he ever touched the knife at the scene. Once
again, no officer admitted to being the person who recovered the
Id. at 50-51
(citations omitted). Except for Mr. Newsted's testimony at trial that
he shot Mr. Buckley after Mr. Buckley attempted to rob him with a
knife, the jury heard no other testimony that the knife found at the
scene was ever open.
¶35 Mr. Newsted
argues there was one investigating officer, Sergeant Roy Hunt, who
retired shortly after the Buckley murder but, when contacted by an
investigator for Mr. Newsted's counsel in 1991 and 1992, signed two
statements suggesting the knife was open at the crime scene, thereby
supporting Mr. Newsted's version of events. Thus, Mr. Newsted argues
that the state, in effect, suppressed Sgt. Hunt's belief at the time
of the murder that the knife was found open.
¶36 The first
statement Mr. Newsted cites in support of this argument was a report
prepared by the investigator, Barry Rouw, who stated that "Seargent
[sic] reported that to the best of his recollection the folding blade
knife was recovered in the open position. When questioned further as
to where the knife was recovered from Seargent [sic] Hunt stated that
he was not sure and could not recollect positively where the knife was
recovered from." Pet'r's Ex. P-63 at Tab H pp.1-2. Sgt. Hunt then
signed the report, stating "it true to the best of my memory." Id.
Four months later, Sgt. Hunt signed a statement which included the
following: "I told Mr. Rouw that I recalled seeing the blade of the
knife in an open position when it was recovered by the Tulsa Police
Department. And, what I told Mr. Rouw, is exactly what I remember
based upon my first-hand observations—the knife blade was open." Id.
at Tab K.
Sgt. Hunt's supplementary offense report prepared at the time of the
Buckley murder did not mention a knife. Moreover, at the evidentiary
hearing held before the Oklahoma district court on August 25-26, 1992,
in Mr. Newsted's second post-conviction proceeding, Sgt. Hunt
initially characterized his statements to investigator Rouw as "[w]e
discussed it, whether [the knife] was open or whether it was closed.
We batted it back and forth. I said, yeah, it could have been either
way, just like anything, but I did not definitely say that the knife
blade was open at any time. I said it could have been or it could not
have been." Tr. of Evidentiary Hr'g at 73. He subsequently agreed,
however, that his statements to Mr. Rouw that, "to the best of his
memory" the knife was open, were correct at the time he made them in
late 1991 and early 1992.
¶38 We agree
with the district court that the record in this case "simply does not
establish that Sergeant Hunt believed he saw an open knife at the
crime scene." Order at 52, R. Vol. III at Tab 36. Further, as the
district court also found, the evidence at trial and available to the
state at that time overwhelmingly suggests the contrary. We therefore
affirm the district court's conclusion that no Brady violation
occurred in connection with Sgt. Hunt's beliefs or statements about
report suggesting struggle
¶39 One of the
investigating officers, Det. Cpl. G. V. Moreland, prepared a
supplementary offense report which contained the following description
of Mr. Buckley:
The victim's shirt had a tear in
the area of the buttonhole for the top button. This tear appeared that
the shirt had been ripped open, and the buttonhole had been ripped all
the way through and was no longer operable. Victim also showed signs
of a possible struggle in that he had what appeared to be a fingernail
scrape on his right cheek and another small cut on the right side of
Report, Pl's Ex.
20, R. Vol. II at Tab 11. This report was apparently never disclosed
to the defense.
¶40 The district
court held that the failure to disclose this report to the defense was
a Brady violation. We agree, given its relevance to Mr. Newsted's
defense. Thus, as did the district court, we turn to whether there is
"a reasonable probability" that, had the report been disclosed to
defense counsel, "the result of the proceeding would have been
different." Kyles, 514 U.S. at 433-34.
¶41 The district
court carefully detailed, as have we, all the evidence contradicting
Mr. Newsted's version of events. We also note that no other
investigating officer testified to or reported indications of a
the forensic pathologist, Dr. M. F. Merchant, who performed the
autopsy on Mr. Buckley, testified to the jury about the abrasions on
Mr. Buckley's neck, and he stated twice that they could have been the
result of "an altercation" or a "scuffle." Tr. Part II at 537, 542.
Thus, the marginal additional information that one officer observed
that Mr. Buckley's shirt looked like it had been sharply pulled at the
neck does not create a "reasonable probability" that the jury would
have reached a different result. We therefore affirm the district
court's conclusion that this Brady violation caused Mr. Newsted no
effect of errors
¶43 Mr. Newsted
further argues that we must consider the cumulative effect of the
undisclosed evidence of both the open knife and the struggle, and,
considered together, they "undermine confidence in the jury's
verdict." Newsted's Opening Br. at 70. We have concluded that no error
occurred in connection with Sgt. Hunt's beliefs, and that the Brady
violation in connection with the police report suggesting a struggle
was not prejudicial. A non-error and a non-prejudicial error do not
cumulatively amount to prejudicial error. See Moore v. Reynolds, No.
97-6065, 1998 WL 387452, at *27 (10th Cir. July 13, 1998) ("Cumulative
error analysis applies where there are two or more actual errors; it
does not apply to the cumulative effect of non-errors.").
B. Notice of
evidence to be used at sentencing
¶44 Mr. Newsted
also argues the state violated his due process rights by failing to
provide notice to him that it intended to rely upon the Utah homicides
at sentencing or call Officer Houchen and Ms. Brosemer as witnesses.
Oklahoma provides that "[o]nly such evidence in aggravation as the
state has made known to the defendant prior to his trial shall be
admissible." Okla. Stat. Ann. tit. 21, § 701.10. The statute "requires
the State to provide a capital defendant with 'a summary of the
evidence intended to support the alleged aggravating circumstances,
and a list of witnesses the State might call' and not a detailed
description of anticipated second stage evidence." Turrentine v.
Oklahoma, No. F-95-1110, 1998 WL 264135, at *13 (Okla. Crim. App. May
27, 1998) (quoting Walker v. State, 887 P.2d 301, 316-17 (Okla. Crim.
¶45 On May 16,
1984, the state filed a bill of particulars describing the evidence it
intended to introduce in support of the two aggravating circumstances
it intended to prove. In support of the aggravating circumstance that
Mr. Newsted had been previously convicted of a felony involving the
use or threat of violence to the person, the state described a 1979
conviction in Nevada for kidnaping, robbery, and use of a deadly
weapon in connection with the commission of a crime. To support the
"continuing threat" aggravator, the bill stated only that "from the
past behavior of the defendant . . . there is the existence of the
probability that this defendant would commit criminal acts of violence
that would constitute a continuing threat to society." Pet'r's Ex.
P-39, Doc. 39.
¶46 On June 18,
1984, the first day of trial, the state filed a "Notice of State's
Intention to Introduce Evidence of Other Crimes" (the "Burks"
notice)10 in which it detailed the Utah murders and stated that
evidence of them would be relevant to prove that the firearm used to
kill Mr. Buckley belonged to Mr. Newsted, not Mr. Buckley. Pet'r's Ex.
P-42, Doc. 42. When the trial commenced, the state did not in fact
introduce evidence of the Utah crimes in the first (guilt/innocence)
phase of the trial to prove ownership of the gun but did introduce it
in the penalty phase to show Mr. Newsted's continuing threat.11
¶47 On direct
appeal, the Oklahoma Court of Criminal Appeals agreed with Mr. Newsted
"that the Bill of Particulars contained insufficient notice of the
evidence intended in support of the allegation of future
dangerousness." Newsted, 720 P.2d at 739. The court concluded,
however, that Mr. Newsted failed to demonstrate prejudice from
The Burks notice, though
technically limited in this case to the first stage of trial, did
contain detailed information regarding this unadjudicated offense. We
have previously held that proof of an unadjudicated offense is
admissible to show the existence of a probability that the accused
would commit future acts of violence constituting a continuing threat
to society. And, evidence from the first stage of trial is typically
incorporated into the punishment phase to provide proof of aggravating
circumstances. This is not a case in which counsel was wholly unaware
prior to trial of relevant proof regarding an unadjudicated offense.
It appears from the record that defense counsel was quite familiar
with the facts of the Utah murders, and was able to limit somewhat the
damaging effect of the evidence through a probing cross-examination of
the State's witnesses.
Id. at 739-40
(citations omitted). The district court agreed: "[c]onsistent with the
conclusion of the Oklahoma Court of Criminal Appeals, the Court holds
that any infirmity in Newsted's 'Burks notice' did not constitute a
violation of his constitutional rights." Order at 6, R. Vol. III at
¶48 Mr. Newsted
argues he suffered prejudice from the inadequate notice in two ways:
(1) the Utah evidence should have been completely excluded, which
would have largely destroyed the state's aggravating evidence in the
penalty phase, as it was so focused on the Utah crimes; and (2) he was
unable to impeach Ms. Brosemer's testimony with her prior statements.
We reject these arguments. We find no prejudice with respect to Mr.
Newsted's ability to impeach Ms. Brosemer for the same reason we found
no prejudice stemming from the state's failure to turn over to Mr.
Newsted all of her prior statements—her testimony at trial did not
vary in any meaningful or substantial way from her prior statements.
Moreover, Mr. Newsted was able to convey to the jury what he wanted
from Ms. Brosemer—that Mr. Newsted did not kill anyone in Utah.
¶49 With respect
to his first claimed prejudicial effect—the admission of any evidence
at all of the Utah crimes—Mr. Newsted seeks too much. He cannot
seriously argue that the state was not entitled to introduce that
evidence; indeed, the state made clear its intent to use it in the
guilt/innocence phase of the trial to establish ownership of the
murder weapon. He is complaining about the state's election to use the
evidence in the penalty phase instead, to show Mr. Newsted's
propensity to commit violent acts. And while he argues, quite
correctly, that the state should have specifically listed that
evidence in its bill of particulars, and not relied on the general
statement about the "past behavior of the defendant," he can hardly
claim that he was genuinely surprised by the state's decision to rely
upon that evidence to establish Mr. Newsted's future dangerousness.
And, as both the Oklahoma court and the federal district court found,
Mr. Newsted's counsel seemed, from his cross-examination of Ms.
Brosemer and Officer Houchen, very knowledgeable about the Utah
crimes, and limited, to the extent possible, the damage caused by that
testimony. We therefore agree with those courts that Mr. Newsted
suffered no prejudice from the state's inadequate notice concerning
its intended use of the Utah crimes.
assistance of trial counsel
¶50 Mr. Newsted
argues his trial counsel was constitutionally ineffective in failing
to investigate or present any mitigating evidence in the penalty phase
of the trial. To prevail on an ineffective assistance of counsel
claim, a petitioner must show both deficient performance and
prejudice. To show constitutionally deficient performance, Mr. Newsted
must show that his attorney "committed serious errors in light of
prevailing professional norms such that his legal representation fell
below an objective standard of reasonableness." Castro v. Ward, 138
F.3d 810, 829 (10th Cir. 1998) (quotations omitted). To show
prejudice, he must demonstrate "a reasonable probability that the
outcome would have been different had those errors not occurred." Id.
¶51 The district
court held that Mr. Newsted's counsel's complete failure to prepare
any mitigating evidence for the penalty phase constituted
ineffectiveness. However, it found he suffered no prejudice—that is,
he failed to show "a reasonable probability that, absent the errors,
the sentencer—including an appellate court, to the extent that it
independently reweighs the evidence—would have concluded that the
balance of aggravating and mitigating circumstances did not warrant
death." Strickland, 466 U.S. at 695. "In evaluating prejudice, we must
keep in mind the strength of the government's case and the aggravating
factors the jury found as well as the mitigating factors that might
have been presented." Castro, 138 F.3d at 832 (quotations omitted).
¶52 Mr. Newsted
alleges the following mitigating evidence should have been presented:
(1) evidence of his difficult and troubled childhood, including (a)
that his mother was an alcoholic who drank while pregnant with Mr.
Newsted; (b) that his father drank heavily and was abusive, including
physically and sexually abusive, toward Mr. Newsted's sister; (c) that
he ran away from home and began using drugs at age thirteen; and (d)
that he dropped out of school at the age of sixteen, married at
eighteen, and held several jobs to support his two children; (2)
evidence of his severe psychological problems, including his limited
mental capacity, numerous personality disorders, and post-traumatic
stress disorder; and (3) that he would not be a continuing threat to
society if he served a life sentence in prison because his behavior
was exemplary while he was incarcerated in Nevada on a prior
¶53 Mr. Newsted
argues that his counsel introduced no evidence at all of these
mitigating circumstances. The state argues that evidence of Mr.
Newsted's troubled past was introduced, and cites the unpublished
denial of his first state post-conviction proceeding, in which the
Oklahoma Court of Criminal Appeals found:
Furthermore, with regard to
appellant's assertion that other mitigating evidence was available to
show that appellant had a turbulent family background, was a high
school dropout, had a long drug history and was functioning between
mental retardation and the low end of the average range, we cannot say
that there is a reasonable probability that the omission of such
evidence would have changed the jury's conclusion. To look back is
clairvoyant. Hindsight is never wrong; a trial never has such luxury.
Appellant testified the jury heard evidence relating to his prior
criminal history, drug abuse and broken marriage. Moreover, defense
counsel presented the preliminary hearing transcript from appellant's
prior conviction in an attempt to demonstrate appellant's limited
Appellant's/Cross-Appellees' Reply Br. at 22 (quoting Unpublished
Order PC-89-427 at 3-4). The state argues that is a factual finding
¶54 In fact, the
transcript of the penalty phase reveals that Mr. Newsted specifically
declined to testify, although he had testified in the guilt/innocence
phase. His testimony in the guilt/innocence phase did not describe his
turbulent family history, although there was testimony by him and his
sister concerning his drug use around the time of the Buckley murder,
and, in the penalty phase, Ms. Brosemer testified that she and Mr.
Newsted, as well as the others involved in the Utah crimes, drank
alcohol and took some drugs during the time period of those crimes.
Mr. Newsted argues that, pursuant to jury instruction number 10, as
well as the court's admonition during the penalty phase, the jury was
specifically told to consider only the evidence presented during the
¶55 From our
review of the record, it appears that Mr. Newsted correctly argues
that no mitigating evidence of the type described above was presented
during the penalty phase of the trial. Mr. Newsted himself decided not
to testify, however, and thus did not avail himself of that
opportunity to present such mitigating evidence. Additionally, Mr.
Newsted's counsel did introduce an exhibit and argue it was mitigating
evidence.12 We nonetheless agree with the district court that
counsel's failure to investigate any other avenues for presenting
additional mitigating evidence, in the absence of any tactical reason,
constitutes ineffectiveness. We must therefore consider whether Mr.
Newsted suffered any prejudice therefrom—whether the virtual absence
of such mitigating evidence creates a reasonable probability that the
outcome of the jury's weighing of aggravating against mitigating
factors would have been different. We agree with the district court
and the Oklahoma state courts that it would not.
¶56 The evidence
in aggravation was powerful—a series of increasingly violent crimes,
culminating in Mr. Newsted killing Mr. Buckley. The fact that Mr.
Newsted received a life sentence in Utah is utterly irrelevant to this
proceeding. The judge in the Utah case simply determined that the
calculus of aggravating and mitigating circumstances, including the
fact that Mr. Newsted did not actually kill anyone in Utah, did not
warrant the death penalty. In this case, by contrast, Mr. Newsted
indisputably killed Mr. Buckley, and the jury was entitled to conclude
that the calculus of aggravating and mitigating circumstances in this
case did warrant the death penalty. As we observed in Duvall,
"[a]lthough grievous, [the defendant's] life history does not
automatically mitigate the aggravating circumstances that the jury
found present here." Duvall, 139 F.3d at 781. Given that our standard
here is to determine whether there is a reasonable probability that
the jury's determination would have been different, we hold that the
absence of the type of mitigating evidence Mr. Newsted argues should
have been presented to the jury does not undermine our confidence in
the jury's sentence.
D. Whether the
district court should have reached the merits of the heat of passion
¶57 While the
district court found that Mr. Newsted's appellate counsel was
constitutionally ineffective in not arguing the trial court's failure
to instruct on a heat of passion manslaughter defense, the court
ordered a new direct appeal, rather than addressing the merits of the
issue. We have held that Mr. Newsted suffered no prejudice from his
appellate counsel's ineffectiveness, and in so holding, we addressed
the merits of the issue. Thus, the district court's failure to address
the merits is of no moment.
¶58 For the
foregoing reasons, we REVERSE the district court's conditional grant
of the writ to Mr. Newsted, and we REMAND for entry of an order
denying the petition.
Ann. tit. 21, § 711(2), provides as follows:
Homicide is manslaughter in the
first degree in the following cases:
2. When perpetrated without a
design to effect death, and in a heat of passion, but in a cruel and
unusual manner, or by means of a dangerous weapon; unless it is
committed under such circumstances as constitute excusable or
recognized in United States v. Cook, 45 F.3d 388 (10th Cir. 1995), "an
appellate advocate may deliver deficient performance and prejudice a
defendant by omitting a 'dead-bang winner,' even though counsel may
have presented strong but unsuccessful claims on appeal." Id. at 395.
A "dead-bang winner" is "an issue which was obvious from the trial
record, and . . . would have resulted in a reversal on appeal." Id.
court held both that the omission of the heat of passion instruction
was a "dead bang winner" under Morgan's absolute rule in effect at the
time of Mr. Newsted's appeal, as well as a viable issue under Walton,
because the circumstances of the case justified such an instruction.
Under Lockhart, Morgan's absolute rule is irrelevant to Mr. Newsted's
claim of prejudice. We therefore only consider prejudice under Walton.
4As the court in
Goodwin explained, the Supreme Court's recognition of the right to
effective assistance of appellate counsel "stems from the fact that,
when a state chooses to create appellate courts, appellate review
becomes '"an integral part of the . . . system for finally
adjudicating the guilt or innocence of a defendant."' The appellate
process exists solely for the purpose of correcting errors that
occurred at the trial court level." Goodwin, 132 F.3d at 175 (quoting
Evitts v. Lucey, 469 U.S. 387, 393 (1985) (quoting Griffin v.
Illinois, 351 U.S. 12, 18 (1956)).
infra, other arguments concerning evidence in this case which Mr.
Newsted claims support his version of events.
additional argument on this issue—that the necessity of giving such an
instruction is purely a matter of state law and therefore not grounds
for habeas relief—is easily dismissed. This issue is appropriately
raised in this habeas petition because it arises in the context of a
claim of ineffective assistance of appellate counsel. Mr. Newsted has
a due process right to effective appellate counsel. See Evitts v.
Lucey, 469 U.S. 387 (1985); see also Hannon v. Maschner, 845 F.2d
1553, 1558 (10th Cir. 1988). Having concluded that he suffered no
prejudice from his counsel's failure to argue the issue on appeal,
however, we grant Mr. Newsted no relief in this habeas proceeding.
7In light of the
frequency with which arguments are made concerning the adequacy and
clarity of mitigating circumstances instructions given to Oklahoma
juries in the penalty phase of capital cases, see, e.g., Duvall v.
Reynolds, 139 F.3d 768 (10th Cir. 1998); Castro v. Ward, 138 F.3d 810
(10th Cir. 1998); Knighton v. State, 912 P.2d 878 (Okla. Crim. App.
1996); Romano v. State, 909 P.2d 92 (Okla. Crim. App. 1995); Smallwood
v. Oklahoma, 907 P.2d 217 (Okla. Crim. App. 1995), we urge Oklahoma
state courts to instruct juries in such a way that there is no
possibility of ambiguity in the manner in which those juries consider
mitigating evidence. This frequently litigated issue will disappear,
and we will have absolute confidence that Oklahoma juries carefully
and properly discharge their important task of evaluating mitigating
circumstances in capital cases.
8There is some
dispute as to whether all three statements were withheld. We will
assume, for the sake of argument, that all three were withheld.
the following exchange occurred during Ms. Brosemer's
cross-examination in the penalty phase:
Q. Did you testify in the case of
Q. Did you testify in that trial
that Douglas Kay was the one who shot and killed these people in the
bar up there?
Q. Norman Lee Newsted didn't kill
anybody up there?
A. No, he shot a man twice.
Q. The man was still alive, wasn't
A. I believe so.
Q. He was shot in the arm, wasn't
A. Shot up on the shoulder-chest
requirement for this notice was announced in Burks v. State, 594 P.2d
771 (Okla. Crim. App. 1979), overruled in part by Jones v. State, 772
P.2d 922 (Okla. Crim. App. 1989).
11The state and
Mr. Newsted stipulated that the gun used to kill Mr. Buckley was Mr.
12The exhibit was a transcript of
the preliminary hearing in Mr. Newsted's 1979 Nevada conviction,
which, Mr. Newsted's counsel argued, demonstrated limited involvement
by Mr. Newsted.