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.
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.
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.
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.
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
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.
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.
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.
Woodruff v. State, 846 P.2d 1124 (Okl. Cr. 1993) (Direct
Woodruff v. Oklahoma, 114 S.Ct. 349 (1993) (Cert. Denied).
Romano v. Gibson, 239 F.3d 1156 (10th Cir. 2001) (Habeas).
Two cheeseburgers, fried potatoes and a lemon-lime slushy.
"We're not here for a social event, we're here for a killing. Name's
David Wayne Woodruff. Let's get this show on the road."
News Release -
W.A. Drew Edmondson, Attorney General
November 27, 2001
Requested for Romano, Woodruff
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
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."
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.
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.
received a life sentence without the possibility of parole for his
part in the murder of Lloyd Thompson.
2nd man executed
for Oklahoma City killing
A former Marine
was executed Thursday for the 1985 robbery and killing of an Oklahoma
Woodruff, 42, was pronounced dead at 9:12 p.m. at the Oklahoma State
Penitentiary in McAlester.
He received a
lethal injection for the death of Roger Sarfaty, 52.
co-defendant, John Joseph Romano, was executed on Tuesday.
On the day
Sarfaty died in his apartment, Romano and Woodruff showed up drunk at
a shopping mall and tried to buy a television set with pocketfuls of
quarters. Woodruff, who was an acquaintance of the cashier, also had
an injured hand and blood on his pants.
robbed of some jewelry and buckets of quarters at the time of his
Woodruff did not become suspects until almost a year later when they
were arrested in the death of Lloyd Thompson, who was also robbed and
fatally stabbed in his apartment. Both men were also convicted of his
Woodruff was also
convicted of solicitation to commit murder after an informant told
police Woodruff asked him to kill everyone in an Edmond coin shop so
they could rob it. Woodruff reportedly stopped at the last minute when
he saw a police officer in the store.
known living relative, daughter Twyla Alvarez, witnessed Romano's
execution and was scheduled to see Woodruff's. In a statement
Thursday, she said she still hoped to hear some words of remorse.
"Before he died,
Romano did say that he hoped anyone he had wronged would forgive him,"
she said. "But that falls far short of accepting responsibility for my
father's death, much less apologizing for it. It is, I suppose, better
than nothing. I am not optimistic, but perhaps David Woodruff will be
more forthcoming tonight."
Alvarez, a crime
analyst for a suburban Boston police department, also said Romano's
execution affirmed sentiments she had against the death penalty.
"John Romano was
dead. What, exactly, had been improved by that fact? My father is
still dead, and the pain and suffering he endured are no less than
before Romano died."
said she respects Oklahoma's laws and that she "cannot imagine a more
humane way to carry out an execution." Thompson's brother, Eulys
Thompson, also planned to watch Woodruff die.
"The only ones I
feel sorry for are my brother's kids and the rest of the Thompson
family," he said. "And I do feel sorry for his (Woodruff's) mother and
dad as I've met them both and they seem like good people.
"But, as far as
David Woodruff is concerned, I have no feelings except it's over and
he's getting exactly what he deserves. He brought it on himself."
the 2nd condemned inmate to be put to death this year in Oklahoma and
the 50th overall since the state resumed capital punishment in 1990.
Only Texs (260), Virginia (83), Missouri (54), and Florida (51) have
executed more since the re-legalization of the death penalty on July
the 9th condemned inmate to be put to death this year in the USA and
the 758th overall since America resumed executions on January 17,
Associated Press & Rick Halperin)
Coalition to Abolish the Death Penalty
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.
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
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
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.
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. 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.
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.
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 find
more information there about Oklahoma's dedicated execution practices.
John is a very religious person and a sincere Christian.
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.
Oklahoma Court of
1992 OK CR 5, 825
WOODRUFF v. STATE
825 P.2d 273
Case Number: F-87-132
An Appeal from
the District Court of Oklahoma County; Jack R. Parr, District Judge.
Woodruff, appellant, was convicted of First Degree Murder in Oklahoma
County District Court Case No. CRF-86-3920, sentenced to death, and
appeals. REVERSED and REMANDED for a NEW TRIAL.
Asst. Appellate Public Defender, Norman, for appellant.
Robert H. Henry,
Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for
¶1 David Wayne
Woodruff, appellant, was convicted in Oklahoma County District Court
Case No. CRF-86-3920 of Murder in the First Degree. Punishment was
fixed at death according to the jury's recommendation.
¶2 Appellant was
tried with his codefendant John Joseph Romano. They were accused of
murdering and robbing Romano's friend, Lloyd Thompson, on July 19,
1986. Romano had previously worked for the decedent by setting up
gambling parties for Thompson who gambled on a regular basis.
¶3 Ollie Irvin
saw Thompson and a young man in the parking lot of the apartment
complex where she and Thompson resided on July 19, 1986. She watched
through her doorway as the young man changed a tire on Thompson's
automobile. The man then [825 P.2d 274] followed Thompson to his
upstairs apartment. Within a few minutes she heard very loud music
from Thompson's apartment which was directly above her. She also heard
loud banging and thumping noises which lasted several minutes.
thereafter, another neighbor who lived next door to Thompson, Daniel
Powell, came to Irvin's door to ask if she knew why loud music was
coming from Thompson's apartment. They tried to telephone Thompson
from Irvin's apartment but received a busy signal. Powell then
telephoned the police who forced open the door to Thompson's apartment
and found that he had been brutally murdered.
¶5 Thompson had
been stabbed and sliced with a knife some thirty times. He was stabbed
twice in the heart and once in the spinal column, any one of which
would have been fatal. Thompson was found without jewelry or cash,
though he was known to carry large amounts of cash and wore a watch.
¶6 Daniel Powell
testified at trial that he arrived home from doing laundry at
approximately 11:30 a.m. on July 19, 1986. He saw a brown Mercury
Cougar backed into a parking space at the apartment complex where he,
Thompson, and Irvin lived. One man was seated in the automobile and
another, whom he identified as Romano, was coming down the stairs of
the complex carrying a grocery sack. He saw this man get into the
Cougar and leave hastily. He noted the license plate number of the
automobile because he was suspicious of the men.
¶7 The police
discovered that the automobile driven by the men was registered in the
name of Romano's girlfriend, Tracy Burnett. During the evening of July
19, 1986, Romano was arrested in Clovis, New Mexico, where he had
driven in the same vehicle.
testified at trial and said that he in fact had been at Thompson's
apartment the morning he was killed, but that Romano and Thompson had
gotten into an argument and struck at each other with knives. He said
that Thompson had fallen against him and that is why the clothes
appellant had worn were saturated with blood. Romano also testified
that he and appellant had gone to Thompson's apartment on the morning
of July 19, 1986, to rob him. He had punctured one of the tires on
Thompson's vehicle knowing that Thompson would be unable to change the
tire because of a heart condition. This was done to prevent Thompson
from leaving before Romano and appellant had a chance to rob him. In
the meantime, Romano testified, he had told appellant he would not rob
Thompson. Romano subsequently told Thompson that he had a flat tire
and changed it for him. He went to the restroom at Thompson's
apartment to clean up after changing the tire and when he came out, he
saw appellant attacking Thompson with a knife. Romano refused to
participate in the assault and did not know of any money or jewelry
¶9 On appeal,
appellant contends inter alia that the trial court erred in denying
his and Romano's requests for severance of trial. Counsel for each
defendant indicated prior to trial that their client would admit being
at Thompson's apartment, but blame the other for the crimes. The
prosecutor said that he would not introduce into evidence any
statement by either defendant which implicated the other. At the
hearing on the motion for severance, Romano's lawyer indicated that
Romano would testify that appellant had stabbed the victim.
Appellant's attorney said that appellant would testify Romano had
stabbed the decedent.
¶10 The granting
of severance is not a matter of right for a criminal defendant, but is
a matter within the trial court's discretion. Faubion v. State, 569
P.2d 1022 (Okl.Cr. 1977). Therefore, this Court in reviewing a trial
court's denial of severance must do so to determine if there was an
abuse of that discretion. Matricia v. State, 726 P.2d 900 (Okl.Cr.
1986); Cooper v. State, 584 P.2d 234 (Okl.Cr. 1978).
¶11 Severance of
trial is for the purpose of preventing prejudice which would deny a
defendant a fair trial. United States v. Calabrese, 645 F.2d 1379
(10th Cir. 1981), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, [825
P.2d 275] 69 L.Ed.2d 390. A trial judge must balance the inefficiency
of separate trials against the prejudice the defendant asserts he will
incur. The defendant has the burden of presenting evidence to show he
will be prejudiced by the joinder. Hightower v. State, 672 P.2d 671
¶12 This Court
has previously held that when the defenses of codefendants are
mutually antagonistic, pitting the defendants against one another, the
trial court abuses its discretion in denying severance. Murray v.
State, 528 P.2d 739 (Okl.Cr. 1974). When defenses of codefendants are
antagonistic to the degree of being mutually exclusive or
irreconcilable, severance is warranted to insure that each will
receive a fair trial. "Defenses are antagonistic where each defendant
is trying to exculpate himself and inculpate his codefendant." Van
Woundenberg v. State, 720 P.2d 328, 331 (Okl.Cr. 1986), cert. denied
479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (citation omitted).
¶13 The defenses
of appellant and Romano are irreconcilable. Appellant testified that
he and Romano went to Thompson's apartment to get appellant a job
dealing blackjack. An argument ensued between Thompson and Romano, and
Romano acting alone killed Thompson. Romano's version is entirely
different. He claimed to have originally gone to Thompson's apartment
with appellant for the purpose of robbing Thompson. Appellant attacked
and killed Thompson after Romano had withdrawn from the scheme and
thought the plan had been abandoned.
carefully reviewing the record before the trial judge at the pretrial
hearing when he was asked to decide the issue of severance, we cannot
say that he abused his discretion in denying the motion. The attorneys
for the codefendants at the hearing on the motion spoke only in terms
of their defendant accusing the other of stabbing Thompson.
Appellant's attorney told the trial judge that "my client will testify
that [Romano] did the stabbing, that my client was not an active
participant in this particular case. . . ." The prosecutor argued that
this case was similar to those previously decided by this Court as not
requiring severance. He cited Master v. State, 702 P.2d 375 (Okl.Cr.
1985), and Cooks v. State, 699 P.2d 653 (Okl.Cr. 1985), which are
cases of codefendants who acted in concert in the crimes of robbery,
rape, and murder. The defenses of the confederates were held not to be
truly inconsistent when the only variation of each defendant's version
of the events was who had tied the death producing gag around the
¶15 However, the
true nature of the defenses of appellant and Romano did become
apparent during their trial. At that time, the trial court should have
ordered a mistrial due to the exigent circumstances and because of the
prejudice each defendant would endure by being jointly tried. Each was
required to defend against the other's testimony exculpating self and
inculpating codefendant. The defendants were also required to share
peremptory challenges, which is another form of prejudice we have
found significant in determining the need for severance. Murray v.
State, 528 P.2d 739 (Okl.Cr. 1974). Appellant was denied the fairness
of trial which severance would have provided. Therefore, this case
must be REVERSED and REMANDED for a NEW TRIAL.
economy is an important goal achieved by trying related offenses and
defendants together. Cooks, 699 P.2d at 658. However, this goal is not
well served if the need for severance is not disclosed until after
trial has begun. We cannot help but believe that more should have been
done in this case to apprise the trial judge of the need for
severance. While a defendant may be reluctant to reveal the details of
his defense, he must provide the trial judge with sufficient
information to determine that his and codefendant's defenses are in
fact mutually antagonistic. The trial courts as well need to be
careful that they have enough information to make a considered
¶17 Aside from
being required to defend against each other's accusations, appellant
and Romano were allowed a total of only nine peremptory challenges. On
a coin [825 P.2d 276] flip, appellant got five and Romano got four.
Each contends that there were prospective jurors they would have
excused if allowed more. Indeed, when the defenses of codefendants are
inconsistent, they should not be required to share peremptory
challenges. 22 O.S. 1981 § 655 [22-655]. This statute provides:
In all criminal
cases the prosecution and the defendant are each entitled to the
following peremptory challenges: Provided, that if two or more
defendants are tried jointly they shall join in their challenges;
provided, that when two or more defendants have inconsistent defenses
they shall be granted separate challenges for each defendant as
hereinafter set forth.
prosecutions for first degree murder, nine jurors each.
¶18 While it is
true that peremptory challenges are created by statute and governed by
state law, "the `right' to peremptory challenges is `denied or
impaired' only if the defendant does not receive that which state law
provides." Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d
80 (1988). Having found that the defendants' defenses were
inconsistent, we find that the trial court improperly denied their
right to nine peremptory challenges each as provided by statute.
Indeed, had severance of trial been granted, this prejudice would not
have been incurred.
¶19 On the basis
of the foregoing, the Judgment and Sentence is REVERSED and REMANDED
with instructions to sever for NEW TRIAL.
LANE, P.J., and
BRETT, J., concur.
concurs in result.
¶1 While I agree
wholeheartedly with the opinion of the learned Judge Parks and agree
that this case must be reversed and remanded, I feel a duty to speak
to the bench and the bar about the problem involved.
economy is not an excuse for the violation of a defendant's rights of
due process under the Okla. Const. art. 2, § 7 [2-7], nor a violation
of the Constitution of the United States and the due process clause
contained in the Fourteenth Amendment.
¶3 From the
transcripts, it appears that the motion for severance came on at a
motion docket along with numerous other criminal matters. At this
particular point in time, the court is correct in that the statements
and facts presented to the trial court were not enough to warrant a
severance. One of the attorneys involved did not even file a motion
for a severance. It is the duty of the defense attorneys to adequately
notify the court of antagonistic defenses and file the proper motions
requesting severance. It is also the duty of the bench when the trial
judge has reason to believe that such defenses may arise to ask the
proper questions and to make sure that the record is adequate to show
the need for a severance. In this particular case, neither of these
were accomplished by either the bench or the bar. In the event that
the defendant's attorneys do not want to divulge defenses or trial
strategy, they certainly could have asked for an ex parte in-camera
hearing which the court could have granted solely for that purpose,
that is, to determine the necessity for a severance. The court has the
power to communicate separately with each defense attorney so that the
court would be prepared to make a proper decision. Obviously, these
hearings should be on the record and not in chambers without a record.
Judge Lane has so eloquently stated at a hearing, "it certainly is not
judicial economy to try a case three times when it could have been
tried twice, thereby saving the State, witnesses and even this Court
the problems of a reversal."
Court of Appeals
For the Tenth Circuit
ROMANO AND DAVID WAYNE WOODRUFF,
GARY GIBSON, WARDEN OF THE OKLAHOMA STATE PENITENTIARY,
February 13, 2001
APPEALS FROM THE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
Nos. 96-CV-882-C & 96-CV-1076-C)
Baldock, and Ebel, Circuit Judges.
penalty appeals1 present a number of issues. The most difficult, which
we deal with at some length, include: 1) whether the State violated
Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose a
detective's unrecorded recollection of the temperature of the victim's
apartment; 2) what degree of mental torture or conscious serious
physical abuse preceding death is necessary to satisfy Oklahoma's
especially heinous, atrocious or cruel aggravating factor; and 3) the
extent to which defense counsel, under Strickland v. Washington, 466
U.S. 668 (1984), is required to investigate and present psychiatric
evidence and evidence of a defendant's early childhood during a
capital sentencing proceeding. During the course of our analysis, we
also clarify, with the approval of the en banc court, that the State
does not need to appeal separately the district court's adverse
procedural bar determination in order to reassert that defense on
Woodruff were convicted of killing a jeweler, Roger Sarfaty, during
the course of a robbery. Sarfaty, Romano's acquaintance, had been
bound hand and foot and strangled, beaten about the head and stabbed
five times. Because, at the time of this murder, Romano was serving a
prison sentence and was only free on weekends, a critical issue in the
case was how long Sarfaty had been dead before a friend first
discovered his body, around 11:00 P.M. Tuesday, October 15, 1985.
Romano 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.
supporting the State's theory included the fact that Sarfaty usually
went to a bar, the Celebrity Club, every night. The last time he was
seen there was when he left the club about 2:00 A.M. Saturday, October
12. And at the time the body was discovered, the October 12 edition of
the newspaper was found opened on Sarfaty's couch; the editions for
October 13, 14, and 15 were left delivered, but unopened, on his
There was also,
however, evidence contradicting the State's theory. When Sarfaty's
friend first discovered his body, the volume of the television in
Sarfaty's apartment was turned way up, yet none of the neighbors had
ever complained about the noise. In addition, Sarfaty's neighbor
testified that he thought he saw Sarfaty arguing with a blonde woman
early Sunday morning, October 13.
evidence concerning the time of death was not conclusive, although it
generally supported the State's theory. The medical examiner's
investigator believed Sarfaty had died two to three days before the
body's discovery. The investigator based that determination, in part,
on the apartment's sixty-degree temperature, which he noted on the
night the body was found.
recorded that temperature at approximately 4:30 A.M. Wednesday,
October 16, although authorities had first entered the apartment two
hours earlier. A police officer described the apartment, at the time
they entered, as warm, but not hot.
Based in part on
the sixty-degree temperature, the medical examiner, Dr. Choi,
testified that Sarfaty had been dead between two days and one week.
The doctor's best estimate was three or four days. Dr. Choi further
testified, however, that, at a warmer temperature, Sarfaty might have
been dead only twelve to twenty-four hours.
Apart from the
opportunity to commit these crimes, the evidence linking Romano and
Woodruff to the crime itself was primarily circumstantial. Sarfaty, a
jeweler, often kept a great deal of jewelry with him or in his
apartment. He also usually wore rings on each finger.
October 10, a friend had seen Sarfaty with a bag of ten to twelve gold
necklaces, some older looking. And late Friday, October 11, Sarfaty
had shown the Celebrity Club's manager a "real big" diamond. Yet
Sarfaty was not wearing any rings when his body was found and there
were only a few items of costume jewelry in the apartment at that
time. Detectives did find a diamond in the living room, near where the
body was discovered, and a packet of seventeen diamonds in one of
October 13, Woodruff's girlfriend observed that Woodruff had a lot of
jewelry, including some older looking gold necklaces and five or six
rings. Although Woodruff was a trained gemologist, she had never
before seen him with that much jewelry, nor did she think he had
sufficient money at that time to buy such jewelry. Woodruff mailed
this jewelry to an acquaintance in California.
Sarfaty also kept
as many as six large containers of quarters in his apartment. There
were, however, no such containers in the apartment following the
murder. Further, on Saturday afternoon, October 12, Romano and
Woodruff, who were then intoxicated, attempted to purchase a
television at a mall store, using only quarters. Witnesses estimated
the two had between ten and forty dollars' worth of quarters.
testified that, at that time, Woodruff also had what appeared to be
spots of blood on his jeans. She also noted a recent cut on Woodruff's
hand and that Romano was limping. Others who saw the pair later that
day, however, did not notice any injuries. 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
evening, Woodruff's girlfriend delivered the two men from police
custody to Woodruff's car, still parked at the mall. When she dropped
them off, she noticed diamond papers--special papers designed to hold
gems securely--on the ground near Woodruff's car. Sarfaty usually
carried thirty to forty such papers with him. Woodruff, however, as a
gemologist, also used diamond papers in his work.
arrested Woodruff, ten months after Sarfaty's murder, he called his
girlfriend and asked her to "clear" the house. In response, she
removed a pair of gloves, a watch, and several pieces of rope. The
medical examiner testified that these rope pieces could have caused
the marks around Sarfaty's neck, hands and feet.
of the rope pieces was fashioned like a garrote, which could be used
to strangle a victim. The garrote would have left marks like those
found on Sarfaty's neck--marks on the front and sides of the neck, but
with an area at the back of the neck without any ligature marks at
In addition to
this evidence linking Woodruff and Romano to these crimes, there was
also evidence that at least Romano had a motive to rob and kill
Sarfaty. A few weeks before the murder, Romano was in need of money
and had asked a friend, Tracy Greggs, to help him rob Sarfaty. Romano
was particularly interested in stealing the rings Sarfaty usually
wore. Romano had told Greggs that, because Sarfaty knew and would
recognize him, Romano would have to kill Sarfaty. Greggs had refused
to help Romano.
Romano had also
previously stolen a former girlfriend's rings and had sold them to
Sarfaty. When she discovered the jewelry was missing, the girlfriend
threatened to report the theft to her insurance company and police.
Although he had promised to get the rings back, Romano later told his
former girlfriend that the man who had her rings had been killed.
The State jointly
tried Woodruff and Romano. The jury convicted both of first degree
malice murder and robbery with a dangerous weapon, sentencing each to
1000 years in prison on the robbery conviction, which was after former
conviction of a felony for both.
At the capital
sentencing proceeding, the jury found three aggravating factors
pertaining to both Woodruff and Romano: they had prior violent felony
convictions; the murder was especially heinous, atrocious or cruel;
and they were continuing threats to society. The jury also found that
Romano had committed the murder to avoid arrest or prosecution for
Sarfaty's robbery. The jury sentenced both Woodruff and Romano to
death on the first degree murder convictions.
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.
conclusion of the Sarfaty case, however, 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. See Romano v. State, 827 P.2d
1335 (Okla. Crim. App. 1992); Woodruff v. State, 825 P.2d 273 (Okla.
Crim. App. 1992).
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. See Romano v. State, 909 P.2d 92, 106 &
n.1 (Okla. Crim. App. 1995).
Court of Criminal Appeals affirmed the Sarfaty convictions and
sentences on direct appeal. See Woodruff v. State, 846 P.2d 1124
(Okla. Crim. App.), cert. denied, 510 U.S. 934 (1993); Romano v.
State, 847 P.2d 368 (Okla. Crim. App. 1993), aff'd, 512 U.S. 1 (1994).
In affirming Romano's death sentence, however, the state appellate
court struck the prior violent felony aggravator, which was based
solely on Romano's conviction for Thompson's murder, and then
reweighed the remaining aggravating circumstances and mitigating
evidence. See Romano, 847 P.2d at 389, 393-94.
The United States
Supreme Court, in a 5-4 decision, affirmed, specifically holding that
introduction of evidence of Romano's earlier death sentence for the
Thompson murder did not diminish the Sarfaty jury's sense of
responsibility for sentencing Romano for that murder. See Romano, 512
U.S. at 3, 6, 9-10. Subsequently, the Oklahoma Court of Criminal
Appeals affirmed the denial of state post-conviction relief from the
Sarfaty convictions and death sentences. See Romano v. State, 917 P.2d
12 (Okla. Crim. App. 1996); Woodruff v. State, 910 P.2d 348 (Okla.
Crim. App. 1996).
II. STANDARDS OF
and Romano filed their individual habeas petitions after the effective
date of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), that Act governs these appeals. See Williams v. Taylor, 529
U.S. 362, 402 (2000). Under AEDPA, petitioners will not be entitled to
habeas relief unless they can establish that the state court
determination of their claims was contrary to, or an unreasonable
application of, clearly established Supreme Court precedent, see 28
U.S.C. § 2254(d)(1), or was an unreasonable determination of the facts
in light of the evidence, see id. § 2254(d)(2). We presume the
correctness of any state court findings of fact, absent clear and
convincing proof to the contrary. See id. § 2254(e)(1).
Where the state
court did not address the merits of a habeas claim, this court reviews
the district court's resolution of that ground for relief de novo,
reviewing for clear error any district court findings of fact. See,
e.g., Thomas v. Gibson, 218 F.3d 1213, 1220 (10th Cir. 2000) (citing
LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999)).
A. Was there
sufficient evidence to support petitioners' convictions for first
degree malice murder and robbery with a dangerous weapon?
standard of review
In federal habeas
proceedings, the appropriate inquiry into a
sufficiency-of-the-evidence claim is "whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979). AEDPA additionally directs that, where the state court has
already addressed the claim, this court's review is further limited.
See Valdez v. Ward, 219 F.3d 1222, 1237 (10th Cir. 2000). Romano
asserts that, even though the Oklahoma Court of Criminal Appeals did
address the sufficiency of the evidence supporting petitioners'
convictions, it failed to apply Jackson. Therefore, this court's
review, according to Romano, should be de novo.
appellate court, because of the circumstantial nature of the evidence
against Woodruff and Romano, did apply a state-law standard of review,
considering whether the evidence was "inconsistent with any reasonable
hypothesis other than the defendant's guilt." Romano, 847 P.2d at 378;
Woodruff, 846 P.2d at 1133. That standard is actually more onerous
than Jackson. Thus, if the evidence was sufficient to meet Oklahoma's
stricter test, it would certainly also meet the Jackson standard.
therefore, we review the reasonableness of the state appellate court's
determination that the evidence was sufficient to support Woodruff's
and Romano's convictions. In doing so, we consider only the evidence
presented at trial and do not, at this juncture, address any newly
discovered evidence. See Herrera v. Collins, 506 U.S. 390, 402 (1993).
2. Sufficiency of
law, see Jackson, 443 U.S. at 324 n.16, "`[a] person commits murder in
the first degree when that person unlawfully and with malice
aforethought causes the death of another human being. Malice is that
deliberate intention unlawfully to take away the life of a human
being, which is manifested by external circumstances capable of
proof.'" Bland v. State, 4 P.3d 702, 713 (Okla. Crim. App. 2000)
(emphasis omitted) (quoting Okla. Stat. tit. 21, § 701.7(A)), cert.
denied, 121 S. Ct. 832 (2001).
A design to
effect death [i.e., premeditation] is inferred from the fact of
killing, unless the circumstances raise a reasonable doubt whether
such design existed. Premeditation sufficient to constitute murder may
be formed in an instant[,] or it may be formed instantaneously as the
killing is being committed. Malice aforethought may be proved by
"[t]o sustain a conviction for robbery with a dangerous weapon, the
State must prove another's wrongful taking of one's personal property
against one's will, by force or fear." Mitchell v. State, 884 P.2d
1186, 1199-1200 & 1200 n.39 (Okla. Crim. App. 1994) (citing, e.g.,
Okla. Stat. tit. 21, § 791).
Romano argue that they did not rob or kill Roger Sarfaty. They
challenge, in particular, the largely circumstantial case underlying
their convictions. The evidence, however, established the following:
Romano needed money and also sought the return of his former
girlfriend's rings from Sarfaty. He had asked Tracy Greggs to help him
rob Sarfaty, and had told Greggs that in doing so, Romano would have
to kill Sarfaty.
Although the time
of the murder was critical and disputed, in considering this claim, we
must view the evidence in the light most favorable to the State. See
Jackson, 443 U.S. at 319. In that light, the evidence did support the
State's theory that the murder occurred between 2:00 A.M. and 2:00
P.M. Saturday, October 12. The medical examiner testified that Sarfaty
could have died between two and seven days before his body was
discovered. Additionally, employees of the Celebrity Club last saw
Sarfaty alive during the early morning of October 12. And police found
the October 12 edition of the newspaper open on Sarfaty's couch, while
the later editions were left delivered, but untouched, on his patio.
Romano lack alibis for at least part of this time frame. Romano was on
furlough from State custody that weekend. And, although he may have
exchanged a number of telephone calls that Saturday morning with a
friend, the last one was before 10:00 A.M. In addition, although
Woodruff had told his girlfriend that he would be visiting his parents
that Saturday, when she called his parents' home, he was not there.
Later that day,
both Woodruff and Romano possessed a large number of quarters. Sarfaty
was known to keep large amounts of quarters in his apartment, yet
there were no containers of quarters found there after his death.
Sarfaty had several gold necklaces just before the murder and he
usually wore a number of rings, none of this jewelry was found at his
home after the murder. When police took custody of Romano Saturday
afternoon, October 12, he was wearing an expensive looking gold
necklace. And the next day, Woodruff's girlfriend saw him with a
number of gold necklaces and rings.
Sarfaty had been
stabbed several times, beaten and strangled. Romano had a knife with
him when police took the pair into custody the afternoon of October
12. A salesperson had noticed blood on Woodruff's jeans that afternoon
and a recent cut on his hand, and Romano was limping. And when
Woodruff was arrested months later, he asked his girlfriend to remove
from their home, among other things, several pieces of rope, including
a garrote, that could have produced the ligature marks found on
Considered in the
light most favorable to the government, see Jackson, 443 U.S. at 319,
this evidence was more than sufficient for a rational trier of fact to
find the existence of all of the elements of these charged offenses
beyond a reasonable doubt. Therefore, the state appellate court
reasonably upheld Romano's and Woodruff's convictions for first degree
malice murder and robbery with a dangerous weapon. See Romano, 847
P.2d at 378-80; Woodruff, 846 P.2d at 1133-35.
B. Did the trial
court violate due process or the Sixth or Eighth Amendments when it
restricted petitioners' ability to put on evidence arguably casting
suspicion on other, uncharged individuals?
Oklahoma has an
evidentiary rule that a criminal defendant cannot put on evidence that
someone else might have committed the charged offense, absent proof
that person took an overt act toward the commission of the crime. See,
e.g., Dennis v. State, 879 P.2d 1227, 1232 (Okla. Crim. App. 1994).
Proof of another's motive is not enough. See, e.g., id.
In this case,
Woodruff and Romano sought to cast suspicion for Sarfaty's robbery and
murder on T.R. "Tippy" Ballard, Kathy Ford, and Susan Babbitt. The
state trial court admitted some evidence connecting these three
individuals with Sarfaty, but excluded other such evidence. Applying
Oklahoma's evidentiary rule, the Oklahoma Court of Criminal Appeals
upheld the trial court's exclusion of this evidence. See Romano, 847
P.2d at 380-82; Woodruff, 846 P.2d at 1137-38.
direct appeal, Woodruff and Romano did challenge the trial court's
exclusion of this evidence on federal constitutional grounds, the
Oklahoma Court of Criminal Appeals addressed these claims only under
state law. See Romano, 847 P.2d at 380-82; Woodruff, 846 P.2d at
1137-38. We, therefore, review de novo the federal district court's
denial of habeas relief on these due process and Sixth and Eighth
Amendment claims. See Thomas, 218 F.3d at 1220.
sitting as a federal habeas court applying 28 U.S.C. § 2254, it is not
for us to review a state court's evidentiary rulings. See, e.g.,
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, a federal
habeas court reviews only for violation of "the Constitution, laws, or
treaties of the United States." Id. at 68 (citing, e.g., 28 U.S.C. §
evidentiary determinations ordinarily do not present federal
constitutional issues. See Crane v. Kentucky, 476 U.S. 683, 689 (1986)
(noting Court's "traditional reluctance to impose constitutional
constraints on ordinary evidentiary rulings by state trial courts").
However, the Supreme Court, in, e.g., Chambers v. Mississippi, 410
U.S. 284, 302 (1973), and Green v. Georgia, 442 U.S. 95, 97 (1979)
(capital sentencing proceeding), has provided an exception, under some
circumstances, if a state court applies the State's evidentiary rules
unfairly to prevent a defendant from presenting evidence that is
critical to his defense. See also, e.g., Washington v. Texas, 388 U.S.
14, 16, 23 (1967). This, however, is not such a case. The state trial
court did not exclude any evidence critical to Woodruff's or Romano's
and Romano were in fact able to put on a significant amount of
evidence concerning these three individuals. See Boyd, 179 F.3d at
921; see also Richmond v. Embry, 122 F.3d 866, 873-74 (10th Cir.
1997). They first presented evidence that it was generally well known
that Sarfaty frequently carried lots of jewelry and money with him.
Additionally, Sarfaty had been a crime victim on several previous
occasions, having had things taken from his home and jewelry stolen
from him. Sarfaty told a friend he suspected "[s]ome woman" had
perpetrated these crimes.
Within two weeks
prior to the murder, Sarfaty had reported separate incidents of
assault and burglary and, immediately prior to the murder, Sarfaty
told a friend that he anticipated another robbery attempt against him.
His friend urged Sarfaty to change the way he did business, late at
night in bars and clubs.
Romano also presented evidence at trial specifically pertaining to
Ballard, Babbitt and Ford. T.R. Ballard was Sarfaty's acquaintance.
They occasionally went to the same pool hall, and had, at times, also
discussed business together at the Celebrity Club. Prior to Sarfaty's
death, Ballard had indicated that he was broke. Yet, immediately after
the murder, Ballard appeared to have a large amount of money and
No one had seen
Ballard in the pool hall or Celebrity Club after Sarfaty was killed.
However, a detective investigating Sarfaty's death testified that,
although he had come across Ballard's name early in the investigation,
the detective never considered him a suspect. Nor could the detective
find a link between Ballard and either Kathy Ford or Susan Babbitt.
The detective did
come across Kathy Ford's name during his investigation, but he was
never able to find her or even verify that she existed. He indicated
she may have been a prostitute. The owner of a pawn shop and his
employee testified that they knew Ford and had sold her a knife just
before Sarfaty's murder. The medical examiner could not rule out that
knife as the murder weapon.
detective had also come across the name of Susan Babbitt, purportedly
another prostitute, but the detective was unable to link her to either
Ballard or Ford. The only connection he could make between Babbitt and
Sarfaty was that they were acquaintances from the Celebrity Club.
Based upon this
evidence, defense counsel could have argued to the jury that someone
other than Woodruff and Romano killed Sarfaty. Nonetheless, Woodruff
and Romano assert that the trial court erred in excluding additional
evidence concerning Ballard, Ford and Babbitt.
however, does not support their contention that the trial court
excluded evidence that Ballard had threatened Sarfaty. The trial court
did sustain an objection to defense counsel's cross-examination of
Sarfaty's friend as to whether Sarfaty ever had any problems with
Ballard. In response, defense counsel asserted to the court that one
of the witnesses had indicated that, on one occasion, Ballard had
slapped Sarfaty, but defense counsel was not sure which witness it
The trial court
then instructed defense counsel to find out which witness it was
before counsel posed the question, and indicated counsel could recall
this witness if it was necessary to do so. Defense counsel, however,
never recalled that witness, nor did she attempt to elicit this
information from any other witness. The trial court, therefore, did
not preclude the defense from introducing this evidence. Cf. United
States v. Ramone, 218 F.3d 1229, 1237 (10th Cir.) (noting defense
counsel's failure to seize opportunity to cross-examine did not show
that trial court unfairly limited right to confront witnesses), cert.
denied, 121 S. Ct. 598 (2000).
Nor could we find
any instance in the record that the trial court prevented Woodruff or
Romano from asserting any evidence specifically concerning Susan
Babbitt. The trial court, therefore, did not deprive petitioners of
any opportunity to present evidence concerning these two uncharged
The trial court
did exclude some defense evidence concerning Kathy Ford. At trial,
defense counsel made an offer of proof that Sarfaty's friends had
mentioned that Kathy Ford had possibly set up and robbed Sarfaty on
previous occasions. Sarfaty himself had told friends that she had
robbed him and, on one occasion, Sarfaty had asked a pawn shop owner
to help him find Ford so that he could get back the property she had
stolen from him.
evidence was not critical to Woodruff's and Romano's defense. Rather,
the state court's application of Oklahoma's evidentiary rule
pertaining to uncharged individuals only prevented Woodruff and Romano
from presenting incremental evidence concerning another individual who
might have been involved in this crime. It did not deprive them of
significant and fundamentally exculpatory evidence. See Boyd, 179 F.3d
at 921 (holding evidence must be material; that is, that it might have
affected trial's outcome); see also Richmond, 122 F.3d at 872, 874-75.
See generally United States v. Valenzuela-Bernal, 458 U.S. 858, 867
Romano argue that it is somehow unfair to apply the state-law overt
act requirement concerning uncharged individuals who may have
committed the crime because no similar requirement applies in order
for the State to convict the individual charged. This particular
argument is like comparing apples and oranges. At trial, the jury
unavoidably has to focus on whether the charged individual did or did
not commit the crime alleged.
Crimes can be
proven by circumstantial evidence; there is no requirement that
substantive crimes must be proven only through direct evidence. See
generally Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998)
(reviewing sufficiency of both direct and circumstantial evidence to
support conviction). Moreover, the jury did have to find that Woodruff
and Romano had committed overt acts toward commission of robbery and
murder. The jury could do so, however, based on circumstantial
The ability to
cast aspersions on uncharged individuals, however, is a very different
story. See Irvin v. State, 146 P. 453, 464 (Okla. Crim. App. 1915)
("While it is competent for the defendant to show, by any legal
evidence, that some other person committed the crime with which he is
charged,... evidence which could have no further effect than to cast a
bare suspicion upon another is incompetent and inadmissible.").
The main purpose
of Oklahoma's evidentiary rule requiring proof of an overt act by an
uncharged individual is to prevent juries from embarking on wild goose
chases. See, e.g., id. at 464-66 (citing authority). Here, there was
no proof, either direct or circumstantial, that Ballard, Ford or
Babbitt ever took any overt act toward commission of these offenses.
The jury, then, had to remain focused on the trial's central
issue--whether the charged individuals committed the crimes alleged.
See id. at 466 (citing Horn v. State, 73 P. 705 (Wyo. 1903)).
In any event,
here, in light of Green and Chambers, we need ask no more than whether
the trial court's application of this state evidentiary rule excluded
critical exculpatory evidence. See Green, 442 U.S. at 97; Chambers,
410 U.S. at 302. It did not.
C. Did the State
violate Brady by failing to disclose a detective's unrecorded opinion
about the temperature of Sarfaty's apartment at the time the body was
As an initial
matter, respondent argues Romano procedurally defaulted this claim
because he failed to raise it on direct appeal. Respondent, however,
did not appeal from the district court's rejection of this procedural
bar defense. Nonetheless, a federal habeas court can always raise
procedural bar sua sponte. See Duvall v. Reynolds, 139 F.3d 768, 796
n.11 (10th Cir. 1998), and cases cited therein; see also, e.g., Hale,
227 F.3d at 1334 n.16. Further, this court can affirm the district
court's decision on any legal ground the record supports. See, e.g.,
Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995).
court can address procedural default even though respondent did not
separately appeal the district court's determination. Cf. Jones v.
United States, 527 U.S. 373, 396 (1999) (holding, in direct criminal
appeal where circuit court held aggravating factors were invalid, but
error was harmless, that government could argue on appeal validity of
aggravators without filing cross appeal).
previous Tenth Circuit law has not been consistent on whether the
State must specifically appeal an adverse procedural bar
determination. In Robison v. Maynard, 829 F.2d 1501, 1502 (10th Cir.
1987), this court did hold that the State's failure to appeal from a
district court's adverse procedural default determination precluded
the State from raising that issue to this court on appeal. In several
subsequent cases, however, this court has held that the State's
separate appeal was unnecessary. See, e.g., Walker v. Gibson, 228 F.3d
1217, 1226 n.2 (10th Cir. 2000); Jones v. Gibson, 206 F.3d 946, 955
n.4 (10th Cir.), cert. denied, 121 S. Ct. 496 (2000); see also Smith
v. Massey, 235 F.3d 1259, 1273 n. 9 (10th Cir. 2000).
as we are here, with inconsistent Tenth Circuit holdings, we are
generally bound by the first decision. See Calderon v. Kan. Dep't of
Soc. & Rehab. Servs., 181 F.3d 1180, 1187 (10th Cir. 1999); Haynes v.
Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996). That would require
the State here to appeal from the district court's procedural bar
determination in order to raise that issue now on appeal. We believe,
however, that this court's earlier authority addressing this issue was
incorrect. We have submitted this determination to the entire en banc
court, which agrees. See, e.g., United States v. Meyers, 200 F.3d 715,
721 & n.3 (10th Cir. 2000); Murphy v. Klein Tools, Inc., 935 F.2d
1127, 1128 n.2 (10th Cir. 1991).
following Walker and Jones, we overrule Robison in this regard. Other
circuits have reached this same conclusion. See Hull v. Kyler, 190
F.3d 88, 98 n.2 (3d Cir. 1999); Moore v. Ponte, 186 F.3d 26, 31 & n.4
(1st Cir.), cert. denied, 528 U.S. 1053 (1999); Nichols v. McCormick,
929 F.2d 507, 509 n. 2 (9th Cir. 1991); Washington v. Lane, 840 F.2d
443, 445-46 (7th Cir. 1988); see also Young v. Catoe, 205 F.3d 750,
762 n.12 (4th Cir.) (noting, in dicta, government's cross-appeal
unnecessary), cert. denied, 121 S. Ct. 164 (2000). See generally El
Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999) (noting
even without cross-appeal appellee may assert any ground for
affirmance that is apparent on record, even if that ground challenges
lower court's reasoning so long as it does not enlarge the relief
previously given appellee below).
We turn, then, to
respondent's procedural bar argument. In these cases, the Oklahoma
Court of Criminal Appeals ruled inconsistently on this procedural
default issue when it considered the merits of this claim in
Woodruff's post-conviction proceeding, but declined to do so in
Romano's post-conviction case. The Oklahoma Court of Criminal Appeals
held Romano had waived this claim because, with due diligence, he
could have discovered its factual basis and asserted it on direct
appeal. See Romano, 917 P.2d at 15-16. Conversely, the same court
concluded Woodruff could not have raised this claim on direct appeal.4
See Woodruff, 910 P.2d at 350-51.
One of the
requirements of an adequate and independent state procedural bar, see,
e.g., Lambrix v. Singletary, 520 U.S. 518, 522-23 (1997), is that the
state courts must have applied it consistently, see, e.g., Johnson v.
Mississippi, 486 U.S. 578, 587 (1988), and cases cited therein. "[T]he
procedural rules must be applied evenhandedly to all similar claims."
Maes v. Thomas, 46 F.3d 979, 986 (10th Cir. 1995) (further quotation
Here the Oklahoma
Court of Criminal Appeals applied the same procedural rule
inconsistently in the cases of two co-defendants charged with the very
same offenses and tried together. In light of that inconsistency, this
procedural bar will not preclude our consideration of the merits of
these habeas claims. See, e.g., Gutierrez v. Moriarty, 922 F.2d 1464,
1469-71 (10th Cir. 1991) (holding state procedural bar, which state
courts had not strictly or regularly applied, did not provide adequate
state law grounds precluding federal habeas review).
Woodruff and Romano had access to Sarfaty and did not have an alibi
for the morning and early afternoon of October 12, it was important to
determine Sarfaty's date of death. Sarfaty's friend discovered the
body late Tuesday night, October 15. At trial, the medical examiner,
Dr. Choi, testified Sarfaty had been dead no less than two and no more
than seven days. This would have included the time Woodruff and
especially Romano had access to Sarfaty. Woodruff and Romano, on the
other hand, argued that Sarfaty may have been dead less than two days,
which would have precluded at least Romano's opportunity to commit
Further, it is
undisputed that the apartment's temperature is relevant to this
time-of-death determination because it would affect how quickly the
body decomposed. And at trial, the medical experts relied at least in
part on the decomposition rate to estimate the time of Sarfaty's
Of course, date
of death was not strictly based on the decomposition rate. There was
other evidence suggesting Sarfaty died on October 12: The last time
Celebrity Club employees saw Sarfaty, a nightly customer, was early
morning October 12. And police found the October 12 edition of the
newspaper open on Sarfaty's couch, while the October 13, 14, and 15
editions were found delivered, but unopened, on his patio. On the
other hand, there was also evidence suggesting a later time of
death--Sarfaty's neighbor testified that he saw Sarfaty arguing with a
woman early Sunday morning, October 13.
In any event, the
evidence at trial concerning the temperature of Sarfaty's apartment
during the time in question included the following: Sarfaty's friend
discovered the body at approximately 11:00 P.M. Tuesday, October 15,
and called police. Officer Tom Dale reported finding the body at
approximately 1:00 A.M. Wednesday morning. Authorities, however, did
not enter the apartment until 2:30 A.M. At that time, Officer Dale
described the apartment as "warm but not hot."
Two hours later,
at approximately 4:30 A.M., the medical examiner's investigator noted
the apartment's thermostat registered sixty degrees. The investigator
believed Sarfaty had been dead two or three days. Relying on the
investigator's sixty-degree temperature, the medical examiner
testified Sarfaty had been dead no less than two and no more than
seven days, and most probably three to four days. Both the medical
examiner and the investigator noted the body's "moderate
Almost nine years
after Sarfaty's murder, during the sentencing stage of Woodruff's
retrial for the Thompson murder, Detective Jerry Martin testified that
when he entered Sarfaty's apartment that morning, the apartment was
"quite warm... probably about 80 degrees." Detective Martin, however,
indicated that he was just estimating that temperature. He had not
determined the temperature scientifically by, for example, checking
the thermostat. Nor was it Martin's job specifically to note the
apartment's temperature; rather, his responsibility at the crime scene
was to investigate evidence outside the apartment, including
interviewing neighbors. And Detective Martin never recorded his
temperature observation in any written document or report.
In light of these
facts, the State challenges whether Detective Martin's recollection of
the apartment's temperature, unrecorded and not recalled until nine
years after the investigation, was in fact extant Brady material at
the time of the Sarfaty trial. For purposes of these appeals, we will
accept, without adopting, petitioners' characterization of the
detective's temperature recollection as Brady material.
therefore, Woodruff and Romano must establish that Detective Martin's
recollection was "favorable to the accused, either because it is
exculpatory, or because it is impeaching; [it] must have been
suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82
state appellate court, in Woodruff's state post-conviction proceeding,
did address the newly discovered evidence of the apartment's
temperature, that court did not specifically address Woodruff's Brady
claim. See Woodruff, 910 P.2d at 350-51. Nor did that court address
the merits of Romano's Brady claim, because it deemed Romano to have
waived that issue. See Romano, 917 P.2d at 15 n.2, 16. We, therefore,
review these Brady claims de novo. See Thomas, 218 F.3d at 1220. We
review for clear error the federal district court's factual findings,
made in this case after an evidentiary hearing. See id.
Martin's temperature estimate was not necessarily exculpatory. It was
not inconsistent with, but rather was merely cumulative of, Officer
Dale's testimony at the Sarfaty trial that the apartment was "warm but
not hot." See Foster v. Ward, 182 F.3d 1177, 1192 (10th Cir. 1999),
cert. denied, 120 S. Ct. 1438 (2000) (holding cumulative evidence,
which added only marginally to defense, was not exculpatory).
Martin's eighty-degree temperature estimate as their foundation,
however, Woodruff and Romano presented, during their federal habeas
proceedings, the testimony of three experts whose opinions support
petitioners' contention that Sarfaty had been dead only twelve to
thirty hours before the body's discovery. A thermodynamics expert, Dr.
Sutton, conducted a study indicating the temperature in Sarfaty's
apartment during the days preceding the body's discovery was
approximately ninety degrees.
anthropologist, Dr. Marks, testified that Sarfaty had probably been
dead only thirty to forty-eight hours. And a Texas medical examiner
thought Sarfaty had died no more than one and one-half days before his
body was discovered, and "quite probably sooner than that." Woodruff
and Romano claim that, had they known about Detective Martin's
eighty-degree temperature estimate earlier, they could have garnered
and presented this expert testimony at trial in support of their
experts, however, predicated their time-of-death opinions on a more
rapid decomposition rate, which in turn was based upon Dr. Sutton's
thermodynamics study indicating the temperature in the apartment was
actually around ninety degrees or more. If anything, then, Detective
Martin's eighty-degree estimate undercuts, rather than supports, Dr.
Sutton's temperature estimate which, in turn, undercuts the premise of
the decomposition experts' testimony.
will assume, for purposes of our analysis here, that Detective
Martin's temperature estimate was favorable to Woodruff and Romano. We
also assume that the State suppressed this evidence.5 See, e.g.,
Strickler, 527 U.S. at 280-81 (Brady includes information known only
to police investigators and not to prosecutors). We, therefore, need
address here only whether the State's suppression of Detective
Martin's eighty-degree temperature estimate prejudiced Woodruff and
will be material, and thus prejudicial, "if there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different," Strickler, 527
U.S. at 280 (further quotation omitted). The appropriate inquiry,
then, is whether, absent knowledge of Detective Martin's eighty-degree
temperature estimate, Woodruff and Romano received "a fair trial,
understood as a trial resulting in a verdict worthy of confidence."
Id. at 289-90 (further quotation omitted).
inquiry is equivalent to the prejudice analysis that applies to an
ineffective assistance of counsel claim under Strickland, 466 U.S.
668. See United States v. Bagley, 473 U.S. 667, 681-83 (1985)
(separate opinion of Justice Blackmun); see also Kyles v. Whitley, 514
U.S. 419, 436 (1995).
appellate court did not address the merits of petitioners' Brady
claims, deeming Romano's claim procedurally barred and addressing
Woodruff's claim only in terms of newly discovered evidence. We will,
therefore, review Brady's materiality determination de novo, see Moore
v. Gibson, 195 F.3d 1152, 1165 (10th Cir. 1999) (noting pre-AEDPA
review of Brady materiality is de novo), cert. denied, 120 S. Ct. 2206
(2000), just as we would Strickland's prejudice inquiry, see Smith v.
Gibson, 197 F.3d 454, 461 (10th Cir. 1999), cert. denied, 121 S. Ct.
We also review
for prejudice against the backdrop of the other objective evidence
pertaining to Sarfaty's date of death. See Banks v. Reynolds, 54 F.3d
1508, 1518 (10th Cir. 1995) (determining materiality in light of
entire record). The rate of decomposition, therefore, was not the
sole, or even the most compelling, evidence of the time of death. See
Foster, 182 F.3d at 1192. Accordingly, the importance of the
decomposition rate diminishes.
Detective Martin's recollection that the apartment's temperature was
approximately eighty degrees was again not inconsistent with Officer
Dale's testimony at the Sarfaty trial that the apartment was warm, but
not hot. Thus, the allegedly new material pertaining to the
apartment's temperature is largely cumulative of other evidence
presented at trial.
Detective Martin's temperature estimate is itself not entitled to much
weight because it was based on the detective's unrecorded and
subjective recall nine years after the investigation. The detective
acknowledged his duties at the crime scene did not include recording
the apartment's temperature. Nor did Detective Martin objectively make
that determination. He did not check his observation with the
prevailing ambient temperatures during the period. Rather, his
testimony concerning the apartment's temperature represented merely an
after-the-fact effort to recall an ancient subjective impression of a
detail upon which he did not focus even at the time. It is, therefore,
of little relevance.
petitioners' decomposition experts' based their time-of-death opinions
on Dr. Sutton's conclusion that the apartment's temperature remained
at approximately ninety degrees. The district court, however, afforded
Dr. Sutton's testimony little weight, determining cross-examination
had exposed several weaknesses in his study and faulting his demeanor
and manner of responding to questions posed at the evidentiary
hearing. We must defer to the district court's credibility
determinations. See, e.g., Anderson v. City of Bessemer City, 470 U.S.
564, 575 (1985).
For all of these
reasons, we conclude the State's failure to disclose Detective
Martin's temperature observation, even assuming it was extant Brady
material, did not prejudice Woodruff's and Romano's defense.
D. Did the State
violate Brady and Giglio6 by failing to disclose its deal exchanging
the favorable disposition of pending forged check charges against Greg
Myers for Myers' testimony in this case?
Romano's former cellmate, testified during sentencing that Romano
admitted to Myers that Romano and his partner had killed Lloyd
Thompson, and Romano had then solicited Myers, every day for a week,
to kill several witnesses in the Thompson case. After the Sarfaty
trial, however, Myers recanted this testimony, asserting instead that
Romano had never admitted any involvement in Thompson's murder;
neither had Romano solicited Myers to kill any witnesses.
Myers, he had testified falsely against Romano in exchange for the
State's favorable disposition of then pending felony bogus check
charges against Myers. In this habeas proceeding, Romano challenges
both the State's failure to disclose its deal with Myers and Myers'
false testimony providing part of the basis for his death sentence.7
1. Did the State
fail to disclose a deal it had with Greg Myers?
Romano shared a
jail cell with Greg Myers during October and November 1985. Myers was
at that time facing felony bogus check charges filed by the same
district attorney's office prosecuting Woodruff and Romano. Because he
had a prior felony conviction for committing lewd acts with a child,
Myers was concerned that he might be charged as a former felon. If so,
Myers faced a minimum ten-year prison sentence. See Okla. Stat. tit.
21, § 51(A)(1) (repealed effective July 1, 1999).
When Myers bonded
out of county jail, on approximately November 6, 1986, authorities
transferred him to the Oklahoma City jail. There, Myers gave a
detective a sworn statement against Romano and later met with those
prosecuting the Thompson murder trial, District Attorney Bob Macy and
Lou Keel. Myers subsequently testified against Romano during the
Just a few weeks
after that, Myers pled guilty to the felony check charges and received
a one-year deferred sentence, notwithstanding the fact that, under
Oklahoma law, he was not eligible to receive such a sentence because
of his previous felony conviction. See Okla. Stat. tit. 22, § 991c
(subsequently amended). Several months later, Myers similarly
testified against Romano at the Sarfaty trial.
Sarfaty direct appeal, however, Myers recanted his testimony, instead
asserting that Romano had never admitted to Myers any involvement in
Thompson's murder; neither had Romano ever solicited Myers to kill any
witnesses. According to Myers, he had testified falsely against Romano
in exchange for the State's favorable disposition of the then pending
felony check charges.
Myers' testimony on direct appeal and in his state post-conviction
proceedings. The state appellate court did not specifically address
the issue on direct appeal. In state post-conviction proceedings, the
Oklahoma Court of Criminal Appeals denied relief without benefit of an
evidentiary hearing, noting, in part, that "[t]he issue of an alleged
deal between the State and Greg Myers was raised at trial. Myers'
attorney testified there was no deal. The prosecutor testified there
was no deal. The trial judge determined there was no deal." Romano,
917 P.2d at 17.
The trial court,
during the Sarfaty sentencing proceeding, did conduct an in camera
hearing concerning the existence of a possible deal. Contrary to the
state appellate court's determination, however, none of the
prosecutors testified during that in camera hearing. Only one of
Myers' two defense attorneys testified, and he stated only that he was
not aware of any deal Myers had with prosecutors to testify against
Romano, but that he had entered the case late and did not know what
had occurred prior to that time.
asserted to the trial court that she had spoken with Myers' first
defense attorney, but had not asked that attorney if she had helped
arrange any deal between Myers and the State. And, although the trial
court, at the conclusion of the in camera hearing, did indicate that
it could not find, on that evidence, that Myers had a deal, the trial
court did inform Romano's attorney that she was free to recall Myers
and ask him, in the jury's presence, whether he had a deal.8
does not support the state appellate court's determination. See Jones,
206 F.3d at 953 (determining evidence did not support Oklahoma Court
of Criminal Appeals' finding that victim pleaded for his life). We,
therefore, focus our habeas review on the federal district court's
denial of relief.
must disclose any understanding or agreement it has with its
witnesses. See Giglio, 405 U.S. at 150-51, 154-55. Nonetheless, the
district court, after conducting an evidentiary hearing,9 found that
there was no deal between Myers and the State. We review such factual
findings only for clear error. See Thomas, 218 F.3d at 1220.
Although, on this
record, 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,
we are unable to conclude the district court's factual finding is
court heard testimony directly from Myers, as well as the prosecutor
and Myers' first defense attorney. We must defer to the district
court's implicit credibility determination underlying its factual
finding. See Smith, 197 F.3d at 459 (deferring to state court's
implicit credibility determination); see also Smith v. Secretary of
N.M. Dep't of Corr., 50 F.3d 801, 831 (10th Cir. 1995). On that basis,
we affirm the district court's denial of habeas relief.10
2. Is Romano
entitled to habeas relief because Myers recanted his testimony?
Myers recanted his testimony, asserting instead that Romano had never
admitted any involvement in Thompson's murder; neither had he
solicited Myers to kill any witnesses. A prosecutor's knowing use of
false testimony deprives a criminal defendant of due process,
warranting a new trial if there is a reasonable likelihood the false
testimony affected the judgment. See Giglio, 405 U.S. at 153-54,
citing cases; see also Kyles, 514 U.S. at 433 & n.7; Bagley, 473 U.S.
at 678-79 & 679 nn.8, 9, citing cases.
Even assuming the
truth of Myers' recantation, however, Romano has failed to assert any
evidence indicating prosecutors knew Myers' testimony was false. See,
e.g., Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 569 (10th
Cir. 2000), petition for cert. filed, (U.S. Dec. 8, 2000) (No.
00-7387); Smith, 197 F.3d at 459-60.
E. Was there
sufficient evidence to support the especially heinous, atrocious or
cruel aggravating factor?
Romano challenge the sufficiency of the evidence supporting the jury's
finding that Sarfaty's murder was especially heinous, atrocious or
cruel. The question presented is whether the evidence of what Woodruff
and Romano did was sufficient to satisfy a constitutional aggravating
circumstance. A constitutional aggravating factor channels and limits
the capital "sentencer's discretion in imposing the death penalty" in
order to minimize sufficiently the risk of "wholly arbitrary and
capricious action." Maynard v. Cartwright, 486 U.S. 356, 362 (1988).
It must provide a
principled means by which a sentencer can distinguish between those
murders warranting a death sentence and those that do not. See id. at
363. In Cartwright, the Supreme Court held that Oklahoma's especially
heinous, atrocious or cruel aggravating factor was unconstitutionally
vague and overbroad because it failed to give a capital sentencer
sufficient guidance--"an ordinary person could honestly believe that
every unjustified, intentional taking of human life is `especially
heinous.'" Id. at 363-64; see also, e.g., Medlock v. Ward, 200 F.3d
1314, 1321 (10th Cir.), cert. denied, 121 S. Ct. 197 (2000).
subsequently narrowed the application of this aggravator to only cases
involving torture or serious physical abuse. See Stouffer v. State,
742 P.2d 562, 563 (Okla. Crim. App. 1987). The Supreme Court held that
was one means by which Oklahoma could constitutionally narrow this
aggravating factor. See Cartwright, 486 U.S. at 364-65.
since further refined that narrowing. A murder is especially heinous,
atrocious or cruel under Oklahoma law if it is "preceded by torture or
serious physical abuse. Torture includes the infliction of either
great physical anguish or extreme mental cruelty, while physical abuse
requires evidence of conscious physical suffering." Hale, 227 F.3d at
1335 (further quotation, citations omitted); see also, e.g., Thomas,
218 F.3d at 1226-27, citing cases. We have upheld the facial validity
of this aggravating factor, as thus narrowed. See, e.g., Medlock, 200
F.3d at 1321.
cases, however, have begun to blur the common understanding of the
requisite torture and conscious serious physical suffering, more and
more often finding the existence of these elements in almost every
murder. See, e.g., Fluke v. State, 14 P.3d 565, 568 & n.9 (Okla. Crim.
App. 2000) (noting evidence that victim was aware of attack is
sufficient to show torture, citing cases); Washington v. State, 989
P.2d 960, 974-75 (Okla. Crim. App. 1999) (holding sufficient evidence
supported this aggravator where victim may have consciously suffered
for less than one minute after defendant shot her eight times during
brief encounter). There is certainly a concern that Oklahoma's
interpretation of its narrowing language could again render this
aggravating factor unconstitutional. See Thomas, 218 F.3d at 1228 &
n.17; see also Medlock, 200 F.3d at 1324 (Lucero, J., concurring)
(noting that if Oklahoma permitted capital sentencers to find the
especially heinous, atrocious or cruel aggravator, "based merely on
the brief period of conscious suffering necessarily present in
virtually all murders [it] would fail to narrow the sentencer's
discretion" as constitutionally required, citing Godfrey v. Georgia,
446 U.S. 420 (1980)).
This court, for
example, noted in Thomas that Oklahoma's application of the especially
heinous, atrocious or cruel aggravating factor in cases where there is
evidence of multiple injuries, but no other evidence of conscious
suffering, raised "serious constitutional questions about whether
Oklahoma's heinous, atrocious, or cruel aggravator legitimately
narrows the class of those eligible for death." Id. at 1228 n.17.
In this case,
however, petitioners' challenge to this aggravating circumstance is an
evidentiary one. Jackson's rational factfinder standard, therefore,
governs our review. See, e.g., Hale, 227 F.3d at 1335. The issue thus
presented is whether there was sufficient evidence to meet the
especially heinous, atrocious or cruel aggravating factor, as Oklahoma
has constitutionally narrowed that aggravator. Although the trial
evidence does not compel a jury finding of torture or conscious
serious physical abuse, we, nevertheless, conclude that the evidence
is constitutionally sufficient.
Here, there is
evidence Sarfaty suffered abrasions and scrapes, prior to his death,
on his left knee and shin, right elbow and back, indicating a struggle
did take place. Further, Sarfaty's wrists and ankles were bound; he
was injured due to the force with which his limbs were tied. The fact
that Sarfaty's killers bound his arms and legs is evidence in this
case that he was conscious during at least part of the attack; there
would be no need to bind a dead person, although there could be a
motive to bind an unconscious person to guard against the possibility
that the person would regain consciousness.
suffered a number of nonlethal wounds, which the jury could have
concluded preceded his loss of consciousness and death. But see
Thomas, 218 F.3d at 1227-29 & 1229 n.17 (rejecting inference that,
because killer inflicted multiple blows, victim had to be conscious
during part of attack, where there was no evidence victim consciously
suffered and two wounds were in fact post-mortem).
examiner, Dr. Choi, testified that Sarfaty died of strangulation by
ligature. It would have taken a minimum of three minutes for Sarfaty
to be strangled to death, and two to three minutes before he would
lose consciousness from the strangulation.
suffered five stab wounds, two of which were to the heart and
potentially fatal, and five or six blows to the head, lacerating his
scalp. While the wounds to the head could have caused immediate loss
of consciousness and the injuries to the heart could have been
immediately fatal, the evidence supported an inference that Sarfaty
was strangled prior to the infliction of these wounds. According to
Dr. Choi, she would have expected a great loss of blood from Sarfaty's
stab wounds and the wounds to his head if he were alive at the time
those wounds were administered, yet in this case there was very little
bleeding from those wounds.
testified that, although this absence of bleeding could result from
the stab wounds to the heart immediately stopping its beating, it was
more likely because Sarfaty's heart had been stopped or slowed, and
the body sent into shock, due to the earlier strangulation. This
evidence would support a finding that Sarfaty consciously suffered
serious physical abuse.
evidence could also support the inference that Sarfaty's killers bound
and tortured him, perhaps in an effort to get him to reveal the
location of his money and valuable jewelry. Although this evidence
does not compel these inferences, the evidence permits them.
In light of this
record, therefore, the state appellate court's decisions upholding the
jury's finding this aggravating factor, see Romano, 847 P.2d at
386-87; Woodruff, 846 P.2d at 1146-47, were not unreasonable. See 28
U.S.C. § 2254(d);11 cf. Thomas, 218 F.3d at 1226-29 (holding no
reasonable factfinder could have found murder was especially heinous,
atrocious or cruel where, although victim suffered severe beating,
there was no evidence of struggle or defensive wounds, and no evidence
indicating order in which killer inflicted wounds).
F. Was there
sufficient evidence supporting the continuing threat aggravating
there was insufficient evidence to support the jury's finding that
there was a probability that he would commit future violent criminal
acts such that he should be considered a continuing threat to society.
The question presented is whether, viewing the evidence in the light
most favorable to the prosecution, a reasonable trier of fact could
have found this aggravating factor beyond a reasonable doubt. See,
e.g., LaFevers, 182 F.3d at 723 (citing, e.g., Jackson, 443 U.S. 307).
presents this as an evidentiary issue, there is also a legal question
subsumed within that evidentiary challenge. Romano's argument suggests
that the continuing threat aggravator should be evaluated only within
the context of a prison population. Oklahoma courts, however, have
held that this aggravating factor is not limited to the threat Romano
poses within a prison population. See Salazar v. State, 973 P.2d 315,
326 (Okla. Crim. App. 1998) (noting continuing threat aggravator is
not limited to any particular segment of society), cert. denied, 528
U.S. 895 (1999); see also, e.g., McCarty v. State, 977 P.2d 1116, 1137
(Okla. Crim. App. 1998).
especially true here, where one of the sentencing options before the
jury was life imprisonment, which admits the possibility Romano might
someday obtain his release on parole. Myers' testimony that Romano
solicited him to kill witnesses indicates Romano may present a
continuing threat, within, as well as outside, a prison population.
As so construed,
the evidence was more than sufficient to support the jury's factual
determination. In addition to Myers' testimony, the evidence indicated
that Romano, with Woodruff, robbed and murdered another of Romano's
acquaintances, Lloyd Thompson. In light of this evidence of other
dangerous criminal conduct, as well as the facts of Sarfaty's murder,
the state appellate court's determination that there was sufficient
evidence to support this aggravating factor, see Romano, 847 P.2d at
389, 394, was not unreasonable under either 28 U.S.C. § 2254(d)(1) or
(2), see, e.g., Hale, 227 F.3d at 1335 n.17. See also, e.g., Van
Woudenberg, 211 F.3d at 574.
G. Did the
State's charging Romano with the continuing threat aggravating factor
violate double jeopardy?
In the first
Thompson trial, the capital sentencing jury rejected the aggravating
factor that Woodruff and Romano presented continuing threats to
society. During the Sarfaty trial, the State again charged, and the
jury this time found, that both petitioners were continuing threats to
society. Romano asserts the State's charging him with the continuing
threat aggravator in the Sarfaty murder prosecution violated double
jeopardy because the first Thompson jury, having heard essentially the
same evidence presented in the Sarfaty trial, previously rejected that
The Supreme Court
rejected a similar argument in Poland v. Arizona, 476 U.S. 147 (1986).
In Poland, the Court determined the relevant inquiry, in applying the
Double Jeopardy Clause to a capital sentencing proceeding, is "whether
the sentenc[er] or the reviewing court has `decid[ed] that the
prosecution has not proved its case' for the death penalty and hence
has `acquitted' petitioner." Id. at 154 (quoting Bullington v.
Missouri, 451 U.S. 430, 443 (1981)); see also id. at 155; Osborn v.
Shillinger, 997 F.2d 1324, 1327-28 (10th Cir. 1993).
rejected the premise that "a capital sentencer's failure to find a
particular aggravating circumstance alleged by the prosecution always
constitutes an `acquittal' of that circumstance for double jeopardy
purposes." Poland, 476 U.S. at 155. "Aggravating circumstances are not
separate penalties or offenses, but are `standards to guide the making
of [the] choice' between the alternative verdicts of death and life
imprisonment." Id. at 156 (quoting Bullington, 451 U.S. at 438); see
also Walton v. Arizona, 497 U.S. 639, 648 (1990).
Like the Arizona
capital sentencing scheme at issue in Poland, under Oklahoma law, the
capital sentencer's "finding of any particular aggravating
circumstance does not of itself `convict' a defendant (i.e., require
the death penalty), and the failure to find any particular aggravating
circumstance does not `acquit' a defendant (i.e., preclude the death
penalty)." Poland, 476 U.S. at 156.
support of this habeas claim, Romano relies in part on Ashe v.
Swenson, 397 U.S. 436, 444-46 & 445 n.10 (1970), holding double
jeopardy includes the concept of collateral estoppel. See also Schiro
v. Farley, 510 U.S. 222, 232 (1994). "[W]hen an issue of ultimate fact
has once been determined by a valid and final judgment," collateral
estoppel precludes the same parties from litigating that same issue in
any future lawsuit. Ashe, 397 U.S. at 443.
We need not
explore this argument in detail, however, because the first Thompson
trial, upon which Romano relies, was not a "valid and final" judgment;
rather, the state appellate court overturned the jury's decision in
that case because the state court erred in jointly trying Woodruff and
Romano. See United States v. Lacey, 982 F.2d 410, 412 (10th Cir. 1992)
(judgment has no preclusive effect, for res judicata and collateral
estoppel purposes, if it has been vacated, reversed or set aside); see
also, e.g., United States v. Sackett, 114 F.3d 1050, 1052 (10th Cir.
1997) (state judgment that had been set aside had no preclusive effect
in federal civil action); In re Hedged-Investments Assocs., Inc.
(Sender v. Nancy Elizabeth R. Heggland Family Trust), 48 F.3d 470,
472-73 (10th Cir. 1995) (no final judgment existed, as required by
collateral estoppel, where earlier decision had been reversed on
appeal). See generally Schiro, 510 U.S. at 232 (holding preclusive
effect of the state court's judgment, in a habeas action, is matter of
federal law). Collateral estoppel principles, therefore, do not
support Romano's claim for relief. See Goff v. United States, 446 F.2d
623, 627 (10th Cir. 1971).
H. Was there
sufficient evidence that Romano killed Sarfaty to avoid arrest or
law, the focus of this aggravator is on the defendant's intent, which
can be proved either by his own statements or through circumstantial
evidence. See, e.g., Hale, 227 F.3d at 1334. Additionally, Oklahoma
requires proof of a predicate crime, other than the murder, for which
the defendant seeks to avoid arrest or prosecution. See id. The state
appellate court's determination that there was sufficient evidence to
support this aggravating factor, see Romano, 847 P.2d at 387, was
reasonable under either 28 U.S.C. § 2254(d)(1) or (2). See Hale, 227
F.3d at 1335 n.17.
testified that Romano asked him to help rob Sarfaty. Romano further
told Greggs that Romano would have to kill Sarfaty because he knew and
could identify Romano. Although Romano challenged Greggs' credibility,
the jury appropriately resolved that dispute. See, e.g., Valdez, 219
F.3d at 1238 & n.4. Furthermore, Sarfaty's robbery provides the
requisite predicate crime for which Romano sought to avoid arrest or
prosecution. There is, therefore, ample evidence to support this
aggravating factor. See, e.g, Hale, 227 F.3d at 1334-35; LaFevers, 182
F.3d at 723; Moore v. Reynolds, 153 F.3d 1086, 1115 (10th Cir. 1998).
I. Was the
failure of Woodruff's attorney to investigate and present mitigating
evidence at the sentencing stage such that Woodruff received
there was mitigating evidence, not presented during sentencing, that
his natural mother abandoned him at age eighteen months and his
natural father's girlfriend then gave him away to a customer at the
coffee shop where she worked. Further, at the time the Woodruffs
adopted petitioner, there was evidence of cigarette burns on his legs
and diaper area. His natural mother had abused alcohol during her
pregnancy with him and, as a toddler, he had almost drowned while left
in the care of his seven-year-old brother.
contends trial counsel should have had Woodruff's mental health
evaluated because such an exam would have shown that he had brain
damage and a fourteen year old's reasoning ability, was a follower
rather than a leader, and would not pose a threat while in a
structured prison environment. Woodruff now argues his attorney's
failure to investigate and present this evidence amounted to
ineffective assistance of counsel.
Court of Criminal Appeals held Woodruff had waived this claim because
he failed to raise it on direct appeal. See Woodruff, 910 P.2d at
351-52. Contrary to respondent's assertion, however, the trial record
before the state appellate court on direct appeal did not contain
sufficient evidence concerning either the extent of defense counsel's
sentencing preparation or the additional evidence Woodruff asserts
counsel should have discovered and presented. The State's procedural
bar, therefore, is inadequate to preclude federal habeas review. See
English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998); see also
McGregor v. Gibson, 219 F.3d 1245, 1252-53 (10th Cir. 2000), reh'g
granted on other grounds. Because the state appellate court did not
address the merits of Woodruff's ineffective assistance claim, our
review is de novo. See Thomas, 218 F.3d at 1220; Smith, 197 F.3d at
stage is the most critical phase of a death penalty case. Any
competent counsel knows the importance of thoroughly investigating and
presenting mitigating evidence. "As a practical matter, the defendant
probably has little or no chance of avoiding the death sentence unless
the defense counsel gives the jury something to counter both the
horror of the crime and the limited information the prosecution has
introduced about the defendant." Jonathon P. Tomes, Damned If You Do,
Damned If You Don't: The Use of Mitigation Experts in Death Penalty
Litigation, 24 Am. J. Crim. L. 359, 364 (1997). Mitigating evidence
plays an overwhelmingly important role in the "just imposition of the
death penalty." Mayes, 210 F.3d at 1288.
It "affords an
opportunity to humanize and explain -- to individualize a defendant
outside the constraints of the normal rules of evidence." Id. In light
of its importance, investigation and preparation of a case in
mitigation should begin prior to trial, well before any determination
of guilt at the first stage. See Williams, 529 U.S. at 395 (noting
counsel's deficient preparation for sentencing did not begin until one
week prior to trial).
To prevail here
on this ineffective assistance claim, Strickland requires Woodruff to
establish that counsel's deficient performance prejudiced Woodruff's
defense. See Strickland, 466 U.S. at 687. The "ultimate focus of
inquiry must be on the fundamental fairness" of the challenged
proceeding. Id. at 696.
representation will be constitutionally deficient if it "fell below an
objective standard of reasonableness," measured "under prevailing
professional norms," and considered in light of all of the
circumstances. Id. at 688. "Judicial scrutiny of counsel's performance
must be highly deferential[,]" making every effort "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.
We "indulge a
strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy." Id. (further
prejudice, Woodruff must show there is a "reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694.
Woodruff need not, however, go so far as to establish that counsel's
deficient performance "more likely than not altered the outcome." Nix
v. Whiteside, 475 U.S. 157, 175 (1986); see also Strickland, 466 U.S.
In the context of
a capital sentencing proceeding, the relevant inquiry is "whether
there is a reasonable probability that, absent the errors, the
sentencer... would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death." Strickland, 466 U.S.
This court can
affirm the denial of habeas relief on whichever Strickland prong is
the easier to resolve. See Smith v. Robbins, 528 U.S. 259, 286 n.14
(2000) (citing Strickland, 466 U.S. at 697). Here, we determine trial
counsel's performance was not deficient.12
adversarial] testing process generally will not function properly
unless defense counsel has done some investigation into the
prosecution's case and into various defense strategies,... `counsel
has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.'" Kimmelman
v. Morrison, 477 U.S. 365, 384 (1986) (quoting Strickland, 466 U.S. at
691). "[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable." Strickland, 466 U.S. at 690. "[A]nd strategic
choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support
the limitations on investigation." Id. at 690-91.
"[t]he reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own statements or actions.
Counsel's actions are usually based, quite properly, on informed
strategic choices made by the defendant and on information supplied by
the defendant." Id. at 691; see also, e.g., James v. Gibson, 211 F.3d
543, 557 (10th Cir. 2000), cert. denied, 121 S. Ct. 886 (2001);
Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir. 1999), cert. denied,
120 S. Ct. 2222 (2000).
In this case,
Woodruff instructed his attorney not to have his parents and friends
testify. Although trial counsel has an independent duty to investigate
and make a case in mitigation, counsel also has to be responsive to
the wishes of his client, see Wallace, 191 F.3d at 1247-48 (holding
counsel's performance during capital sentencing proceeding was not
deficient, where counsel acquiesced in petitioner's wishes not to
present any mitigating evidence or challenge State's evidence).
In any event,
notwithstanding Woodruff's wishes, trial counsel did present a
significant amount of mitigating evidence on Woodruff's behalf,
including the testimony of a family friend, Woodruff's mother and his
girlfriend. The family friend testified about Woodruff's Little League
activities as a youth, his love and concern for the witness's
children, and Woodruff's carpentry work with his adoptive father.
girlfriend also testified about Woodruff's love for children and for
people in general, as well as his work history, his training as a
gemologist and the fact that he had never harmed her, nor had she seen
him harm anyone else. Woodruff's mother testified that she and her
husband adopted Woodruff at age eighteen months and that she had never
met his natural parents. She asserted that he had a "very normal
upbringing." She also described Woodruff's anguish upon discovering,
at age eighteen, that he was adopted.
related details concerning his childhood, schooling, sports
activities, work history, military service, gemology training and his
love of children. He described his childhood as "outstanding."
explained to the jury his difficulty coping with the discovery that he
was adopted. He informed the jury that he did not like having his
friends and family testifying on his behalf and that his defense
attorney had presented what mitigating testimony he had against
evidence Woodruff now wishes his attorney had presented was
potentially in tension with his attorney's logical strategy to portray
Woodruff's childhood as normal and happy. Showing a dysfunctional and
difficult childhood basically asks a jury not to hold a defendant
responsible for his own dysfunctional or antisocial conduct.
On the other
hand, showing a defendant had a normal and socially acceptable
background goes toward showing the defendant does not present a
continuing threat to society because his baseline personality is not
antisocial. Counsel's strategic choice here to portray Woodruff's
childhood as normal and happy was "well within the range of
professionally reasonable judgments." Strickland, 466 U.S. at 699.
That reasonable strategic choice justifies counsel's failure to search
further for any information of a possibly dysfunctional background.
in the record would have reasonably required a prudent attorney to do
the additional investigation Woodruff now suggests. See Mayes, 210
F.3d at 1289 n.3 (holding counsel's failure to obtain psychiatric
evaluation did not amount to deficient performance where there was
nothing in record that would have caused reasonable attorney to
believe petitioner's mental condition was potentially mitigating
pretrial preparation, counsel did discover that Woodruff had been
adopted, but both Woodruff and his mother asserted he had a happy and
normal childhood. Nothing the attorney knew suggested an abusive
childhood prior to the adoption. See Strickland, 466 U.S. at 691
(noting where petitioner has given counsel facts concerning potential
defense or reason to believe pursuing further investigation would be
fruitless, petitioner may not later challenge reasonableness of
counsel's failure to investigate those matters further).
Nor did counsel's
failure to pursue further psychiatric evaluation amount to deficient
performance. See Mayes, 210 F.3d at 1289 n.3. There was no indication,
at the time of trial, that a mental status exam would produce
mitigating evidence. A report compiled during a competency evaluation
prior to his first trial indicated he did not suffer from any
psychiatric disorders and his test results at that time appeared
of the above, we do not believe that the lawyer's failure to
investigate Woodruff's adoption and to obtain a psychiatric evaluation
was "`outside the wide range of professionally competent assistance.'
He `has made no showing that the justice of his sentence was rendered
unreliable by a breakdown in the adversary process caused by
deficiencies in counsel's assistance.'" Burger v. Kemp, 483 U.S. 776,
795-96 (1987) (quoting Strickland, 466 U.S. at 690, 700).
For the reasons
stated above, we, therefore, AFFIRM the district court's denial of
habeas relief on Woodruff's and Romano's first degree murder and armed
robbery convictions and their resulting death sentences.
related appeals have not been consolidated, we address them in one
opinion because of the similarity of the issues raised by the parties.
authority is divided as to whether, under AEDPA, we review a
sufficiency-of-the-evidence issue as a legal determination under 28
U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and
(e)(1). See, e.g., Mayes v. Gibson, 210 F.3d 1284, 1293 (10th Cir.),
cert. denied, 121 S. Ct. 586 (2000); see also Hale v. Gibson, 227 F.3d
1298, 1335 n.17 (10th Cir. 2000) (reviewing sufficiency of evidence to
support capital jury's finding aggravating factor). We need not
resolve this issue here because the result would be the same under
either AEDPA section. See, e.g., Hale, 227 F.3d at 1335 n.17; Mayes,
210 F.3d at 1293.
The Chambers line
of cases does not create a constitutional entitlement to present any
evidence critical to a criminal defendant's defense. See Montana v.
Egelhoff, 518 U.S. 37, 51-53 (1996); see also United States v.
Scheffer, 523 U.S. 303, 308, 316 (1998). Rather, "the introduction of
relevant evidence can be limited by the State for a `valid' reason."
Egelhoff, 518 U.S. at 53. In this case, however, because the trial
court did not exclude any evidence critical to the defense, we need
not weigh the State's justification for this evidentiary rule with
petitioners' right to present a defense. See Scheffer, 523 U.S. at
308-09; see also Boyd v. Ward, 179 F.3d 904, 921 (10th Cir. 1999)
(holding evidence excluded from capital sentencing stage would have
had no effect on trial's outcome, without further addressing State's
proffered interests in having evidence excluded), cert. denied, 120 S.
Ct. 1188 (2000).
At oral argument,
the State argued the Oklahoma appellate court did not treat
petitioners' post-conviction claims inconsistently because the precise
issue in Romano's state post-conviction proceeding was different than
the issue in Woodruff's post-conviction action. The State asserts
Romano's state post-conviction application presented the issue now
before this court, whereas Woodruff's state post-conviction proceeding
addressed only an ancillary issue--whether the state courts should
grant him an evidentiary hearing on this claim. We disagree. The
Oklahoma Court of Criminal Appeals noted Woodruff "claims newly
discovered evidence regarding the temperature in the victim's
apartment after the murder warranted an evidentiary hearing..., and
presumably post-conviction relief." Woodruff, 910 P.2d at 350. That
court denied Woodruff an evidentiary hearing because "there was no
reasonable probability that if the evidence had been introduced,
different results would have been reached." Id. at 351. Thus, in
denying Woodruff an evidentiary hearing, the Oklahoma Court of
Criminal Appeals ultimately reached and rejected the merits of this
claim. That was inconsistent with its refusal to address the merits of
Romano's post-conviction claim because he failed to raise it on direct
While the State
had an open file policy, that policy would not have revealed Detective
Martin's undocumented and as yet unarticulated opinion. Nevertheless,
"defense counsel may reasonably rely on that file to contain all
materials the State is constitutionally obligated to disclose under
Brady." Strickler, 527 U.S. at 283 n.23.
Giglio v. United
States, 405 U.S. 150 (1972).
also raises a habeas challenge to Myers' testimony, that testimony was
directed primarily against Romano. In any event, because we determine
Romano is not entitled to habeas relief on this claim, Woodruff would
not be, either.
asserts that his trial attorney was ineffective for failing to
investigate adequately whether Myers had a deal with prosecutors. As
we have said, however, Myers' testimony at sentencing had only very
limited impact upon Woodruff. Myers' testimony only indirectly linked
Woodruff to Thompson's murder. And it implicated only Romano in the
scheme to have witnesses to that murder killed. Moreover, we affirm
here the district court's factual finding that there was no deal
between Myers and the State. For these reasons, Woodruff cannot
establish the requisite prejudice to succeed on this
ineffective-assistance claim. See Strickland, 466 U.S. at 687.
actually indicates that, in light of the evidence, the trial court
could find that there was a deal. Nonetheless, the parties have
consistently treated this as a typographical error, interpreting that
passage to indicate instead that the trial court could not find that
there had been a deal. This interpretation is consistent with the rest
of the trial court's remarks.
district court already conducted a hearing, we need not now address
whether Romano was entitled to an evidentiary hearing under 28 U.S.C.
§ 2254(e)(2). See Williams v. Taylor, 529 U.S. 420, 424, 437 (2000)
(holding, under § 2254(e)(2), habeas petitioner who failed diligently
to pursue development of factual basis of habeas claim in state court
must meet § 2254(e)(2)'s stringent requirements before being entitled
to federal evidentiary hearing). Romano did have an opportunity, at
trial, to cross-examine Myers concerning whether he was testifying
pursuant to a deal, but Romano failed to take advantage of that
opportunity. And, while Romano did raise the possibility that Myers
had a deal during the trial's in camera hearing, he did not diligently
pursue that inquiry. See Smith, 235 F.3d at 1275 (noting, in dicta,
habeas petitioner had failed to develop, in state court, evidence
supporting her claim that State did not disclose complete transcript
of its interview with key government witness, where petitioner
received state evidentiary hearing, but failed to present any evidence
there supporting her transcript claim); see also Smallwood v. Gibson,
191 F.3d 1257, 1266 (10th Cir. 1999) (holding petitioner failed
diligently to seek to develop factual basis of habeas claim where,
although Oklahoma appellate court invited petitioner to assert
ineffective assistance claim, petitioner failed to do so), cert.
denied, 121 S. Ct. 88 (2000). Nonetheless, since the district court
held an evidentiary hearing and we have benefitted from that court's
fact finding, there is no utility at this time in addressing whether
Romano was entitled to that hearing.
respondent, on appeal to this court, does not challenge the district
court's decision to hold an evidentiary hearing. See Weaver v.
Thompson, 197 F.3d 359, 362 n.3 (9th Cir. 1999).
court, alternatively, held that even if the State had violated Giglio
and Brady by failing to disclose a deal it had with Myers, there was
no reasonable probability that, had such a deal been brought to the
sentencing jury's attention, the jury would have returned a different
sentencing determination. See, e.g., Foster, 182 F.3d at 1183, 1192
(applying same standard in pre-AEDPA case). Myers' testimony strongly
supported the State's allegation that Romano presented a continuing
threat to society. Although the State did present other evidence that
Romano was involved in Thompson's murder, Myers' testimony that
Romano, from his prison cell, had sought to have witnesses in the
Thompson case murdered would have had to impact strongly the jury's
continuing threat determination. See, e.g., Smith, 50 F.3d at 830
(holding police report was material where its nondisclosure clearly
impacted defense preparation and presentation and could reasonably
have affected trial's outcome).
We reach the same
result under either § 2254(d)(1) or (2). See, e.g., Hale, 227 F.3d at
district court did not address whether counsel's performance was
deficient, this court is free to affirm on any basis supported by the
record. See United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir.
David Wayne Woddruff