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Malcolm Rent
JOHNSON
Classification: Murderer
Characteristics: Serial
rapist
Number of victims: 1
Date of murder: October 27,
1981
Date of arrest:
Same day
Date of birth: January 25,
1958
Victim profile: Ura
Alma Thompson (female, 76)
Method of murder:
Asphyxiation
Location: Oklahoma City, Oklahoma, USA
Status: Executed
by lethal injection in Oklahoma on January 6,
2000
Summary:
On October 27, 1981, Frank Thompson found his aunt, 76 year old Ura
Alma Thompson, deceased on the floor of her Oklahoma City apartment.
Following an autopsy, the medical examiner found evidence of
forcible sexual intercourse before death. He concluded that although
Thompson was not strangled, she died of asphyxiation either because
of pressure on her chest during the intercourse or because her
assailant covered her mouth and nose.
On October 27, 1981, police arrested Johnson on an unrelated weapons
charge at his apartment, where they seized several items later
identified as belonging to Thompson, including furs, a typewriter,
watch, key rings, cigarette case, hand mirror, rings, a purse and
other valuables.
Johnson denied knowledge of the homicide, but when told that semen
found in Thompson's body matched his own, he reportedly responded, "you
couldn't have found my semen in her, I didn't come."
State Police chemist Joyce Gilchrist testified that semen found on
the bed coverings in Thompson's apartment matched Johnson's blood
type. She also testified that several strands of hair found at the
scene of the crime were "consistent microscopically" with
petitioner's hair. A neighbor testified that Johnson was near the
scene at the time of the murders.
The defense did not present any witnesses. Johnson had prior
convictions for two rapes, two armed robberies, and a burglary. He
was on parole from Illinois at the time of the murder.
Following the execution, Gilcrist was fired from
the State Lab and retests on the evidence in Johnson's case showed
discrepancies.
ProDeathPenalty.com
The Oklahoma Court of Criminal Appeals set a Jan.
6 execution date for a man convicted of killing a 76-year-old
Oklahoma City woman in 1981.
In November, the U.S. Supreme Court rejected
Malcolm Rent Johnson's latest appeal of his death sentence. After
his appeal was rejected, Oklahoma Attorney General Drew Edmondson
asked the Court of Criminal Appeals to set an execution date.
Johnson, then 23, was convicted of the October
1981 death of Ura Alma Thompson. She was beaten, raped, then
suffocated in her home.
Edmondson said police found Mrs. Thompson's furs,
a typewriter, watch, key rings, cigarette case, hand mirror, rings,
a purse and other valuables at Johnson's apartment. Hair and semen
from the crime scene matched samples taken from Johnson.
Johnson had criminal history that included four
separate rape convictions and three separate burglary convictions, a
robbery conviction and a weapons violation. He was on parole from
Illinois at the time of Ura's murder. "I appreciate the court's
speedy response to our application," Edmondson said. "I see no
obstacle to the carrying out of Johnson's execution on Jan. 6." In
December, Johnson opted not to go before the state clemency board to
try to have his sentence commuted.
Death Penalty Institute of
Oklahoma
Malcolm Johnson - Executed January 6, 2000
Malcolm Rent Johnson, 41, was executed shortly
after midnight on Thursday, January 6, 2000. He was pronounced dead
at 12:13am.
Johnson, an Oklahoma County death row inmate, was
sentenced to death for the 1981 murder of Ura Alma Thompson, 76.
Thompson was found dead in her home in Oklahoma
City on October 27, 1981. She had been raped and suffocated. Johnson,
who had been on parole from Illinois for two 1977 rape convictions,
had moved to Oklahoma City earlier in 1981.
Johnson was the 20th man executed by Oklahoma
since it reinstated the death penalty in 1977. He was the third
African-American to be executed by Oklahoma in a five-week period.
He was also the 599th person to be executed in the US since its
return to capital punishment in 1976. Prayer vigils and protests
were held across the state on the evening of January 5.
Oklahoma Carries Out First U.S. Execution of
Year
APBNews Online
January 6, 2000
McALESTER, Okla. (AP) -- A man who raped and
suffocated a 76-year-old woman in her Oklahoma City apartment in
1981 was executed by injection early today, becoming the first
person put to death in the United States this year. Malcolm Rent
Johnson, 41, was pronounced dead at 12:13 a.m.
Johnson had been on death row for almost 18 years
after being convicted of killing Ura Alma Thompson. Oklahoma County
District Attorney Bob Macy, who prosecuted Johnson, said Johnson was
identified in several rapes or attempted rapes involving elderly
women.
He said Johnson would follow elderly women to their homes and
brutalize them. Last month, Johnson opted not to go before the state
clemency board to try to have his sentence commuted.
Dead Man Talking; Trial Questions Nag
Shawnee Online
(Part 1
of 2 part series)
OKLAHOMA CITY (AP) -- At his trial for rape and
murder, during 18 years on death row, on the night they strapped him
to a gurney and executed him, Malcolm Rent Johnson told anyone who'd
listen that he was innocent. Even the prison chaplain, who'd heard
the last confessions of several condemned men, hadn't heard that
statement.
State Attorney General Drew Edmondson says
Johnson deserved to die. Even if police chemist Joyce Gilchrist did
give false testimony against Johnson -- as former colleagues have
suggested -- there was other "overwhelming" evidence which proved
Johnson's guilt, Edmondson says.
But a review by The Associated
Press of Johnson's 1982 trial transcripts shows that "overwhelming"
evidence -- including a statement made by Johnson and another made
by a witness -- was inconclusive even then. The transcripts also
paint a vivid picture of what transpired in the courtroom where 23-year-old
Johnson was convicted and sentenced to death.
A federal grand jury convened this month to
investigate Johnson's execution and nine others involving testimony
by Gilchrist, who was recently fired. Whether Johnson was telling
the truth is not the issue, said several legal experts who've
reviewed his case.
The real issue is whether he received a fair
trial. Johnson was executed January 6, 2,000. "I'm going to heaven
on a midnight train," he told those assembled to watch him die.
Malcolm Rent Johnson was in trouble most of his
life. As an adolescent, he ran away from this father's home in
Oklahoma City to be with his divorced mother in Illinois. In
Chicago, at age 15, he was arrested for carrying a gun.
At 19, he
pleaded guilty to raping and robbing two women and was sentenced to
state prison. Illinois parole officials allowed Johnson to move to
Oklahoma City in 1981 to be near family. Five months later, police
came to his apartment to arrest him on suspicion of violating his
parole by carrying a handgun.
At the time, Oklahoma City Police Department
chemist Joyce Gilchrist had been on the job 18 months. Already she
was well-liked by prosecutors for her commanding courtroom presence
and her forceful testimony about some of the most equivocal forensic
evidence -- hair and fibers.
A few years later, Gilchrist was
attacked by colleagues for definitively matching hair samples,
something forensic experts say is impossible without DNA testing,
which wasn't readily available then. Still, she served 21 years in
the police lab before Police Chief M.T. Berry fired her this
September.
Her mistaken testimony helped send two innocent men to
prison and another guiltless man to death row. All have been
released.
The FBI declined comment on its separate probe
involving the federal grand jury. Gilchrist's attorney, Melvin Hall,
Gilchrist's lawyer, said his client also declined comment. Attorney
Doug Parr sued Oklahoma City earlier this year seeking independent
analysis of forensic evidence used to convict Johnson. In August,
The Associated Press obtained an internal police department memo
that said some evidence used to prosecute Johnson did not exist.
Oklahoma Beats Out Texas for First Execution of
the Century
Death Row 2000
January 7, 2000
Few people stayed to watch history in the making
when Oklahoma carried out the first execution of the 21st Century on
January 6.
Malcolm Rent Johnson, who terrorized a Midwest
community for years before moving to Oklahoma City where he raped
and murdered 76-year-old Ura Alma Thompson, took the last minutes of
his life to apologize for the murder. Cynthia Ury and other family
members of his victims waited nearly 20 years to hear Johnson say:
"I apologize for everyone I hurt."
When the U.S. Supreme Court rejected Johnson's
appeal in November, the Oklahoma Criminal Court of Appeals was quick
to set the execution for Jan. 6. The higher court refused Johnson's
last-minute appeals - and just before midnight - executioners
strapped the shaky 42-year-old inmate to the state's death chamber
gurney.
Johnson was sentenced to death for beating,
raping and then suffocating to death Thompson in her home. After the
October 1981 murder, police found the victim's furs, a typewriter,
watch, cigarette case, rings, a purse and other valuables in
Johnson's apartment.
Hair and semen samples taken from the 23-year-old
parolee from Illinois matched crime scene evidence. He had a
criminal history that included four rapes, three burglaries and one
robbery and weapons violation.
Johnson became the 20th person executed in
Oklahoma since the reinstatement of the death penalty in 1977 and
the 103rd executed inmate in the history of the state. In a last
statement, Johnson said he was "going to heaven on a midnight train."
Texas spokesperson Larry Fitzgerald said of
Johnson's execution, "Well, we got the last one of the century, but
Oklahoma beat us out today with the first one of the new millenium."
Testimony Doubted in Execution Case
By Deborah Hastings -
AP News
August 29, 2001
A man executed in Oklahoma last year was placed
at the murder scene by the testimony of now-disgraced police chemist
Joyce Gilchrist, but a police department memo obtained by The
Associated Press says some of the scientific evidence she swore to
does not exist.
The July 31 memo by a fellow lab scientist for
the Oklahoma City Police Department refers to the case of Malcolm
Rent Johnson, who was executed on Jan. 6, 2000, after being
convicted in 1982 of rape and murder. Johnson, who had served time
for two previous rapes, insisted he was innocent.
At Johnson's trial, Gilchrist testified that six
samples taken from the murder victim's bedroom showed semen
consistent with his blood type. But a July 30 re-examination of
those slides showed ``spermatozoa is not present,'' says the memo
signed by chemist Laura Schile.
Schile resigned Aug. 2 from the
embattled forensics lab, citing a hostile work environment. She
names the lab's three other scientists as agreeing that sperm is not
present.
While the memo does not exonerate Johnson, it
marks the first time legal questions have been raised about
Gilchrist's testimony in an execution case. The memo also noted that
Gilchrist's testimony had been criticized previously.
Two appellate courts have ruled Gilchrist gave
false testimony about semen evidence in the 1992 rape and murder
trial of Alfred Brian Mitchell, whose death sentence was overturned
earlier this month because of what one court called her "untrue''
testimony. "There are now two cases where the results stated in the
(lab) report and testified to by Joyce Gilchrist contradict
independent expert re-examination of the actual physical evidence,''
Schile wrote.
Prosecutors said there was sufficient evidence
separate from Gilchrist's testimony to convict Johnson. But Oklahoma
County Chief Public Defender Robert Ravitz, who represented Johnson
at trial, disagrees. "It really calls into question whether the
state of Oklahoma executed an innocent person,'' he said Tuesday.
Problems with Gilchrist's testimony in other
cases have led to the release of three inmates who served long
sentences, including one on death row. Based on a preliminary review,
authorities previously said there was no taint in the 11 cases where
prisoners were put to death. Gilchrist's attorney did not
immediately return calls for comment. The chemist has previously
denied any wrongdoing.
Ura Alma Thompson, 76, was found suffocated in
her apartment on Oct. 27, 1981. There were no witnesses to the crime,
and no fingerprints matching Johnson's were found.
He was arrested
after officers went to his home to question him about an unrelated
parole violation and noticed items belonging to the victim.
A search
led to the discovery of her apartment key in his nightstand. He
contended all the items were given to him by a third party.
Gilchrist told jurors that semen stains on the woman's bedspread and
pillow case matched Johnson's blood type, which constituted the bulk
of evidence used to tie Johnson to rape.
The only other evidence
stained by semen consistent with his blood type was a knee-high
stocking, Gilchrist testified. That stocking has not been retested.
A vaginal swab contained sperm, but not enough to test, Gilchrist
told jurors.
Gilchrist also testified that hair fragments matched
Johnson's hair and that fibers matched a blue cotton shirt he owned.
Johnson's trial marked the first time she had testified about fiber
analysis. DNA analysis was not available at that time, and the court
denied the defense's request for funds to hire its own forensics
expert. Johnson's attorney argued during trial that blue cotton
shirts were so ubiquitious that the fiber could not definitively be
linked to Johnson.
Schile refused comment Tuesday on the memo
contradicting Gilchrist's testimony, which she addressed to Richard
Smith of the Oklahoma City Municipal Counselor's Office. Kyla
Marshall, one of the chemists named by Schile, confirmed that when
the slides purported to contain sperm were retested, they revealed
only a few fibers from the victim's bedspread and pillow case. Sperm
does not deteriorate for decades, she said.
Richard Wintory, a spokesman for the district
attorney's office, said Tuesday that he still does not doubt
Johnson's guilt. "The evidence against Malcolm Rent Johnson is
absolutely, uncontestably, overwhelming he done it, done it, done it,''
Wintory said. "This suggestion that an innocent guy was executed is
not true about Malcolm Rent Johnson.'' "I am confident he is guilty
of murder,'' Oklahoma Attorney General Drew Edmondson said. "He was
convicted and sentenced to death and there is ample evidence
supporting without consideration of forensic testimony.''
Gov. Frank
Keating's office said he agreed the execution was appropriate.
Oklahoma City Police Chief M.T. Berry declined comment except to say
that his department was willing to have evidence from the Johnson
case retested by an independent lab.
Gilchrist was suspended with pay earlier this
year after the FBI, which reviewed eight of her cases, concluded she
had misidentified evidence or made other serious mistakes in six of
them. Hearings began last week to determine whether she should be
fired.
In the Mitchell case, a lower federal court ruled Gilchrist
had knowingly given false testimony and that prosecutors withheld
exculpatory evidence from defense lawyers. That court still upheld
the death penalty, but the 10th U.S. Circuit Court of Appeals
overturned it Aug. 13, saying, ``We simply cannot be confident that
the jury would have returned the same sentence had no rape and
sodomy evidence been presented to it.''
Doug Parr, who serves on the board of the
Oklahoma Defense Lawyers Association, filed suit last month against
the Oklahoma City Police Department, claiming it is illegally
refusing to release public records pertaining to Johnson's case.
Schile re-examined the slides after a visit from Parr.
On Tuesday,
Parr filed court papers seeking Schile's memo. "It is yet another
example that Ms. Gilchrist is apparently willing to lie and present
false evidence in order to support prosecutors' efforts to convict
persons in serious felony cases in Oklahoma County,'' he said. "The
question right now is did he commit the crime, period?''
The state attorney general's office, which is
reviewing cases in which Gilchrist's testimony was pivotal, briefly
re-examined Johnson's case earlier this year. The attorney general
said then that he was satisfied enough separate evidence existed to
warrant the execution, including the victim's property being found
in Johnson's home.
In seeking the death penalty, prosecutors cited
Johnson's two previous convictions for rape in Chicago and the ``heinous''
nature of the rape and murder, and said he posed a danger to the
community.
Johnson's public defender said his client might
have been spared the death penalty if he hadn't been convicted of
rape. But attorney Garvin Isaacs, who has represented several
defendants Gilchrist testified against, said any one of the
aggravating circumstances in Johnson's case could have resulted in
the sentence, regardless of the rape conviction. "It's Oklahoma,''
he said. According to a recent survey by Amnesty International,
Oklahoma has more executions per capita than any state.
Chemist's Errors Stir Fear: Did Oklahoma Execute
Innocent?
By Arnold Hamilton & Diane Jennings -
Dallas Morning News
OKLAHOMA CITY -- In a 21-year career, Oklahoma
City police chemist Joyce Gilchrist was a prosecutor's dream: She
delivered supportive lab analysis and convincing testimony that
helped send hundreds to prison – at least 23 people to death row.
Ms. Gilchrist may turn out to be a prosecutor's
worst nightmare: So much of her work was questioned by appeals
courts and forensics experts that she was suspended and fired.
Investigators are digging through 1,197 of her cases to see whether
anyone is behind bars because of false or misleading testimony. And
now – in a year when Oklahoma leads the nation in carrying out the
death penalty, and with suspect convictions being reviewed even
beyond the Gilchrist cases – some are pondering the unthinkable: Has
Oklahoma executed the innocent? "I think there's a real concern that
that has happened," said Jim Bednar, a former state and federal
prosecutor and state judge who now heads the Oklahoma Indigent
Defense System. "I think we've got to ensure that nobody else gets
executed until we take a thorough look at this."
Ms. Gilchrist has denied wrongdoing. Her lawyer,
Melvin Hall, describes her as a "scapegoat," noting she "had
absolutely not a single piece of negative paper in her 21-year
personnel file." Ms. Gilchrist declined to be interviewed. Defense
attorneys and forensic scientists questioned Ms. Gilchrist's work –
particularly hair and fiber analysis – as early as the mid-1980s.
Earlier this year, an FBI review of eight cases revealed significant
flaws in her analysis. Since then, state lawmakers provided $650,000
for DNA testing, and Gov. Frank Keating ordered the Oklahoma State
Bureau of Investigation to review all criminal cases involving Ms.
Gilchrist.
Already, the state task force – including the
Oklahoma State Bureau of Investigation, the attorney general and the
indigent defense system – has targeted for independent DNA testing
two death row cases involving Ms. Gilchrist's work.
The state crime
lab has completed an initial review of 817 files from Ms.
Gilchrist's cases, turning up problems significant enough in about
16 percent of them – 130 – to warrant a more extensive review.
Oklahoma City Police Chemist Faked the Crucial
Evidence The Innocent Man They Put to Death
By Eric Rudder -
CCADP
September 14, 2001
"I'M INNOCENT, and I've
got peace in my heart, and I'm ready to go home." Those were among
the last words uttered by Malcolm Rent Johnson before the state of
Oklahoma took his life on January 6, 2000. A year and a half later,
his innocence is nearly proven. But it will come too late.
Johnson is one of 12 people executed in Oklahoma
who were convicted on the basis of testimony by Oklahoma City police
chemist Joyce Gilchrist. Gilchrist was exposed earlier this year for
mishandling evidence and lying under oath in thousands of criminal
cases over a 25-year period.
Johnson's case--and his near-certain
innocence--came to light after state officials ordered a review of
1,700 convictions where Gilchrist's testimony played a part.
At Johnson's trial, Gilchrist testified that
Johnson's blood type matched sperm collected from the apartment of
Ura Thompson, a 76-year-old woman killed in 1981. But a
reexamination last month of Gilchrist's "evidence" found that the
slides she prepared contained no sperm at all!
The reexamination was conducted by Oklahoma City
police DNA laboratory manager Laura Schile and endorsed by three
other chemists. But after issuing the report, Schile resigned--following
a confrontation with the lab's chief. "She was intimidated by the
Oklahoma City Police Department and some of the lawyers involved in
this case," said Schile's lawyer, Gavin Isaacs.
State officials are claiming that Johnson would
have been convicted without Gilchrist's testimony. What garbage! The
only other evidence against him was circumstantial. Oklahoma
authorities aren't willing to admit that they executed an innocent
man. "We have used for the last 25 years bad science in this state
to convict people, and we have stretched the truth," said James
Bednar, head of Oklahoma's Indigent Defense System and a former
assistant state attorney general. "It's got to stop."
Gilchrist's willingness to lie in order to get
convictions is only the tip of the iceberg in the U.S. criminal
injustice system. In West Virginia, forensic "specialist" Fred Zain
is facing five felony fraud charges for false testimony. In Idaho,
Charles Fain walked off death row last month after DNA tests proved
that the forensic evidence used against him 17 years ago was faulty.
And in Illinois--in a case remarkably similar to
Gilchrist's--officials are reopening at least nine cases in which
police forensic scientist Pamela Fish gave either false or
misleading testimony.
The most stunning revelation so far is that
Fish withheld evidence in a 1986 murder trial of four Black
teenagers--who may now be released. Every example of overzealous
prosecutors and lying police scientists helps to make our case
against the death penalty--and the rest of the rotten injustice
system.
Evidence Questioned in Execution: Police Memos
Contradict Chemist's Forensic Testimony at a 1982 Oklahoma City
Murder Trial
By Henry Weinstein -
Los Angeles Times
August 30, 2001
The investigation of a controversial Oklahoma
City police chemist has produced evidence raising questions about
whether she testified falsely in the 1982 rape and murder trial of a
man who was executed last year, protesting his innocence to the end.
On Wednesday, Oklahoma Atty. Gen. Drew Edmondson
released two memos written last month by four Oklahoma City Police
Department forensic scientists saying tests they had conducted of
material found at the murder scene contradicted testimony given by
Joyce Gilchrist.
Edmondson stressed in an interview that he remained
convinced that Malcolm Rent Johnson was guilty of the rape and
murder of Ura Alma Thompson because of the strength of other
evidence.
Edmondson, who released the memos after they were
described in stories by the Daily Oklahoman and Associated Press,
said it was possible that "we might reexamine the evidence down the
road."
Now, however, Edmondson said his office was
focused on reviewing numerous cases in which Gilchrist testified and
the defendant received a long prison term or a death sentence not
yet carried out.
The Oklahoma City Police Department placed
Gilchrist on paid administrative leave in March after the FBI
reported that Gilchrist made significant errors in five of eight
cases the bureau reviewed.
That report led to the release of Jeffrey
Pierce, who had served 15 years of a 65-year sentence for rape--a
case in which Gilchrist offered key testimony about hair found at
the crime scene.
Earlier this month, an appeals court in Denver
reversed the rape and murder conviction of Alfred Brian Mitchell,
and ordered him retried. The U.S. 10th Circuit Court of Appeals
ruled that jurors might have relied on Gilchrist's testimony that
falsely implicated him for raping a woman before killing her.
The
judges said that during Mitchell's appeal, his attorneys obtained
Gilchrist's handwritten notes, which "completely undermined [her]
testimony."
On Wednesday, a spokeswoman for the Oklahoma City
police said there are five separate probes of Gilchrist's work
taking place, including an internal investigation by the department.
Gilchrist has denied any wrongdoing. On Wednesday, her attorney,
Melvin Hall, said neither he nor his client had any comment on the
forensic scientists' memos.
The latest controversy involves the 1982 trial of
Johnson, who was convicted of raping and murdering Thompson, 76, who
was found suffocated in her apartment on Oct. 27, 1981. There was no
eyewitness, but the building manager said he had seen Johnson nearby.
Johnson, then 23, was arrested when local police officers found
items belonging to Thompson at Johnson's apartment when they went to
see him about an alleged parole violation. Johnson had two prior
rape convictions. Among the items found were Thompson's apartment
key, a watch and a ring. Johnson said his brother gave him the items--a
contention the brother denied.
At the trial nearly 20 years ago, Gilchrist
testified that six samples taken from a bedspread and a pillow in
the victim's apartment were the same blood type as Johnson's.
Gilchrist also testified that semen found on a stocking was
consistent with Johnson's blood type.
She said that although sperm
was found on a vaginal swab taken from the victim, there was not
enough to test. Additionally, Gilchrist said hair fragments found at
the scene were similar to Johnson's hair.
In late July, four police chemists reviewed
slides prepared by Gilchrist for the trial. Laura Schile, the lab's
DNA manager, described the findings in a memo to Richard Smith of
the Oklahoma Municipal Counselors office. "It should be noted that
upon examination of these slides" the findings were contradictory "to
those reported out and testified to by Joyce Gilchrist," Schile
wrote. "Spermatozoa is not present on" three slides prepared with
material that came from the bedspread or three slides prepared with
material that came from the pillowcase, Schile added.
A separate memo by three of Schile's colleagues
presents the same conclusion. Schile recommended to Smith, who is
advising the police department in its probe of Gilchrist, that the
actual physical evidence should be reexamined in the Johnson case. "Solely
relying upon the notes, testimony and reports that pertain to these
questioned cases is not sufficient," Schile wrote, adding that the
Johnson case marked the second instance in which Gilchrist's
testimony contradicted physical evidence that had been independently
reexamined.
Attorneys familiar with forensic techniques said
that if Gilchrist properly prepared the slides, and they contained
sperm at the time, it should still be present. Schile resigned from
the police department on Aug. 2 amid reports that she was in
conflict with department chieftains. She could not be reached on
Wednesday.
Schile's attorney, Gavin Isaacs, said: "She was
intimidated by the Oklahoma City Police Department and some of the
lawyers involved in this case. . . She has cooperated with law
enforcement investigators." The three other chemists remain on the
job but could not be reached for comment.
In recent weeks, the Johnson case has taken an
increasingly high profile in the Gilchrist probe. Oklahoma City
defense lawyer Doug Parr, who is playing a key role in the
investigation, said that after he and other attorneys reviewed 12
cases in which Gilchrist had done the prosecution forensic work and
the defendant subsequently was executed, "we decided that Malcolm
Johnson had one of the strongest claims of actual innocence." "He
went to his death proclaiming innocence," Parr said. "His confession
to the prison chaplain was that he had done a lot of bad things but
not this."
Parr acknowledged that there was strong circumstantial
evidence supporting Johnson's guilt. But he also maintained there
was no reason not to review all the evidence and subject the
biological evidence to DNA testing.
Parr said he has been attempting to get Oklahoma
City official to send that evidence to a highly regarded lab in
Richmond, Calif. He said the Oklahoma City officials wanted to send
the material to a lab he considered inferior. Jessica Cummins, the
Oklahoma City police spokeswoman, said simply that the two sides
disagreed on where the testing should be done.
Parr also has filed a
lawsuit seeking access to all records in the case. The city has
opposed this request and has acknowledged that it had lost some of
the records.
DNA testing was not available at the time of
Johnson's trial. Oklahoma City public defender Robert Ravitz asked
the trial judge for funds to hire his own forensic expert to examine
the evidence, but the request was denied.
At the time, Ravitz
questioned Gilchrist's testimony that blue cotton fibers found at
the crime scene matched a shirt Johnson owned. Ravitz said the type
of shirt was so common that it could not be conclusively linked to
Johnson.
Years later, federal public defender Vicki
Werneke of Oklahoma City, who represented Johnson in constitutional
challenges to his conviction, attempted to secure DNA testing of the
biological evidence.
The state attorney general's office resisted,
saying that under federal laws governing death penalty appeals,
Johnson was ineligible for testing. Federal judges agreed, so no
testing was done.
Johnson's appellate lawyers contended that
prosecutors had improperly struck three potential jurors who were
African American, as was Johnson. The victim was white.
On Wednesday, Edmondson said that he was not sure
what to make of the memos by the police chemists. But he asserted
that the case against Johnson had been very strong. "He could have
been proven guilty beyond a reasonable doubt without any forensic
testimony," Edmondson said.
Johnson v. State,
731 P.2d 993 (Okl.Cr. 1987), cert. denied, at 484 U.S. 878 (1987) (Direct
Appeal).
On appeal from his sentence of death for the
murder of a seventy-six-year-old woman, Malcolm Rent Johnson
presents seventeen (17) assignments of error. The victim, Ura
Thompson, was found dead and partially decomposed in her apartment
on October 27, 1981. The medical examiner determined that the cause
of death was suffocation, and that the victim suffered blows to the
head and jaw, as well as forced intercourse.
Jewelry, furs and other valuables were discovered
missing from the victim's apartment. The police were given consent
to search the apartment where appellant lived with his girlfriend.
The victim's typewriter, rings, watch, antique jar, keyrings,
cigarette case, and hand mirror were among the items found in the
apartment. The specimens of hair and body fluids obtained from
appellant were found to match the unknowns discovered in the
victim's apartment.
Johnson v. Gibson,
169 F.3d 1239 (10th Cir. 1999) (Habeas).
On the evening of October 27, 1981, Frank
Thompson found his aunt, Ura Alma Thompson, *1244 an elderly white
woman, deceased on the floor of her Oklahoma City apartment.
Following an autopsy, the medical examiner found evidence of
forcible sexual intercourse before death.
He concluded that although
Thompson was not strangled, she died of asphyxiation either because
of pressure on her chest during the intercourse or because her
assailant covered her mouth and nose.
On October 27, 1981, police arrested Johnson on
an unrelated weapons charge at his apartment, where they seized
several items later identified as belonging to Thompson.
On October
28, 1981, the police obtained hair, saliva, and blood samples from
Johnson. In interviews with police after his arrest, Johnson denied
knowledge of the homicide, but when told that semen found in
Thompson's body matched his own, he reportedly responded, "you
couldn't have found my semen in her, I didn't come." Trial Tr. at
913.
At the first stage of trial, Joyce Gilchrist, a
state forensic chemist, testified that semen found on the bed
coverings in Thompson's apartment matched Johnson's blood type. She
also testified that several strands of hair found at the scene of
the crime were "consistent microscopically" with petitioner's hair.
Trial Tr. at 1033, 1038-39. The defense did not present any
witnesses. Petitioner was found guilty on March 22, 1982.
At the second stage of trial, the state
introduced evidence about Johnson's prior Illinois convictions for
raping two different women, two separate charges of armed robberies,
and one burglary.
Four women testified that petitioner had raped or
attempted to rape them or attempted to rob them with a firearm.
These latter offenses were unadjudicated at the time of trial.
Sixteen of Johnson's relatives testified that he came from a broken
and abusive home, and that at the age of two he spent two months,
often under restraint, in the hospital for an undiagnosed
debilitating illness.
They also testified that Johnson, the oldest
of four children, was responsible for his siblings' care and for
other household duties. His girlfriend testified that he assumed a
parental role with her five-year old son. Neither side offered
psychiatric testimony.
The court submitted three aggravating
circumstances for the jury's consideration: (1) prior conviction of
a felony; (2) continuing threat to society; and (3) especially
heinous, cruel, or atrocious killing. The jury rejected the third
aggravator but found that the other two outweighed the evidence of
mitigation. Petitioner was sentenced to death.
189 F.3d 477
MALCOLM RENT JOHNSON, Petitioner-Appellant
v.
DAN REYNOLDS; JAMES L. SAFFLE, Director, Oklahoma Department of
Corrections; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,
Respondents-Appellees
Before EBEL, Circuit Judge, McWILLIAMS,
Senior Circuit Judge, and MURPHY, Circuit Judge.
EBEL, Circuit Judge.
¶1 Petitioner-Appellant Malcolm Rent Johnson
("Johnson") appeals the district court's denial of his federal
habeas corpus petition brought pursuant to 28 U.S.C. § 2254. On
appeal, petitioner argues that the district court erred by
concluding that (1) his Fourth Amendment claim was barred from
federal review, legally frivolous, and factually meritless, and (2)
his remaining claims, including a claim of ineffective assistance of
counsel, were procedurally barred and lacked merit. We exercise
jurisdiction under 28 U.S.C. § 2253, and affirm.
BACKGROUND
¶2 In January 1983, Johnson was convicted, after
an Oklahoma state jury trial, of one count of Attempted First Degree
Rape After Former Conviction of Two or More Felonies, and one count
of Robbery With Firearms After Former Conviction of Two or More
Felonies, and sentenced to two consecutive terms of seventy-five
years' imprisonment for his involvement in events that took place on
October 12, 1981.
¶3 According to testimony at trial, during the
late morning hours of October 12th, the two victims, Polly Johnson
and Maggie Woitchek, entered an art studio, only to find Johnson
waiting inside with a gun. Johnson took the women at gunpoint to the
front of the studio, threw them to the ground, and instructed them
to keep their heads down. Mrs. Johnson testified that she "looked up
at him one time, and he hit me in the head with a gun, and then he
took my glasses." Johnson then dumped the contents of both of the
women's purses onto the floor and began sifting for money.
¶4 After some time, Johnson forced the women to
the back of the studio, where he locked Mrs. Woitchek in a restroom.
Alone in the studio with Mrs. Johnson, petitioner-appellant Johnson
demanded money of her, then disrobed her, hit her, and attempted to
rape her. After a second attempt to rape Mrs. Johnson, petitioner-appellant
Johnson fled when he heard James Weir entering the studio in his
wheelchair.
¶5 In addition to the eyewitness identifications
of Johnson made by Mrs. Johnson, Mrs. Woitchek, and Mr. Weir at
trial, the government relied on the expert testimony of Joyce
Gilchrist, a serologist working for the state of Oklahoma, and
physical evidence seized from Johnson's apartment which provided
circumstantial evidence of his guilt — specifically, a key to the
art studio, Mrs. Johnson's ChecOKard, and a doll from the studio (all
of which Mrs. Johnson reported stolen to the police), as well as a
gun that Mrs. Johnson testified "look[ed] like the gun" that
petitioner-appellant Johnson hit her with.
¶6 The search that led to the discovery of these
items was conducted on October 27, 1981, in the course of executing
an arrest warrant charging Johnson with possession of a firearm
after conviction of a felony. Oklahoma City Police Detective Jewell
Fay Smith testified at trial that, upon entering Johnson's residence
to execute the arrest warrant, she observed "an oriental doll in
ceremonial robes" that she believed could have been the doll that
Polly Johnson had reported stolen from the art studio. Detective
Smith further testified that after observing the doll, she "backed
out of the apartment," and obtained informed consent to search the
residence from Johnson's wife, Eugenia Johnson, who shared dominion
over the whole of the residence. In executing the consensual search
of the residence, Oklahoma City Police seized the doll, a set of
keys from a drawer in a bedside night stand, a gold pillbox from the
headboard of the bed, and a CheckOKard and a revolver, both found
under the mattress of the bed. Johnson's attorney, an assistant
Oklahoma County public defender, claimed that the search violated
the Fourth Amendment (because the arrest warrant the police were
purportedly executing was a mere pretext for the real purpose of
their visit to the Johnson residence, which was to conduct the
search); thus, Johnson objected to the admission of the physical
evidence seized in the search, but the trial court overruled the
objection.
¶7 After his conviction and sentence, Johnson,
represented by a different attorney from the same Oklahoma County
public defenders' office, raised five issues in his direct appeal to
the Oklahoma Court of Criminal Appeals, including a claim that the
admission of evidence seized from his home violated the Fourth and
Fourteenth Amendments to the United States Constitution. Johnson
v. State of Okla., No. F-83-432, at 1 (Okla. Crim. App. Apr. 21,
1986) (unpublished). The Oklahoma Court of Criminal Appeals
affirmed. Next, Johnson filed an application for post-conviction
relief in Oklahoma state district court, raising the same Fourth
Amendment claim rejected on direct appeal, as well as several other
claims, including one of ineffective assistance of trial counsel.
The state district court denied Johnson's application on grounds of
procedural bar. SeeState of Okla. v. Johnson, No.
CRF-81-4932, at 1-2 (Okla. Co. Dist. Ct. July 21, 1995)
(unpublished). The Oklahoma Court of Criminal Appeals affirmed.
SeeJohnson v. State of Okla., No. PC 95-928, at 3 (Okla.
Crim. App. Mar. 7, 1996) (unpublished).
¶8 Thereafter, Johnson filed a petition for writ
of habeas corpus in the United States District Court for the Western
District of Oklahoma pursuant to 28 U.S.C. § 2254, in which he
raised the following issues, all of which had been raised in his
state postconviction application: (1) his identification at trial by
the victims was tainted by an unconstitutionally suggestive
identification at the preliminary hearing; (2) the trial court
unconstitutionally admitted materially misleading and unreliable
hair and fiber evidence; (3) he was deprived of his Sixth Amendment
right to effective assistance of counsel at trial; (4) the
government failed to disclose exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963); (5) the police
interrogation procedures following his arrest violated his Fifth and
Sixth Amendment rights; and (6) the evidence seized during the
search of his apartment and introduced at trial should have been
suppressed as the fruit of an illegal search obtained in violation
of the Fourth Amendment. On referral from the district court, the
magistrate judge, applying the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), found the first five claims to be
procedurally barred and, alternatively, without merit and harmless
in any event. With respect to Johnson's Fourth Amendment claim, the
magistrate judge concluded that the claim was barred because Johnson
had had a full and fair opportunity to litigate his claim in state
court, seeStone v. Powell, 428 U.S. 465, 481-82
(1976), and alternatively that the claim lacked merit. The district
court, upon de novo review, adopted the magistrate's recommendation
and denied Johnson's habeas petition.
¶9 On appeal, Johnson contends that the district
court erred in (1) concluding that he had received a full and fair
opportunity to litigate his Fourth Amendment claim, (2) finding
procedural bar as to his other claims, and (3) alternatively finding
no merit to these remaining claims. We asked for further briefing
from the parties on the discrete issue of whether procedural bar
should apply to an ineffective assistance of counsel claim where
appellate counsel was from the same public defender's office as
trial counsel. We now affirm.
DISCUSSION
I. Standard of Review
¶10 Johnson filed his federal petition for habeas
corpus relief after the April 24, 1996 effective date of AEDPA, and
therefore we apply the provisions of 28 U.S.C. § 2254, as amended by
AEDPA. SeeRogers v. Gibson, 173 F.3d 1278,
1282 n.1 (10th Cir. 1999). Thus, we may not grant Johnson habeas
relief:
with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim —
(1) resulted in a decision that
was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States;
or
(2) resulted in a decision that
was based on an unreasonable determination of the
facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). Additionally, "a
determination of a factual issue made by a State court shall
be presumed to be correct." 28 U.S.C. § 2254(e)(1).
II. Fourth Amendment Claim
¶11 Johnson claims that Oklahoma violated his
Fourth Amendment rights when it introduced at trial the physical
evidence seized from his apartment.1
The federal district court dismissed this claim because it believed
that Johnson had been given a "full and fair" opportunity to
litigate his claim in the Oklahoma courts. SeeStone v.
Powell, 428 U.S. 465, 482 (1976). We agree.
¶12 In Stone, the Supreme Court held that
"where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, the Constitution does not
require that a state prisoner be granted federal habeas corpus
relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial." Id. at 482.
We have "held that Stone's 'opportunity for full and fair
consideration' and/or 'litigation' includes, but is not limited to
the procedural opportunity to raise or otherwise present a Fourth
Amendment claim, and the full and fair evidentiary hearing
contemplated by Townsend v. Sain, 372 U.S. 293 . . . (1963)."
Miranda v. Cooper, 967 F.2d 392,
401 (10th Cir. 1992).
¶13 Here, Johnson does not dispute that he was
afforded a full and fair opportunity to litigate the
constitutionality of admitting the items seized from his home
through the initial in camera hearing conducted by the trial court
and the direct review by the Oklahoma Court of Criminal Appeals. An
examination of the transcript from that hearing confirms that
Johnson had a full and fair opportunity to litigate his Fourth
Amendment claim. The trial transcript indicates that during the
direct examination of Detective Jewell Fay Smith, as the prosecutor
began to inquire about the search of the Johnson apartment, defense
counsel asked for an "in camera hearing as far as probable cause to
enter the apartment and probable cause to arrest Malcolm Johnson."
Defense counsel continued: "It's my contention that all the evidence
obtained inside the home or the apartment are the fruits of an
illegal search and entry pursuant to an illegal arrest warrant that
was not based on probable cause." The court recessed, dismissed the
jury, and reconvened for an in camera hearing. There, defense
counsel examined Detective Smith, who testified that she came to the
Johnson residence to execute an arrest warrant issued for Johnson
based on a charge of carrying a firearm after former conviction of a
felony. Detective Smith explained that after she entered the Johnson
residence, she observed "an oriental doll in ceremonial robes,"
which she believed was associated with the attempted rape and
robbery of Polly Johnson. Further, Detective Smith testified that
upon seeing the doll, she exited the residence and obtained informed
consent to search the residence from Malcolm Johnson's common-law
wife, Eugenia Johnson. During the in camera examination by the
prosecutor, Detective Smith clarified that Eugenia Johnson signed
the search waiver freely and voluntarily without any threats or
inducements after being read her Miranda rights.
¶14 Next, Eugenia Johnson testified at the in
camera hearing. In response to the prosecutor's inquiry, Eugenia
Johnson explained that the apartment was leased in her name, that
she had "full use of all the inside of that apartment," and that she
executed the search waiver after being advised of her Miranda
rights, without being threatened or promised anything. Upon
questioning by defense counsel, Eugenia Johnson clarified that she
had never told anyone that she had been forced into signing the
search waiver, that she had never told anyone that she had been
threatened into signing the search waiver, and that the police
officers never threatened either to take her to jail or to have her
children removed from her custody if she failed to sign the waiver.
¶15 At the conclusion of the in camera hearing,
defense counsel moved to suppress the physical evidence seized
during the search based on the Fourth Amendment to the United States
Constitution. The trial court overruled the motion to suppress.
¶16 On direct appeal, Johnson contended that "the
trial court erred in admitting into evidence items seized by the
police from his home, in that this evidence was the fruit of an
illegal search and seizure." Johnson v. State of Okla., No.
F-83-432, at 3 (Okla. Crim. App. Apr. 21, 1986). He argued that
Eugenia Johnson "did not have the authority to waive his 4th and
14th Amendment rights." Id. However, the Oklahoma Court of
Criminal Appeals rejected this argument, stating: "The law in
Oklahoma is well-settled: When two persons . . . possess common
authority over or other sufficient relationship to the premises or
effects sought to be inspected, either of them is capable of
consenting to the search. . . . Therefore, this contention is
without merit." Id. at 3-4 (quotation omitted) (citation
omitted).
¶17 While Johnson does not, and could not, argue
that the procedures described above deprived him of a full and fair
opportunity to litigate his Fourth Amendment claim, he does argue
that a later (11 years after trial) recantation by Eugenia Johnson
of her testimony, that she freely and voluntarily signed the search
waiver prior to the search, entitles him to habeas relief (or at
least an evidentiary hearing). We disagree.
¶18 Johnson contends that Eugenia Johnson's
consent provides the only basis for the search of the Johnson
residence,2
and that once the actuality or validity of that consent is put in
doubt, the basis for the search dissolves, and the search and
seizure must be declared unconstitutional. Once the search and
seizure are found to violate the Fourth Amendment, Johnson argues
the physical evidence seized from his residence would have to be
excluded from trial, and his conviction would be unreliable.
¶19 We believe that Stone v. Powell
precludes the habeas relief he seeks.3
In Stone, focusing on the fact that "[t]he primary
justification for the exclusionary rule then is the deterrence of
police conduct that violates Fourth Amendment rights," the Supreme
Court noted that "[p]ost-Mapp decisions have established that
the rule is not a personal constitutional right." 428 U.S. at 486.
Because the exclusionary rule is a judicially created one, the Court
explained that its application was not universal in criminal law,
and that in deciding whether its application was appropriate, courts
balance the benefits sought to be achieved by the rule against the
costs of its application. Id. at 488-89. The Court concluded
that the cost of "deflect[ing] the truthfinding process and often
free[ing] the guilty," that are imposed by application of the
exclusionary rule persists in the federal habeas context, id.
at 490, but the benefits of deterring police conduct violative of
the Fourth Amendment diminish, id. at 493, and thus the
balance tips against application of the exclusionary rule for Fourth
Amendment violations on federal habeas. Seeid. at
494-95.
¶20 Thus, the Court concluded that "where the
State has provided an opportunity for a full and fair litigation of
[the] Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained in
an unconstitutional search or seizure was introduced at his trial."
Id. at 494 (footnotes omitted).
¶21 Here, we have held that the state of Oklahoma
provided Johnson an opportunity for full and fair litigation of his
Fourth Amendment claim. However, he contends that a recent
recantation of testimony central to that earlier, state litigation
of his Fourth Amendment claim entitles him to relief. But the fact
remains that Johnson litigated his Fourth Amendment claim in the
state courts, and the prohibition against our application of the
exclusionary rule on federal habeas precludes the relief Johnson
seeks. Accordingly, we affirm the district court's denial of this
claim.
III. Johnson's Remaining Claims
¶22 The district court dismissed Johnson's five
remaining claims on the ground that the Oklahoma courts had held
them to be procedurally barred by independent and adequate state law
grounds and alternatively on the ground that they lacked merit and,
in any event, any error was harmless. The claims dismissed by the
district court are: (1) Johnson's identification at trial by the
victims was tainted by an unconstitutionally suggestive
identification at the preliminary hearing; (2) the trial court
unconstitutionally admitted materially misleading and unreliable
hair and fiber evidence; (3) Johnson was deprived of his Sixth
Amendment right to effective assistance of counsel at trial; (4) the
government failed to disclose exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963); and (5) the police
interrogation procedures following Johnson's arrest violated his
Fifth and Sixth Amendment rights.
¶23 Johnson now contends that when he did raise
these claims in Oklahoma state court, via an application for
postconviction relief, the Oklahoma courts' dismissal of the claims
did not "unequivocally rest[] upon a state procedural default,"4Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991), and thus we
should reverse the district court's dismissal predicated on the
ground of independent and adequate state procedural bar. It is well
established that a state procedural bar will not preclude federal
habeas review unless the last state court to adjudicate the issue
relied on state procedural bar. Ylst, 501 U.S. at 801-03;
Hooks v. Ward, No. 98-6196, 1999 WL 502608, at *7 (10th Cir.
July 16, 1999).
¶24 Here, Johnson argues that the Oklahoma Court
of Criminal Appeals did not clearly indicate that it was affirming
the denial of his application for postconviction relief based on
state procedural bar. That court stated:
Petitioner has failed to show that he is
entitled to any relief in a post-conviction proceeding. Of
the eight (8) propositions (one with sub-propositions)
presented in his application, he has not raised any issues
that he did not or could not have raised in his direct
appeal. Hale v. State,
807 P.2d 264,
266-67 (Okla. Cr. 1991). In two of his propositions,
Petitioner alludes to possible reasons why those issues were
not raised or were insufficiently raised in his direct
appeal. However, those reasons are not sufficient to allow
the propositions to be the basis of this subsequent post-conviction
application. 22 O.S. 1991, § 1086.
Johnson v. State of Okla., No. PC 95-928, at
1-2 (Okla. Crim. App. Mar. 7, 1996) (unpublished). In light of the
fact that the case and the statute cited by the Oklahoma Court of
Criminal Appeals are clear invocations of the state procedural bar
for claims which "could have been raised on direct appeal, but were
not," Hale, 807 P.2d at 266; see also Okla. Stat. Ann.
tit.
22, § 1086,
we believe that the Oklahoma Court of Criminal Appeals dismissed the
claims presented in Johnson's first five claims in his federal
habeas petition on the basis of state procedural bar.
¶25 Thus "[f]ederal-court review of the claim[s
are] . . .barred unless respondent can establish 'cause and
prejudice' for the default, seeMurray v. Carrier, 477
U.S. [478], 493, 495-96 [1986]." Ylst, 501 U.S. at 806. In
his petition for habeas corpus before the federal district court,
Johnson explained that he failed to raise these claims on state
direct appeal because his "appellate counsel refused and/or
neglected to raise the issue." The district court construed these
statements as an effort by Johnson to show cause for defaulting the
claims in state court; however, the district court found no
appellate attorney error for failing to raise the claims, and thus
the district court found Johnson did not meet the "cause and
prejudice" standard of Murray. Before this court, Johnson has
not argued that his state procedural default should be excused
because of his state appellate counsel's performance; thus we do not
consider the issue. Accordingly, we dismiss claims 1, 2, 4, and 5 on
this ground.5
¶26 Johnson's third federal habeas claim alleged several instances
of ineffective assistance of trial counsel.6
The district court lumped this claim in with claims 1, 2, 4, and 5
in its general discussion of state procedural bar. However, this
court has recognized that federal habeas claims involving assertions
of ineffective assistance of counsel must be treated differently
than other claims for procedural bar purposes. SeeEnglish
v. Cody, 146 F.3d 1257, 1261-63 (10th Cir. 1998). In English,
we held that Supreme Court and Tenth Circuit authorities "mandate .
. . that this court never apply a state procedural bar [to an
ineffective assistance of counsel claim] when trial and appellate
counsel are the same." Id. at 1263.7
¶27 Johnson concedes that he was represented by
different lawyers at trial and on appeal. However, because both his
trial lawyer, Robert A. Ravitz, and his lawyer on direct appeal,
Thomas J. Ray Jr., worked for the Oklahoma County Public Defender's
Office, Johnson argues that the two should be treated as the same
lawyer for the purposes of analyzing the issue of procedural bar
under English v. Cody. Because of the novelty of this issue,
we ordered the parties to address it in supplemental briefing.
¶28 At the root of the English rule
requiring different counsel at trial and on appeal in order for a
federal court to respect a state bar as to a claim of ineffective
assistance of trial counsel is the recognition that a "layman will
ordinarily be unable to recognize counsel's errors and to evaluate
counsel's professional performance." Kimmelman, 477 U.S. at
378. Likewise, we believe a lawyer who performs inadequately at
trial will be unlikely or unwilling to realize his or her
representational deficiencies on appeal,8
and will be awkwardly situated to call the appellate court's
attention to deficient performance below.9
¶29 At least this second concern is implicated in
cases where a defendant is represented by two lawyers from the same
public defender's office at trial and on direct appeal. When an
appellate attorney regularly works closely in the same public
defender's office with the lawyer who represented the defendant at
trial, principles of collegiality may work against that appellate
lawyer vigorously seeking to identify and argue trial attorney
error. It is for this reason that two lawyers from the same private
law firm are often treated as the same for conflict of interest
purposes. Cf.Martinez v. Sullivan,
881 F.2d 921,
930 (10th Cir. 1989) (assuming without deciding that the two law
partners should be considered as one attorney for conflict of
interest purposes). Although it is possible that greater latitude
may be allowed in a not-for-profit organization like a public
defender's office because the two lawyers are not tied together by a
common profit motive, the fact remains that the two lawyers even in
a public defender's office are professional colleagues.10
¶30 However, in this case, we do not need to
decide the issue of whether English's separate counsel
requirement can be met when different lawyers from the same public
defender's office represent the same defendant at trial and on
appeal. We have evaluated Johnson's claims of ineffective trial
counsel on the merits and we agree with the Magistrate's Report
below, adopted by the district court, that such claims are without
merit. Accordingly, we affirm the denial of habeas relief on the
issue of ineffective counsel on the merits, without reaching the
issue of procedural bar.
¶31 AFFIRMED.
FOOTNOTES
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel.
This court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
1As
noted above, the contested items include a doll in ceremonial robes
taken from the art studio, a CheckOKard with the name of one of the
victims on it, a key that fit the art studio door, and a small gold
pillbox taken from the purse of one of the victims.
2We
note that the federal district court intimated that the search and
seizure of the items might have been justified under the search
incident to arrest and plain view exceptions to the warrant
requirement.
3Additionally,
we note that we see no error in the district court's alternative
ruling that Johnson's claim has no merit.
4In
his petition for a writ of habeas corpus in the district court,
Johnson claimed that he had raised his first claim in his state
direct appeal. While he did make a claim related to eyewitness
identification on state direct appeal, that claim alleged simply
that "the trial court committed fundamental error by refusing to
include a precautionary instruction on eye-witness identification.
His federal habeas claim related to eyewitness identification
alleges that "[t]he identification of Petitioner at trial by Polly
Johnson and Marguerite Woitchek was tainted by the
unconstitutionally suggestive identification of Petitioner at the
Preliminary Hearing and therefore violated Petitioner's Rights under
the Fifth and Fourteenth Amendments to the United States
Constitution." Though both claims attempt to undermine the
eyewitness testimony damaging to Johnson, the substance of the
claims is very different. It was the latter claim, that Johnson
raised in his application for postconviction relief, that was deemed
procedurally barred (because it was not raised on direct appeal) by
the Oklahoma Court of Criminal Appeals. Thus, we conclude that
Johnson failed to raise claim one of his federal habeas petition on
state direct appeal.
5Once
again, we note that we find no error in the district court's
alternative ruling that these claims are without merit.
6Specifically,
Johnson claims that his trial counsel was ineffective for: (1)
waiving Johnson's fundamental right to an alibi instruction; (2)
failing to request a state-appointed expert to rebut the testimony
of Joyce Gilchrist; (3) failing to investigate the basis for
objections to inadmissible evidence; (4) failing to make an opening
statement; (5) failing to object to inflammatory statements made by
the prosecutor during closing argument; and (6) failing to request a
jury instruction regarding the unreliability of eyewitness testimony.
7We
set out the two prerequisites for a state procedural bar to be
applicable on federal habeas, as follows:
[N]o state procedure for resolving claims
of ineffective assistance [of counsel] will serve as a
procedural bar to federal habeas review of those claims
unless the state procedures comply with the imperatives set
forth in Kimmelman [v. Morrison, 477 U.S. 365
(1986)]: (1) allowing petitioner an opportunity to consult
with separate counsel on appeal in order to obtain an
objective assessment of trial counsel's performance and (2)
providing a procedural mechanism whereby a petitioner can
adequately develop the factual basis of his claims of
ineffectiveness.
English, 146 F.3d at 1263.
8Even
if appellate counsel is different here, the Motion for New Trial was
signed by the trial counsel.
9In
fact, in order for an attorney on appeal to make out a claim that he
provided constitutionally ineffective representation at trial, he
would have to argue, on the public record, that he "was not a
reasonably competent attorney," Strickland v. Washington, 466
U.S. 668, 687 (1984) (quotation omitted), that he failed to "bring
to bear such skill and knowledge as [would have] render[ed] the
trial a reliable adversarial testing process," id. at 688,
that his errors were "so serious that [he] was not functioning as
the 'counsel' guaranteed the defendant by the Sixth Amendment,"
id. at 687, that his performance was so poor that it fell
outside "the wide range of reasonable professional assistance,"
id. at 689, and that but for his gross mis- or under-representation
of his client, his client would have been acquitted (or received a
lesser sentence), seeid. at 694 (to prevail under
Strickland's prejudice prong, a defendant must establish that "there
is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different").
10Here, the
record is inadequate for us to evaluate whether there was separation
between trial counsel and appellate counsel within the Oklahoma
County Public Defender's Office and, if so, whether the separation
was sufficient to counteract institutional and personal loyalties
that might impair the inclination of appellate counsel to challenge
the sufficiency of trial counsel's performance.
