John Joseph Romano | Murderpedia, the encyclopedia of murderers

John Joseph ROMANO

Classification: Murderer

Characteristics: Robberies

Number of victims: 2

Date of murders: October 16, 1985 / July 19, 1986

Date of birth: November 23, 1958

Victims profile: Roger Joel Sarfaty, 52 (jeweler) / Lloyd Thompson, 63 (acquaintance)

Method of murder: Stabbing with knife

Location: Oklahoma County, Oklahoma, USA

Status: Executed by lethal injection in Oklahoma on January 29, 2002

Summary:

Romano and Woodruff were convicted of killing a jeweler, Roger Sarfaty, during the course of a robbery.

Sarfaty was an acquaintance of Romano and had been bound hand and foot and strangled, beaten about the head and stabbed five times. A friend first discovered his body, around 11:00 P.M. Tuesday, October 15, 1985.

At the time, Romano was serving a prison sentence and had been out on weekend furlough from Friday evening, October 11 through Sunday evening, October 13.

The State's theory was that the murder occurred on Saturday, October 12, between 2:00 A.M. and 2:00 P.M. Romano and Woodruff do not have alibis for at least part of that time period.

On Sunday, October 13, Woodruff's girlfriend observed that Woodruff had a lot of jewelry which he could not afford. Sarfaty also kept as many as six large containers of quarters in his apartment, which were missing after the murder.

On Saturday afternoon, October 12, Romano and Woodruff, who were then intoxicated, attempted to purchase a television at a mall store, using only quarters. When mall security took them into custody for being drunk and disorderly, Romano had a "lock blade" folding knife. He was also wearing an expensive-looking gold necklace.

When police arrested Woodruff ten months after Sarfaty's murder, he called his girlfriend and asked her to "clear" the house. A few weeks before the murder, Romano was in need of money and had asked a friend, Tracy Greggs, to help him rob Sarfaty, and stated he would have to kill him.

The State jointly tried Woodruff and Romano. The jury convicted both of first degree malice murder and robbery with a dangerous weapon.

In a related matter, prior to the Sarfaty trial, the State had jointly tried Woodruff and Romano for murdering another Romano acquaintance, Lloyd Thompson.

In that case, a jury also convicted both men of first degree murder and sentenced them to death. The State introduced evidence of those Thompson convictions and death sentences during sentencing in the Sarfaty trial.

The Oklahoma Court of Criminal Appeals overturned the Thompson convictions and death sentences, holding the trial court had erred in jointly trying Woodruff and Romano for that murder.

The State subsequently retried Woodruff and Romano for Thompson's murder. Separate juries again convicted both of first degree murder. Romano's jury sentenced him to death, but Woodruff received a sentence of life imprisonment without parole.

Citations:

Romano v. Oklahoma, 827 P. 2d 1335 (1992) (Thompson Direct Appeal).
Romano v. Oklahoma, 847 P. 2d 368, 390 (1993) (Sarfaty Direct Appeal).

Final Meal:

Spaghetti with meatballs, ravioli and sausage and strawberry or cherry cheesecake.

Final Words:

"For whoever I've wronged, I'd like for them to forgive me. I'd like to tell my family and friends I love you. Thanks for your love and support."

ClarkProsecutor.org

Oklahoma Attorney General

News Release - W.A. Drew Edmondson, Attorney General

November 27, 2001

Execution Dates Requested for Romano, Woodruff.

Attorney General Drew Edmondson today asked the Oklahoma Court of Criminal Appeals to set execution dates for the two men convicted of killing a 52-year-old Oklahoma City man.

The U.S. Supreme Court yesterday denied the final appeals of death row inmates John Joseph Romano, 43, and David Wayne Woodruff, 42, who were convicted of the Oct. 12, 1985, murder of Roger Joel Sarfaty.

Sarfaty's body was found Oct. 16, 1985, in his Oklahoma City apartment. He had been stabbed five times, beaten and strangled. His apartment had been robbed.

Romano also has a death sentence for murdering 63-year-old Lloyd Thompson during a July 19, 1986, robbery in Oklahoma City. Woodruff received a sentence of life without parole for his part in the crime.

"It is the practice of this office, before an execution date is requested, to examine each case to determine if the testing of DNA evidence should occur," said Edmondson. "We have determined, after a thorough review, that DNA testing would be of no value and would have no relevance as to actual innocence. I see nothing that should stand in the way of these executions being carried out."

ProDeathPenalty.com

The state Criminal Appeals Court set execution dates for two death row inmates for their part in the 1985 murder of an Oklahoma City man.

John Joseph Romano is to be put to death Jan. 29, two days before his accomplice, David Wayne Woodruff, is executed.

Romano and Woodruff were convicted of killing Roger Joel Sarfaty, 52, on Oct. 12, 1985. Roger's body was found four days later in his Oklahoma City apartment. He had been stabbed five times, beaten and strangled. His apartment had been robbed.

Romano, 43, also has a death sentence for killing Lloyd Thompson, 63, during a robbery July 19, 1986, in Oklahoma City. Woodruff, 42, received a life sentence without the possibility of parole for his part in the murder of Lloyd Thompson.

National Coalition to Abolish The Death Penalty

John Romano - Scheduled Execution Date and Time: 1/29/01 10:00 PM EST

David Woodruff - Scheduled Execution Date and Time: 1/31/01 10:00 PM EST

John Romano and David Woodruff are scheduled to be executed in Oklahoma on Jan. 29 and Jan. 31, respectively. In the same trial, Romano and Woodruff were convicted of the 1985 murder of jeweler Roger Safarty.

Their conviction was bolstered by the all-too-common practice of prosecutors giving leniency to “jailhouse snitches” in exchange for their incriminating statements. Much too often, however, the confession of such witnesses turns out to be completely false.

In their federal appeals, Romano and Woodruff argued that the district attorney prosecuting their case had secured a deal with Greg Myers, who at one point shared a jail cell with Romano. Myers, who was then in jail for check fraud, had previously been convicted of a sex crime involving a child.

The same DA’s office prosecuting Romano and Woodruff offered Myers a plea-bargain whereby he would only serve one year of the mandatory ten for his felony crime. Although the law requires that deals like this be presented to the trial jury, the prosecution offered no such admission.

Thus far, no court has ruled in favor of Romano and Woodruff on this claim. In denying relief, Judge Ebel of the Tenth Circuit Court of Appeals noted, “…we remain suspicious about whether Myers in fact had a deal with the State, particularly in light of the timing of these events and the significant benefit Myers derived from avoiding a ten-year prison sentence when the State did not charge him as a former felon…” No proof of the quid pro quo exists, but the facts are too obvious to ignore. Write to the Governor of Oklahoma and urge that this claim by Romano and Woodruff be fully investigated.

John Joseph Romano Homepage

About Me: Dead Man Waiting . . . John Joseph Romano is on death row in the state of Okalahoma, the current leader in number of executions (17) for this year. His appeals are all but run out and he has little hope of any clemency or relief.

His final wish is to get enough funding to pay for his own funeral and allow his family to claim his body, rather than be buried in the prison cemetery where it would be all but impossible for his family to visit or tend his grave.

In a recent letter to me, he said, "I have hurt my family, my mother, so much with the things I have done in my life that I truly wish to give them this final bit of comfort." At this time, you may send contributions for John's funeral fund to C&E Jasper, 2109 Harmony Place, Bloomington, IN 47403; or through PayPal.com, Elizabeth Jasper/Readings by Elizabeth.

Please help John's family to have a little dignity in the loss of their son. Few of us realize how terribly families suffer for the crimes of their children. Many families abandon their family members in prison altogether, especially on death row, but John's has not. They just simply don't have the money to give John a private burial. We see many responses from opponents accusing prisoners of wanting fancy funerals. All we are talking about here is a marked grave, not on prison property. Even small donations are a big help. John has, in my best judgement, three to five months before his execution date will be set.

Hobbies & Interests: John has been a model prisoner during his 15+ year stay on death row. He serves as a messenger/runner for H-Unit. You can also find more information there about Oklahoma's dedicated execution practices. John is a very religious person and a sincere Christian. If you want to write to John, send an e-mail to jasperea@yahoo.com and I will forward it to John via regular mail. Prisoners have no e-mail or internet access.

Friends & Family: John's family has given him rare support in his difficult situation. I don't know a great deal about them, except that he loves them so much, the same way my children love me. John has been fortunate, he says, in the friends he has been able to make on death row. "There are high prices to pay emotionally for developing friendships in this place, but it has been worth it to me. I have been here since I was a very young man (28), so it has really been my only chance to have friends." I met John through my pen-pal at H-Unit. We have shared a few letters and I find him to be sincere, responsible for his life and actions and determined to act in the best interests of his family.

SUPREME COURT OF THE UNITED STATES

No. 92-9093

JOHN JOSEPH ROMANO, PETITIONER
v.
OKLAHOMA

On writ of certiorari to the court of criminal appeals of Oklahoma

June 13, 1994

Justice Ginsburg, with whom Justice Blackmun, Justice Stevens, and Justice Souter join, dissenting.

In Caldwell v. Mississippi, 472 U.S. 320 (1985), this Court overturned a capital sentence as inadequately reliable because of a statement made by the prosecutor, in closing argument at the penalty phase of the trial. The Caldwell prosecutor told the jury: "[Y]our [sentencing] decision is not the final decision"; "the decision you render is automatically reviewable by the [state] Supreme Court." Id., at 325-326.

Responding to the issue presented in Caldwell, this Court observed that capital sentencing jurors, required to determine "whether a specific human being should die at the hands of the State," id., at 329, are "placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice." Id., at 333. Such jurors, the Court noted, might find "highly attractive" the prosecutor's suggestion that persons other than themselves would bear "responsibility for any ultimate determination of death." Id., at 332-333.

The possibility the jury might have embraced the prosecutor's suggestion, the Court concluded, rendered the imposition of the death penalty inconsistent with the Constitution's requirement of individualized and reliable capital sentencing procedures. See id., at 323, 329-330,340-341. Emphasizing the " `truly awesome responsibility' " imposed upon capital sentencing juries, id., at 329, quoting McGautha v. California, 402 U.S. 183, 208 (1971), the Court held:

"[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 472 U. S., at 328-329.

In my view, this principle, reiterated throughout the Court's Caldwell opinion, ^[n.1] covers the present case: The jury's consideration of evidence, at the capital sentencing phase of petitioner Romano's trial, that a prior jury had already sentenced Romano to death, infected the jury's life or death deliberations as did the prosecutorial comments condemned in Caldwell. Accordingly, I would vacate the death sentence imposed upon Romano and remand for a new sentencing hearing.

At the penalty phase of Romano's trial for the murder of Roger Safarty, the prosecution sought to put before the jury a copy of the "Judgment and Sentence" from an earlier and unrelated prosecution. That document revealed that Romano had been convicted of the first degree murder of Lloyd Thompson and that he was to be executed for that crime. Defense counsel offered to stipulate to Romano's conviction for the Thompson murder, but objected to the jury's consideration of the death sentence.

The trial court overruled defense counsel's objection and admitted the "Judgment and Sentence" document. That document stated that Romano had given "no good reason why [the] Judgment and Sentence [for the murder of Thompson] should not be pronounced," and commanded the State's Department of Corrections "to put the said JOHN JOSEPH ROMANO to death." App. 6. The jury in the instant, Safarty murder case also sentenced Romano to death.

During the pendency of Romano's appeal from his conviction and sentence for the Safarty murder, the Oklahoma Court of Criminal Appeals vacated his conviction for the Thompson murder. Romano v. State, 827 P. 2d 1335 (1992). Romano urged on appeal in the Safarty case that, under Caldwell v. Mississippi, it was impermissible to place before the jury, as relevant to its deliberations whether Romano should live or die, evidence that he was already under sentence of death.

The Oklahoma court rejected that contention and affirmed Romano's conviction and death sentence for the Safarty murder. 847 P. 2d 368, 390 (Okla. Crim. App. 1993). In so ruling, the court acknowledged that "[l]earning that the defendant had previously received a death sentence for another murder could diminish the jury's sense of importance of its role and mitigate the consequences of [its] decision." Ibid. The court further recognized that "evidence of the imposition of the death penalty by another jury is not relevant in determining the appropriateness of the death sentence for the instant offense." Id., at 391.

Nevertheless, the court concluded, "when the jury is properly instructed as to its role and responsibility in making such a determination we cannot, on appellate review, conclude that the jur[ors] inany way shifted the responsibility for their decision or considered their decision any less significant than they would otherwise." Id., at 390. ^[n.2] That judgment is now before the Court. ^[n.3]

In Caldwell, this Court found constitutionally impermissible a prosecutor's statement, at the penalty phase of a capital trial, that the jury's decision was "not the final decision" because it was "automatically reviewable." The prosecutor's assurances were impermissible, the Court ruled, because they created an unacceptable risk that the jury would "minimize the importance of its role," "believ[ing] that the responsibility for determining the appropriateness of the defendant's death rest[ed] elsewhere." Caldwell, 472 U. S., at 333, 329. This belief, the Court explained, is inconsistent with the "heightened `need for reliability' " in capital sentencing. Id., at 323, quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion).

The risk of diminished jury responsibility was also grave in Romano's case. Revealing to the jury that Romano was condemned to die for the Thompson murder signaled to the jurors in the Safarty murder case that Romano faced execution regardless of their life or death decision in the case before them. Jurors so informed might well believe that Romano's fate had been sealed by the previous jury, and thus was not fully their responsibility. See People v. Hope, 116 Ill. 2d 265, 274, 508 N. E. 2d 202, 206 (1986) (" `[T]he jury's awarenessof defendant's prior death sentence would diminish its sense of responsibility . . . . Assuming that defendant was already going to be executed, the jurors may consider their own decision considerably less significant than they otherwise would.' "), quoting People v. Davis, 97 Ill. 2d 1, 26, 452 N. E. 2d 525, 537 (1983); West v. State, 463 So. 2d 1048, 1052-1053 (Miss. 1985) ("[I]f the jury knows that the [defendant] is already under a sentence of death it would tend to relieve them of their separate responsibility to make that determination.").

A juror uncertain whether to vote for death or for life might be swayed by the knowledge that " `another jury had previously resolved the identical issue adversely to defendant.' " Hope, supra, at 274, 508 N. E. 2d, at 206, quoting Davis, supra, at 26, 452 N. E. 2d, at 537. Such a juror, although "unconvinced that death is the appropriate punishment, . . . might nevertheless wish to `send a message' of extreme disapproval for the defendant's acts," Caldwell, 472 U. S., at 331, reasoning that the defendant was already to be executed in any event.

Furthermore, jurors otherwise inclined to hold out for a life sentence might acquiesce in a death penalty they did not truly believe warranted. Cf. id., at 333 ("[O]ne can easily imagine that in a case in which the jury is divided on the proper sentence, the presence of appellate review could effectively be used as an argument for why those jurors who are reluctant to invoke the death sentence should nevertheless give in.").

Respondent State of Oklahoma correctly observes, however, that evidence of a prior death sentence may not produce a unidirectional bias toward death. Brief for Respondent 23. Some jurors, otherwise inclined to believe the defendant deserved the death penalty for the crime in the case before them, might nonetheless be anxious to avoid any feeling of responsibility for the defendant's execution. Jurors so minded might vote for a life sentence, relying on the prior jury's determinationto secure defendant's death. See ante, at 12.

The offending prosecutorial comments in Caldwell, by contrast, created an apparently unidirectional "bias toward a death sentence," for the appellate review that the Caldwell jurors were encouraged to consider could occur only if the jury sentenced the defendant to death, not if it voted for life. 472 U. S., at 331-332. Oklahoma maintains that Romano remains outside the Caldwell principle, because he is unable to demonstrate that the evidence of his prior death sentence tilted the jurors toward death.

Romano's prosecutor, at least, seems to have believed that informing the jurors of the prior death sentence would incline them toward death, for otherwise, he probably would not have insisted upon introducing the "Judgment and Sentence" itself, over Romano's objection, and despite Romano's offer to stipulate to the underlying conviction. Most critically, Caldwell, as I comprehend that decision, does not require Romano to prove that the prosecutor's hunch was correct, either in Romano's case in particular or in death penalty cases generally.

Caldwell dominantly concerns the capital sentencing jury's awareness and acceptance of its " `awesome responsibility.' " Id., at 341. To assure that acceptance, this Court's Eighth Amendment jurisprudence instructs, capital sentencing procedures must be especially reliable. See id., at 323 (prosecutor's comments were "inconsistent with the Eighth Amendment's heightened `need for reliability in the determination that death is the appropriate punishment in a specific case,' " quoting Woodson v. North Carolina, supra, at 305); 472 U. S., at 341 (death sentence "does not meet the standard of reliability that the Eighth Amendment requires," when it may have been affected by the State's attempt "to minimize the jury's sense of responsibility for determining the appropriateness of death").

Under Caldwell'sreasoning, diminution of jurors' sense of responsibility violates the Eighth Amendment's reliability requirement, whether or not a defendant can demonstrate empirically that the effect of this diminution was to bias the jurors' judgment toward death. According to Caldwell, if a reviewing court "cannot say" that an effort "to minimize the jury's sense of responsibility for determining the appropriateness of death . . . had no effect on the sentencing decision, . . . [t]he sentence of death must . . . be vacated" as unreliable. Ibid.

The Court today reads Caldwell to apply only if the jury has been "affirmatively misled regarding its role in the sentencing process." Ante, at 7. According to the Court, because no information, incorrect when conveyed, was given to the jury responsible for sentencing Romano for Safarty's murder, "[t]he infirmity identified in Caldwell is simply absent in this case." Ante, at 7.

The Court rests its rendition of Caldwell on the premise that only a plurality of the Court's members endorsed the principle I regard as pivotal: Diminution of the jury's sense of responsibility "preclude[s] the jury from properly performing its [charge] to make an individualized determination of the appropriateness of the death penalty." See ante, at 6-7, citing Caldwell, 472 U. S., at 330-331, 341. In fact, however, key portions of Caldwell that the Court attributes to a plurality of four were joined by five of the eight Justices who participated in that case.

Justice O'Connor parted company with the other members of the majority only as to a discrete, three paragraph section, Part IV-A (id., at 335-336), in which "[t]he Court," in her view, "seem[ed] generally to characterize information regarding appellate review as `wholly irrelevant to the determination of the appropriate sentence.' " Id., at 342 (opinion concurring in part and concurring in the judgment), quoting id., at336.

Justice O'Connor explained that she did not read California v. Ramos, 463 U.S. 992 (1983), "to imply that the giving of nonmisleading and accurate information regarding the jury's role in the sentencing scheme is irrelevant to the sentencing decision." 472 U. S., at 341 (emphasis omitted). It was in that context that Justice O'Connor stated her view, quoted ante, at 7, that "the prosecutor's remarks were impermissible," not because they referred to the existence of post-sentence review, but "because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility." 472 U. S., at 342.

Justice O'Connor's concurring opinion thus appears to rest on "grounds narrower" than those relied upon by the other members of the Court's Caldwell majority, see ante, at 7, only insofar as her concurrence disavowed any implication that the "giving of accurate instructions regarding postsentencing procedures," 472 U. S., at 342, is irrelevant or unconstitutional.

The evidence of Romano's death sentence for the murder of Thompson, however, was not information regarding postsentencing procedures Romano might pursue. Nor, as the Oklahoma Court of Criminal Appeals found, was the "Judgment and Sentence" for Thompson's murder relevant to the Safarty jury's sentencing decision. 847 P. 2d, at 391 ("evidence of the imposition of the death penalty by another jury is not relevant in determining the appropriateness of the death sentence for the instant offense"). ^[n.4]

Accordingly, I do not read JusticeO'Connor's concurring opinion as narrowing the Court's Caldwell holding with respect to the issue this case presents. Nor, for reasons set out in the margin, do I agree with the Court that several post-Caldwell cases, beginning with Darden v. Wainwright, 477 U.S. 168 (1986), confirm the narrow interpretation of Caldwell the Court announces today. See ante, at 7. ^[n.5]

Finally, the Court relies, as did the Oklahoma Court of Criminal Appeals, on the trial court's instruction to the jurors that "[t]he importance and worth of the evidence is for you to decide," together with the court's disavowal of any view as to the appropriate punishment. Ante, at 3. The Court quotes the Oklahoma court's conclusion that " `[i]t was never conveyed or intimated in any way, by the court or the attorneys, that the jurycould shift its responsibility in sentencing or that its role in any way had been minimized.' " Ante, at 8, quoting 847 P. 2d, at 390.

Plainly, the trial court's instruction to consider the evidence cannot resolve the Caldwell problem in this case: The "Judgment and Sentence" form, bearing Romano's prior death sentence, was part of the evidence the jury was told to consider. Further, once it is acknowledged that evidence of the prior death sentence "could diminish the jury's sense of importance of its role and mitigate the consequences of [its] decision," 847 P. 2d, at 390, it cannot be said that the court or attorneys did not "conve[y] or intimat[e]" that the jury's role was diminished.

The prosecution proffered the death commanding "Judgment and Sentence" as evidence, and the trial court admitted it--over Romano's objection, and despite his offer to stipulate to the conviction. As discussed supra, at 4-7, admission of that evidence risked leading jurors to "minimize the importance of [their] role," "believ[ing] that the responsibility for determining the appropriateness of the defendant's death rest[ed] elsewhere." Caldwell, 472 U. S., at 333, 329. This risk was "unacceptable in light of the ease with which [it] could have been minimized." Turner v. Murray, 476 U.S. 28, 36 (1986) (opinion of White, J.). ^[n.6]

Permitting the jury to consider evidence that Romano was already under sentence of death, while that jury determined whether Romano should live or die, threatened to "minimize the jury's sense of responsibility for determining the appropriateness of death." Unable to say that the jury's consideration of Romano's prior death sentence "had no effect on the [instant] sentencing decision," Caldwell, 472 U. S., at 341, I would vacate that decision and remand the case for a new sentencing hearing.

*****

Notes

1 See 472 U. S., at 323 (sentence constitutionally invalid, because unreliable, if "the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case"); id., at 333 ("[T]he uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role."); id., at 341 (because the State's effort "to minimize the jury's sense of responsibility for determining the appropriateness of death" might have affected the sentencing decision, the death sentence must be vacated).

2 The court also observed that, although death sentences attract "heightened" appellate scrutiny, "a presumption of correctness" attends the jury's determination. 847 P. 2d, at 391.

3 Romano was subsequently reconvicted at his second trial for the Thompson murder and again sentenced to death. See Brief for Petitioner 31, n. 11. The State does not suggest that these events affect the question we consider.

4 In its merits brief before this Court, but not in its state court brief or in its brief in opposition to the petition for certiorari, the State of Oklahoma has argued that the evidence of Romano's prior sentence may have been relevant. This belated argument does not persuade. The only authority the State cites holding that a prior death sentence may be relevant evidence at sentencing is Commonwealth v. Beasley, 505 Pa. 279, 288, 479 A. 2d 460, 465 (1984); thatcase decided, purely as a matter of state statutory construction, that the term "conviction" could be taken to include the sentence imposed for an earlier conviction.

5 In Darden, the Court rejected a Caldwell challenge to a prosecutor's comments at the guilt phase of a capital trial. The Court observed that the fact that the prosecutor did not make these comments at the penalty phase "greatly reduc[ed] the chance that they had any effect at all on sentencing." 477 U. S., at 183-184, n. 15. Further, unlike the "Judgment and Sentence" form in Romano's case, the comments made in Darden were not evidence, and the trial court told the jury so "several times." Finally, the Court concluded that the prosecutor's comments would have had, "[i]f anything, . . . the tendency to increase the jury's perception of its role," not diminish it. Ibid.

The Court also relies upon Dugger v. Adams, 489 U.S. 401, 407 (1989), and Sawyer v. Smith, 497 U.S. 227, 233 (1990). In Adams, the Court stated that "the merit of respondent's Caldwell claim is irrelevant to our disposition of the case." 489 U. S., at 408, n. 4. In Sawyer, the question the Court considered was not whether a Caldwell violation had occurred, but whether "Caldwell announced a new rule as defined by Teague v. Lane, 489 U.S. 288 (1989)," i.e., whether Caldwell "was . . . dictated by prior precedent existing at the time the [habeas petitioner's] conviction became final." 497 U. S., at 229, 235.

6 The State argues that any Caldwell problems were resolved, because the "Judgment and Sentence" form stated that Romano "gave notice of his intention to appeal from the Judgment and Sentence herein pronounced," App. 6, and because the trial judge told the jury, when the form was admitted, that "[Romano] has been convicted but it is on appeal and has not become final," Tr. 45 (May 26, 1987). See Brief for Respondent 19-22. I do not find these general references to appellate review sufficient to salvage the instant death sentence, given the irrelevance of Romano's prior sentence to legitimate sentencing considerations, see 847 P. 2d, at 391, and the ease with which all Caldwell difficulty could have been avoided.

278 F.3d 1145

John Joseph Romano, Petitioner-appellant,
v.
Gary Gibson, Warden, Oklahoma State Penitentiary, Respondent-appellee

United States Court of Appeals, Tenth Circuit.

January 25, 2002

Before SEYMOUR, LUCERO, and MURPHY, Circuit Judges.

SEYMOUR, Circuit Judge.

Petitioner-appellant John Joseph Romano appeals the denial of habeas relief, see 28 U.S.C. § 2254, from his Oklahoma first degree murder conviction and death sentence. Romano argues, among other things, that his trial attorneys' second-stage strategy was constitutionally ineffective. We disagree, and affirm the denial of habeas relief on this and his other claims.

I. FACTS

A jury convicted Romano of murdering a business acquaintance, Lloyd Thompson.¹ Thompson was a fifty-eight year old gambler with a heart condition. Romano worked for Thompson setting up card games.

On July 19, 1986, Thompson's neighbors reported seeing either one or two men with Thompson. One man was changing a tire on Thompson's car. Romano admitted doing so. That tire had been flattened by two punctures made in the sidewall with a sharp object, such as a knife. After changing the tire, at least one man accompanied Thompson to his second-story apartment. Immediately thereafter, Thompson's stereo was turned up very loud and there followed a lot of loud thumping and banging, lasting between two and ten minutes.

Later, another neighbor noticed a man coming from Thompson's apartment, carrying a brown paper bag. This man got into a brown Mercury Cougar, where another man waited, and the two left hurriedly. That car was registered to Romano's girlfriend. She had let him use the car that morning.

Thompson's neighbors summoned police, who found the victim's body in his apartmerit. Thompson had been beaten and stabbed twenty-two times. Underneath his body, police found a broken knife blade. There was evidence a struggle had occurred, including blood found throughout the apartment's living room. That afternoon, Romano's girlfriend noticed Romano had scratches on his neck that she had not previously noticed.

Thompson was known to keep large amounts of money in his front pants pockets. However, when police found his body, Thompson's front pockets had been turned inside out and were empty. And, although he had had no money that morning, Romano turned up later that day with one thousand dollars.

In fact, Romano had told his girlfriend that morning that he was going to meet David so that he could collect some money to finance a trip to Clovis, New Mexico, planned for that afternoon. David Woodruff also was seen with three hundred dollars that same afternoon. Woodruff was wearing what was positively identified as Thompson's watch.

Two sets of bloody clothes and two bloody knives, one broken, were subsequently found in a trash dumpster behind a retail store. The broken knife matched exactly the blade found under Thompson's body. At trial, both Woodruff's and Romano's girlfriends identified the bloody clothing as belonging to the two co-defendants. The blood found on all the clothes and the knives was Type A, matching the victim's blood type.

A blood spatter expert testified that the blood stains on Romano's clothes were consistent with the wearer, while in close proximity, having inflicted multiple stab wounds on a bleeding victim. The stains on Woodruff's clothes, on the other hand, were more consistent with the wearer's holding a bleeding victim, rather than stabbing him. The State surmised that the two men had attacked Thompson, stabbing him both from Thompson's front and back. Woodruff's knife blade must have broken. Woodruff then grabbed and held Thompson as Romano continued stabbing him.

Police arrested Romano that same evening in Clovis, New Mexico, for first degree murder. At the time, Romano commented that he would go to the penitentiary for sure this time. He called Woodruff from jail the next morning. This call prompted Woodruff and his girlfriend to drive around looking in trash dumpsters in the area where the bloody clothes were found.

The State charged Romano alternately with first degree malice aforethought and felony murder. The jury returned a general guilty verdict. At sentencing, the State presented evidence that Romano and Woodruff had similarly killed another Romano gambling acquaintance, Roger Sarfaty, six months before Thompson's murder.

The jury found two aggravating factors: Romano had committed the murder to avoid arrest and prosecution for robbing Thompson, and Thompson's murder was especially heinous, atrocious or cruel. The jury declined to find that Romano was a continuing threat to society. After weighing the two aggravating factors with Romano's mitigating evidence, the jury sentenced him to death.²

The Oklahoma Court of Criminal Appeals affirmed Romano's conviction and sentence on direct appeal, and denied post-conviction relief. Romano v. State, 909 P.2d 92 (Okla.Crim.App.1995), cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996); Romano v. State, 942 P.2d 222 (Okla.Crim.App.1997).

II. STANDARDS OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Romano is entitled to relief from his death sentence only if he can show that the state court's resolution of his claims was "contrary to, or involved an unreasonable application of clearly established" Supreme Court precedent, or represented "an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). We presume state court factual findings are correct, absent clear and convincing proof to the contrary. Id., § 2254(e)(1). If the state court did not address a claim's merit, however, this court then reviews the district court's legal determinations de novo and its factual findings, if any, for clear error. See Thomas v. Gibson, 218 F.3d 1213, 1220 (10th Cir.2000).

III. ISSUES

A. Ineffective representation at sentencing.

Romano challenges his trial attorneys' second-stage representation. In particular, Romano complains that his own attorneys presented his sister's testimony that Romano had sexually abused her, and their siblings, for years. According to Romano, this testimony was "devastating" to his second-stage defense. Appellant's Opening Br. at 17.

1. Evidentiary hearing/discovery.

Romano first asserts that the federal district court should have granted his motion for discovery and conducted an evidentiary hearing. However, Romano failed to request an evidentiary hearing in state court. He did raise several ineffective-assistance claims on direct appeal, including this one. During that direct appeal, he requested an evidentiary hearing, but only specifically to permit him to develop evidence of his exemplary incarceration record while on death row. See Appellant's Direct Appeal Br. at 31.

Further, although he sought a state-court evidentiary hearing in his post-conviction relief application, as well, he did so again on unrelated ineffective-assistance claims. See Post-Conviction Application at 2, 31. Lastly, he did not raise until these habeas proceedings one of the factual issues he now seeks to develop, that defense counsel presented the sexual-abuse testimony during sentencing despite Romano's denying its occurrence. See Appellant's Direct Appeal Br. at 25-32.

When, as here, a petitioner has failed to develop diligently the factual basis of his federal habeas claim in state court, 28 U.S.C. § 2254(e)(2) permits a federal evidentiary hearing only in very limited circumstances where, among other requirements, the claim relies on "a new rule of constitutional law ..." or "a factual predicate that could not have been previously discovered through the exercise of due diligence," id., § 2254(e)(2)(A). See Williams v. Taylor, 529 U.S. 420, 429-30, 432-34, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); see also, e.g., Mayes v. Gibson, 210 F.3d 1284, 1287 n. 2 (10th Cir.), cert. denied, 531 U.S. 1020, 121 S.Ct. 586, 148 L.Ed.2d 501 (2000). Romano does not assert that this claim would fit within either § 2254(e)(2)(A) exception. Consequently, he is not entitled to an evidentiary hearing in federal court. See Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir.2000), cert. denied, 532 U.S. 979, 121 S.Ct. 1618, 149 L.Ed.2d 481 (2001); see also Smith v. Massey, 235 F.3d 1259, 1275 (10th Cir. 2000), cert. denied, ___ U.S. ___, 122 S.Ct. 235, 151 L.Ed.2d 169 (2001), abrogated on other grounds by Neill v. Gibson, 278 F.3d 1044, 1057 n. 5 (10th Cir.2001). Nor did the federal district court abuse its discretion in denying Romano discovery in these habeas proceedings. See Rule 6(a), Rules Governing Section 2254 Cases.

2. Merits.

To obtain habeas relief, Romano must establish both that presenting evidence that he sexually assaulted his siblings amounted to deficient performance by his attorneys and that his defense was thereby prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, "[b]ecause we resolve this ineffective-assistance claim by addressing [defense counsel's] performance, we affirm the denial of habeas relief without addressing Strickland's prejudice inquiry." Bryan v. Gibson, 276 F.3d 1163, 1175 (10th Cir.2001) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052).

To establish deficient performance, Romano must show that his attorneys' "representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. "Judicial scrutiny of counsel's performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689, 104 S.Ct. 2052.

There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.; see also Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). To prevail, therefore, Romano must "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (further quotation omitted). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690, 104 S.Ct. 2052.

Romano concedes that defense counsel pursued the "sound" second-stage strategy of portraying Romano as "a redeemed individual who deserved a punishment... less than death." Appellant's Opening Br. at 17-18. Essentially he complains that defense counsel went too far by eliciting Romano's sister's testimony that Romano had sexually abused her and his other siblings.

As Romano concedes, see id., it was clearly the second-stage defense strategy to acknowledge what a horrible person Romano had been, but then to show that he had evolved into an individual worth sparing from death. In her second-stage opening argument, defense counsel previewed for the jury Romano's sad family background and evidence of "Romano in his teenage years, mid 20s, he was a gambler, a drug addict, a hustler, manipulative and materialistic ... violen[t]." Trial tr., vol. V at 943. Counsel further asserted, however, that "[y]ou will [also] hear testimony about John Romano, the man he is now, Christian, drug free, non-violent and sincere[,] who has changed.... [W]e hope that after you hear this you will spare his life." Id.

To show the person Romano had become,³ the defense presented three jail guards who testified that Romano never questioned authority and was always a "model" prisoner, pleasant, cooperative, obedient, helpful, respectful, and a calming, cheering and positive influence on the violent offenders with whom he lived. One guard stated it was like night and day when comparing Romano to the other maximum security inmates.

Another guard suggested if anything threatening were to happen to him while on duty, alone among fifty violent inmates it would be Romano who would "back up" the guard. Romano's former defense attorney testified that Romano was very open, likable, and intelligent. He was the only former client with whom she kept in contact.

Six ordained and lay prison ministers testified that Romano was a devout Christian, attended religious services regularly and helped with Bible studies. He had a positive outlook, was very empathetic and encouraging, and had a positive influence on those who counseled him, as well as on other inmates. As one example, Romano had once successfully counseled a suicidal inmate. Because many of these witnesses were able to speak about their experiences with Romano over a five- or six-year time period, they were able to attest credibly to his sincerity.

In addition, Romano's fifteen year old brother spoke to Romano each week. He testified that Romano would counsel him to do what was right, stay away from drugs and out of trouble, and help his mother. The defense then put on Romano's mother and his sister to explain "how [his] home environment influenced his behavior, how it contributed to his attitude and the very means of his personality," id. at 941 (defense second-stage opening argument).

His mother testified that she was seventeen when she married Romano's father, who was then eighteen. The couple had four children in their marriage's first five years. She described Romano's father as controlling and cruel, referring to her frequently as a whore, pig and white trash. She had to protect the children from their own father, who was physically abusive and hard on the children, especially Romano, who was the eldest. For example, Romano's father severely beat him when Romano was unable to ride a bike on the first try.

The couple fought constantly. They eventually divorced after being married for fifteen years. Romano had himself begged them to divorce. Their divorce was fraught with years of litigation and battles over the children and the marital property.

Romano's mother asserted she had had at least five "nervous breakdowns," beginning when she was twenty-one. She had tried to kill herself in front of her children by jumping out of a moving car. She had also once taken a Valium overdose, after which her husband refused to allow her to go to the hospital.

She was currently undergoing counseling. She further testified that Romano had a drug addiction, and her oldest daughter had, at one time, been on speed. That daughter had undergone one and one-half years of therapy, plus marriage counseling. Another daughter was anorexic, weighing only eighty pounds, and had to live with a psychiatrist for treatment.

Amidst all of this mitigating evidence, the defense presented the testimony of Romano's thirty-two year old younger sister. She testified that her parents married young, fought constantly, and separated several times before finally divorcing. Their family life was violent. "It was hitting and screaming and constant[]." Id., vol. VI at 1166.

Her father would encourage his children to fight physically, hitting and punching. He would spank them until they could not stand. Her mother was depressed all the time and had tried to kill herself in front of the children, once by trying to jump out of a moving car and on another occasion by trying to shoot herself.

After the divorce, her mother worked three jobs to support the family, often leaving her five children unattended. Romano must have been about fourteen at the time of the divorce; this witness was twelve. They would see their father only about once a month, and they would go weeks without seeing their mother except to get her up as they left for school.

Romano was left in charge of the children. His sister described him as "very, very mean." Id. at 1165. He would physically beat the other children "all the time." Id. It is during this discussion that his sister testified that Romano

... sexually abused my sister and I for... as long as I can remember. I don't remember when it started. And ... actually my little brother too.

The youngest I can remember that it definitely was going on was at least second grade, which I would have been seven or eight years old and I just don't remember it starting, but I do remember it then.

. . . .

... it stopped when I was 12.

. . . .

I hated him. I felt like he ruined my life. I felt like he took something away from [me] that I didn't even know I had to offer.

Id. Consonant with the defense strategy, however, Romano's sister further testified that her relationship with her brother had changed: "I've forgiven him. And because of that I talk to him. I talk to my kids about him, and I care about him. I love him now." Id. at 1166.

There is no question that the defense strategy specifically included presenting this sexual-abuse testimony. Defense counsel clearly referred to it in her second-stage opening statement. The question presented here is not whether counsel's decision to present this testimony was strategic, but whether that strategy was reasonable. See Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); see also Burger v. Kemp, 483 U.S. 776, 789 n. 7, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). "For counsel's actions to rise to the level of constitutional ineffectiveness, [this] strategic decision[] must have been completely unreasonable, not merely wrong, so that [it] bear[s] no relationship to a possible defense strategy." Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir.) (further quotations omitted), cert. denied, 531 U.S. 938, 121 S.Ct. 329, 148 L.Ed.2d 264 (2000).

In denying relief, the Oklahoma Court of Criminal Appeals, applying Strickland, held that Romano's sister's testimony "effectively illustrated" Romano's "transformation... from a victimizer to a born again Christian." Romano, 909 P.2d at 126, 127.

The jury was fully aware [Romano] had behaved abhorrently in the past and was violent. Any damage her testimony could have caused would be to emphasize [Romano] was a continuing threat, an aggravating circumstance not found by the jury. On the contrary, her testimony added to the proof [Romano] was no longer a threat to society.

Id. at 127.

The state appellate court's decision denying relief was not unreasonable. See 28 U.S.C. § 2254(d)(1). Although Romano argues on appeal that defense counsel should never have called Romano's sister to testify at all, in fact her testimony generally was key to the defense strategy. Through her, the defense presented much of the family's sad history, explaining to some degree, perhaps, how Romano had become the person he had. No other witness offered all of this same information.

The sexual-abuse testimony, in particular, reinforced the defense strategy. Romano had been a mean, violent person, capable of horrific behavior. But the sister's testimony supported the defense theory that Romano was now a changed man, dramatically emphasizing that his sister had been able to forgive him and did love him. This appears to be exactly what the defense attorneys were hoping the jury would also do — look beyond his horrible crimes and sentence the person Romano had become to a sentence less than death. In fact, defense counsel argued in closing:

don't you think a woman who has suffered like that, who has reason to hate that man for violating her body like that, if she can forgive that brother for that kind of harm, can't you spare his life, a man you have never met. A man who has never caused you any personal trauma.

Trial tr., vol. VI at 1232.

"There are countless ways to provide effective assistance in any given case[,]" and "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also, e.g., Sallahdin v. Gibson, 275 F.3d 1211, 1240 (10th Cir.2002); Bryan, 276 F.3d at 1179. "[A]nd it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

In light of all the circumstances, see Morrison, 477 U.S. at 384, 106 S.Ct. 2574, we cannot say that defense counsel's strategic decision to present this testimony was "completely unreasonable," Gonzales v. McKune, 247 F.3d 1066, 1072 (10th Cir.2001), reh'g en banc granted on other grounds; see also Morrison, 477 U.S. at 382, 106 S.Ct. 2574 (noting only those habeas petitioners whose attorneys' "gross incompetence" has denied them a fair trial are entitled to habeas relief).

B. Evidence supporting "avoid arrest" aggravator.

The State charged, and the jury found, that Romano had killed Thompson to avoid being arrested or prosecuted for robbing him. Romano contends the evidence does not support the jury's determination.

The relevant habeas inquiry here is whether, viewing the evidence in a light most favorable to the State, there was sufficient evidence for any rational fact finder to find this aggravating factor beyond a reasonable doubt. See LaFevers v. Gibson, 182 F.3d 705, 723 (10th Cir.1999) (applying Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); see also, e.g., Sallahdin, 275 F.3d at 1231. The state appellate court determined there was. See Romano, 909 P.2d at 119. That determination was not unreasonable. See 28 U.S.C. § 2254(d).⁴

Under Oklahoma law, this aggravator focuses on the defendant's intent, which can be proven either through his own statements or circumstantial evidence, and additionally requires proof of a predicate crime, other than the murder, for which the defendant seeks to avoid arrest or prosecution. See, e.g., Romano v. Gibson, 239 F.3d 1156, 1179 (10th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 624, 151 L.Ed.2d 545 (2001).

The evidence established that Romano and his girlfriend needed cash for their New Mexico trip. Romano worked for Thompson and knew he always carried large amounts of cash in his front pants pockets. Police found Thompson's body with his front pants pockets turned inside out and empty. Later that day, Romano had one thousand dollars with him that he did not have earlier that morning.

In addition, his co-defendant Woodruff had three hundred dollars and was wearing Thompson's watch. This evidence was sufficient to support the jury's finding this aggravating factor beyond a reasonable doubt. See, e.g., Romano, 239 F.3d at 1179 (reviewing, under AEDPA, reasonableness of state court's denying similar claim); Hale, 227 F.3d at 1334-35 (reviewing similar claim de novo).

C. Evidence supporting especially heinous, atrocious or cruel aggravating factor.

Romano also asserts there was insufficient evidence to support the jury's finding that Thompson's murder was especially heinous, atrocious or cruel. This issue is not properly before us.

Neither the district court nor this court ever granted Romano a certificate of appealability (COA) on this issue. See 28 U.S.C. § 2253(c). The district court denied him COA on this claim, and Romano did not renew that COA request in this court. Nonetheless, our case management order provided Romano ten days from its date, October 18, 2000, to seek COA from this court on any additional issues. Such a request "must be raised by written motion." Romano still failed to request COA on this particular claim.

The case management order further specifically provided that "[u]nless otherwise ordered by the merits panel, no issue shall be included in the briefs other than those set forth" in that order. Because Romano never properly sought and obtained COA on this issue, it is not properly before this court.

Even if we were to grant COA and consider this claim's merit, we would deny habeas relief. The state appellate court's determination that there was sufficient evidence to support this aggravator, see Romano, 909 P.2d at 118-19, was reasonable, see 28 U.S.C. § 2254(d).

D. Evidentiary rulings.

In conclusory fashion, Romano challenges the cumulative effect of improperly admitted evidence. See Appellant's Opening Br. at 66-68. Romano challenges the blood spatter expert's testimony; the co-defendant's girlfriend's hearsay testimony; the trial court's admitting six gruesome photographs; the prosecutor's hypothetical question about ligature marks found on Woodruff's and Romano's other murder victim, Roger Sarfaty; and a detective's "comment on [Romano's] silence,"⁵ id. at 67. Romano's perfunctory discussion of these issues on appeal to this court alone warrants denying habeas relief. See, e.g., Walker v. Gibson, 228 F.3d 1217, 1239-40 (10th Cir.2000) (declining to address conclusory and unsupported argument), cert. denied, 533 U.S. 933, 121 S.Ct. 2560, 150 L.Ed.2d 725 (2001), abrogated on other grounds by Neill, 2001 WL 1584819, at *8 n. 5; see also Sallahdin, 275 F.3d at 1231 (noting this court need not address undeveloped argument). Moreover, these evidentiary claims, considered separately or together, did not result in a fundamentally unfair trial. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Elliott v. Williams, 248 F.3d 1205, 1214 (10th Cir.) cert. denied, ___ U.S. ___, 122 S.Ct. 286, 151 L.Ed.2d 211 (2001).

For these reasons, we AFFIRM the denial of habeas relief.

*****

This was Romano's second trial for Thompson's murder. The State had initially tried Romano together with his co-defendant, David Woodruff. The Oklahoma Court of Criminal Appeals, however, overturned their resulting first degree murder convictions and death sentences, ruling the trial court should have granted a mistrial when it became apparent that Romano's and Woodruff's defenses had become mutually antagonistic See Romano v. State, 827 P.2d 1335, 1337 (Okla. Crim.App.1992).

In a separate trial, another jury convicted Romano's co-defendant, Woodruff, of the first degree murder of Thompson, but sentenced him to life imprisonment

Against this backdrop concerning who Romano currently was at the time of this trial in 1993, the jury was obviously aware of the facts regarding his murder of Thompson in 1986. Moreover, the State presented evidence that Romano and Woodruff had been convicted of robbing, stabbing, beating and strangling another Romano gambling acquaintance in 1985, fifty-two year old Roger Sarfaty

This court has not resolved whether this state court determination is factual, reviewed under § 2254(d)(2) and (e)(1), or a mixed question of law and fact, reviewed under § 2254(d)(1)See Hale v. Gibson, 227 F.3d 1298, 1335 n. 17 (10th Cir.2000), cert. denied, ___ U.S. ___, 121 S.Ct. 2608, 150 L.Ed.2d 764 (2001); see also, e.g., Sallahdin, 275 F.3d at 1231 n. 6. Romano would not be entitled to habeas relief under either standard. See, e.g., Sallahdin, 275 F.3d at 1231 n. 6.

Romano asserts only that the detective's comment deprived him of a fair trialSee Appellant's Opening Br. at 67.