1985
OK CR 48
699 P.2d 653
CORNEL COOKS, APPELLANT,
v.
STATE OF OKLAHOMA, APPELLEE.
Case No. F-83-198.
April 26, 1985
Rehearing Denied May 29, 1985.
An appeal from the District Court of Comanche County; William M. Roberts, District Judge.
Cornell Cooks, appellant, was convicted of Murder in the First Degree pursuant to 21 O.S.Supp. 1982 � 701.7 [21-701.7](B), in the District Court of Comanche, Oklahoma, Case No. CRF-82-812, sentenced to death, and appeals. AFFIRMED.
Stephen Louis Hilliary, Lawton, for appellant.
Michael C. Turpen, Atty. Gen., Thomas L. Spencer, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
PARKS, Presiding Judge.
�1 The appellant, CORNEL COOKS, was convicted of Murder in the First Degree pursuant to 21 O.S. 1981 � 701.7 [21-701.7](B) in the Comanche County District Court, Case No. CRF-82-812. Appellant was tried by a jury along with co-defendant Rodney Madson Masters, a/k/a William Wallace Troxell, before the Honorable William M. Roberts, District Judge. The jury found the appellant guilty of Murder in the First Degree and recommended a sentence of death. The trial court entered judgment and sentence in accord with the jury verdict. We affirm.
�2 Jennie Ridling, a disabled eighty-seven-year-old woman, lived in a mobile home next door to her daughter in Lawton, Oklahoma. Her lifeless body was discovered by a neighbor on October 28, 1982. It was determined by police that her mobile home had been ransacked. Evidence further revealed that she had been raped and beaten about the head. She suffocated to death due to a tightly wrapped piece of gauze-like cloth around her head. According to the medical examiner, Ms. Ridling suffered nearly two hours before she died.
�3 Beginning at approximately 8:30 p.m. on October 28, 1982, Lawton police investigated the crime scene and collected evidence. Evidence revealed one of the perpetrators apparently injured himself, as there was blood on and near the suspected point of entry. After gathering information and evidence at the crime scene, Lawton police detectives began questioning neighbors in the surrounding area. Following information received through their investigation, two detectives went to the appellant's residence, a few houses down the street. As they approached the house, one detective looked in a trash can in the appellant's front yard and found a bloody sock, which was confiscated for evidence. They then obtained a search waiver for the appellant's house from his common-law wife. At 5:15 a.m. on October 29th, the appellant arrived at the residence and was arrested, given his Miranda warnings, and taken to the police station for questioning. An officer returned to his residence and obtained, from appellant's common-law wife, permission to search her automobile, which appellant had driven just prior to his arrest. The officers recovered items later identified as the victim's. One item from the trunk was Jennie Ridling's checkbook.
�4 The appellant denied knowledge of the burglary and the homicide. He later requested an attorney, and was advised by Officer Belcher that the officer could not speak with him any further unless the appellant requested officers to do so. On October 30, 1982 at approximately 5:00 p.m., Belcher was summoned to the county jail by the appellant. The appellant was read his Miranda rights again, and signed a "rights waiver" form. The appellant gave statements which were later introduced at trial.
I.
�5 In appellant's first assignment of error, it is asserted the trial court erred in admitting evidence of the bloody sock. Appellant claims this evidence was improperly seized by police in violation of his rights under the U.S. Const. amend. IV, and the Okla. Const. art. 2, � 30 [2-30].
�6 The appellant asserts that this "trash can search" was conducted without probable cause, and was unlawful, citing People v. Edwards, 71 Cal.2d 1096, 80 Cal. Rptr. 633, 458 P.2d 713 (1969); and People v. Krivda, 5 Cal.3d 357, 96 Cal. Rptr. 62, 486 P.2d 1262 (1971), vacated 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972), reaffirmed on remand, 8 Cal.3d 623, 105 Cal. Rptr. 521, �7 We disagree with our California brethren. We have generally held that one who abandons property has no standing to object to a search. See Menefee v. State, 640 P.2d 1381 (Okl.Cr. 1983). See also United States v. Jackson, 544 F.2d 407 (9th Cir. 1976). We join those other jurisdictions holding curbside trash is abandoned property, over which appellant has no reasonable expectation of privacy. United States v. Reicherter, 647 F.2d 397 (3rd Cir. 1981); United States v. Dzialak, 441 F.2d 212 (2nd Cir. 1971); State v. Fassler, 108 Ariz. 586, 503 P.2d 807 (1972); Croker v. State,
II.
�8 It is necessary to combine appellant's second and third propositions of error to adequately address the issues raised therein. The appellant first asserts he was illegally arrested, and claims the officers were acting without probable cause in making the arrest. He next asserts the confessions should have been suppressed as fruits of the purportedly illegal arrest.
�9 A careful review of the record of this case leads this Court to the conclusion that the officers were following police procedures and investigatory patterns in an effort to obtain evidence in the hopes of locating the perpetrator of this crime. Their actions, although solid police work, did not, however, meet the burden of establishing probable cause. The arrest was, in fact, based on mere suspicion.
�10 The test for determining the lawfulness of an arrest has been stated several times by this Court. It is, whether at the moment the arrest was made, facts and circumstances within the arresting officer's knowledge, and of which he had reasonably trustworthy information, were sufficient to warrant a prudent man to believe the arrestee had committed, or was committing, a crime. Pitts v. State, 649 P.2d 788 (Okl.Cr. 1982); Lee v. State, 637 P.2d 879 (Okl.Cr. 1982); Backus v. State,
�11 This determination does not end our inquiry, however. We next must determine whether the confession was purged of the taint of the illegal arrest. The United States Supreme Court has indicated the proper procedure in determining this particular issue. In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the Court discussed the several factors considered to determine when a confession is "sufficiently an act of free will to purge the primary taint of an illegal arrest." See also Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). First, the Supreme Court stressed the threshold test of voluntariness. The Court then cited several factors to consider in determining whether the taint of the unlawful arrest has been dissipated:
1. The giving of Miranda warnings;
2. The "temporal proximity" of the arrest and confessions;
3. The presence of "intervening circumstances"; and
4. The "purpose and flagrancy of the official misconduct."
Applying these factors to the case at bar, it is clear the primary taint was, in fact, purged, and the confessions were properly admitted into evidence.
�12 The record reveals the appellant received adequate Miranda warnings on more than one occasion prior to giving his statements. The arrest took place at approximately 5:15 a.m. on the October 29, 1982, and the appellant made his first statement nearly two days later. The length of time from the arrest to the confessions is sufficient to dissipate the coercive nature of incarceration. In fact, after he evoked his Miranda warning, he asked to speak to a particular officer before ultimately giving his statements. See United States v. Manuel, 706 F.2d 908 (9th Cir. 1983).
�13 It is abundantly clear the appellant freely and voluntarily gave the confessions of which he now complains. It is also apparent he freely and voluntarily signed a rights waiver form, and that he understood his rights as communicated to him by the arresting officers. The officers were most solicitious of the appellant's request, and carefully followed the proper procedures in obtaining appellant's confessions. There is absolutely no competent evidence the appellant was coerced or forced to sign the confessions. The officers were not acting flagrantly with the design to arrest appellant without probable cause for the purpose of prying a confession from him. There is no indication they were acting in bad faith. It is apparent that the confessions are so attenuated from the illegal arrest as to dissipate the taint. We therefore find the confessions purged of the taint of illegality, and thus admissible. Babek v. State, 587 P.2d 1375 (Okl.Cr. 1978); J.D. v. State, 558 P.2d 402 (Okl.Cr. 1976).
III.
�14 Next, appellant alleges that evidence obtained from the search of the vehicle was the product of a purportedly illegal search and the fruit of an illegal arrest. The car was actually owned by appellant's common law wife. Officers obtained a "consent to search" from appellant's common law wife a short time after appellant had been taken to the police station. The consent given by appellant's common-law wife was voluntarily given, and there is no evidence of coercion or threats.
�15 Furthermore, appellant has no standing to object to this search. Appellant cannot assert an objection to the search of the auto when he has neither a possessory or property interest in the car, nor an interest in the property seized, nor, otherwise, has some legitimate expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). See also Boutwell v. State, 659 P.2d 322 (Okl.Cr. 1983). We therefore find appellant's fourth proposition of error is meritless.
IV.
�16 Appellant next alleges the trial court failed to grant his request for a separate trial from his co-defendant. Appellant argues that error was caused by the admission of his co-defendant's out-of-court statement, based on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
�17 This Court has held many times that the decision to grant or deny a severance is left to the sound discretion of the trial court. This Court has also recognized that it is in the interest of both justice and economy to jointly charge and try those who have allegedly participated in the same criminal act, and we have urged trial courts to do so whenever possible. Faubion v. State, 569 P.2d 1022 (Okl.Cr. 1979); Dodson v. State, 562 P.2d 916 (Okl.Cr. 1977) (Brett, J., specially concurring); See also Menefee v. State, supra, and 22 O.S. 1971 � 438 [22-438]. Absent an abuse of discretion resulting in prejudice to the appellant, the decision of the trial court will not be disturbed on appeal. Chance v. State,
�18 In this case, denial of severance was proper. The trial was conducted in such a manner as to withdraw it from the purview of the Bruton rule, which held that severance is necessary when the State seeks to introduce the confession of a co-defendant which directly inculpates a non-confessing co-defendant through the testimony of a third party. The Bruton rule "prevents introduction of directly incriminating evidence without confrontation of the adverse party, in violation of the non-confessing co-defendant's Sixth Amendment rights." Menefee v. State, supra, at 1383.
�19 The confessions in this case were edited to remove any reference of one co-defendant from the confession of the other co-defendant. All references to appellant Cooks were kept out of the testimony concerning Master's confessions. This method was used in Menefee, and we held this procedure was constitutionally sufficient. Therefore, there was no prejudice, and the trial court did not abuse its discretion by denying a severance.
�20 The statements and testimony of Masters, the co-defendant, did not pit defendant against defendant. The only inconsistency between the statements and the testimony was to Master's activity, not the appellant's. Further, co-defendant Masters took the stand during the trial and was available for cross-examination by appellant. In Taylor v. State, 659 P.2d 374 (Okl.Cr. 1983) we found when out-of-court statements of the defendant's co-defendant were introduced, the appellant's right to confrontation was protected when the co-defendant took the stand.
�21 We cannot say denial of the severance motion was improper. It appears that appellant's rights were protected by the careful action of the trial judge, and by the co-defendant taking the stand. We therefore find this proposition is without merit.
V.
�22 In his next assignment of error, the appellant asserts the trial court abused its discretion in not granting the same number of preemptory challenges appellant would have been allowed if the trials were separate.
�23 The law is clear on this point. Title 22 O.S. 1981 �� 622 [22-622], 655 provide that if two or more defendants are tried jointly, they shall join in their challenges. Driver v. State, 490 P.2d 1109 (Okl.Cr. 1971). Section 655 also provides "that when two or more defendants have inconsistent defenses, they shall be granted separate challenges . . ." The appellant asserts that since this was a capital case, he should have received nine preemptory challenges, but we do not agree. The appellant relies on Murray v. State, 528 P.2d 739 (Okl.Cr. 1974), which held that where the defenses of both defendants were mutually antagonistic pitting the defendants against one another, and where there was a limitation on preemptory challenges, denial of severance was an abuse of discretion. As discussed above, the defenses in this case were not antagonistic, and therefore were not within the Murray Rule. This assignment of error is without merit.
VI.
�24 In his seventh proposition of error, appellant alleges certain photographs were introduced that were gruesome, prejudicial, and thus caused fundamental error.
�25 The admissibility of photographic evidence is within the sound discretion of the trial judge. Reversal obtains only when there is a clear abuse of such discretion. See Glidewell v. State, 626 P.2d 1351 (Okl.Cr. 1981); Oxendine v. State, 335 P.2d 940 (Okl.Cr. 1958). See Also Chaney v. State,
�26 The photographs, State's Exhibits No.'s 2, 3, 5 and 6, were black and white, 8" x 10" photos of the victim and the crime scene as it was found. They clearly show the position and location of the body, and also the manner in which material was wrapped around the victim's head and mouth. The photographs corroborate the medical examiner's testimony and other relevant evidence at trial. We find the probative value outweighs the prejudicial effect, and therefore, they were properly admitted. This proposition is without merit.
VII.
�27 Appellant also argues the medical examiner's autopsy report was inadmissible, and the admission fundamentally prejudiced the appellant.
�28 Although the medical examiner's autopsy report is hearsay and not within the exceptions to the hearsay rule set out in Title 12 O.S. 1981 � 2803 [12-2803] (8)(a-e), the admission did not constitute reversible error. The report [two pages] is merely a summary of the more detailed testimony of the medical examiner. Although the report is cumulative, and should not have been allowed into evidence, this error does not require reversal. The report in no way contradicted the medical examiner's testimony. Further, there is no evidence of it having any prejudicial effect on the jury due to its admission.
�29 Our examination of the entire record reveals that the proof of appellant's guilt is overwhelming. Not only are the confessions valid, they are corroborated by police investigation and expert testimony. Therefore, no reasonable possibility exists that the admission of this report prejudiced the appellant.
VIII.
�30 Appellant raises as his tenth assignment of error that a jury instruction regarding evidence of mitigation introduced in the second stage was improper and caused fundamental error. We disagree.
�31 The instruction referred to "minimum mitigating circumstances" that were introduced in the second stage by the co-defendant Masters. The appellant fails to cite any cases supporting this allegation of error, and, normally, this Court does not search for applicable law with respect to such unsupported allegations. See Carroll v. State, 620 P.2d 416 (Okl.Cr. 1980). However, considering the importance of instructions in a capital case, we will address this particular allegation. It appears the trial court was attempting to circumvent error in the second stage. The instruction itself explains the jury's duty to examine any mitigating circumstances, of which the two were set out in the challenged instruction as the minimum. The State contends the trial court was explaining that the jury should, at the very least, consider those factors, as well as any other circumstances supported by the evidence. We agree with the State's analysis. The instruction was proper, although the trial court could have left out the word "minimum", and no error occurred in giving it to the jury. The instructions, as a whole, sufficiently state the law. See Nealy v. State, 636 P.2d 378 (Okl.Cr. 1981). See also Chaney v. State, supra at 279-280.
IX.
�32 The appellant next asserts the trial judge committed reversible error when he interrogated co-defendant's counsel in chambers, and admonished him that he was misstating the law during closing argument. This argument is meritless. A review of the record reveals the trial judge meticulously handled a difficult situation without any indication of prejudice or any attempt to relay to the jury that counsel was trying to mislead them.
�33 It is clear from the record that counsel for co-defendant Masters was misstating the law. The trial judge interrupted and withdrew to chambers. He then explained what he perceived as the problem. The trial judge then added two instructions to the first stage instructions which clarified for the record when malice aforethought or premeditation is necessary for murder in the first degree, and when malice aforethought is not necessary for first degree murder, that being felony-murder.
�34 The court acted properly and protected the integrity of the jury system by clarifying misleading instructions and argument. This action by the trial judge is commendable. We have held when the conduct of the trial judge does not show bias or prejudice, it is not reversible error. See Felts v. State, 588 P.2d 572, 577 (Okl.Cr. 1978). See also Shipman v. State, 639 P.2d 1248 (Okl.Cr. 1982); and Sowle v. State,
X.
�35 In his twelfth assignment of error, appellant alleges the district attorney inflamed the passions and prejudice of the jury by referring to the victim's thoughts and feelings at the time of the attack.
�36 Prosecuting attorneys should refrain from trying to appeal to passions and prejudice, thus invoking the sympathy of the jury. Williams v. State, 658 P.2d 499 (Okl.Cr. 1983); Scott v. State, 649 P.2d 560 (Okl.Cr. 1983). However, in this case, an objection was made and sustained as to the comment, and the jury was admonished. The comment standing alone would not have been prejudicial enough to reverse the conviction. Chaney v. State, supra. The overall effect of the comment is greatly outweighed by the overwhelming evidence of guilt.
XI.
�37 Pursuant to 21 O.S. 1981 � 701.13 [21-701.13], this Court must review the following factors when the death sentence is imposed:
1. Whether of passion, prejudice, or any other arbitrary the sentence of death was imposed under the influence factor;
2. Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in 21 O.S. 1981 � 701.12 [21-701.12](4); and
3. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
�38 We find that the sentence of death was not imposed under the influence of passion or prejudice or any other arbitrary factor. Appellant has alleged in this eighth assignment of error that the jury was racially biased. He claims the jury imposed the death penalty on him, a black man, while his co-defendant, who was white, received life imprisonment. We find no evidence of prejudice on the part of the jury. The evidence showed the defendant was far more culpable than the co-defendant. He beat the victim, bound her head, and then left her to suffocate. Clearly, the punishment reflects the greater culpability of the appellant. The record is devoid of any indication of bias or prejudice, or that race was an issue at the trial. We hold the sentence was not imposed under the influence of passion, prejudice or any other arbitrary factor.
�39 Secondly, it
is clear the
jury found all
three of the
aggravating
circumstances
alleged did
apply to
appellant, and
further, that
the jury's
finding was
based on ample
evidence.
�40 The jury found the defendant had been convicted of a crime involving the use, or threatened use, of violence. The defendant had previously been convicted of first degree burglary and robbery by force. Further, the jury also found a probability the defendant would be a continuing threat to society. There was evidence as to past criminal acts to support this aggravating circumstance. The jury found the murder especially heinous, atrocious or cruel. The evidence in this case reveals a brutal attack and a horribly cruel death. The material was wrapped so tightly around the victim's head that she slowly suffocated to death. The defendant also found it necessary to brutally rape, beat and rob this eighty-seven year old victim. There is no doubt this was a heinious, atrocious and cruel murder considering the appellant's vicious and pitiless attitude, and the brutal manner in which the victim was killed. See Nuckols v. State, 690 P.2d 463 (Okl.Cr. 1984).
�41 Since the appellant was convicted under 21 O.S. 1981 � 701.7 [21-701.7](B), in which intent to kill is not an element of the offense, it is important to examine the application of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), to this case. The United States Supreme Court, in that case, focused on the culpability of the defendant in a felony-murder case. The Supreme Court said:
The focus must be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on `individualized consideration as a constitutional requirement in imposing the death sentence,' Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (footnote omitted), which means that we must focus on `relevant facets of the character and record of the individual offender.' Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). 102 S.Ct. at 3377.
This Court, in Hatch v. State, 662 P.2d 1377 (Okl.Cr. 1983), said:
We do not read Enmund to be an absolute ban on imposition of the death penalty on one who is convicted of first degree murder through the vehicle of the felony murder doctrine. Indeed the Supreme Court further stated in Enmund, `It would be very different if the likelihood of a killing in the course of the robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony. 102 S.Ct. at 3378,' at 1383.
�42 Unlike the Hatch case, which was remanded for sentencing in light of Enmund, the case at bar clearly reflects the culpability of the appellant and also the "relevant facets of the character of the individual offender," and, thus, withstands the scrutiny required for the imposition of the death sentence for felony murder.
�43 Finally, in comparing this sentence to penalties imposed in similar cases, we find the penalty is not excessive or disproportionate considering the defendant and his crime. The mere fact appellant's co-defendant received life imprisonment does not mean the sentence imposed was disproportionate or excessive, considering the evidence of the appellant's greater culpability. Brogie v. State, 695 P.2d 538, 56 O.B.J. 56, (Okl.Cr. 1985).
�44 We have compared this case to those capital cases affirmed, 2 reversed
�45 Accordingly, for the foregoing reasons, we find the judgment and sentence should be, and hereby is, AFFIRMED.
BRETT, J., concurs.
BUSSEY, J., concurs in results.
Footnotes:
BILL OF PARTICULARS
Prior to trial, the State has filed a document entitled Bill of Particulars. In this Bill of Particulars, the State alleged the Defendants should be punished by death, because of the following aggravating circumstances:
With reference to Cornel Cooks:
1. The Defendant was previously convicted of a felony involving the use or threat of violence to a person;
2. The murder was especially heinous, atrocious or cruel;
3. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
v.
Ron WARD, Warden, Oklahoma State Penitentiary, McAlester,Oklahoma, Defendant-Appellee
United States Court of Appeals, Tenth Circuit.
165 F.3d 1283
Dec. 15, 1998
Before BRORBY, BRISCOE and MURPHY, Circuit Judges.ORDER ON REHEARING
BRORBY, Circuit Judge.
This matter is before the court on Appellant's petition for rehearing. The original panel has voted to deny rehearing. The petition therefore is denied. The original opinion has been amended, however, to clarify our holding that Mr. Cooks waived his right to counsel under both the Fifth and Sixth Amendments. The amended opinion is attached to this order; all revisions are found under the heading "I. Admissibility of Post-Arrest Statements." The attached opinion is substituted for the one previously filed on October 28, 1998. The amended opinion will reissue this date.
The suggestion for rehearing en banc was transmitted to all the judges of the court who are in regular active service as required by Fed. R.App. P. 35. As no member of the panel and no judge in regular active service on the court requested the court be polled, the suggestion is also denied.
Petitioner Cornel Cooks appeals the denial of his petition for a writ of habeas corpus seeking to overturn his capital murder conviction and death sentence. We affirm both the conviction and sentence.
BACKGROUND
In March 1983, Mr. Cooks and a co-defendant, Rodney Madson Masters, a/k/a William Wallace Troxell, were tried together in Oklahoma state court on an information alleging (1) murder with malice aforethought, (2) felony murder while in the commission of first degree rape, and (3) felony murder while in the commission of first degree burglary.
A jury convicted both men for the murder of Mr. Cooks' disabled, eighty-seven-year-old neighbor, Jennie Ridling. Mrs. Ridling suffocated to death after a piece of gauze-like material had been tightly wrapped around her head. The evidence indicated Mrs. Ridling was raped, and her home ransacked and burglarized.
After the sentencing stage of trial, the jury found three aggravating circumstances as to Mr. Cooks: (1) he previously was convicted of a felony involving the use or threat of violence; (2) Mrs. Ridling's murder was especially heinous, atrocious or cruel; and (3) he represented a continuing threat to society. Based on these aggravators, the jury sentenced Mr. Cooks to death. Mr. Masters was sentenced to life imprisonment.
Mr. Cooks took a direct
appeal to the Oklahoma Court of Criminal Appeals,
represented by the same attorney who represented
him at trial, Mr. Stephen Hilliary. That court
affirmed his conviction and sentence. Cooks v.
State, 699 P.2d 653 (Okla.Crim.App.), cert.
denied,
The district court denied
relief and was affirmed on appeal to the
Oklahoma Court of Criminal Appeals. Cooks v.
State, Case No. PC-86-613 (Okla.Crim.App. Jan.
13, 1987), cert. denied,
Mr. Cooks first filed a habeas petition in the United States District Court for the Western District of Oklahoma in July 1987, whereupon the district court held the petition in abeyance and ordered Mr. Cooks to exhaust his state remedies on the issue of whether his jury was instructed properly on the heinous, atrocious, or cruel aggravating circumstance in light of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).
The Oklahoma trial court
denied Mr. Cooks' second application for post-conviction
relief. That decision was affirmed in Cooks v.
State, Case No. PC-89-131 (Okla.Crim.App. Jan.
11, 1993), cert. denied,
The district court ordered the federal case reopened in February 1994. Mr. Cooks filed an amended habeas petition in May 1994. The court conducted an evidentiary hearing on the ineffective assistance of counsel issue in August 1995 and allowed the parties to brief the issues raised in the amended petition.
In February 1997, the district court denied Mr. Cooks' petition. Pursuant to the then recently enacted provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the district court granted Mr. Cooks a certificate of appealability on certain issues.
Subsequent to the district court's ruling, Lindh v. Murphy, 521 U.S. 320, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997), held that § 2253(c) of the AEDPA (pertaining to the certificate of appealability) applies only to cases filed after April 24, 1996. Because Mr. Cooks' amended petition was filed before that date, the certificate of appealability is not a jurisdictional requirement in this case; rather, the district court or this court must issue a certificate of probable cause.
Because we conclude Mr. Cooks has made a "substantial showing of the denial of [a] federal right," Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks and citation omitted), we grant a certificate of probable cause and proceed to consider all Mr. Cooks' issues, applying pre-AEDPA law.
DISCUSSION
Mr. Cooks raises four primary issues on appeal from the denial of his habeas petition: (1) his post-arrest statements were involuntary and therefore inadmissible; (2) the "continuing threat" and "heinous, atrocious, or cruel" aggravating circumstances are unconstitutional and unsupported by sufficient evidence; (3) certain jury instructions concerning mitigating circumstances confused the jury and thus rendered his death sentence unconstitutional; and (4) he received ineffective assistance of counsel during both the guilt and sentencing stages of trial, as well as on direct appeal.
We review the district court's legal conclusions concerning these issues de novo and its factual findings for clear error. Hill v. Reynolds, 942 F.2d 1494, 1495 (10th Cir.1991). Habeas relief must be granted only if the claimed constitutional error " 'had substantial and injurious effect or influence in determining the jury's verdict.' " Kyles v. Whitley, 514 U.S. 419, 435-36, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). If we are in "grave doubt" about whether an error satisfies that standard, then the error cannot be treated as harmless and the petitioner must prevail. O'Neal v. McAninch, 513 U.S. 432, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995).
I. Admissibility of Post-Arrest Statements
Mr. Cooks was arrested in the
early morning of October 29, 1982. Police
advised him of his Miranda1
The following evening, October 30, a jailer informed Detective Belcher that Mr. Cooks wanted to speak to him. Detective Belcher again advised Mr. Cooks of his Miranda rights. Mr. Cooks signed a form acknowledging those rights and stating he had voluntarily summoned the detective and wished to provide information concerning Ms. Ridling's murder. Mr. Cooks then proceeded to make self-incriminating statements.
Two days later, November 1,
Mr. Cooks made additional statements after
detectives questioned him regarding differences
between his and Mr. Masters' initial statements.
Again, Mr. Cooks affirmatively stated he
understood his rights prior to providing
additional information without legal
representation.2
In his habeas petition and brief on appeal to this court, Mr. Cooks claims his post-arrest statements were involuntary and acquired in violation of his constitutional right to counsel. He argues, without elaboration, his mental impairment and intellectual limits prevented him from comprehending the "abstract concepts thrown at him by the detectives." He further asserts "the detectives initiated an interrogation, promised him leniency, and threatened him with 'the needle' when he refused to talk."
The district court concluded Mr. Cooks' post-arrest statements were voluntary, and found, "[b]ased upon a review of the particular facts and circumstances of this case, including [Mr.] Cooks' background and experience," Mr. Cooks "knowingly waived his right to remain silent." We review the district court's findings of fact for clear error. See United States v. Bautista, 145 F.3d 1140, 1146 (10th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 255, 142 L.Ed.2d 210 (1998). However, the ultimate issue of voluntariness is subject to de novo review, considering the entire record and the totality of the circumstances. Id. at 1149.
Mr. Cooks' Fifth Amendment
right to counsel attached the moment he
requested an attorney. United States v. Johnson,
42 F.3d 1312, 1318 (10th Cir.1994) (citing
Miranda v. Arizona, 384 U.S. 436, 444-45, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966)), cert. denied,
However, if Mr. Cooks subsequently voluntarily initiated further communication with law enforcement officials, the law recognizes he effectively waived his previously invoked right to counsel. Edwards v. Arizona, 451 U.S. 477, 484-86, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). This same rule applies in the Sixth Amendment context to evaluate a waiver of right to counsel after arraignment. Michigan v. Jackson, 475 U.S. 625, 635-36, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).
A waiver is voluntary if the record demonstrates it "(1) ... was a product of a free and deliberate choice rather than intimidation, coercion, or deception, and (2) ... was made in full awareness of the nature of the right being waived and the consequences of waiving." Bautista, 145 F.3d at 1149.
By any account, the police Mirandized Mr. Cooks upon his arrest. Police officers testified they repeated Mr. Cooks' Miranda rights later that same day, prior to attempting to interrogate him at the police station.
The officers recalled that Mr. Cooks refused at that time to make a statement and requested a lawyer. Detective Belcher ceased the interrogation at that point. This exercise of rights indicates Mr. Cooks understood from the beginning both the nature and consequences of his right to remain silent and his right to counsel.
It is also undisputed that approximately twenty-four hours after police first attempted to question Mr. Cooks, after Detective Mahamed allegedly suggested Mr. Cooks would "get the needle" if he did not cooperate, and after he had been formally arraigned, Mr. Cooks told a jailor he wished to speak to Detective Belcher.
Nothing in the record suggests police further pressured Mr. Cooks into giving a statement without a lawyer present, or that Mr. Cooks was intimidated by Detective Mahamed's alleged statements. Indeed, a full day had passed with no further attempt to speak to Mr. Cooks.
When Detective Belcher came to the jail at Mr. Cooks' request, he carefully advised Mr. Cooks of his rights prior to any conversation. Mr. Cooks signed an Advice of Rights form indicating he had an eleventh grade education and affirming (1) he understood each component of his Miranda rights, (2) no pressure or coercion had been used against him, and (3) he nevertheless desired to make a statement and answer questions without an attorney present.
Mr. Cooks does not claim Detective Belcher or anyone else made any promises, threats, or any further comments regarding "the needle" at this time. After Detective Belcher typed Mr. Cooks' responses to his questions, Mr. Cooks signed the two-page statement, attesting it was a "true and accurate account" of events and was given to the police "freely and voluntarily, without fear of threat or promise of reward."
Mr. Cooks signed another Advice of Rights form and typed statement after he spoke to Detectives Belcher and Mahamed on November 1. Detective Belcher testified that on both occasions Mr. Cooks appeared to understand his rights and did not appear to be under the influence of intoxicants.
Having independently reviewed the entire record and totality of the circumstances, we find no clear error in the district court's finding Mr. Cooks initiated his post-arrest, post-arraignment conversation with Detective Belcher, and there was no deception, intimidation or coercion sufficient to taint Mr. Cooks' waiver of rights under the Fifth, Sixth, and Fourteenth Amendments. Accordingly, we hold Mr. Cooks' waiver of counsel and post-arrest statements were voluntary, knowing and intelligent, and therefore deny habeas relief on this ground.
"The constitutional validity of aggravating [circumstances]
is a question of law subject to de novo review."
United States v. McCullah, 76 F.3d 1087, 1107
(10th Cir.1996), cert. denied,
A. Continuing Threat to Society
Mr. Cooks claims the "continuing threat to society" aggravator is unconstitutionally applied in Oklahoma because it "functions as a catch-all circumstance that fails completely to narrow the class of individuals eligible for death." He further claims the "continuing threat" aggravator unconstitutionally overlaps the "prior conviction" aggravator in this case.
This court already has upheld the constitutionality of Oklahoma's "continuing threat to society" aggravator inasmuch as Mr. Cooks claims it is vague and fails to narrow the class of individuals eligible for death. Nguyen v. Reynolds, 131 F.3d 1340, 1352-54 (10th Cir.1997), cert. denied, --- U.S. ----, 119 S.Ct. 128, 142 L.Ed.2d 103 (1998). That resolution binds this panel. United States v. Foster, 104 F.3d 1228, 1229 (10th Cir.1997).
Mr. Cooks' argument the "continuing threat" aggravator impermissibly overlaps the "prior conviction" aggravator is likewise unavailing. It is true we have held certain aggravating circumstances may impermissibly overlap and therefore unconstitutionally skew the process of weighing aggravating and mitigating circumstances. See McCullah, 76 F.3d at 1111-12.
Such precedent does not, however, stand for the proposition that any time evidence supports more than one aggravating circumstance, those circumstances impermissibly overlap, per se.
The test we apply is not whether certain evidence is relevant to both aggravators, but rather, whether one aggravating circumstance "necessarily subsumes" the other. Id. at 1111. Under the facts and circumstances of this case, there are two reasons the "continuing threat" aggravator did not subsume the "prior conviction" aggravator.
First, although Mr. Cooks' jury may have considered evidence of his prior conviction of a violent crime in the context of determining the presence of both the "prior conviction" and "continuing threat" aggravators, the "prior conviction" circumstance focused the jury's attention on the particular nature and consequences of his past conduct, while the "continuing threat" aggravator focused attention on the likelihood of future violent conduct.
Second, under Oklahoma law,
evidence regarding the callous nature of a crime,
alone, is sufficient to support a jury's finding
a defendant poses a continuing threat to society.
See Coleman v. Saffle, 869 F.2d 1377, 1390 (10th
Cir.1989), cert. denied,
The record here is replete with evidence that supports a finding Ms. Ridling's murder was, indeed, callous. Ms. Ridling was both elderly and disabled. Nevertheless, Mr. Cooks and Mr. Masters broke into her home, held her down, and then gagged her with sufficient force to lay her nose over to one side.
The record further indicates that after binding and gagging Ms. Ridling, Mr. Cooks raped her and then proceeded to ransack her home and steal her possessions. Mr. Cooks and Mr. Masters then left Ms. Ridling, immobilized on her bed, to die from asphyxiation.
This evidence invalidates any argument the jury's finding that Mr. Cooks posed a continuing threat to society was dependent on evidence he had committed a prior violent crime. Because the "continuing threat" aggravator did not subsume the "prior conviction" aggravator in this case, we find no constitutional error that warrants habeas relief.
B. Heinous, Atrocious or Cruel
Mr. Cooks argues "Oklahoma
has no genuinely meaningful or principled
narrowing construction for its 'especially
heinous, atrocious or cruel' aggravating
circumstance," as required by the Eighth and
Fourteenth Amendments and recognized by this
court in Cartwright v. Maynard, 822 F.2d 1477
(10th Cir.1987), aff'd 486 U.S. 356, 108 S.Ct.
1853, 100 L.Ed.2d 372 (1988). More specifically,
he claims the second paragraph of Jury
Instruction No. 51 failed to sufficiently narrow
the circumstances within which this aggravator
could be applied.3
We considered and rejected
this same constitutional argument concerning the
same jury instruction in Duvall v. Reynolds, 139
F.3d 768, 792-93 (10th Cir.1998), cert. denied,
--- U.S. ----, 119 S.Ct. 345, 142 L.Ed.2d 284
(1998). Oklahoma's narrowed interpretation of
the "especially heinous, atrocious, or cruel"
aggravator as articulated in the second
paragraph of the standard jury instruction was
held to satisfy the Cartwright standard in Hatch
v. Oklahoma, 58 F.3d 1447, 1468-69 (10th
Cir.1995), cert. denied,
The Duvall decision extended Hatch by opining that the Oklahoma courts consistently have "interpreted the 'especially heinous, atrocious, or cruel' aggravator to require 'torture' and 'serious physical abuse' as evidenced by proof of conscious physical suffering." Duvall, 139 F.3d at 793. Equally important, Duvall held Oklahoma courts consistently have applied that standard when evaluating whether the evidence justifies a finding of the "heinous, atrocious or cruel" aggravator. Id. Duvall therefore is dispositive on this issue. Foster, 104 F.3d at 1229.
Furthermore, we conclude the record supports the jury's finding that Ms. Ridling experienced conscious physical suffering sufficient to establish torture or serious physical abuse as interpreted by the Oklahoma courts. The record reveals Ms. Ridling suffered injury to the urethral opening, as well as a "significant blow to the head," bruises on both sides of her face, over the knuckles, and on the top of her left foot. Dr. Robert Dix, the state's medical examiner, testified the bruised knuckles and foot indicated she had hit and kicked her attacker.
The autopsy report likewise cited the fresh bruises as "evidence of a struggle." With regard to his findings concerning "asphyxiation due to gag" as the specific cause of death, Dr. Dix testified there was evidence of a gag that left Ms. Ridling's face "quite distorted."
The upper part of her face was "very swollen" and, while the indentations in the swollen tissue were not necessarily caused by force, the gag was tied with sufficient pressure to lay Ms. Ridling's nose "over to one side." It was Dr. Dix's opinion Ms. Ridling "was alive for some time in order for that swelling to take place in the face."
On cross-examination, Dr. Dix estimated it took "more than an hour or two" for her death to occur. This evidence amply supports application of the "heinous, atrocious or cruel" aggravator. Because we hold that aggravator is not unconstitutional on its face or as applied in this case, we deny Mr. Cooks' request for habeas relief on this ground.
III. Jury Instructions Concerning Mitigating Circumstances
A. Jury Instruction No. 55--Jury Discretion to Impose a Life Sentence
Mr. Cooks asserts the trial court erroneously failed to inform the jury it had the option to return a life sentence even if it found the aggravating circumstances to outweigh the mitigating circumstances. He claims Jury Instruction No. 55 "misled the jury by implying it was required to find the existence of specific mitigating circumstances before it could sentence [him] to life imprisonment." Jury Instruction No. 55 advised the jury:
If you unanimously find that one or more of the aggravating circumstances existed beyond a reasonable doubt, unless you also unanimously find that any such aggravating circumstance or circumstances out weigh [sic] the finding of one or more mitigating circumstances, the death penalty shall not be imposed.
It is important to note Jury Instruction No. 55 was not the only instruction concerning aggravating and mitigating circumstances. The court also instructed the jury, in pertinent part:
Instruction No. 52
. . . . .
Should you unanimously find that one or more aggravating circumstances existed beyond a reasonable doubt, you would be authorized to consider imposing a sentence of death.
If you do not unanimously find beyond a reasonable doubt that one or more of the aggravating circumstances existed, you are prohibited from considering the penalty of death. In that event, the sentence must be imprisonment for life.
Instruction No. 53
Mitigating circumstances are those which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case.
We considered, but rejected, the same argument Mr. Cooks makes here, concerning a substantially similar set of jury instructions, in Duvall, 139 F.3d at 789-92. We reach the same result here. Mr. Cooks is correct that under Oklahoma law a jury may avoid the death penalty even if it finds aggravating circumstances to outweigh mitigating circumstances. Duvall, 139 F.3d at 789-90.
However, state courts are not constitutionally bound to " 'affirmatively structure in a particular way the manner in which juries consider mitigating evidence.' " Id. at 790 (quoting Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998)).
Thus, so long as the court does not preclude the jury from giving effect to any relevant mitigating evidence, it need not separately instruct the jury of its option to return a life sentence regardless of its finding the aggravating circumstances outweigh the mitigating circumstances. Id. at 790-91. On review, we need only ensure there is no reasonable likelihood the jury applied the challenged instruction in a way that prevented the consideration of relevant evidence. Id. at 790; see also Castro v. Ward, 138 F.3d 810, 824 (10th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 422, 142 L.Ed.2d 343 (1998).
In this case, the instructions, read as a whole, did not preclude the jurors from considering and giving effect to any mitigating circumstances in Mr. Cooks' favor. Nor did they suggest the jury's discretion to avoid the death penalty was limited in any way. Instruction No. 53 expressly permitted the jury to consider any evidence as mitigating evidence. We see no likelihood the jury would have understood they were required to find a particular mitigating circumstance.
Instructions Nos. 54 and 55 merely authorized the jury to consider the death penalty if, and only if, it unanimously found one or more aggravating circumstances to outweigh any mitigating circumstances. These instructions cannot fairly be read to have mandated imposition of the death penalty. Accordingly, Mr. Cooks is not entitled to habeas relief on this ground.
B. Jury Instruction No. 54--Minimum Mitigating Circumstances
Jury Instruction No. 54 advised the jury:
Evidence has been offered as to the following minimum mitigating circumstances:
1. The defendant has no significant history of prior criminal activity;
2. The age of the defendant at the time of the crime.
Whether these circumstances existed, and whether these circumstances are mitigating, must be decided by you.
Mr. Cooks argues this jury instruction misled the jury into believing these were the only mitigating circumstances that could support a life sentence. Further, because Mr. Cooks claims these circumstances applied only to his co-defendant, he argues the jury effectively was instructed there was no mitigating evidence to support him.
According to Mr. Cooks, the prejudice he suffered as a result of Jury Instruction No. 54 was exacerbated by his co-defendant's counsel's closing statements that Jury Instruction No. 54 "stated the law" and that his client was "a young, inexperienced gentleman, led into crime by an older, convicted criminal."
As stated above, we review jury instructions pertaining to mitigating evidence only to ensure there is no reasonable likelihood the jury applied the challenged instruction in a way that prevented the consideration of relevant evidence. Duvall, 139 F.3d at 790.
While we appreciate Mr. Cooks'
concern Jury Instruction No. 54 specified
mitigating evidence that arguably did not apply
to him,4
Despite Jury Instruction No. 54's infirmities, the fact remains Instruction No. 53 broadly defined mitigating circumstances as any circumstances that, "in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame," and then left the determination of what constituted mitigating circumstances in this case to the jury's sound discretion.
We fail to see how the specificity of Jury Instruction No. 54 in any way undermined the general directives of Instruction No. 53. Moreover, we see nothing patently erroneous or inappropriate in the closing comments of Mr. Masters' counsel--certainly nothing that rises to the constitutional level necessary to support Mr. Cooks' habeas petition. Consequently, relief is denied on this ground.
Mr. Cooks' concerns with Jury Instruction No. 54 appear to stem not so much from the instructions themselves or the remarks of his co-defendant's counsel, but from his own attorney's failure to present mitigating evidence on his behalf, or to offer any alternative or supplemental instructions. We thus proceed to consider Mr. Cooks' ineffective assistance of counsel claims.
IV. Ineffective Assistance of Counsel
Mr. Cooks claims he received ineffective assistance of counsel at both the guilt and sentencing stages of trial, as well as on direct appeal. An ineffective counsel claim presents a mixed question of fact and law we review de novo. Williamson v. Ward, 110 F.3d 1508, 1513 (10th Cir.1997).
To prevail on this claim, Mr.
Cooks must first demonstrate his counsel "committed
serious errors in light of 'prevailing
professional norms' " such that his legal
representation fell below an objective standard
of reasonableness.5
If Mr. Cooks demonstrates constitutionally deficient performance, he must then show prejudice--"a 'reasonable probability' that the outcome would have been different had those errors not occurred." Id. at 955 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). This court may address the performance and prejudice components in any order, but need not address both if Mr. Cooks fails to make a sufficient showing of one. Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
A. Trial Stage
According to Mr. Cooks, Mr. Hilliary failed to adequately investigate and prepare for the guilt/innocence stage of trial, particularly with regard to presentation of an intoxication defense. He asserts Mr. Hilliary's defense strategy "to hold the State to their burden of proof on each and every element of the crime beyond a reasonable doubt, hoping ... that during the course of the trial there would be some substantial errors ... and that the State would just not be able to meet their burden of proof in the case," amounted to no coherent defense strategy at all.
In support of this claim, Mr. Cooks relies in part on the testimony of Mr. David Autry, an attorney with experience litigating capital offenses, who testified as an "expert" during the 1995 evidentiary hearing in federal district court concerning Mr. Cooks' ineffective assistance of counsel claims. Mr. Autry opined that Mr. Hilliary was ineffective during the guilt stage of trial, and that Mr. Cooks was substantially prejudiced by his counsel's errors and omissions.
Under the circumstances, we need express no opinion whether Mr. Hilliary's performance fell below the prevailing professional standard. Since Mr. Cooks fails to prove he was in any way prejudiced by Mr. Hilliary's performance, we proceed directly to our analysis of that issue. See Castro, 138 F.3d at 832.
In evaluating prejudice
during the guilt/innocence stage of trial, "the
question is whether there is a reasonable
probability that, absent the errors, the
factfinder would have had a reasonable doubt
respecting guilt." Strickland, 466 U.S. at 695,
104 S.Ct. 2052. To answer this question we must
look at the totality of the evidence, not just
evidence that would have been helpful to Mr.
Cooks' case. See Brewer v. Reynolds, 51 F.3d
1519, 1527 (10th Cir.1995), cert. denied,
Perhaps as Mr. Cooks suggests, Mr. Hilliary could have gathered and presented further evidence of Mr. Cooks' state of intoxication immediately prior to the crime. The record demonstrates, however, the jury was generally aware Mr. Cooks had been drinking for some time prior to entering Mrs. Ridling's home. In addition, during closing arguments, Mr. Hilliary told the jury Mr. Cooks' judgment had been impaired by his drinking.
Mr. Cooks offers no cogent argument the law provided an intoxication defense to the felony murder charges, or that if an intoxication defense was available, he was intoxicated to the extent he was incapable of forming the necessary criminal intent. Under these circumstances, we fail to see how additional, more specific evidence of intoxication would have had any bearing on the jury's determination of Mr. Cooks' guilt.
Even more important to our analysis here is the fact the record is replete with evidence of Mr. Cooks' guilt, not the least of which is Mr. Cooks' own statements admitting he bound, gagged, raped, and robbed Mrs. Ridling. Mr. Cooks' admissions were corroborated by the post-arrest statements and trial testimony of his co-defendant, Mr. Masters.
For these reasons, we conclude there is no reasonable probability Mr. Cooks would have avoided the murder conviction had his counsel performed differently. Accordingly, Mr. Cooks was not prejudiced by Mr. Hilliary's performance during the guilt stage of trial, and he is not entitled to habeas relief on this ground.
B. Sentencing Stage
Here again, the essence of Mr. Cooks' claim is Mr. Hilliary's alleged failure to adequately investigate and prepare. With regard to the sentencing stage, Mr. Cooks focuses primarily on mitigating evidence he claims was available at trial, but which Mr. Hilliary, for no apparent strategical reason, failed to develop and present to the jury as a reasonable explanation for Mr. Cooks' criminal conduct. Mr. Cooks identifies the following mitigating evidence in support of his claim:
1. Mr. Cooks was a person of limited intellectual capacity;2. he had endured an unhappy and deprived childhood;
3. he had a severe drinking problem, which began at an early age;
4. he had severe psychological and mental problems at the time of the offense;
5. his mental problems were compounded at the time of the offense by excessive drinking and use of the drug commonly called PCP, which altered his ordinarily peaceful, nonviolent disposition;
6. he was a good worker during intermittent periods of sobriety;
7. during periods when he was drug free and sober, he was a responsible, caring and nonviolent person;
8. he repeatedly expressed remorse and shame in connection with the incident that resulted in the death of Ms. Ridling;
9. he had enlisted in the Navy at the age of eighteen, but was honorably discharged after four months and twenty days because of ineptitude.
Mr. Cooks argues such evidence would have presented "[a] powerful case in mitigation ... that ... could have resulted in a life sentence, just as Mr. Masters, the codefendant, received."
The obligation to provide
effective assistance of counsel unquestionably
extends to a capital sentencing hearing. Davis
v. Executive Director of Dep't of Corrections,
100 F.3d 750, 756 (10th Cir.1996), cert. denied,
Indeed, we have recognized a need to apply even closer scrutiny when reviewing attorney performance during the sentencing phase of a capital case. " '[T]he minimized state interest in finality when resentencing alone is the remedy, combined with the acute interest of a defendant facing death, justify a court's closer scrutiny of attorney performance at the sentencing phase.' " Moore v. Reynolds, 153 F.3d 1086, 1116 n. 1 (10th Cir.1998) (Brorby, J dissenting) (quoting Osborn v. Shillinger, 861 F.2d 612, 626 n. 12 (10th Cir.1988)). Having carefully reviewed the trial and 1995 evidentiary hearing transcripts with these principles in mind, we agree with Mr. Cooks his attorney was ineffective at the sentencing stage.
Mr. Hilliary waived his opportunity to make an opening statement at the outset of the sentencing hearing, called no witnesses, and presented no evidence on Mr. Cooks' behalf. Although he briefly cross-examined the prosecution's two witnesses, Mr. Hilliary did not cross-examine Mr. Cooks' co-defendant, Mr. Masters, who told the jury he did not strike Mrs. Ridling, tie her up or participate in raping her.
Mr. Masters nevertheless expressed remorse over Mrs. Ridling's death and testified he had no prior felony convictions, had trouble in school and an unstable home life, and had consumed a case of beer and about four pints of rum prior to breaking into Mrs. Ridling's home. Mr. Masters characterized himself as a follower rather than a leader. At the end of his testimony, Mr. Masters told the jury he thought some useful purpose could be served if he was given life imprisonment and asked the jury to spare him from the death penalty.
Aside from the limited cross-examination
of the State's witnesses, Mr. Cooks' sentencing
stage defense consisted solely of Mr. Long's6
When invited to explain his sentencing stage strategy during the 1995 evidentiary hearing, Mr. Hilliary stated he understood the importance of the sentencing stage and "attempted to develop a second stage strategy." Mr. Hilliary further testified he and Mr. Long attempted to "gather and glean evidence that would have been helpful to Mr. Cooks in the second stage of the trial."
Notably, however, Mr. Hilliary never articulated a strategy and later admitted "there was not much second[ ] stage defense put on."Indeed, we are unable to glean from the record any second stage strategy developed to defend Mr. Cooks against the death penalty. What is more, by all accounts, Mr. Hilliary's investigative efforts were minimal. Mr. Hilliary spoke to Mr. Cooks' wife on several occasions before and during trial, and to Mr. Cooks' mother and two of his brothers during trial recesses.
However, by Mr. Hilliary's own admission, he did not speak to Mr. Cooks' stepfather; did not investigate Mr. Cooks' school records or speak to Mr. Cooks' teachers; did not investigate Mr. Cooks' military records; and, because he was aware the Department of Corrections questioned the credibility of the state hospital's mental evaluations, did not review any records concerning Mr. Cooks' mental evaluation or introduce as evidence a letter from the state hospital stating Mr. Cooks was not considered dangerous to himself or society.
Mr. Hilliary further admitted he was not aware of Mr. Cooks' abusive childhood environment prior to trial. Mr. Hilliary testified he and Mr. Long discussed the possibility Mr. Cooks' documented good behavior during a prior incarceration could be used as mitigating evidence, but he left the decision whether to present such evidence to Mr. Long.
On cross-examination, Mr. Hilliary admitted he should have used that evidence during the sentencing stage. Perhaps most troubling is the fact Mr. Hilliary stated he knew Mr. Cooks was remorseful, but offered no reason, strategic or otherwise, to explain why he did not consider putting Mr. Cooks on the witness stand during the sentencing stage.
This is not a case in which
the defendant refused to testify or otherwise
influenced the reasonableness of counsel's
actions. See Brecheen, 41 F.3d at 1369-70. Nor
could counsel argue the available mitigating
evidence conflicted with the trial defense. See
Stafford v. Saffle, 34 F.3d 1557, 1563 (10th
Cir.1994), cert. denied,
This also is not a case in
which counsel reasonably investigated the
defendant's background, but found no one willing
to testify, see, e.g., Nguyen, 131 F.3d at
1348-49, or determined the mitigating evidence
Mr. Cooks now relies on could do more harm than
good.7
Rather, this is a case in which counsel admitted his investigation was limited, admitted he should have presented certain mitigating evidence and, most important, offered no strategy, reasonable or otherwise, to explain his performance during the sentencing stage.
Even applying the presumption of adequate performance, we cannot help but conclude counsel failed under these circumstances to satisfy his "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Accordingly, we hold Mr. Cooks was denied effective assistance of counsel during the sentencing stage of his trial.
We must now determine whether Mr. Hilliary's substandard performance prejudiced Mr. Cooks at the sentencing stage. Mr. Cooks seems to argue the circumstances of his case warrant application of the presumption of prejudice acknowledged in United States v. Cronic, 466 U.S. 648, 658-60, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
According to Mr. Cooks, his counsel's inaction during the sentencing stage transformed that phase of trial "into a proceeding dominated exclusively by the State," and thus failed "to subject the prosecution's case to meaningful adversarial testing." If the adversary process during the penalty phase failed, Mr. Cooks argues his death sentence was rendered presumptively unreliable.
The Supreme Court in Cronic recognized that in rare instances it may be appropriate to presume prejudice "without inquiry into counsel's actual performance at trial," because the circumstances "are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658, 662, 104 S.Ct. 2039.
Circumstances that justify a presumption of prejudice include the absence of counsel at a critical stage of trial, the denial of the right to effective cross-examination, and the complete failure to subject the prosecution's case to adversarial testing; but, as the Supreme Court points out, a presumption of prejudice is the exception, not the rule. Id. at 659, 104 S.Ct. 2039.
Although we agree Mr. Hilliary was ineffective during the sentencing stage, his failures do not amount to the kind of actual or constructive denial of counsel necessary to trigger a presumption of prejudice. Mr. Hilliary was present in the courtroom. He conducted limited cross-examination, made evidentiary objections, and gave a closing argument. Hence, this case falls outside the narrow Cronic exception.
Since Cronic does not apply, Mr. Cooks must affirmatively prove actual prejudice by demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052.
As applied to the sentencing stage of his trial, Mr. Cooks must demonstrate "a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695, 104 S.Ct. 2052. Mr. Cooks has not met this standard.
"In evaluating prejudice, we must keep in mind the strength of the government's case and the aggravating [circumstances] the jury found as well as the mitigating factors that might have been presented." Castro, 138 F.3d at 832 (internal quotations omitted). Here the jury found three aggravating circumstances to support Mr. Cooks' death sentence: (1) his previous conviction of a felony involving the use or threat of violence; (2) the heinous, atrocious or cruel nature of Mrs. Ridling's murder; and (3) the continuing threat Mr. Cooks presented to society.
As discussed above, the government presented abundant evidence to support each of these circumstances. The mitigating evidence Mr. Hilliary could have presented to counterbalance these aggravating circumstances centered on Mr. Cooks' troubled childhood, borderline I.Q., and history of alcohol and drug abuse.
The jury also would have learned Mr. Cooks was nonviolent when sober, but was intoxicated on the night of the crime, and he was remorseful over Mrs. Ridling's death.
While we are troubled by Mr. Hilliary's failure to discover and/or present available mitigating evidence without good reason, the benchmark for evaluating Mr. Cooks' ineffectiveness claim during the sentencing stage remains "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. 2052.
Applying this standard, we conclude there is no reasonable probability the available mitigating evidence would have led the jury to a different result. Mr. Cooks' background, together with the nature and circumstances of Mrs. Ridling's death, presented a strong case in support of the three determinative aggravating circumstances. Mr. Cooks was a convicted felon who, by his own admission, broke into the home of a handicapped, elderly woman, bound and gagged her, raped her, robbed her, and left her lying on her bed, partially clothed, to slowly suffocate.
The available mitigating evidence simply did not outweigh these aggravating circumstances. Consequently, counsel's substandard performance did not so undermine the proper functioning of the adversarial process that the sentencing proceeding cannot be relied on as having produced a just result. Mr. Cooks' request for habeas relief on this ground fails.
C. Direct Appeal
Mr. Cooks asserts his counsel failed on direct appeal to raise "several critical issues" that would have required reversal of his conviction, or, at a minimum, vacation of the death sentence. Notably, however, Mr. Cooks identifies only two issues he suggests are "dead-bang winners"--issues which, if not raised on direct appeal, demonstrate ineffective representation, see Banks v. Reynolds, 54 F.3d 1508, 1515 n. 13 (10th Cir.1995):(1) the unconstitutionality of aggravating circumstances, and (2) the inadmissibility of his post-arrest statements. Because we have denied habeas relief on the merits of both these issues, Mr. Cooks' counsel cannot be said to have been ineffective for failing to raise them on direct appeal, and Mr. Cooks' conviction cannot be reversed on this ground.
CONCLUSION
We are forever mindful that " '[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.' " Brecheen, 41 F.3d at 1370 (quoting Burger, 483 U.S. at 785, 107 S.Ct. 3114). We thus have given careful consideration to each of Mr. Cooks' claims. Finding no constitutional error for the reasons stated, we AFFIRM Mr. Cooks' conviction and sentence.
As used in these instructions, the term "heninous" [sic] means extremely wicked or shockingly evil; "atrocious" means outrageously wicked and vile; "cruel" means pitiless, or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others.
The phrase "especially heinous, atrocious, or cruel" is directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse.