Lott v. Trammell

FILED
United States Court of Appeals
Tenth Circuit
January 14, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
RONALD CLINTON LOTT,
Petitioner-Appellant,
v. No. 11-6096
ANITA TRAMMELL, Interim
Warden, Oklahoma State Penitentiary, *
Respondent-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:05-CV-00891-M)
Randall Coyne, (Edna Asper Elkouri, Frank Elkouri, Professor of Law, University
of Oklahoma College of Law, Norman, Oklahoma, and Lanita Henricksen of
Henricksen & Henricksen Lawyers, Inc., Oklahoma City, Oklahoma, with him on
the briefs), for Petitioner-Appellant.
Robert Whittaker, Assistant Attorney General (E. Scott Pruitt, Attorney General
of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for Respondent-
Appellee.
Before BRISCOE, Chief Judge, GORSUCH and HOLMES, Circuit Judges.
BRISCOE, Chief Judge.
*
Pursuant to Fed. R. App. P. 43(c)(2), Anita Trammel, who was appointed
Interim Warden of Oklahoma State Penitentiary on September 24, 2012, is
automatically substituted for Randall G. Workman as Respondent in this case.
This is a death penalty appeal involving two murders that were committed
over twenty-five years ago. Petitioner Ronald Lott was convicted by an
Oklahoma jury of two counts of first-degree murder in December 2001. The state
trial court, in accordance with the jury’s verdict, sentenced Lott to death on both
counts in January 2002. After his direct appeal and application for state post-
conviction relief were unsuccessful, Lott sought federal habeas relief by filing a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court
denied Lott’s petition. Having been granted a certificate of appealability with
respect to several issues, Lott now appeals. Exercising jurisdiction pursuant to 28
U.S.C. § 1291, we affirm the district court’s denial of federal habeas relief.
I
The Fowler and Cutler murders
The basic facts of the murders committed by Lott were described by the
Oklahoma Court of Criminal Appeals (OCCA) when ruling on Lott’s direct
appeal:
Sometime after 10:30 p.m., September 2, 1986, Anna Laura
Fowler was attacked in her home, raped and murdered. Mrs. Fowler
was 83 years old and lived alone. As a result of the attack, Mrs.
Fowler suffered severe contusions on her face, arms and legs, and
multiple rib fractures. She died from asphyxiation.
Zelma Cutler lived across the street from Mrs. Fowler. Mrs.
Cutler was 93 years old and lived alone. During the early morning
hours of January 11, 1987, Mrs. Cutler was attacked, raped and
murdered in her home. Mrs. Cutler suffered severe contusions on her
arms and legs as a result of the attack. She also suffered multiple rib
fractures. Mrs. Cutler died from asphyxiation.
2
Lott v. State (Lott I), 98 P.3d 318, 327 (Okla. Crim. App. 2004) (internal
paragraph numbers omitted).
The OCCA’s description, although accurate, fails to convey fully the brutal
nature of the rapes and murders. In both instances, the victims were vaginally
raped and orally sodomized. Further, the evidence presented at trial suggested
that Fowler was anally raped and that the perpetrator attempted to anally rape
Cutler as well. Lastly, the evidence presented at trial suggested that the rib
fractures sustained by Fowler and Cutler occurred as a result of the perpetrator
sitting directly on their chests and either orally sodomizing them and/or
suffocating them with pillows after the attack.
Post-crime events leading to Lott’s identification
Notably, another individual, Robert Miller, was initially arrested, charged,
and convicted of the Fowler and Cutler murders. Id. But, notwithstanding
Miller’s arrest, two additional elderly women living in the Oklahoma City area
were attacked and raped in their homes, in a manner similar to the attacks on
Fowler and Cutler. And Lott proved to be responsible for those crimes:
Subsequent to Miller’s arrest, Grace Marshall was attacked and raped
in her home on March 22, 1987. Eleanor Hoster was attacked and
raped in her home on May 7, 1987. Both Mrs. Marshall and Mrs.
Hoster were elderly ladies who lived alone. With the exception that
Mrs. Marshall and Mrs. Hoster were not killed after being raped,
there were striking similarities between the attacks on the four
women. [Lott] was arrested, charged, and ultimately plead [sic]
guilty to committing the rapes against Mrs. Marshall and Mrs.
Hoster.
3
Id.
In the early 1990s, DNA testing established that Lott, rather than Miller,
had raped Fowler and Cutler. Id. At that time, Lott was still incarcerated and
serving time in connection with the Marshall and Hoster rape convictions.
The state trial proceedings
On March 10, 1995, an amended information was filed in the District Court
of Oklahoma County, Oklahoma, Case No. CF-87-963, jointly charging Lott and
Miller with two counts of first-degree malice aforethought murder (Count 1 was
for the murder of Fowler and Count 2 was for the murder of Cutler) and, in the
alternative, with two counts of first-degree felony murder. On January 30, 1996,
however, those charges were dismissed at the request of the State.
On or about March 19, 1997, the State reinstated the case by filing a third
amended information against Lott and Miller. The trial court appointed the
Oklahoma Indigent Defense System (OIDS) to represent Lott.
On March 20, 1998, the State filed a bill of particulars asserting that Lott
“should be punished by death . . . due to and as a result of” the existence of three
“aggravating circumstance(s)”: (1) the murders were “especially heinous,
atrocious, or cruel”; (2) the murders were “committed for the purpose of avoiding
or preventing a lawful arrest or prosecution”; and (3) “[t]he existence of a
probability that [Lott] would commit criminal acts of violence that would
constitute a continuing threat to society.” State R., Vol. II, at 249.
4
On November 13, 2000, the State filed a fourth amended information.
Although the fourth amended information continued to charge Lott with two
counts of first-degree malice aforethought murder and, in the alternative, two
counts of first-degree felony murder, the charging language differed significantly
from that of the third amended information. Whereas the third amended
information alleged that the first-degree malice aforethought murder counts, as
well as the felony murder counts, were “feloniously committed . . . by Robert Lee
Miller Jr. and Ronald Clinton Lott . . . acting jointly [and] willfully,” id., Vol. I,
at 47, the fourth amended information (a) omitted from the first-degree malice
aforethought murder charges the allegations that Lott acted jointly with Miller,
thus leaving only Lott as the named defendant in those counts, and (b) altered the
felony murder counts to allege that Lott was “aided and abetted by . . . Miller.”
Id., Vol. IV, at 735.
The case proceeded to trial on October 29, 2001. But a mistrial occurred:
In the middle of trial, the State requested a continuance when the
medical examiner revealed he had evidence in his possession that had
never been tested. The State requested the continuance so LabCorp
could test the newly discovered evidence. The defense requested a
mistrial. The State agreed to the mistrial if the defense would agree
to stipulate to a continuance and stipulate to the chain of custody.
The mistrial was granted and the trial rescheduled for December 3,
2001.
Lott I, 98 P.3d at 328 n.3.
The December 2001 trial proceeded as scheduled. At the conclusion of the
5
first-stage evidence, the jury found Lott guilty of both murders. At the
conclusion of the second-stage proceedings, the jury found, with respect to each
of the counts of conviction, the existence of two of the three alleged aggravating
circumstances: that the murders were especially heinous, atrocious, or cruel, and
that the murders were committed for the purpose of avoiding or preventing a
lawful arrest or prosecution. The jury in turn fixed Lott’s punishment at death for
each of the two counts of conviction.
On January 18, 2002, the state trial court formally sentenced Lott to death
for each of the two murder convictions. Judgment in the case was entered that
same day.
Lott’s direct appeal
Lott filed a direct appeal asserting seventeen propositions of error. On
September 9, 2004, the OCCA issued a published opinion affirming Lott’s
convictions and death sentences.
Lott filed a petition for writ of certiorari with the United States Supreme
Court, but his petition was denied on March 28, 2005. Lott v. Oklahoma, 544
U.S. 950 (2005).
Lott’s application for state post-conviction relief
On August 9, 2004, Lott filed with the OCCA an application for post-
conviction relief, as well as a motion for an evidentiary hearing and discovery.
On November 22, 2004, the OCCA issued an opinion denying Lott’s application
6
for post-conviction relief and his motion for an evidentiary hearing and discovery.
Lott’s federal habeas proceedings
Lott initiated these federal habeas proceedings on August 4, 2005, by filing
a petition for writ of habeas corpus, as well as motions for appointment of
counsel and to proceed in forma pauperis. The district court granted Lott’s
motion for appointment of counsel. On February 17, 2006, Lott’s appointed
counsel filed a petition on Lott’s behalf asserting twenty-two grounds for relief.
On March 31, 2011, the district court issued a memorandum opinion
denying Lott’s petition. The district court entered judgment in the case that same
day, and also issued an order granting Lott a certificate of appealability (COA)
with respect to seven of the twenty-two grounds raised in his petition.
On April 7, 2011, Lott filed a notice of appeal. We subsequently granted
Lott a COA as to three additional issues. Lott has since filed an appellate brief
asserting a total of eight propositions of error.
II
Standards of review
Our review of Lott’s appeal is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Snow v.
Sirmons, 474 F.3d 693, 696 (10th Cir. 2007). Under AEDPA, the standard of
review applicable to a particular claim depends upon how that claim was resolved
by the state courts. Id. As a result, our focus here is upon the rulings of the
7
OCCA, not those of the federal district court.
If a claim was addressed on the merits by the state courts, we may not grant
federal habeas relief on the basis of that claim unless the state court decision “was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), or “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)(2).
“When reviewing a state court’s application of federal law, we are precluded from
issuing the writ simply because we conclude in our independent judgment that the
state court applied the law erroneously or incorrectly.” McLuckie v. Abbott, 337
F.3d 1193, 1197 (10th Cir. 2003). “Rather, we must be convinced that the
application was also objectively unreasonable.” Id. “This standard does not
require our abject deference, but nonetheless prohibits us from substituting our
own judgment for that of the state court.” Snow, 474 F.3d at 696 (internal
quotation marks and citation omitted).
If a claim was not resolved by the state courts on the merits and is not
otherwise procedurally barred, our standard of review is more searching. That is,
because § 2254(d)’s deferential standards of review do not apply in such
circumstances, we review the district court’s legal conclusions de novo and its
factual findings, if any, for clear error. McLuckie, 337 F.3d at 1197.
8
III
Analysis
1) Speedy trial claim
In Proposition One of his appellate brief, Lott contends that the state trial
court violated his Sixth Amendment rights by denying his motions to dismiss the
criminal proceedings on speedy trial grounds.
a) Clearly established Supreme Court precedent
Lott points to the Supreme Court’s decision in Klopfer v. North Carolina,
386 U.S. 213 (1967), as providing the clearly established federal law applicable to
his claim. In Klopfer, the Supreme Court held “that the right to a speedy trial is
as fundamental as any of the rights secured by the Sixth Amendment,” 386 U.S. at
223, and that, consequently, the Sixth Amendment right to a speedy trial 1 “is to be
enforced against the States under the Fourteenth Amendment.” Id. at 222 (internal
quotation marks omitted). The Court in Klopfer also addressed a unique aspect of
North Carolina criminal procedure, under which “the prosecuting attorney of a
county, denominated the solicitor, . . . may take a nolle prosequi” “if he does not
desire to proceed further with a prosecution.” Id. at 214. Notably, “the taking of
[a] nolle prosequi does not permanently terminate proceedings on the indictment.”
Id. Instead, the Court noted, “the case may be restored to the trial docket when
1
The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend.
VI.
9
ordered by the judge upon the solicitor’s application,” and “if the solicitor
petitions the court to nolle prosequi the case ‘with leave,’ the consent required to
reinstate the prosecution at a future date is implied in the order and the solicitor
(without further order) may have the case restored for trial.” Id. (internal
quotation marks omitted). Because “the indictment is not discharged by either a
nolle prosequi or a nolle prosequi with leave, the statute of limitations remains
tolled.” Id. “The consequence of this extraordinary criminal procedure,” the
Court noted, is that “[a] defendant indicted for a [crime] may be denied an
opportunity to exonerate himself in the discretion of the solicitor and held subject
to trial, over his objection, throughout the unlimited period in which the solicitor
may restore the case to the calendar.” Id. at 216. Ultimately, the Court held that
this procedure denies a criminal defendant “the right to a speedy trial . . .
guaranteed to him by the Sixth Amendment.” Id. at 222.
Lott also relies on the Supreme Court’s decisions in United States v.
MacDonald, 456 U.S. 1 (1982), and Barker v. Wingo, 407 U.S. 514 (1972). In
MacDonald, the Court noted the general contours of the Sixth Amendment right
to a speedy trial: “no Sixth Amendment right to a speedy trial arises until charges
are pending,” and “the Speedy Trial Clause has no application after the
Government, acting in good faith, formally drops charges.” 456 U.S. at 7. In
turn, the Court noted that the purpose of “[t]he Sixth Amendment right to a
speedy trial is . . . not . . . to prevent prejudice to the defense caused by passage
10
of time,” but rather “to minimize the possibility of lengthy incarceration prior to
trial, to reduce the lesser, but nevertheless substantial, impairment of liberty
imposed on an accused while released on bail, and to shorten the disruption of life
caused by arrest and the presence of unresolved criminal charges.” Id. at 8.
In Barker, the Court adopted a “balancing test” for purposes of determining
whether a criminal defendant’s Sixth Amendment right to a speedy trial has been
violated. 407 U.S. at 530. Four factors are relevant under that balancing test:
“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right,
and prejudice to the defendant.” Id. “The length of the delay,” the Court noted,
“is to some extent a triggering mechanism” because “[u]ntil there is some delay
which is presumptively prejudicial, there is no necessity for inquiry into the other
factors that go into the balance.” Id. “Nevertheless,” the Court stated, “the
length of delay that will provoke such an inquiry is necessarily dependent upon
the peculiar circumstances of the case,” including, for example, the seriousness
and complexity of the pending charges. Id. at 530-31. “Closely related to length
of delay,” the Court noted, “is the reason the government assigns to justify the
delay,” and “different weights should be assigned to different reasons.” Id. at
531. “[T]he third factor, the defendant’s responsibility to assert his right, . . . is
closely related to the other [three] factors.” Id. “The defendant’s assertion of his
speedy trial right,” the Court stated, “is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right.” Id. at 531-32.
11
The fourth factor, prejudice to the defendant, “should be assessed,” the Court
held, “in the light of the interests of defendants which the speedy trial right was
designed to protect,” i.e., “(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to limit the possibility that
the defense will be impaired.” Id. at 532. The Court emphasized that “[o]f these,
the most serious is the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.” Id. “In sum,” the Court
held, “none of the four factors [is] . . . either a necessary or sufficient condition to
the finding of a deprivation of the right of speedy trial.” Id. at 533. “Rather, they
are related factors and must be considered together with such other circumstances
as may be relevant.” Id.
b) The OCCA’s rejection of Lott’s claim
Lott asserted his speedy trial claim on direct appeal, “claim[ing that] all
four [Barker] factors clearly weigh[ed] in his favor and that his speedy trial right
ha[d] been unquestionably denied.” Lott I, 98 P.3d at 327. The OCCA agreed
that “the length of delay” between the filing of the third amended information and
the date of trial, which it calculated to be “approximately 4 years and 10 months,”
“was . . . substantial . . . and . . . sufficient . . . to necessitate a review of the other
three [Barker] factors.” Id. at 328. Although the OCCA agreed that the first and
third Barker factors (length of the delay and assertion of the right by the accused)
“weigh[ed] in [Lott]’s favor,” it concluded that the remaining two Barker factors
12
(reasons for the delay and prejudice) “favor[ed] the State.” Id. at 333. And the
OCCA ultimately concluded that Lott “was not deprived of his speedy trial rights
. . . , based upon the finding of reasonable reasons for the delay, the absence of
significant prejudice, and the less-than egregious deprivation of liberty.” Id.
c) Lott’s challenges to the OCCA’s decision
In this federal habeas appeal, Lott focuses much of his attention on what he
perceives as flaws in the district court’s analysis of the Barker factors, rather than
focusing exclusively on the OCCA’s analysis of those factors. Because, however,
the OCCA resolved the speedy trial claim on the merits, § 2254(d) requires us to
focus exclusively on the OCCA’s analysis of the claim. Accordingly, we shall
give Lott the benefit of treating his arguments as challenges to the OCCA’s
decision, rather than the district court’s decision.
1) Length of the delay
Lott argues that, with respect to the first Barker factor, i.e., length of the
delay, “the day he was first charged [with the Fowler and Cutler murders], March
10, 1995, is the appropriate start date for assessing his speedy trial date.” Aplt.
Br. at 30. Consequently, he asserts, “[t]he length of delay between that date and
the start of trial was six years and eight months.” Id. In support, Lott asserts that
the prosecution “did not act in good faith” in dismissing the original charges and
refiling them. Id. at 31. And, he argues, his “situation is virtually identical to the
facts of [Klopfer].” Id. at 33.
13
 The OCCA concluded that Lott’s “reliance on Klopfer . . . [wa]s
misplaced.” Lott I, 98 P.3d at 328. Specifically, the OCCA noted that in
Klopfer, “the prosecutor was able to suspend proceedings indefinitely” and “the
charges were not dismissed,” whereas in Lott’s case, the original charges against
Lott were dismissed entirely and Lott “was incarcerated for a separate crime at
the time [of the dismissal].” Id.
The OCCA’s holding in this regard is neither contrary to, nor an
unreasonable application of, Klopfer. In all key respects, Lott’s case differs from
Klopfer. Most importantly, unlike Klopfer, the original charges against Lott were
dismissed rather than simply suspended, and thus Lott did not remain “subject to
trial” during the time period between the dismissal of the charges on January 30,
1996, and the filing of the third amended information on March 19, 1997.
Klopfer, 386 U.S. at 216.
2) Reasons for the delay
Lott contends that the OCCA unreasonably applied Barker in concluding
that the reasons for the delay “w[ere] not solely attributable to the State,” and that
“the majority of the delays were necessary to further the ends of justice and
ensure that [Lott] received a fair and impartial trial.” Lott I, 98 P.3d at 331. In
support, Lott “asserts that the record reveals ample evidence of deliberate delay
by the State.” Aplt. Br. at 34. Most notably, Lott asserts, was “[t]he conduct of
Judge Owens, the original trial judge.” Id. at 36. Lott argues that “[a]lthough
14
Judge Owens presided over the case from March 20, 1998 until he retired in
January of 1999, he did next to nothing to advance . . . Lott’s speedy trial
interests.” Id. at 36-37. Lott asserts that only once during the nine months that
Judge Owens presided over the case did Lott or his counsel appear before the
court, and on that occasion (May 1, 1998), “Judge Owens continued the [matter].”
Id. at 37. Lott argues that “[t]he record and circumstances strongly suggest that
Judge Owens was well aware, long before January of 1999, that he intended to
retire,” and “he obviously decided early on that he would not take any steps to
move the case along.” Id. In short, Lott argues, Judge Owens engaged in
“purposeful conduct,” i.e., delay, “designed to thwart . . . Lott’s fundamental
constitutional rights.” Id.
But the OCCA, citing the state trial court’s factual findings (made in
connection with its denial of Lott’s motion to dismiss on speedy trial grounds),
rejected these same arguments:
In this regard, the trial court found[, after conducting an
evidentiary hearing,] the case was delayed due to scheduling
conflicts of both court and counsel. The trial court found that the
docket of Judge Owens was such that he could not have tried a case
of this magnitude during the four month time period encompassing
the final completion of the preliminary hearing transcript and the
date of his retirement. The trial court noted that Judge Owens chose
not to hear any pre-trial motions in this case as he would not be the
presiding judge at trial. The trial court found no defense request for
trial during the time the case was pending before Judge Owens.
Section 812.2(A)(2)(g) and (i) [of the Oklahoma statutes] require
the court to look at whether the delay occurred because “the court
has other cases pending for trial that are for persons incarcerated
15
prior to the case in question, and the court does not have sufficient
time to commence the trial of the case within the time limitation
fixed for trial,” and “the court, state, accused, or the attorney for the
accused is incapable of proceeding to trial due to illness or other
reason and it is unreasonable to reassign the case.” While we do not
know from the record whether Judge Owens had other cases pending
for trial that were for persons incarcerated longer than Appellant, we
do have the trial court’s finding that Judge Owens’ docket was such
that he could not try a case of this complexity prior to his retirement.
While these delays appear to be a deliberate postponement of the
case, taking judicial notice of the large caseload of criminal cases in
the District Court of Oklahoma County, and the complex nature of
the present case, we do not dispute the trial court’s finding that the
delay pending Judge Owens’ retirement was reasonable. Therefore,
this delay does not weigh in Appellant’s favor.
Lott I, 98 P.3d at 329 (footnote and internal paragraph numbers omitted).
Lott does not seriously dispute any of the above-referenced factual findings
that were made by the state trial court and relied on by the OCCA. For example,
Lott does not dispute, and the record confirms, that at no time while Judge Owens
was presiding over the case did defense counsel request a trial or assert that Lott’s
speedy trial rights were being violated. As for the state trial court’s findings
regarding Judge Owens’ docket, there is simply no evidence in the record to
either confirm or dispute those findings. Because the burden rests on Lott to
establish that the OCCA’s analysis was “based on an unreasonable determination
of the facts,” 28 U.S.C. § 2254(d)(2), he has failed in this regard.
Lott next takes issue with the OCCA’s determination that the state trial
court’s decision to grant two continuances requested by the State in order to
conduct mitochondrial DNA testing “were reasonable and prudent.” Lott I, 98
16
P.3d at 330. According to Lott, “scientific advances are commonplace and as a
matter of public policy should not be permitted as justification for delaying
justice or denying constitutional rights.” Aplt. Br. at 38. And, Lott argues, “the
State’s wrongful and nearly fatal prosecution and conviction of one innocent
man[, Miller,] should not be accepted as justification for discarding the
constitutional rights of another man presumed innocent.” Id.
Lott’s arguments, however, do nothing to establish that the OCCA’s
determination was an unreasonable application of clearly established federal law.
In Barker, the Supreme Court expressly recognized that, in assessing “the reason
the government assigns to justify [a particular] delay,” “different weights should
be assigned to different reasons.” 407 U.S. at 531. Given the unusual
background of this case, specifically the erroneous conviction of Miller, and the
serious nature of the potential punishment, the OCCA concluded, and we cannot
dispute, that it was entirely reasonable for the state trial court to have allowed the
State sufficient time to analyze the forensic evidence. In turn, the OCCA’s
classification of the State’s conduct as “reasonable and prudent” was neither
contrary to, nor an unreasonable application of, Barker. 2
Lastly, Lott contends that it was unreasonable for the OCCA to conclude
2
As the OCCA correctly noted, “all of the evidence had been gathered,
[and] no new evidence was sought” by the prosecution. Lott I, 98 P.3d at 332.
Thus, “[i]t was merely a question of analyzing that evidence in the most accurate
method possible.” Id. Further, “[s]uch testing could have very easily been
exculpatory and therefore benefited [Lott].” Id.
17
that the delay from June 2, 2000, when Lott’s motion to dismiss on speedy trial
grounds was denied by the state trial court, to November 13, 2000, the
rescheduled trial date set by the state trial court (which included time to allow
Lott to seek mandamus relief from the OCCA) “d[id] not weigh in [Lott]’s favor
as [the mandamus action] was ultimately unsuccessful.” Lott I, 98 P.3d at 330.
In support, Lott argues that “[s]eeking a remedy for a colorable constitutional
violation is a valid reason, particularly since had [his] speedy trial rights been
vindicated by the OCCA, his mandamus action would have spared the State the
considerable time and expense it took to try and convict him.” Aplt. Br. at 39. In
short, he argues, “[i]t is patently unfair to tax [him] for promptly and zealously
seeking to vindicate his constitutional rights.” Id.
We reject Lott’s arguments. In reaching its conclusion, the OCCA relied in
part on the Supreme Court’s decision in United States v. Loud Hawk, 474 U.S.
302 (1986). In Loud Hawk, the Supreme Court considered how, under the Barker
test, “to weigh the delay occasioned by an interlocutory appeal when the
defendant is subject to indictment or restraint.” Id. at 312. The Court concluded,
in pertinent part, that “[i]n that limited class of cases where a pretrial appeal by
the defendant is appropriate, delays from such an appeal ordinarily will not weigh
in favor of a defendant’s speedy trial claims.” Id. at 316 (citation omitted). The
Court noted that “[a] defendant who resorts to an interlocutory appeal normally
should not be able upon return to the district court to reap the reward of dismissal
18
for failure to receive a speedy trial.” Id. Although Lott now attempts to
distinguish his case from Loud Hawk, arguing that he filed a mandamus action
rather than an interlocutory appeal, and that the speedy trial claim he asserted was
not meritless, the OCCA reasonably relied on Loud Hawk in concluding that the
delay associated with the mandamus action did not weigh in Lott’s favor. Indeed,
the critical holding in Loud Hawk, quoted above, was not contingent upon the
procedural vehicle used by a criminal defendant to appeal, or upon the
meritoriousness of the arguments asserted by the defendant.
3) Assertion of the speedy trial right
Lott argues that the OCCA, although weighing the third Barker factor in his
favor, “miscalculated the number of times [he] asserted [his speedy trial] right,”
and thus “failed to give this factor sufficient weight in performing the balancing
required by Barker.” Aplt. Br. at 40. In particular, Lott contends that the OCCA
“failed to recognize at least three occasions on which [he] vigorously asserted his
speedy trial rights.” Id.
We reject Lott’s arguments. To begin with, the OCCA did not make a
definitive finding regarding the precise number of times that Lott asserted his
speedy trial rights in the state trial court. Instead, it simply noted that he “made
an affirmative request for a speedy trial on at least nine different occasions.” Lott
I, 98 P.3d at 331. Moreover, the OCCA noted that the third Barker factor was
satisfied because Lott was incarcerated while awaiting trial. Id. (“As for the third
19
factor, . . . incarceration makes the demand for one in custody.”). And, most
importantly, the OCCA expressly indicated that Lott’s assertion of his speedy
trial right was “entitled to strong evidentiary weight in determining whether [he]
[wa]s . . . deprived of the right.” Id. (internal quotation marks omitted). Thus,
there is no basis for concluding that the OCCA’s analysis was unreasonable, or
that the outcome of its Barker analysis would have been different had it taken into
account additional instances of Lott asserting his speedy trial rights. Again, Lott
prevailed on this point. The OCCA concluded Lott had affirmatively asserted his
speedy trial rights and weighed that Barker factor in Lott’s favor.
4) Prejudice
Lott contends that the OCCA unreasonably analyzed and applied the fourth
Barker factor, prejudice. Lott suggests, as an initial matter, that the length of the
delay in his case (which he continues to argue should be considered to be six
years and eight months), standing alone, should have been considered prejudicial.
Aplt. Br. at 41-42. Lott further argues that he suffered actual prejudice due to the
fact that, as a result of the DNA testing, the State was able to “address
weaknesses in its case and shore up its prosecution.” Id. at 42. Lastly, Lott
contends that he also suffered prejudice because a potential defense witness, Janis
Davis Lhyane, a forensic chemist who worked for the Oklahoma City Police
Department, died prior to his trial. He explains:
Lott was prejudiced by . . . Lhyane’s death because she had testified
20
at Robert Miller’s trial that while conducting DNA testing on
evidence from the Fowler crime scene she found a Caucasian hair.
The hair which caused the contamination of the evidence turned out
to be . . . Lhyane’s hair. In addition, three other Caucasian hairs
were found, and belonged neither to . . . Lhyane or . . . Fowler.
Id. at 43 (citations omitted).
The first and third of these arguments must be rejected because they were
not presented to the OCCA in Lott’s direct appeal. Specifically, nowhere in his
direct appeal brief did Lott argue that the length of the delay, standing alone, was
presumptively prejudicial, nor did he argue that he was prejudiced by Lhyane’s
death. See Direct Appeal Br. at 22-24. Consequently, the OCCA was not asked
to, and thus did not, address these arguments. And we, in turn, cannot address the
arguments because they are subject to an anticipatory procedural bar. See
Anderson v. Sirmons, 476 F.3d 1131, 1139-40 n.7 (10th Cir. 2007)
(“‘Anticipatory procedural bar’ occurs when the federal courts apply procedural
bar to an unexhausted claim that would be procedurally barred under state law if
the petitioner returned to state court to exhaust it.” (internal quotation marks
omitted)).
Moreover, even if we were to assume, for purposes of argument, that Lott
could circumvent this anticipatory procedural bar, there is no merit to his first and
third arguments. Lott’s “presumptive prejudice” argument is based upon the
Supreme Court’s decision in Doggett v. United States, 505 U.S. 647 (1992). In
Doggett, the Court held that a delay of eight-and-one-half years between the
21
defendant’s indictment and his arrest, which was caused by government
negligence, violated his Sixth Amendment right to a speedy trial. 505 U.S. at
657-58. In this case, in contrast, the delay was substantially shorter, roughly half
of the delay that was at issue in Doggett. Thus, it was reasonable for the OCCA
to have engaged in the Barker balancing test, rather than simply concluding that
the length of the delay, standing alone, warranted relief. As for Lott’s assertion
that he was prejudiced by Lhyane’s death, his explanation of that prejudice
simply makes no sense. Moreover, Lott’s trial counsel made the jury aware that
unidentified Caucasian hairs were found at the Fowler crime scene. Precisely
how Lhyane’s testimony would have further aided Lott in this regard is unclear.
That leaves only Lott’s argument that he was prejudiced because the State
was able to strengthen its case against him by way of the additional DNA testing.
The OCCA, however, expressly rejected this argument, noting
[t]he delays in the trial did not prevent [Lott] from challenging
the expertise and credibility of any of the experts conducting DNA
analysis. Further, the science of DNA testing is rapidly progressing
and it was to the benefit of both the State and the defense to have the
evidence subjected to the latest and most accurate type of analysis.
Such testing could have very easily been exculpatory and therefore
benefited [Lott]. The fact that the results proved favorable to the
State and not [Lott] is not grounds upon which to base a finding of
prejudice. . . . We find [Lott] was not prejudiced by the delays as his
defense was not hindered or impaired.
Lott I, 98 P.3d at 332. Although Lott clearly disagrees with this analysis, he has
failed to identify any clearly established law that mandates a different result.
22
Likewise, he has failed to demonstrate that the OCCA’s analysis of this argument
is in any way contrary to, or an unreasonable application of, Barker.
5) Balancing of the Barker factors
Finally, Lott contends that the OCCA’s balancing of the four Barker factors
was unreasonable. But his only argument in support is that, instead of the
OCCA’s conclusion that two of the factors favored the State and two factors
favored Lott, the OCCA should have treated “all four factors [as] favor[ing]
[him].” Aplt. Br. at 43-44.
For the reasons we have outlined, however, Lott has failed to establish that
the OCCA erred in concluding that two of the Barker factors favored the State.
Consequently, Lott has in turn failed to establish that the OCCA’s balancing of
the Barker factors was erroneous.
2) Erroneous aiding and abetting instruction
In Proposition Two of his appellate brief, Lott contends that the state trial
court violated his constitutional rights by instructing the jury that he could be
found guilty of felony murder on an accomplice liability theory, even though the
prosecution at a pretrial motions hearing had disavowed reliance on an aiding and
abetting theory of felony murder. Relatedly, Lott contends that the prosecution
and the state trial court effectively induced his trial counsel to act ineffectively
and concede Lott’s guilt on the felony murder charges without Lott’s consent.
23
a) Background facts
As we have noted, the fourth amended information filed by the State on
November 13, 2000, charged Lott with two counts of first-degree malice
aforethought murder and, in the alternative, two counts of first-degree felony
murder. The felony murder charges in the fourth amended information alleged, in
pertinent part, that Lott was “aided and abetted by . . . Miller.” State R., Vol. IV,
at 735.
At a pretrial motions hearing on March 23, 2001, the state trial court and
the parties discussed the question of whether the defense would be allowed to
introduce evidence regarding Miller’s potential involvement in the crimes. In the
course of that discussion, the parties referred to the aiding and abetting language
contained in the fourth amended information. To begin with, the prosecutor
argued that the aiding and abetting language was “surplusage” that did not impose
any “extra burden [on the State] to prove a connection between [Lott and
Miller].” Mot. Hr’g Tr., at 16, Mar. 23, 2011. Defense counsel argued, in
response, that “[t]hrough aiding and abetting they’re going to have to show some
sort of mental coming together between Lott and Miller,” “[a]nd they can’t.” Id.
at 19.
The prosecutor responded:
We have charged in count two the defendant as committing a
felony murder, that he killed these two ladies in the course of raping
them. There is no aider and abettor language in there at all. There is
24
the surplusage which charges Miller as -- as conjointly acting.
That’s not aider and abettor stuff. I don’t need to have any language
for aider and abettor.
....
All I got to show is -- is his commission of a felony rape, during
the course of which these two ladies died. With or without Miller. It
doesn’t matter.
Id. at 35-36.
Defense counsel in turn stated:
What I want to say on the aiding and abetting, I don’t know if
we’re -- I just think that [the prosecutor] and I are somehow confused
and I think it might be my fault, but if he wants to charge Ronnie
Lott with felony murder -- he has charged Ronnie Lott with felony
murder, with aiding and abetting language in with Robert Miller.
If Ronnie Lott is guilty of felony murder, a rape homicide, then
so be it, put on the evidence. But if you can’t draw a connection --
and I’ve got some case law . . . that does say you have to show some
sort of meeting of the minds, so to speak, for aiding and abetting.
If you got to show that, then any evidence we can put on pointing
towards Robert Miller debunks not just the malice murder, but the
felony murder. If we can put Robert Miller there and get the jury
thinking, somebody committed this crime, but we’re not sure who
and we can’t convict . . . Ronnie Lott simply because we’ve got some
evidence out there as to both of them, then that’s reasonable doubt.
The only way that we hurt ourselves with the Robert Miller stuff
is if, in fact, they’re right on an aiding and abetting theory. And I
know [the prosecutor] keeps saying they’re not alleging it, but it’s in
the language, and what I suspect is that we’re going to put on all our
evidence of Robert Miller, they’re going to put on all their evidence
of Ronnie Lott, and then, in closing argument, the State’s going to
tell the jury it doesn’t matter who they believe because, even if they
believe us, Ronnie Lott was aiding and abetting.
And what I’m saying is, under the law, we don’t think they can do
that and I’ve got the law here to show you, Your Honor, and if that’s
true, then it does make a big difference who the jury thinks. They
may have some real suspicions about Ronnie Lott, you know, but if
they got real suspicions about Robert Miller, too, and Ronnie Lott’s
charged alone, it may be reasonable doubt.
25
Id. at 37-38.
After further discussion, the prosecutor stated:
[The aider and abettor language in the information is] surplusage
and it should be deleted to the extent that this seems to be confusing
the issues. We’re going to be entitled to an aider and abettor
instruction as soon as [the defense] offer[s] the Miller evidence.
....
Any time a defendant offers that kind of evidence, that, folks, if
you believe Ronnie Lott raped these two women based on the DNA
evidence, and but you also think that the guy who hatched the
scheme and was rooting him on on the sideline is Robert Lee Miller,
he’s just as guilty and he’s just as eligible for the death penalty.
I mean, yeah, that’s definitely what we’re going to do, but as far
as that language charging him conjointly, it’s surplusage, whether the
jury hears about, [sic] it whether it’s stricken. That makes sense to
me.
Id. at 40-41.
Defense counsel asked the trial court, “can we still deal with the issue upon
aiding [and] abetting today?” Id. at 41. The trial court responded, “Let’s wait
and see how the evidence shakes out [at trial].” Id.
At trial, the defense was permitted to introduce evidence regarding Miller’s
potential involvement in the crimes. This included evidence of Miller’s
statements to the police, some of which suggested an intimate knowledge of the
crimes that only someone present at the scene could have known, as well as
evidence that Miller was originally charged with and convicted of the Fowler and
Cutler murders.
At the conclusion of the first-stage evidence, the trial court instructed the
26
jury regarding the charges against Lott. With respect to the felony murder
charges, the instructions stated, in pertinent part:
No person may be convicted of Murder In The First Degree (Felony
Murder) unless the State has proved beyond a reasonable doubt each
element of the crime. These elements are:
First, the death of a human;
Second, the death occurred as a result of an act or event, which
happened in the commission of a forcible rape and a First
Degree Burglary[;]
Third, caused by the defendant or any person engaged with the
defendant while in the commission of a forcible rape and a
First Degree Burglary[;]
Fourth, the elements of forcible rape and First Degree Burglary
the defendant is alleged to have been in the commission
of . . . .
State R., Vol. VII, at 1211 (Instruction Number 7) (emphases omitted).
The jury instructions also addressed the concepts of principals and aiding
and abetting:
All persons concerned in the commission of a crime are regarded
by the law as principals and are equally guilty thereof. A person
concerned in the commission of a crime as a principal is one who
directly and actively commits the acts constituting the offense or
knowingly and with criminal intent aids and abets in the commission
of the offense or whether present or not, advises and encourages the
commission of the offense.
Id. at 1215 (Instruction Number 10).
Merely standing by, even if standing by with knowledge
concerning the commission of a crime, does not make a person a
principal to a crime. Mere presence at the scene of a crime, or
acquiescence in its commission, without participation, does not make
a person a principal to a crime.
One who does not actively commit the offense, but who aids,
promotes, or encourages its commission, either by act or counsel or
27
both, is not deemed to be a principal to the crime unless he did what
he did knowingly and with criminal intent. To aid or abet another in
the commission of a crime implies a consciousness of guilt in
instigating, encouraging, promoting, or aiding in the commission of
that criminal offense.
Id. at 1216 (Instruction Number 11). Notably, Lott did not object to any of these
instructions.
Immediately following the trial court’s reading of the first-stage
instructions, the parties gave their respective closing arguments. The prosecution,
during its initial closing argument, discussed the elements of first-degree felony
murder:
Want to walk you through here because we’re not fussing about
any of this. This is the one that is real easy because it’s not in
dispute in the evidence at all. First of all, that first element, death of
a human, nobody’s fighting about that.
Second, that it occurred as a result of the act or event which
happened in the commission of forcible rape and first degree
burglary. There is no dispute in the evidence, parties aren’t fussing
at all that Zelma Cutler and Anna Fowler died during the commission
of the acts of burglary and rape, okay. So that’s not in dispute.
Third, caused by the defendant or any person engaged with the
defendant while in the commission of forcible rape and first degree
burglary. Gang, that’s not in dispute. We may be fussing about who
did what. They may want you to believe it’s Robert Miller who leans
in and smothers Zelma Cutler or leans in and smothers the life out of
Goldie Fowler instead of him because, as you can see, it doesn’t
make any difference in felony murder. Okay.
Fourth, the elements of forcible rape and first degree burglary,
you got to find that that’s what was going on. Mr. Albert took care
of that. He was laughing at me for suggesting that this wasn’t a
burglary. I think it was Mr. Albert. It may have been one of the
other lawyers over yonder. They were -- Mr. Albert was angry at me
in suggesting that the evidence was that this wasn’t a rape.
So we’re not fighting about whether there was a burglary and a
28
rape going on. And even if you believe everything that the defense
seems to be suggesting, that Robert Miller leaned in and did the
killing, it doesn’t matter.
Now here’s why. The reason behind the rule, so you just don’t
think we do this. The reason behind the rule is, is that when two
people agree to commit a crime and it involves one of these
inherently violent crimes -- burglarizing a home when somebody’s
there, armed robbery, rape -- crimes that are so dangerous that if the
State proves that you deliberately participated in the commission of
that crime, that that intent to commit the crime substitutes for the
intent of malice aforethought.
Now, it has a huge affect [sic] when we start talking about the
death penalty, but in terms of guilt on first degree murder, if you
knowingly, intentionally participate in one of these listed crimes,
really dangerous crimes like burglary and robbery and rape, and
somebody dies, you’re on the hook for the murder.
Now again, big difference in penalty, but as far as whether or not
you’re guilty of murder, it’s easy. So gang, if you can see this, you
can see why when the defendant enters his plea of not guilty and
you’re kind of scratching your head, gee, there must be a catch, the
only catch is he entered a plea of not guilty because, under this
instruction, even if you believe the stuff that the defense is talking
about, that it’s Miller who did the killing, it doesn’t matter.
Trial Tr., Vol. IX, at 1608-11.
Continuing, the prosecution discussed the principal and aiding and abetting
instructions:
But what about Robert Miller? What about Robert Miller? Judge
told you that you were going to get an instruction at the end of the
case that was going to make all this clear and I want you to see how
clear it really is.
All persons concerned, you’re told in instruction number ten, in
the commission of a crime are regarded by the law as principals and
are equally guilty thereof. A person concerned in the commission of
a crime as a principal is one who directly and actively commits the
acts constituting the offense.
That’s Ronald Lott. He actively commits the acts constituting the
offense. But a principal can also be one who knowingly and with
29
criminal intent aids and abets in the commission of the events or,
whether present or not, advises and encourages the commission of
the offense?
What does that criminal intent thing mean? It’s the design to
commit a crime or acts, the probable consequences of which are
criminal.
Here’s the biggy. Hear’s [sic] the biggy. It’s instruction number
eleven. Merely standing by with knowledge concerning the
commission of a crime does not make a person a principal to the
crime.
Now, this may fly in the face of common sense, obviously that’s
what Mr. Albert[, defense counsel,] had in mind when he was saying,
doesn’t it make Robert Miller as sick as -- he didn’t say my client,
but we are talking about Ronald Lott -- doesn’t it make Robert Miller
as sick as the rapist? Well, yeah; it just doesn’t make you guilty.
Id. at 1612-13.
Defense counsel’s closing argument focused in part on the possibility that
Miller, rather than Lott, killed Fowler and Cutler. In discussing this issue,
defense counsel stated, in pertinent part:
Last face [the victims] may have seen may have been Miller’s,
and that’s the way you got to look at this case. We do cases about
proof and about evidence. When [the prosecution] tell[s] you [it has]
no evidence that Robert Miller was the killer, that cuts both ways
because [it] also [has] no evidence what Ronald Lott was. None.
I don’t know what you’re going to do with that DNA [evidence],
but at worst [the prosecution] [has] proven that Ronald Lott was the
rapist which we told you a long time ago. At worst.
Id. at 1641.
You know, since they want to use DNA, let’s use those terms. In
proving this case in this courtroom, they cannot exclude Robert
Miller as the killer. That’s a DNA term for you. They cannot
exclude, because we all know he was there, we all know he knew
things he shouldn’t have known, we all knew thing -- he knew things
that go right to the death of these ladies, right to their bodies.
30
They cannot exclude in DNA terms Robert Miller as the killer and
neither can you. That’s what it comes down to, comes down to
proof. Since they can’t exclude him, then you have to have a
reasonable doubt as to who the killer is. You may not like that.
That’s the way it is.
Id. at 1642-43.
The prosecution, in its final closing argument, seized on defense counsel’s
statement that Lott was “at worst” the rapist:
All right. At most he’s the rapist. At most Ronald Clinton Lott is
the rapist of these two elderly ladies. [Defense counsel] just said it
and that is guilty of felony murder, period. You can mark it down,
check guilty on the box. He just said it. At most he’s guilty of
felony murder and that’s what you have to decide right now.
Id. at 1645.
Nothing controverts that Ronald Clinton Lott is the rapist. As a
matter of fact, his lawyer tells you that at worst that’s what he is.
Id. at 1649.
Because the jury was provided with a general verdict form, it is unclear
whether they found Lott guilty of first-degree malice aforethought murder or first-
degree felony murder. See State R., Vol. VII, at 1248-49.
b) The OCCA’s rejection of Lott’s claim on direct appeal
On direct appeal, Lott complained that the state trial court “instructed the
jury that they could find [him] guilty if they believed that the deaths were caused
by someone aiding and abetting [him] in the commission of the charged felonies,”
and “[d]uring closing argument, [his] defense [counsel] conceded that [he] had
31
raped the ladies, but maintained that Miller caused the deaths.” 3 Direct Appeal
Br. at 45. In other words, Lott argued that the state trial court instructed the jury
on an “uncharged theory of the case based on the defendant’s defense,” and that
those instructions effectively “resulted in [a] concession of guilt” by defense
counsel. Id. at 46.
The OCCA rejected Lott’s arguments:
In his fourth assignment of error, Appellant contends the trial
court erred by instructing the jury on aiding and abetting. We review
only for plain error as no objection was raised to the instruction.
Bland v. State, 2000 OK CR 11, ¶ 49, 4 P.3d 702, 718, cert. denied,
531 U.S. 1099, 121 S. Ct. 832, 148 L. Ed. 2d 714 (2001).
In support of his contention, Appellant relies on Lambert v. State,
1994 OK CR 79, 888 P.2d 494. In Lambert, the defendant was
charged with malice aforethought murder. The trial court gave
instructions on felony murder. The appellant argued he was not
given sufficient notice of this theory in the information, and this
Court reversed on this basis. 1994 OK CR 79, ¶¶ 45–48, 888 P.2d at
504. The situation in the present case is very different.
In a Fourth Amended Felony Information, filed approximately
one year before trial, Appellant was charged with two counts of first
degree malice aforethought murder for the deaths of Mrs. Fowler and
Mrs. Cutler. In the alternative, he was charged with two counts of
felony murder by aiding and abetting Robert Lee Miller, Jr., who in
the commission of first degree burglary and first degree rape killed
the victims. (O.R. 734–735). The State’s theory throughout the
3
Lott also argued that at trial “[t]he defense relied on the charging
information in choosing its defense, believing that the State would be required to
show that [he] alone caused the death of the ladies during the commission of a
rape and burglary.” Direct Appeal Br. at 44. But that argument was clearly
rebutted by what transpired at the March 23, 2001, motion hearing. As noted, the
prosecution agreed at that hearing to strike the aiding and abetting language from
the fourth amended information, but it retained the right to reassert the language
and rely on an aiding and abetting theory in the event that Lott presented evidence
at trial of Miller’s potential role in the murders.
32
proceedings was that Appellant committed the rapes, and that
Appellant either killed the victims himself or he aided and abetted
Miller in killing the victims. Unlike Lambert, Appellant was given
plenty of notice concerning the State’s alternative theories of guilt.
Further, the aiding and abetting instructions were warranted by
the evidence. The State’s evidence included the results of DNA
testing showing Appellant was the donor of the semen found at the
crime scenes, and that Miller had been excluded as the semen donor.
The State also presented evidence showing Appellant had pled guilty
to committing two other rapes under very similar circumstances as
the charges on trial. During the cross-examination of several of the
State’s witnesses, the defense established that Miller had made
certain statements about the Fowler/Cutler crimes which were not
known to the general public, and that based in part upon those
statements, Miller had been previously convicted of committing the
Fowler/Cutler homicides. During re-direct examinations, the State
elicited testimony that it was possible there were two intruders into
the homes of Mrs. Fowler and Mrs. Cutler and that it was possible
that one intruder killed the victims while the other watched.
Additionally, during its case-in-chief, the defense introduced
evidence concerning Miller’s prior prosecution in the Fowler/Cutler
cases. Accordingly, the trial court did not abuse its discretion in
giving the instructions on aiding and abetting instructions. See
Cannon v. State, 1995 OK CR 45, ¶ 25, 904 P.2d 89, 99. See also
Slaughter v. State, 1997 OK CR 78, ¶ 63, 950 P.2d 839, 857 n. 9.,
cert. denied, 525 U.S. 886, 119 S. Ct. 199, 142 L. Ed. 2d 163 (1998).
Appellant further argues defense counsel was ineffective as
counsel admitted guilt as to the felony murder charge without
Appellant’s consent. This Court follows the test for ineffective
assistance of counsel set forth in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). See Bland,
2000 OK CR 11, ¶ 112, 4 P.3d at 730. Under Strickland’s two-part
test, the appellant must overcome the strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance by showing: [1] that trial counsel’s
performance was deficient; and [2] that he was prejudiced by the
deficient performance. Unless the appellant makes both showings,
“it cannot be said that the conviction . . . resulted from a breakdown
in the adversary process that renders the result unreliable.”
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Appellant must
demonstrate that counsel’s representation was unreasonable under
33
prevailing professional norms and that the challenged action could
not be considered sound trial strategy. Id. at 688–89, 104 S.Ct. at
2065. The burden rests with Appellant to show that there is a
reasonable probability that, but for any unprofessional errors by
counsel, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id., 466 U.S. at 698, 104 S. Ct. at 2070.
When a claim of ineffectiveness of counsel can be disposed of on the
ground of lack of prejudice, that course should be followed. Id. at
697, 104 S.Ct. at 2069. This Court has stated the issue is whether
counsel exercised the skill, judgment and diligence of a reasonably
competent defense attorney in light of his overall performance.
Bland, 2000 OK CR 11, ¶ 112, 4 P.3d at 731.
Appellant relies on Jackson v. State, 2001 OK CR 37, ¶ 15, 41
P.3d 395, 398–399, where this Court reiterated its position that a
concession of guilt does not amount to ineffective assistance of
counsel, per se. The Court stated, “a complete concession of guilt is
a serious strategic decision that must only be made after consulting
with the client and after receiving the client’s consent or
acquiescence.” Id. at ¶ 25, 41 P.3d at 400. This Court placed the
burden on the appellant to show that he was not consulted and that he
did not agree to or acquiesce in the concession strategy. Id.
Under the facts of the present case, and when all of the arguments
are read in context, it is clear that guilt was not conceded. The
defense was well aware from early on that the State had DNA
evidence which conclusively placed Appellant at the scene. The
defense filed numerous pre-trial motions challenging that evidence.
To counter the State’s evidence at trial, the defense showed that the
scientific evidence relied upon 14 years ago to convict Robert Miller
of the Fowler/Cutler crimes—hair and blood analysis—had since
been proven unreliable. Defense counsel questioned whether DNA
analysis might not also go the way of hair and blood analysis in light
of future advances in forensic testing. Counsel also argued that all
the State had to prove Appellant’s guilt was DNA and that relying on
DNA was like gambling and relying on mere probabilities. Defense
counsel urged the jury not to let the State’s experts decide the case
for them. The defense also presented evidence showing Miller’s
involvement in the Fowler/Cutler crimes and his knowledge of
details that only someone present at the crime scenes would have
known. Defense counsel argued in closing argument that the
evidence showed Miller wasn’t a mere observer to the crimes, but the
34
actual perpetrator of the crimes.
Defense counsel also challenged the State’s alternative theories of
guilt and argued the State could not assert that Miller was and was
not the killer. Defense counsel argued that while Miller was in jail
for the Fowler/Cutler crimes, other rape victims did not die. Defense
counsel stated that when the State told the jury they had no evidence
Miller was the killer, “that cuts both ways because they also have no
evidence what Ronald Lott was. None.” Counsel then stated, “I
don’t know what you’re going to do with that DNA, but at worst they
have proven that Ronald Lott was the rapist . . .” Defense counsel
further argued that merely because Miller was not included as a
donor of the semen found at the scene, that did not mean that he was
not a rapist and a killer. Counsel argued it merely showed Miller did
not ejaculate at the scene. Counsel concluded his closing argument
by asserting the State had not proven that Miller was not the killer,
and because of that reasonable doubt as to Appellant’s guilt existed.
In light of this record, counsel’s statement that at worst “they
have proven [Appellant] was the rapist” was not a concession of guilt
to the charged crimes. This was an isolated comment within defense
counsel’s approximately 11 page closing argument. Any perceived
conciliatory aspect of the remark was not prejudicial to Appellant.
Claiming that Appellant had not been involved at all would have
completely destroyed counsel’s credibility before the jury in light of
the strong evidence of guilt. See Wood v. State, 1998 OK CR 19, ¶
60, 959 P.2d 1, 15–16. From the record, it appears that minimizing
Appellant’s role in the crimes in light of the DNA evidence was the
best possible method to gain an acquittal on the charges.
Accordingly, we do not find counsel’s performance deficient under
the circumstances. This assignment of error is denied.
Lott I, 98 P.3d at 336-38 (alteration in original) (internal paragraph numbers
omitted).
c) Lott’s arguments in this federal habeas action
In this appeal, Lott argues that “the OCCA . . . miss[ed] the point” because
“[t]he issue is not whether the evidence adduced at trial was sufficient to warrant
an aiding and abetting instruction,” but rather “whether the prosecution should be
35
permitted to specifically disavow an aiding and abetting charge pretrial, proceed
to try [him] on charges that do not include an aiding and abetting theory, and then
invite the jury to convict [him] of murder as an aider and abettor.” Aplt. Br. at
50. In support, Lott argues that his “entire defense was . . . based upon the
State’s reassurances that not only had it disavowed the aiding and abetting theory
of felony murder liability, but also had stricken the aiding and abetting language
from the fourth amended information.” Id. at 51. “Only after the defense had
presented its case,” Lott argues, “and after defense counsel had conceded to . . .
Lott’s involvement in the rapes, did the State spring its trap and renege on its
promise.” Id.
The threshold, and clearly fatal, problem with Lott’s arguments is that they
are based on a series of incorrect statements regarding what transpired in the state
trial court. As we have explained, the prosecution admittedly agreed at the March
23, 2001, motions hearing to strike the aiding and abetting language from the
fourth amended information. Importantly, however, the prosecution expressly
reserved the right to reassert that language in the event that Lott presented
evidence of Miller’s potential involvement in the charged crimes. And it is
undisputed that Lott did precisely that at trial, i.e., he presented evidence of
Miller’s potential involvement in the murders. Thus, in no way did the
prosecution “renege on its promise,” nor could Lott’s trial counsel have been
surprised by the state trial court’s decision to instruct the jury on aiding and
36
abetting. Indeed, as the OCCA found in rejecting these same arguments on direct
appeal, Lott’s trial counsel did not object to the trial court’s aiding and abetting
instructions. And because the state trial court read its instructions to the jury
prior to the first-stage closing arguments, Lott’s trial counsel was well aware that
the jury would be permitted to consider an aiding and abetting theory of felony
murder liability.
Relatedly, the OCCA expressly found that Lott’s trial counsel did not,
during the course of his first-stage closing arguments, concede Lott’s guilt of
felony murder. Although Lott disagrees with this finding, he has failed to rebut
by clear and convincing evidence the presumption of correctness we must afford
this finding under 28 U.S.C. § 2254(e)(1). As the OCCA correctly noted, a
review of defense counsel’s complete first-stage closing arguments reveals that
defense counsel was attempting to persuade the jury that a reasonable doubt
existed as to Lott’s responsibility for the murders under either theory of liability.
In this regard, defense counsel called into question the validity of the DNA
evidence presented by the prosecution, noting particularly the evidence indicating
that the prosecution had previously wrongfully convicted Miller based on what
had proven to be faulty scientific evidence, such as blood type grouping and hair
analysis. 4 And defense counsel not only cited evidence suggesting that Miller
4
For example, defense counsel argued:
(continued...)
37
was present at the scene of both crimes, but also argued that Miller may have in
fact been responsible for the crimes. 5
Even if we were to assume that the OCCA’s finding on the purported
4
(...continued)
We called Joyce Gilchrist to the stand, not for a spectacle, not to
put her on trial, but to show you that the science in 1987 excluded
this man[, Lott,] and included Robert Miller and that was their
science of 1987 that I’m sure, although they tell you today it wasn’t
as good as science, I am sure that when they put her on that witness
stand, it was science.
....
But now they get up there and they say, well, this is 2001, we’ve
got DNA now. Forget that old science. We’ve got the science now.
How do we know that? Until they get all six billion people and get
all our DNA so we can all be put down on a chart, how do they know
that? And how do you know that?
That’s what this case comes down to. Science of 14 years ago
was wrong. How do we know it’s so right now? And how do you
base a decision like this on that? That’s what you have to decide.
Trial Tr., Vol. IX, at 1637-38. Only in that context did defense counsel then
state, “I don’t know what you’re going to do with that DNA, but at worst they
have proven that Ronald Lott was the rapist which we told you a long time ago.
At worst.” Id. at 1641. Defense counsel subsequently returned to the issue of the
validity of the DNA evidence: “DNA. That’s what it comes down to. . . . But
are you going to let them use it to decide who lives and dies? That’s what you
got to decide. Probabilities, and 14 years ago science was wrong.” Id. at 1642.
5
Defense counsel argued, in pertinent part:
They cannot exclude in DNA terms Robert Miller as the killer and
neither can you. That’s what it comes down to, comes down to
proof. Since they can’t exclude him, then you have to have a
reasonable doubt as to who the killer is. You may not like that.
That’s the way it is.
Trial Tr., Vol. IX, at 1643.
38
concession issue constituted “an unreasonable determination of the facts,” 28
U.S.C. § 2254(d)(2), and in turn accept Lott’s characterization of what occurred,
i.e., a concession of guilt by defense counsel that occurred without notice to, or
the consent of, Lott, we are not persuaded that Lott would be entitled to federal
habeas relief. Considering both the first and second stages of trial as a whole, it
is clear that “a true adversarial criminal trial [was] conducted . . . [and] the kind
of testing envisioned by the Sixth Amendment . . . occurred.” United States v.
Cronic, 466 U.S. 648, 656 (1984). Thus, we could not simply presume that Lott
was prejudiced by counsel’s purported concession. See Florida v. Nixon, 543
U.S. 175, 190-91 (2004). Instead, we would have to consider whether, under the
second prong of Strickland, Lott was actually prejudiced by his counsel’s actions.
And, given the overwhelming evidence of Lott’s involvement in the charged
crimes, we could not say that Lott was prejudiced. During the first-stage
proceedings, the prosecution presented evidence indicating that vaginal, anal, and
oral swabs were taken from the bodies of both Fowler and Cutler. Two sources of
DNA were found in the vaginal swab taken from Fowler: DNA from Fowler’s
own vaginal cells and DNA from a sperm donor. The DNA profile of the sperm
donor was found to match Lott’s DNA profile, and the probability of randomly
selecting a matching profile approximately 1 in 15.7 quadrillion in the African-
American population. Similarly, the sperm samples taken from Cutler were found
to match Lott’s DNA profile (and Miller was excluded as the source of the
39
sperm). In short, the DNA evidence alone overwhelmingly established that Lott
was responsible for the rapes of Fowler and Cutler. 6 Because it was undisputed
that Fowler and Cutler died during the commission of those crimes, Lott was
clearly guilty of felony murder. And lastly, there is no basis to conclude that
counsel’s purported concession during the first-stage proceedings had any
prejudicial impact during the second-stage proceedings. See generally id. at 191-
92 (suggesting that, in a capital case involving overwhelming evidence and a
heinous crime, defense counsel must attempt to utilize first- and second-stage
strategies that are logically consistent). Thus, in sum, any purported concession
of guilt by Lott’s counsel was simply not prejudicial to Lott.
As a final matter, we conclude there is no merit to Lott’s assertion that the
state trial court’s instruction regarding aiding and abetting “‘by itself so
[infected] the entire trial that the resulting conviction violates due process.’”
Aplt. Br. at 51-52 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). As the
OCCA aptly concluded, Lott “was given plenty of notice concerning the State’s
alternative theories of guilt.” Lott I, 98 P.3d at 336. Moreover, the trial court’s
aiding and abetting instruction was amply supported by the evidence presented by
the defense at trial attempting to suggest that Miller, rather than Lott, was
responsible for murdering Fowler and Cutler.
6
Lott all but concedes this point in his appellate brief: “The presence of
Mr. Lott’s DNA at the crime scenes proved the Fowler and Cutler rapes.” Aplt.
Br. at 59.
40
3) Admission of other-crimes evidence
In Proposition Three of his appellate brief, Lott contends that he was
deprived of his right to a fundamentally fair trial due to the admission at trial of
evidence that he was convicted of the Marshall and Hoster rapes.
a) Background
Prior to Lott’s trial, the prosecution filed a pleading entitled, “NOTICE OF
INTENT TO USE EVIDENCE OF OTHER CRIMES.” State R., Vol. IV, at 637.
The pleading essentially notified the state trial court and the defense of the
prosecution’s intention to introduce evidence at trial of the Marshall and Hoster
rapes. Lott filed a written motion objecting to the introduction of this evidence.
On November 6, 2000, the state trial court overruled Lott’s motion, concluding
that the proposed evidence tended to prove identity due to an unusual modus
operandi.
At Lott’s trial, the prosecution, consistent with the trial court’s pretrial
ruling, was permitted to introduce evidence of Lott’s involvement in the Marshall
and Hoster rapes. This included fact witnesses who described the circumstances
of the Marshall and Hoster rapes. It also included testimony from Robert
Thompson, a former Oklahoma City police officer who was employed at the time
of trial as the chief investigator for the public defender’s office. Thompson
testified that he had worked on Miller’s post-conviction defense team and, in the
course of doing so, concluded through his investigative efforts that there were
41
significant similarities between the Fowler and Cutler homicides and the Marshall
and Hoster rapes. Lastly, the evidence included testimony from Gerald McKenna,
an inspector with the Oklahoma City Police Department’s sex crimes unit.
McKenna testified generally about serial rapists and their methods. McKenna
opined that there was no reason to doubt Lott’s involvement in murdering and
raping Fowler and Cutler simply because he did not kill Marshall and Hoster.
McKenna also discussed the similarities between the four crimes.
At the conclusion of the first-stage evidence, the state trial court instructed
the jury regarding the proper use of this evidence:
Evidence has been received that the defendant has committed
offenses other than those charged in the information. You may not
consider this evidence as proof of the guilt or innocence of the
defendant of the specific offenses charged in the information. This
evidence has been received solely on the issue of the defendant’s
alleged common scheme or plan and/or identity. This evidence is to
be considered by you only for the limited purpose for which it was
received.
State R., Vol. VII, at 1220 (Instruction Number 15).
b) Clearly established Supreme Court precedent
Lott points to the decision in Lisenba v. California, 314 U.S. 219 (1941), as
providing the clearly established federal law applicable to his claim. 7 In Lisenba,
7
Lott cites to a number of federal circuit decisions. But none of those
constitute clearly established federal law for purposes of 28 U.S.C. § 2254(d)(1).
Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (holding that “circuit precedent
does not constitute ‘clearly established Federal law, as determined by the
Supreme Court’” for purposes of § 2254(d)(1) and thus “cannot form the basis for
(continued...)
42
the Supreme Court outlined a general due process standard that applies to
criminal trials:
As applied to a criminal trial, denial of due process is the failure
to observe that fundamental fairness essential to the very concept of
justice. In order to declare a denial of it we must find that the
absence of that fairness fatally infected the trial; the acts complained
of must be of such quality as necessarily prevents a fair trial.
314 U.S. at 236.
Although not cited by Lott, two other Supreme Court decisions appear to be
applicable. In Payne v. Tennessee, 501 U.S. 808, 825 (1991), the Supreme Court
held that when a state court admits evidence that is “so unduly prejudicial that it
renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth
Amendment provides a mechanism for relief.” And in Estelle v. McGuire, 502
U.S. 62, 67-68 (1991), the Court made clear that this principle holds true
regardless of whether the evidence at issue was properly admitted pursuant to
state law.
c) Lott’s direct appeal
In his direct appeal, Lott argued that the state trial court erred in admitting
evidence of other crimes in violation of his constitutional right to a fair trial. In
particular, Lott argued that “evidence of the Hoster/Marshall rapes did not tend to
establish any fact of consequence other than the impermissible intermediate
7
(...continued)
habeas relief under AEDPA”).
43
inference that since . . . Lott had later raped two other people, he must also have
raped and killed . . . Cutler and . . . Fowler.” Direct Appeal Br. at 35. Lott also
argued that “the crimes . . . were not unusual enough to indicate the identity of
the perpetrator as having committed all four.” Id. at 39.
The OCCA rejected Lott’s arguments:
Appellant contends the trial court erred in admitting evidence of
the sexual assaults on Mrs. Marshall and Mrs. Hoster. Appellant
relies on prior case law from this Court where we have stated that
“similarity between crimes, without more, is insufficient to permit
admission” of evidence of other crimes. See Hall v. State, 1980 OK
CR 64, ¶ 5, 615 P.2d 1020, 1022.
Prior to trial, the State filed a Notice of Intent to Use Evidence of
Other Crimes and Brief in Support. The State alleged the similarities
between the Fowler/Cutler homicides and the Marshall/Hoster
assaults were “relevant as an aid in determining the identity of the
assailant. Also, the evidence is admissible as being part of a
common scheme or plan since it demonstrates a highly distinct
method of operation.” The State cited 37 similarities between the
Fowler/Cutler crimes and the Marshall/Hoster crimes. After hearing
argument, the trial [sic] found the other crimes evidence to be
relevant and admissible.
The basic law is well established—when one is put on trial, one is
to be convicted—if at all—by evidence which shows one guilty of
the offense charged; and proof that one is guilty of other offenses not
connected with that for which one is on trial must be excluded.
Burks v. State, 1979 OK CR 10, ¶ 2, 594 P.2d 771, 772, overruled in
part on other grounds, Jones v. State, 1989 OK CR 7, 772 P.2d 922.
See also Hall v. State, 1985 OK CR 38, ¶ 21, 698 P.2d 33, 37.
However, evidence of other crimes is admissible where it tends to
establish absence of mistake or accident, common scheme or plan,
motive, opportunity, intent, preparation, knowledge and identity.
Burks, 1979 OK CR 10, ¶ 2, 594 P.2d at 772. To be admissible,
evidence of other crimes must be probative of a disputed issue of the
crime charged, there must be a visible connection between the
crimes, evidence of the other crime(s) must be necessary to support
the State’s burden of proof, proof of the other crime(s) must be clear
44
and convincing, the probative value of the evidence must outweigh
the prejudice to the accused and the trial court must issue
contemporaneous and final limiting instructions. Welch v. State,
2000 OK CR 8, ¶ 8, 2 P.3d 356, 365, cert. denied, 531 U.S. 1056,
121 S. Ct. 665, 148 L. Ed. 2d 567 (2000).
When other crimes evidence is so prejudicial it denies a defendant
his right to be tried only for the offense charged, or where its
minimal relevancy suggests the possibility the evidence is being
offered to show a defendant is acting in conformity with his true
character, the evidence should be suppressed. Id. Where, as here,
the claim was properly preserved, the State must show on appeal that
admission of this evidence did not result in a miscarriage of justice
or constitute a substantial violation of a constitutional or statutory
right. Id. at ¶ 10, 2 P.3d at 366.
This Court has allowed evidence of other crimes or bad acts to be
admitted under the “plan” exception of § 2404(B) where the methods
of operation were so distinctive as to demonstrate a visible
connection between the crimes. Id. at ¶ 12, 2 P.3d at 366–67. See
also Aylor v. State, 1987 OK CR 190, ¶ 5, 742 P.2d 591, 593;
Driskell v. State, 1983 OK CR 22, ¶ 23, 659 P.2d 343, 349; Driver v.
State, 1981 OK CR 117, ¶ 5, 634 P.2d 760, 762–63. Distinctive
methods of operation are also relevant to prove the identity of the
perpetrator of the crime. Eberhart v. State, 1986 OK CR 160, ¶ 23,
727 P.2d 1374, 1379–80.
In this case, there is a substantial degree of similarity between the
Marshall/Hoster assaults and the Fowler/Cutler homicides. The
similarities show a visible connection sufficient to characterize a
common scheme and to be probative on the issue of identity of the
perpetrator. Briefly summarized, these similarities include: all four
victims were white females over the age of 71 who lived alone; all
four victims lived on the south side of the street and on corner lots;
the back porch screen door was cut on the homes of three of the
victims; the breaker box for the electricity to the residence was shut
off in the homes of three of the four victims; entry to the residence
was gained through a rear door in all four homes; a back door
window was broken in three of the homes; two of the victims were
awake when their homes was [sic] broken into and they were forced
to their bedrooms; all four victims were raped vaginally while in
their bedrooms; two of the four victims were also anally raped; all
four victims were raped either late at night or in the early morning;
all four victims were beaten about the head, face and arms; all four
45
victims suffered vaginal tears and bleeding; a knotted rag was found
on the beds of three of the victims; a pillow was placed over the
faces of three of the victims during the assault; none of the
residences occupied by the four victims were ransacked and nothing
of any significant value was taken from any of the homes; all four
assaults occurred within an eight month time period with the
Fowler/Cutler crimes occurring four months apart and the
Marshall/Hoster crimes occurring two months apart; all four victims
lived within three miles of each other; Appellant lived with his
mother or sister near the Fowler/Cutler homes at the time of their
murders and he lived with his brother near the Marshall/Hoster
homes at the time of their assaults.
Appellant contends there were just as many differences as there
were similarities between the crimes. Chief among those differences
is the fact that two of the victims were left alive while two were
killed. Appellant argues that at the time these four crimes occurred,
numerous instances of rapes and home invasions of elderly women
were being reported in the media. Appellant asserts the crimes in
this case were not unusual enough to point to a signature of one
individual perpetrator. We disagree. The similarities in this case are
far greater than those in Hall v. State, 1980 OK CR 64, ¶ 6, 615 P.2d
at 1022 relied upon by Appellant (similarities limited to each rape
took place in an automobile, all three victims were under the age of
consent, and each rape was committed in Tulsa County). Further, the
similarities between the Fowler/Cutler homicides and the
Marshall/Hoster assaults show a method of operation so distinctive as
to demonstrate a visible connection between the crimes. In crimes
involving sexual assaults, this Court has adopted a greater latitude
rule for the admission of other crimes. Myers, 2000 OK CR 25, ¶¶
21–24, 17 P.3d at 1030. See also Driskell, 659 P.2d at 349.
We further uphold the trial court’s ruling that the probative value
of the evidence of the Marshall/Hoster assaults outweighed its
prejudicial impact. See Mayes v. State, 1994 OK CR 44, ¶ 77, 887
P.2d 1288, 1309–10, cert. denied, 513 U.S. 1194, 115 S. Ct. 1260,
131 L. Ed. 2d 140 (1995). The evidence was necessary to support the
State’s burden of proof despite its prejudicial nature. Finding the
evidence properly admitted, this proposition is denied.
Lott I, 98 P.3d at 334-36 (footnote and internal paragraph numbers omitted).
46
d) Lott’s challenge to the OCCA’s decision
In this appeal, Lott concedes that, “had [his] DNA not been present to
prove that he raped . . . Cutler and . . . Marshall, the ‘other crimes’ evidence,
which the OCCA admitted was prejudicial, may have been necessary to support
the State’s burden of proof.” Aplt. Br. at 66. He argues, however, that “[g]iven
the presence of [his] DNA at the Fowler/Cutler crime scenes, . . . the Marshall
and Hoster rapes were hardly necessary to prove identification in regards to the
Fowler/Cutler crimes.” Id. He therefore argues that “[t]he OCCA’s
determination that the ‘other crimes’ evidence was necessary to support the
State’s burden of proof was objectively unreasonable in light of the facts
presented at trial and should be afforded no deference under 28 U.S.C. §
2254(d)(2).” Id. at 65-66.
As an initial matter, we note that the other-crimes evidence was properly
admitted under Oklahoma state law. As the OCCA explained, the four crimes
bore substantial similarities that, in the view of the prosecution’s expert witness,
indicated they were committed by the same serial rapist. Thus, the evidence was
relevant for purposes of proving the identity of the person responsible for raping
Fowler and Cutler. As for the OCCA’s conclusion that the probative value of the
evidence outweighed its prejudicial impact, it is important to note that the state
trial court’s ruling on this issue occurred prior to trial, and thus prior to the state
trial court hearing the precise nature of the prosecution’s DNA evidence. Lott
47
may well be correct that the DNA evidence, standing alone, would have been
sufficient to allow the jury to convict him. But the state trial court was not privy
to that evidence at the time of its ruling and Lott did not renew his objection to
the other-crimes evidence at trial. Moreover, despite the prosecution’s
introduction of the DNA evidence, Lott’s defense team focused its efforts on
attacking the legitimacy of that DNA evidence (suggesting to the jury that it was
possible that the DNA evidence might be later discredited, as had the purported
scientific evidence that was previously used to convict Miller of the crimes).
Thus, we cannot say that the OCCA erred in concluding that the other-crimes
evidence was indeed necessary to support the prosecution’s burden of proof.
That leaves, at most, only the question of whether the other-crimes
evidence was “so unduly prejudicial that it render[ed] [Lott’s] trial fundamentally
unfair.” Payne, 501 U.S. at 825. Notably, Lott did not argue this point in his
direct appeal, and thus the OCCA did not address it. Consequently, the argument
is subject to an anticipatory procedural bar in these federal habeas proceedings.
See Anderson, 476 F.3d at 1140 n.7.
And even if Lott could overcome this anticipatory procedural bar, a review
of the state court record indicates that Lott’s trial was not rendered fundamentally
unfair by the admission of the Marshall and Hoster evidence. Even aside from the
other-crimes evidence, the prosecution’s evidence of Lott’s guilt of the Fowler
and Cutler rapes/murders (particularly the DNA evidence) was overwhelming.
48
Further, it is clear that the Marshall and Hoster evidence would have, at a
minimum, been admissible by the prosecution during the second-stage
proceedings in order to prove the continuing-threat aggravator. Lastly, the jury
rejected the continuing-threat aggravator, and thus it does not appear that the
Marshall and Hoster evidence had any impact on the jury’s sentencing decision.
4) Prosecutorial misconduct—introduction of hearsay statements of Robert
Miller
In Proposition Four of his appellate brief, Lott contends that the
prosecution engaged in prejudicial misconduct by “injecting hearsay statements of
Robert Miller into both stages of . . . trial” in order “to prove that,” even though
Miller may have been present during the commission of the crimes, “it was . . .
Lott who killed both victims because he needed to eliminate witnesses.” Aplt. Br.
at 68. Lott also complains that the prosecutor “put [an additional] hearsay
statement before the jury,” i.e., that the victims begged for their lives and were
orally sodomized by Lott. Id. at 74. According to Lott, this misconduct violated
“his right to confrontation guaranteed under the Sixth Amendment.” Id. at 68.
And Lott asserts that “Crawford v. Washington, 541 U.S. 36 (2004), requires that
[he] receive a new trial.” Aplt. Br. at 72.
Lott’s claim derives, in part, from the first-stage testimony of McKenna,
the inspector with the Oklahoma City Police Department’s sex crimes unit.
During his direct examination, McKenna opined that there was no reason to doubt
49
Lott’s involvement in raping and murdering Fowler and Cutler simply because of
the fact that he did not kill either Marshall or Hoster. On cross-examination,
McKenna testified that, based upon his experience, sex crimes of the type at issue
are committed by lone perpetrators, and not by two people. On redirect,
McKenna opined that the Fowler and Cutler murders were committed to eliminate
witnesses, and not because the suspect received sexual gratification from the
killings. The prosecutor and McKenna then engaged in the following colloquy:
Q. Well, you were talked to about the Miller interviews and, to be
fair to you, neither side, them or us, gave you the transcripts. You
have not read the stacks of the transcripts of the Miller interview,
right?
A. No, sir, I have not.
Q. Okay. When Robert Miller is asked about what he saw, he, the
killer -- never himself -- he saw the killer do and he describes the
raping, the oral sodomy that he saw, the begging for lives. And he’s
asked the question, why did he kill her? And his first answer is I
don’t know. He’s asked again, why did he kill her? And the answer
is, he was scared. Scared of what? She was going to tell on him.
Now, I understand you haven’t reviewed this, so whether or not
he was led to these statements or whether and whether -- and to be
very clear, I agree a hundred percent with Mr. Albert and the rest of
those folks over there for what it’s worth, the State’s position is that
Robert Miller’s statements reflect that he was present and we’re
going to talk more about that later. You may not agree with that.
Bob Thompson sure doesn’t.
But my point to you is is [sic] that if Robert Miller was there or
he had some other way of learning what Ronnie Lott was thinking,
this answer, he killed her because he was scared she would tell on
him, is that consistent with your opinion that this was a rape/murder
done to kill in order to silence a witness?
A. Yes, sir, it is.
50
Trial Tr., Vol. VIII, at 1492-93.
Lott’s claim also derives from the prosecutor’s second-stage closing
arguments. During those arguments, the prosecutor addressed the allegations that
the Fowler and Cutler murders were committed for the purpose of avoiding or
preventing a lawful arrest or prosecution:
This aggravating circumstance is not established unless the
State’s proved beyond a reasonable doubt, first, that there was
another crime separate and distinct from the murder and, secondly,
that the defendant committed the murder with the intent to avoid
being arrested or prosecuted for that other crime.
Ladies and gentlemen, again, I submit to you, this element -- this
aggravating circumstance is proved without dispute. There is no
evidence to contest this. The defendant raped both of these women.
He, as Butch McKenna testified, following the cross examination
by [defense counsel] over there, that rapists kill, serial rapists kill for
two reasons. The act of the killing is the thing which gives them
their sexual boost. For them, the rape is just a -- is just a thing on
the way to the killing that’s really their deal or it’s all about the
control and rape and the killing is done to silence a witness.
The evidence of that is made absolutely clear by the fact that after
Robert Miller had been arrested for these crimes, he quit killing and,
instead, moved to threats to try and -- and other measures that y’all
have already heard about to conceal his identity as the rapist.
Robert Miller. Robert Miller in his interview with David Shupe.
Why did he kill her? I don’t know. Why did he kill her? He was
scared. Scared of what? She was going to tell on him.
You hardly needed that statement from Robert Miller to confirm
that the reason why the defendant did it is she was going to tell on
him because that’s what Grace Marshall and Eleanor Hoster did when
he left them alive.
Ladies and gentlemen, we believe that the evidence on this is
undisputed that these murders were committed to prevent lawful
arrest and prosecution. The thing about this one is even if the
defense that was offered to you in the first stage, that Robert Miller’s
the bad guy here, this aggravator is still present, it’s still present.
51
Id., Vol. X, at 1795-97.
a) Clearly established Supreme Court precedent
As noted, Lott points to the Supreme Court’s decision in Crawford as
supplying the clearly established federal law applicable to his claim. In
Crawford, the Court addressed the question of whether the introduction at a
criminal trial of a witness’s tape-recorded statement to the police describing the
crime at issue, where the accused has no opportunity for cross-examination of that
witness, violates the Sixth Amendment Confrontation Clause’s guarantee that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” 541 U.S. at 38. The Court, after
recounting the history of the Confrontation Clause, held that “even if the Sixth
Amendment is not solely concerned with testimonial hearsay, that is its primary
object, and interrogations by law enforcement officers fall squarely within that
class.” Id. at 53. The Court further held that “[t]he historical record . . .
support[ed] a second proposition: that the Framers would not have allowed
admission of testimonial statements of a witness who did not appear at trial unless
he was unavailable to testify, and the defendant had had a prior opportunity for
cross-examination.” Id. at 53-54. Ultimately, the Court held that “[w]here
testimonial statements are at issue [in a criminal trial], the only indicium of
reliability sufficient to satisfy constitutional demands is the one the Constitution
actually prescribes: confrontation.” Id. at 68-69. In other words, the Court held,
52
“the Sixth Amendment demands what the common law required: unavailability
and a prior opportunity for cross-examination.” Id. at 68.
b) Lott’s direct appeal
Lott first asserted his arguments on direct appeal. Specifically, Lott
complained that the prosecution, during its first-stage examination of McKenna,
improperly “used hearsay/facts not in evidence from its ‘key eyewitness’, Robert
Miller, that [Lott] killed . . . Fowler and . . . Cutler for the purpose of avoiding
arrest or prosecution.” 8 Direct Appeal Br. at 83. And Lott argued that “[t]his
error warrant[ed] reversal . . . due to [the] deprivation of [his] right to confront
witnesses against him, a fundamental right.” Id. at 84.
The OCCA rejected Lott’s arguments:
In a related assignment of error, proposition number eleven,
Appellant argues the prosecutor injected facts not in evidence
through the questioning of Inspector McKenna. Specifically,
Appellant complains that through the questioning of McKenna, the
State put Robert Miller’s statements before the jury in order to prove
that the homicides were committed for the purpose of avoiding arrest
or prosecution, and to show that the victims begged for their lives
and were orally sodomized. Appellant asserts McKenna’s testimony
concerning Miller’s statements was inadmissible hearsay that
influenced the first stage verdict. He argues the alleged error
impacted the second stage, when combined with other second stage
errors; it deprived him of a reliable sentencing stage.
Initially, we note that our review is for plain error only as none of
the challenged testimony was met with contemporaneous defense
objections. Simpson v. State, 1994 OK CR 40, ¶ 19, 876 P.2d 690,
698.
8
Lott did not complain about the references to Robert Miller in the
prosecution’s first-stage opening statement.
53
Inspector McKenna first testified to Robert Miller’s involvement
in the case on cross-examination. Defense counsel cross-examined
McKenna extensively on statements made by Miller despite
McKenna’s acknowledgement [sic] that he never interviewed Miller
and was not aware of the substance of Miller’s statements. Defense
counsel repeatedly reviewed statements made by Miller and asked
McKenna his opinion as to whether or not the person making those
statements would have been at the scene of the crime. This type of
questioning continued on re-direct examination. McKenna testified
his opinion that the case was a rape/murder done to silence a witness
was consistent with the conclusion that Miller’s statements indicated
he was present at the scene or had some other way of learning what
Appellant was thinking. However, Appellant does not cite, nor do
we find in the record, that McKenna testified that based upon
Miller’s statements, the victim’s begged for their lives and were
orally sodomized.
Any error in McKenna’s testimony concerning Miller’s
statements has been waived as defense counsel, and not the State,
opened up the issue of Miller’s statements with McKenna. [FN10] In
fact, the State objected to the questioning during cross-examination
for the reason that McKenna had not read all of Miller’s statements.
The trial court overruled the objection and permitted the questioning.
This Court has repeatedly held that an appellant will not be permitted
to profit by an alleged error that he or his counsel in the first instance
invited by opening the subject or by his or her own conduct, and
counsel for the defendant may not profit by whatever error was
occasioned by the admission of such incompetent evidence. Murphy
v. State, 2002 OK CR 24, ¶¶ 30–31, 47 P.3d 876, 882–882, cert.
denied, 538 U.S. 985, 123 S. Ct. 1795, 155 L. Ed. 2d 678 (2003);
Welch v. State, 1998 OK CR 54, ¶ 10, 968 P.2d 1231, 1240; cert.
denied, 528 U.S. 829, 120 S. Ct. 83, 145 L. Ed. 2d 70 (1999); Staggs v.
State, 1986 OK CR 88, ¶ 9, 719 P.2d 1297, 1299.
FN10.As the defense initiated and invited McKenna’s
testimony concerning Miller’s statements, we find
Crawford v. Washington, [541] U.S. [36], 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004) is not implicated.
Further, Appellant asserts the State argued evidence in support of
the “avoid arrest” aggravator as direct evidence of Appellant’s intent.
Appellant directs us to the following argument during the State’s
54
second stage closing. “Robert Miller. Robert Miller in his interview
with David Shupe. Why did he kill her? I don’t know. Why did he
kill her? He was scared. Scared of what? She was going to tell on
him.” Reviewing for plain error only, we find none.
The record shows that in support of the aggravator of “avoid
arrest”, the State presented Inspector McKenna’s expert opinion that
the murders were committed to eliminate witnesses. McKenna
testified his opinion was not based upon any statements made by
Robert Miller, but on his years of investigating hundreds of sexually
related homicides. McKenna testified Miller’s statement simply
corroborated his opinion. The prosecutor’s comments during closing
argument were based on the evidence and did not deprive Appellant
of a fair sentencing proceeding. See Bland, 2000 OK CR 11, ¶ 105,
4 P.3d at 729.
Lott I, 98 P.3d at 345-46 (internal paragraph numbers omitted).
c) Lott’s challenge to the OCCA’s decision
Lott contends in this federal habeas appeal that, “[b]ecause there was no
adjudication on the merits of [his] confrontation claim, no deference is warranted
[to the OCCA’s decision] under 28 U.S.C. § 2254(d).” Aplt. Br. at 71. Lott,
however, is clearly incorrect on this point. As the above-quoted language from
the OCCA’s decision makes clear, the OCCA concluded that Crawford was
inapplicable to Lott’s case, and that Lott’s rights under the Confrontation Clause
were not violated, because Lott’s counsel “initiated and invited McKenna’s
testimony concerning Miller’s statements.” Lott I, 98 P.3d at 345 n.10.
For purposes of our review, the OCCA’s determination involves both a
threshold factual finding, i.e., that Lott’s counsel was the one who initiated the
questioning of McKenna concerning Miller’s statements, and a resulting legal
55
conclusion, i.e., that the OCCA’s invited error doctrine precluded Lott from
asserting a Crawford challenge. After carefully examining the trial transcript, we
are unable to say that the OCCA’s threshold factual finding was
“unreasonable . . . in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). As the OCCA correctly noted, it was
Lott’s counsel who first introduced Miller’s statements into evidence by cross-
examining McKenna regarding Miller’s statements, even though McKenna stated
that he had neither interrogated Miller nor reviewed the transcript of Miller’s
statements.
To be sure, Lott suggests that it was the prosecutor who in fact first
introduced Miller’s statements to the jury. But a review of the trial transcript
proves Lott wrong on this point. During the first-stage opening statements, the
prosecution began by providing the jury with a brief chronological history of the
events that lead to Lott being charged with the Fowler and Cutler murders. In the
course of doing so, the prosecution noted that after Fowler and Cutler were
murdered, the “police flooded the neighborhood” and began interviewing
potential suspects. Trial Tr., Vol. III, at 447. “[O]ne of the folks they stopped,”
the prosecution asserted, “immediately caught their attention, was a fellow named
Robert Lee Miller.” Id. The prosecution proceeded to state:
But [the police] begin asking [Miller] questions and Robert Miller
begins making statements that he does not know about [the murders],
and he begins making statements that cause the police to want to
56
interview him.
Over the next dozen hours or so and the next couple of days,
Robert Miller is interviewed by police where he makes a number of
statements that just make no sense whatsoever, complete jibberish.
But yet in the middle of jibberish there are statements which
caused the police to connect those statements with things at the scene
that were a you had to be there kinds of things, not like the kind of
things that you would guess, not things he was told or that were in
the news, and so the police focused their suspicion on Robert Miller.
Id. at 448. The prosecution then explained to the jury how Miller was charged,
convicted, and ultimately exonerated of the Fowler and Cutler crimes. Thus, in
sum, although the prosecutor first made general reference to Miller’s statements
to the police, the prosecutor did not describe for the jury any statements from
Miller that were damaging to Lott. Nor, importantly, did the prosecutor first
attempt to introduce Miller’s statements into evidence. Thus, as we have
concluded, the OCCA’s factual finding on this issue was entirely reasonable.
As for the OCCA’s application of its own invited error doctrine, the
question for us is whether that results in Lott’s Crawford claim being
procedurally barred for purposes of federal habeas review. “‘A federal habeas
court will not review a claim rejected by a state court if the decision of [the state]
court rests on a state law ground that is independent of the federal question and
adequate to support the judgment.’” Walker v. Martin, 131 S. Ct. 1120, 1127
(2011) (alteration in original) (quoting Beard v. Kindler, 130 S. Ct. 612, 614
(2009)) (internal quotation marks omitted). “The state-law ground may be a
substantive rule dispositive of the case, or a procedural barrier to adjudication of
57
the claim on the merits.” Id. “To qualify as an ‘adequate’ procedural ground, a
state rule must be ‘firmly established and regularly followed.’” Id. (quoting
Kindler, 130 S. Ct. at 618).
The OCCA’s decision satisfies both of these requirements. To begin with,
it is beyond dispute that the OCCA’s rejection of Lott’s Crawford claim rested
exclusively on a state law ground, specifically a state procedural barrier to
adjudication of the claim on the merits, that was independent of the federal
question posed by the claim. See Sandoval v. Ulibarri, 548 F.3d 902, 912 (10th
Cir. 2008) (treating New Mexico Court of Appeals’ application of its invited error
doctrine as an independent state procedural ground). In turn, our review of
Oklahoma case law persuades us that this state law ground, i.e., the invited error
doctrine, is firmly established and regularly followed by the OCCA. See Cuesta-
Rodriguez v. State, 241 P.3d 214, 237 (Okla. Crim. App. 2010) (applying invited
error doctrine); Welch v. State, 968 P.2d 1231, 1240 (Okla. Crim. App. 1998)
(“Any error in the prosecutor’s inquiry in this case must be deemed invited error
as Appellant initially raised the issue during his direct examination.”); Pierce v.
State, 786 P.2d 1255, 1259 (Okla. Crim. App. 1990) (“We have often recognized
the well established principal [sic] that a defendant may not complain of error
which he has invited, and that reversal cannot be predicated upon such error.”);
Casey v. State, 732 P.2d 885, 888 (Okla. Crim. App. 1987) (“The rule is well
settled that a party may not complain of error which he himself has invited.”);
58
Griffin v. State, 287 P. 820, 822 (Okla. Crim. App. 1930) (“Counsel for defendant
invited whatever error was occasioned by the admission of this alleged
incompetent evidence and cannot profit by the same.”).
Of course, we could still address Lott’s Crawford claim on the merits if
Lott could “‘demonstrate cause and prejudice or a fundamental miscarriage of
justice.’” Johnson v. Champion, 288 F.3d 1215, 1226-27 (10th Cir. 2002)
(quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998)). But Lott makes
no attempt to establish cause and prejudice. And, given the overwhelming
evidence establishing Lott’s involvement in the Fowler and Cutler murders, we
are not persuaded that a fundamental miscarriage of justice will occur if we treat
his Crawford claim as procedurally barred.
5) Trial counsel’s failure to investigate and present mitigating evidence
In Proposition Five of his appellate brief, Lott contends that his trial
counsel was ineffective for failing to investigate and present at the second-stage
trial proceedings available mitigating evidence. According to Lott, this included
evidence that:
1) he is the youngest of ten children;
2) he was born into extreme poverty in rural Texas, with his siblings
and parents sharing a five-room shack with no heat or running water;
3) he spent the first three weeks of his life in the hospital, and his
mother was paralyzed during the first year of his life, which
interfered with their bonding relationship;
59
4) as a child, he and his family rarely had enough to eat;
5) his father was abusive, mean, and emotionally unavailable, and, on
a regular basis, he corporally punished the children with large
switches over the slightest perceived infraction or no infraction at
all;
6) his siblings typically left the family home around the age of
fifteen, in order to get away from their abusive father;
7) when he was ten years old, his mother left his father and took Lott
and the next oldest sibling, Mageline, and moved to Lawton,
Oklahoma;
8) after living in Lawton for a year, he and his mother moved to
Oklahoma City;
9) his mother worked two jobs in Oklahoma City, leaving him
virtually parentless at the age of eleven;
10) he began experimenting with drugs and alcohol at age eleven;
11) when he was twelve years old, his mother kicked him out of her
home and he was forced to live on the streets;
12) when he was in the eighth grade, he would occasionally stay with
a friend, Rick Berry, and Berry recalled Lott being filthy and hungry
and having to sneak into his mother’s home to steal food;
13) at age fourteen, he was arrested by authorities for unauthorized
use of a motor vehicle and placed on juvenile probation;
14) at age sixteen, his mother informed juvenile authorities that he
had violated probation for “lack of parental control” and he was
placed in the Oklahoma Children’s Center (OCC) juvenile home in
Taft, Oklahoma;
15) he was held in OCC beyond completion of his sentence because
the Oklahoma Department of Human Services had no place to release
him to;
60
16) he was ultimately released from OCC in 1978, approximately six
months before he turned eighteen;
17) in 1979, an investigation was conducted into Oklahoma’s
juvenile facilities, including OCC, and widespread abuses were found
to have occurred during the time he was incarcerated at OCC,
including hog-tying children, leaving them in solitary confinement
for extended periods of time, keeping them after completion of their
sentences without due process, and not providing education;
18) upon his release from OCC, he began living in Oklahoma City
and doing landscaping work;
19) in 1985, he was in a car accident, received a mild to moderate
head injury to the frontal lobe area, and was knocked unconscious for
approximately thirty minutes;
20) while incarcerated in 1988, he experienced headaches of such
severity that he was transported to a hospital for evaluation and
treatment;
21) intelligence testing revealed inconsistencies in his cognitive
functioning suggestive of brain damage;
22) neuropsychological testing and evaluation revealed the same
inconsistencies, indicating that he suffered cognitive dysfunction,
with causation unknown, and had an overall IQ of 74, and fit into a
borderline mental retardation classification;
23) Dr. Jeanne Russell, a psychologist, conducted a risk assessment
prior to trial and concluded that, although he would continue to pose
a risk of violence in society at large, he would not pose a risk of
future violence in a prison setting (with the unavailability of his
target victims and a structured environment).
Aplt. Br. at 88-90.
a) Clearly established Supreme Court precedent
Lott’s claim of ineffective assistance of trial counsel is governed by the
61
standards outlined in Strickland v. Washington, 466 U.S. 668 (1984). In
Strickland, the Supreme Court held that “[a] convicted defendant’s claim that
counsel’s assistance was so defective as to require reversal of a conviction or
death sentence has two components.” 466 U.S. at 687. “First,” the Court noted,
“the defendant must show that counsel’s performance was deficient.” Id. “This
requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. “Second,” the Court noted, “the defendant must show that the deficient
performance prejudiced the defense.” Id. “Unless a defendant makes both
showings,” the Court held, “it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the result
unreliable.” Id.
Notably, the Supreme Court has, on several occasions in recent years, been
critical of, and deemed unconstitutional, a trial attorney’s failure to thoroughly
investigate and present at the sentencing phase of a capital trial available
mitigating evidence. All of these cases, however, have involved inexcusable
neglect on the part of trial counsel, rather than strategic decision-making. See
Sears v. Upton, 130 S. Ct. 3259, 3264 (2010) (trial counsel’s investigation of
mitigating evidence, which amounted to less than a day, was limited to talking to
witnesses selected by the defendant’s mother); Porter v. McCollum, 130 S. Ct.
447, 453 (2009) (trial counsel met only briefly with defendant prior to penalty
62
phase and neglected to obtain defendant’s school, medical, and military records or
to interview defendant’s family members); Wiggins v. Smith, 539 U.S. 510, 524-
26, 534-35 (2003) (trial counsel abandoned, through “inattention,” an
investigation that would have revealed abuse, alcoholism, molestation, and
diminished mental capacity); Williams v. Taylor, 529 U.S. 362, 395-96 (2000)
(noting that trial counsel’s investigation of mitigating evidence, begun a week
before trial, if properly done should have uncovered that defendant endured a
“nightmarish childhood,” and counsel erroneously believed that state law barred
his access to records).
b) Background information relevant to claim
During second-stage opening statements, the prosecution outlined for the
jury the three aggravating circumstances that it had alleged and would be
attempting to prove. The defense team, in its opening statement, acknowledged
the jury’s first-stage verdicts and stated that they were “not in any way going to
suggest to [the jury] that the[] deaths [we]re anything less than awful.” Trial Tr.,
Vol. IX, at 1690. Instead, defense counsel noted, its second-stage “[e]vidence
w[ould] really involve three things”:
Number one, the evidence will show you that since May of 1987,
Ronnie Lott’s life has consisted of incarceration.
And you’ll have an opportunity to hear from people in both the
jail system here who have had contact with him, as well as people in
the penal system, penitentiary, who have had contact with him, and
be able to hear from them the observations that they have made in
their contact during these past 15 years with Ronnie Lott.
63
And I anticipate that what you will hear from them, the behavior,
the characteristics of Ronnie Lott, are entirely opposite or
diametrically opposed to the violence, the horribleness that you’ve
seen in regard to these crimes.
The evidence will be that while in either the county jail or the
penal system, Ronnie Lott has not presented himself as a threat or as
a danger to anyone, that during his incarceration that he has made a
change, that he has done positive things during that time.
Now, that’s in month [sic] way to suggest that that in some way
makes what you have determined all right, but it’s an opportunity for
us to show you what other people have seen in regard to Ronnie Lott.
That’s number one.
Number two. You will have an opportunity to hear from a family
member of Ronnie Lott, get to know a little bit about him in that
context, and hear what his family’s about, and that he is loved and
that he is important to those family members, as well.
And then finally, as [the prosecutor] suggested, we will present to
you testimony of Jim Fowler, Jim Fowler being the son of Anna
Laura Fowler, and we anticipate that he will tell you that it is his
opinion, based in this particular case, that the appropriate punishment
for Ronnie Lott is something other than the death sentence.
Id. at 1691-92.
The prosecution proceeded to incorporate by reference all of the evidence it
presented during the first-stage proceedings. The prosecution also presented
victim impact testimony from three witnesses: Mary Elizabeth Templin (a
daughter of Fowler), Harold Fowler (a son of Fowler), and Cynthia Houston
(Fowler’s oldest granddaughter). All three of these witnesses were asked by the
prosecution if they had an opinion as to what the appropriate punishment should
be for Lott, and all three testified that, in their view, death was the appropriate
punishment.
Lott’s defense team in turn presented mitigating evidence in the form of
64
testimony from five witnesses. The first of these witnesses, Charles Harris,
worked as a tag supervisor for Oklahoma Correctional Industries, and he testified
that Lott was a dependable worker who was generally fun to work with and never
exhibited any violent behavior. The second and third witnesses, Jason Ledford
and Terry Williams, had worked at the Oklahoma County Jail while Lott was
confined there awaiting trial, and both testified that they had not experienced any
serious problems with Lott’s behavior. The fourth witness, Harriet Tingle, was
Lott’s niece. She testified that Lott was like an older brother to her, that Lott had
people in his family who loved and cared for him, and that she would always love
Lott, his crimes notwithstanding. The fifth and final witness was Fowler’s oldest
son, Jim Fowler. He testified that, in his view, the appropriate punishment for
Lott was life without parole. The state trial court, citing Oklahoma state law,
refused to explain Jim Fowler’s reasoning to the jury.
During second-stage closing arguments, the prosecution discussed the three
alleged aggravating circumstances and outlined the evidence that was presented in
support of each one. The prosecution also commented on Lott’s attempt to use
his purported family support as a mitigating factor:
And let me interrupt myself to say when we get to the mitigating
circumstances, that mitigator that Ronald Lott has a good and loving
family, this is a difficult case, we’re supposed to be on opposite
sides, but let the State of Oklahoma be clear. We feel nothing but
sympathy and respect for that family.
They did nothing, nothing to contribute to this behavior. On the
contrary, they reached out with love and harmony and support.
65
[Lott] has no excuse that his family didn’t love and support him.
And what he did with that is use it as a base of operations to do
things that that family never, never knew about, never did anything
about, would have done what they could to stop, if they had known
about it. And that’s what he did.
Id., Vol. X, at 1798.
Defense counsel focused their closing arguments on Lott’s post-crime
behavior in prison:
[N]ormally these cases come up right after the crimes and the DA
can say, well, we don’t know if he can survive in prison without
killing somebody. That’s why you have to give him death.
We know that’s not true [for Lott]. We know for a fact that he
can survive in prison and not hurt anybody because he’s done it for
15 years.
Id. at 1813-14.
Now, is Ronnie Lott the worst of the worst? Obviously that’s
what you will have to decide. If we focus only on the offense and no
further, we know what that answer would be. But I hope I’ve
conveyed to you that’s only part of it. No, Ronnie Lott has
demonstrated that he can function in prison without being a threat.
Id. at 1823.
After deliberating, the jury rejected the continuing-threat aggravator
alleged by the prosecution, but found the existence of the other two alleged
aggravators, i.e., that the murders were especially heinous, atrocious, or cruel,
and that the murders were committed for the purpose of avoiding or preventing a
lawful arrest or prosecution. The jury in turn fixed Lott’s punishment at death for
each of the two murders.
66
c) The OCCA’s rejection of this claim
Lott first presented his ineffective assistance claim to the OCCA in
connection with his direct appeal. More specifically, Lott raised the issue in his
direct appeal brief, and also filed with the OCCA an application for an
evidentiary hearing on the claim. The OCCA rejected Lott’s claim and denied his
request for an evidentiary hearing. The OCCA’s explanation for its denial,
though lengthy, bears quoting:
In his fifteenth assignment of error, Appellant contends he was
denied the effective assistance of counsel by counsel’s failure to
present any evidence regarding Appellant’s background in the second
stage of trial. Appellant asserts that abundant information was
available to defense counsel, but counsel did not investigate the
information sufficiently to make it presentable to the jury. Appellant
argues much information existed about his background that could
have reduced his moral culpability and humanize [sic] him to the
jury. Appellant asserts this claim of error is almost exclusively
based on facts outside of the appellate record; therefore his claim of
error is raised fully in his Application for an Evidentiary on Sixth
Amendment Claims filed concurrently with his appellate brief.
Rule 3.11(B)(3)(b), Rules of the Court of Criminal Appeals, 22
O.S.2001, Ch. 18, App. allows an appellant to request an evidentiary
hearing when it is alleged on appeal that trial counsel was ineffective
for failing to “utilize available evidence which could have been made
available during the course of trial . . . .”. Once an application has
been properly submitted along with supporting affidavits, this Court
reviews the application to see if it contains “sufficient evidence to
show this Court by clear and convincing evidence there is a strong
possibility trial counsel was ineffective for failing to utilize or
identify the complained-of evidence.” Rule 3.11(B)(3)(b)(i). See
Short, 1999 OK CR 15, ¶ 93, 980 P.2d at 1108.
In order to meet the “clear and convincing” standard set forth
above, Appellant must present this Court with evidence, not
speculation, second guesses or innuendo. This requirement of setting
forth evidence does not include requests for more time to develop
67
and investigate information that was readily available during trial
preparation. Under the provisions of Rule 3.11, an appellant is
afforded a procedure to have included in the record for review on
appeal evidence which was known by trial counsel but not used or
evidence which was available but not discovered by counsel. It is
not a procedure for post-trial discovery. With these standards in
mind, we review Appellant’s Application for Evidentiary Hearing on
Sixth Amendment Grounds.
....
Appellant . . . contends trial counsel was ineffective for failing to
adequately investigate and present mitigating evidence. He argues
trial counsel failed to competently advise him of the meaning and
availability of mitigating evidence. Appellant asserts that trial
counsels’ failure to consult with him and obtain his consent not to
offer evidence of his background in second stage was not the product
of deliberate trial strategy, but rather the result of failure to fully
investigate mitigation.
In Appellant’s Exhibit B, Gretchen Mosley, appellate counsel,
admits in her sworn affidavit that a mitigation investigation was
conducted in preparation for trial. She states that investigation
included interviewing Appellant (which she did herself) and his
family members regarding his childhood, family history, substance
abuse, significant relationships and life events, psychological and
social development, and life circumstances and events surrounding
the time of the crimes. Ms. Mosley also states intelligence and
psychological testing was done, as well as an evaluation by a
neuropsychologist for brain damage. A Risk Assessment was also
conducted by licensed psychologist, Dr. Jeanne Russell, Ed.D.
Ms. Mosley states that none of this information was presented to
the jury. She states that when she asked trial counsel why he had not
presented any evidence of Appellant’s background, trial counsel
responded, “that they had ‘no way to put it on.’”
Appellant now argues that the mitigation investigation should
have put trial counsel on notice that Appellant’s background would
be a significant mitigating factor at trial, and therefore, trial counsel
should have retained an appropriate expert to conduct a social history
of Appellant. Appellant asserts trial counsel should at least have
presented the Risk Assessment Report prepared by Dr. Jeanne
Russell.
In support of his argument, Appellant presents the affidavit of
appellate counsel; a Social History report prepared by Dr. Jeanne
68
Russell, Ed.D., licensed psychologist, at the request of appellate
counsel (Appellant’s Exhibit C); a Risk Assessment prepared by Dr.
Jeanne Russell at the request of trial counsel (Appellant’s Exhibit I);
a copy of an internal memo from the Oklahoma Indigent Defense
System (OIDS) mitigation investigation stating that co-counsel
received more information from Appellant about his childhood and
family, and that lead counsel decided not to use the additional
information, but go with what evidence they had at the time
(Appellant’s Exhibit D); and affidavits from Sid Conaway and Paula
Alfred, capital defense attorneys in the Tulsa County Public
Defender’s Office, stating in pertinent part, it is the practice of
capital attorneys in Oklahoma to retain a mental health/sociology
expert to prepare and present to the jurors the client’s background
(Appellant’s Exhibits E and F).
To support his burden of establishing that trial counsels’ failings
were not the result of reasonable trial strategy, Appellant presents his
own affidavit (Appellant’s Exhibit A) stating that counsel never
discussed with him their strategy of not investigating or presenting
mitigation regarding his background; a copy of an OIDS internal
memo prepared by trial counsel after Appellant’s trial concerning the
decision not to impeach state’s witness Brian Wraxall (Appellant’s
Exhibit G); and a copy of an OIDS internal memo (apparently from a
mitigation investigator to lead counsel) suggesting a change of
counsel to an African–American attorney from Oklahoma County
based upon certain concerns of Appellant’s family (Appellant’s
Exhibit H).
Appellant has provided a great deal of information in his
Application and accompanying affidavits. However, we find he has
failed to set forth sufficient evidence to warrant an evidentiary
hearing. The affidavits submitted by Appellant show a substantial
mitigation investigation was conducted in this case. However,
Appellant finds fault with trial counsels’ failure to conduct a further
investigation. Appellant asserts trial counsel should have requested
“expert forensic mental health assistance to explain the importance of
Appellant’s experiences to his development and commission of the
crimes” and presented this to the jury in the form of a Social History
Report. Indeed, in Oral Argument, appellate counsel argued the
information contained in the Social History was the only information
that could have saved Appellant’s life and that trial counsel had an
obligation to put that information before the jury. For the reasons
discussed below, we find Appellant has failed to show by clear and
69
convincing evidence that trial counsels’ failure to present a Social
History Report of Appellant to the jury warrants an evidentiary
hearing.
As part of the mitigation investigation, a Risk Assessment Report
was prepared. In Appellant’s Exhibit I, Dr. Russell stated that
Appellant was referred by defense counsel for evaluation of his
potential risk of future violent behavior. Dr. Russell stated her
assessment was based upon interviews with Appellant, jail staff, and
OIDS Investigator Leedy; and review of transcripts from preliminary
hearings in Appellant’s prior convictions; records from the
Department of Institutions, Social and Rehabilitative Services
(DISRS) and Department of Corrections (DOC), and results of
intelligence and psychological tests.
In her assessment, Dr. Russell set forth the reasons for
Appellant’s incarceration, his family history, education, substance
abuse history, psychiatric history, medical history, relationships,
employment, and criminal history. Additionally, the assessment
contains Dr. Russell’s observations on Appellant’s behavior and
mental status. She stated he is “guarded in his responses to interview
questions”, but shows “no symptoms of a major mental disorder such
as hallucinations or delusions”. Also included in the Risk
Assessment are Assessment Results and Appellant’s aggression
history. In the Assessment Results portion of the report, Dr. Russell
stated Appellant scored high for the presence of psychopathy, which
she explained was “characterized interpersonally by grandiose,
egocentric, manipulative, and deviant interactions”, and “by a lack of
empathy, guilt or remorse”. She also stated psychopathy was defined
“behaviorally in terms of impulsivity and sensation seeking”. Also
included in the Assessment Results were Dr. Russell’s statements of
Appellant’s Personality Factors. She stated there was “no evidence
of psychotic thinking or other symptoms related to a major mental
illness”. Instead, “test results indicated Appellant was self-centered
or absorbed and may have difficulty in delaying gratification”. She
said his “behavior vacillated from agreeable to accusatory and this
type of behavior often keeps others on edge never knowing if he will
react in an obliging or resentful manner”. She also stated, “many of
his legal difficulties were most likely the product of these attributes
coupled with a chronic substance abuse problem. Results further
suggest he has not developed internal controls and as a result
functions best in a controlled, structured environment such as a
prison until such control is developed.”
70
As for the Aggression History portion of the report, Dr. Russell
noted Appellant’s two prior convictions for violent rapes against
elderly women. She stated, “he offered few insights into motive
behind victim selection”. Dr. Russell also stated that a review of
DOC records “revealed 11 misconducts over a 10 year time period
none of which included physical aggression.”
In the Summary section of the Report, Dr. Russell stated that an
evaluation of potential risk to others was conducted for the purpose
of assessing continuing threat. She stated risk was assessed for both
community and prison settings. Dr. Russell noted Appellant had
been incarcerated for 14 of his 41 years. She said Appellant reported
drinking alcohol on a daily basis since he was 15 years old. He also
reported some use of marijuana but denied use of other drugs. Dr.
Russell concluded that Appellant’s risk to others in the community
should be considered high as he lacks internal controls, has access to
alcohol, and his acts of aggression have always occurred in the
community and involved elderly women. Dr. Russell also concluded
that Appellant’s risk to others in a prison setting should be
considered low based in part on the structure of the prison system.
She also stated, “since incarceration for the most part minimizes the
defendant’s access to alcohol, drugs, weapons and potential victims,
the risk for future aggression significantly decreases when placed in
a more secure setting”.
At the request of appellate counsel, Dr. Russell also conducted a
Social History of Appellant. In Appellant’s Exhibit C, Dr. Russell
explained that a Social History is to assess the impact of both
psychological and sociological factors on Appellant’s offense. She
also stated it differs from the Risk Assessment performed previously
as the Social History looks at historical factors to better understand
behavior while the risk assessment “focuses on the interaction of the
environment and personality traits in assessing the probability for
future aggression.”
A comparison of the reports show, that but for one exception, the
same sources were relied upon for information. The one exception,
“interviews with family members and friends”, is listed as a resource
on the Social History Report but not the Risk Assessment Report.
Consequently, Appellant’s family history and childhood is set forth
in greater detail in the Social History. However, as Appellant and
family members were interviewed as part of the mitigation
investigation, trial counsel was presumably aware of the information
provided by family members. Further, many of the conclusions set
71
forth in the Social History Report are the same as those set forth in
the Risk Assessment Report. FN19 While recognizing the different
purposes behind the Social History and the Risk Assessment, the two
reports in this case contained much of the same information.
Therefore, when we consider the information gathered from the
mitigation investigation and known to trial counsel, we find
Appellant has failed to show by clear and convincing evidence there
is a strong possibility trial counsel was ineffective for failing to
expand his investigation to include a social history of Appellant.
FN19. In the Risk Assessment, Dr. Russell stated
Appellant “tries to present himself in a favorable light
which may be due to a combination of denial and lack of
self-awareness.” In the Social History she states
Appellant “employs denial and repression to deal with
psychological pain.” Both the Risk Assessment and
Social History note the early onset and long-lasting use
of alcohol by Appellant. Both reports also note the lack
of internal controls on Appellant’s part. Both reports
conclude that in the absence of any external controls,
either the Oklahoma Children’s Center where Appellant
was admitted as a delinquent child or the adult prison
system, combined with the lack of internal personal
controls, Appellant engages in a pattern of daily
drinking, use of drugs and criminal activity.
Next, we turn to the presentation of mitigation evidence. Defense
counsel presented five witnesses during second stage: Charles
Harris, Tag Supervisor for the Oklahoma Correctional Industries at
RBD Connors Correctional Facility, and Jason Ledford and Terry
Williams, Detention Officers at the Oklahoma County Jail. Each of
these witnesses testified to Appellant’s conduct and behavior while
incarcerated. Harris testified that Appellant was a good worker in
the tag facility and has risen to a position where he assisted Harris in
overseeing the operation. Harris described Appellant as dependable,
and said if Appellant were sent back to him in the tag facility; he
would have no problem working with him. Harris said he never saw
Appellant exhibit any aggressive or violent behavior. Ledford and
Williams both testified that they had not seen any violent behavior or
had any problems with Appellant while he was incarcerated in the
Oklahoma County Jail.
72
Also presented was Harriett Tingle, Appellant’s niece. Ms.
Tingle testified she was only eight years younger than Appellant and
that he was more like a big brother to her than an uncle. In addition
to detailing prior experiences with Appellant, she stated that while
Appellant was incarcerated, she stayed in contact with him. Ms.
Tingle testified that no matter what sentence Appellant received, she
and his family would continue to support him. The final defense
witness was Jim Fowler, Mrs. Fowler’s son. Mr. Fowler testified
generally against the death penalty.
Trial counsel’s decision to limit the mitigating evidence to the
above witnesses appears to have been reasonable trial strategy.
Presenting witnesses who would testify to Appellant being a
productive member of prison society was consistent with information
contained in the Risk Assessment that the risk of future aggression
from Appellant significantly decreased when he was in a secure
prison environment.
Further, Ms. Tingle was the only family member who testified
although she stated she had been accompanied to trial by an uncle
and his girlfriend, her grandmother (Appellant’s mother), an aunt and
a cousin. There is no indication in the record or in Appellant’s
Application for Evidentiary Hearing why those relatives did not
testify at trial.
Therefore, it comes down to counsel’s failure to present evidence
of Appellant’s life history and the circumstances surrounding the
crimes as contained in the Social History. Looking at both the Risk
Assessment Report and the Social History Report it was reasonable
trial strategy not to put too much of Appellant’s life history before
the jury. For every witness the defense presents, the State has the
opportunity to cross-examine. While Appellant argues that
presenting evidence of his life history and an explanation of his
conduct in light of his psychological and social development would
have enabled the jury to see him as a person and not as a monster,
the evidence could have the opposite impact on the jury. Both the
Risk Assessment and Social History contain information unflattering
to Appellant. Presenting detailed evidence concerning the behavioral
impact of Appellant’s life history of having no external or internal
controls (except when incarcerated) combined with chronic substance
abuse “could reasonably be viewed as mitigating to one person and
aggravating to another.” Murphy, 2002 OK CR 24, ¶ 54, 47 P.3d at
886.
Information contained in the Social History which could arguably
73
be seen as mitigating evidence consisted of descriptions of
Appellant’s father as “unloving” and “a strict disciplinarian” who
regularly “whipped” his children and spent his salary on his own
needs instead of feeding his family; that Appellant was the youngest
of 10 children and his mother had a difficult pregnancy with him; the
family lived in a small home with only five rooms and no running
water; his parent’s [sic] separation when he was young and his
accompanying his mother, and his young siblings, to live in the city
where his mother “worked all the time in an effort to take care of the
family and eventually ‘kick[ed] him out of the house for getting in
trouble’”; Appellant’s placement in the Oklahoma Children’s Center
as a delinquent child when he was 16; and psychological testing
which reported Appellant was “anxiously troubled, lonely and
socially apprehensive most of the time” and that “he often turns to
alcohol to fulfill a number of otherwise difficult to achieve
psychological functions”.
Dr. Russell stated in part the Social History was to provide a
background for understanding why Appellant eventually aggressed
against older women in such a violent and abusive way. She
concluded that although he had a positive relationship with his
mother, her decision to leave his father and move from the country to
the city was “the single most devastating event in his life.” Dr.
Russell also noted a relationship Appellant had with a woman named
Donna Burton. Burton apparently gave birth to a daughter during
their relationship although the paternity of the child was in question.
After the relationship between Burton and Appellant ended,
Appellant continued to provide for the child. Dr. Russell noted the
relationship ended in 1984 or 1985, about the time the first of the
rapes occurred. Dr. Russell claimed the relationship with Burton
provided additional insight into how Appellant dealt with
abandonment and may have been the catalyst for his aggression.
By contrast, information in the Social History which could be
described as not mitigating includes Dr. Russell’s statement that
Appellant had a very different view of the way he was raised and
“glamoriz[ed]” his early years, his description of his relationship
with his father as “close”, his reported memory lapse concerning his
move to the city with his mother and that Appellant’s descriptions of
his early life was inconsistent with that of other family members and
DISRS records. The Social History lists Appellant’s seven prior
convictions from two different states ranging from conspiracy to sell
marijuana to first degree rape and robbery with firearms and that
74
Appellant has been in prison since 1987. Also included in the Social
History is information concerning Appellant’s alcohol and substance
abuse which could be seen in either a mitigating or non-mitigating
light. This is a brief, and admittedly incomplete synopsis of the
Social History, which Appellant argues defense counsel was
ineffective in failing to present.
Having reviewed the information in the Social History, we find
presentation of that evidence would not have been helpful to
Appellant and might even have been counterproductive. If in fact,
Dr. Russell had been put on the witness stand to testify to the Social
History, the topic of the Risk Assessment and the information and
conclusions therein would have been relevant information for the
State to address on cross-examination. In that scenario, the jury
would certainly have heard that Appellant was a chronic alcohol and
drug abuser, he was self absorbed, lacked empathy, guilt and remorse
and without warning exhibited wide mood swings which affected his
interaction with others. The jury might also have heard that
Appellant’s conduct could not be explained or excused due to a
major mental illness or psychotic thinking, as there was no evidence
he suffered from either condition. Further, Appellant has received 11
misconduct reports while incarcerated the past 10 years. Although
none of the incidents included physical aggression, they did include
verbal aggression toward staff. FN20
FN20.Having compared the Risk Assessment and the
Social History, and finding much of the information
contained in the two reports to be similar, we take this
opportunity to note that when read in their entirety, the
two reports paint a much different picture of Appellant.
While recognizing the differing purposes behind the two
reports, Appellant comes across as a much meaner more
violent person in the Risk Assessment than in the Social
History. We note this distinction as a way to caution
expert witnesses not to attempt to deceive the courts by
intentionally leaving out information that could be
relevant to a jury’s consideration.
Instead of taking the risk that cross-examination could reveal
such “negative” information that would harm Appellant’s chances for
a sentence less than death, counsel chose to focus on more “positive”
evidence of Appellant’s life in prison. This evidence showed that
75
while Appellant was incarcerated he was not violent or aggressive,
that he was a good worker and had proved himself sufficiently
responsible to work at making license tags and to oversee other
inmates in the tag facility. We find trial counsel’s choice to limit the
second stage evidence to that showing Appellant was a productive
member of prison society and he had family who loved him, while
excluding potentially damaging evidence of Appellant’s
psychological and social development, especially in light of his
history of aggression towards elderly women, was reasonable trial
strategy well within the range of professional reasonable judgment.
In fact, counsel would have been ineffective if the door to the
damaging Risk Assessment Report and evidence contained therein
had been opened and the State had been able to exploit it to their
advantage. The Social History in this case contained the “double
edge” the Supreme Court has found sufficient to justify limited
investigations. See Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114,
97 L. Ed. 2d 638 (1987). We find it sufficient to justify a limited
presentation of evidence.
Defense counsel in this case consisted of a team of four attorneys
well known to this Court to be experienced in both the prosecution
and defense of capital cases. Having reviewed the contents of the
Social History, trial counsel’s response to appellate counsel that the
Social History was not presented because there was “no way to put it
on” can be interpreted as saying the evidence could not be “safely”
presented to the jury, not that it couldn’t be put on at all. The record
shows a reasoned strategic decision, made after a reasonably
thorough investigation, not to present the Social History because it
would have opened the floodgates to evidence very harmful to
Appellant. Even with the evidence contained in the Social History,
the State’s evidence in aggravation was great in this case, while the
mitigating evidence was much weaker.
Appellate counsel argued at oral argument that negative
information about Appellant was already before the jury in that he
had been convicted of committing admittedly horrific crimes.
Appellate counsel argued that trial counsel had an obligation to
present additional facts and psychological factors to explain
Appellant’s conduct. To the contrary, counsel does not have an
obligation to introduce any and all evidence that might conceivably
be considered mitigating in the hope that it might outweigh the
aggravating evidence and save the defendant’s life. Counsel’s
obligation is to use reasonable professional judgment in making
76
decisions concerning the defendant’s case. FN21
FN21.Further, counsel does not have an obligation to get a
waiver from the defendant on the decision not to present
certain mitigating evidence. While this Court has held
that when a competent defendant intends to completely
forego the presentation of any mitigating evidence
during second stage, counsel must obtain a knowing
waiver to that effect, Wallace v. State, 1997 OK CR 18,
¶ 27, 935 P.2d 366, 376, we have not extended the need
for a waiver to a case where some mitigation evidence is
offered. Therefore, contrary to Appellant’s claim,
counsel was not obligated to obtain a written waiver
from Appellant concerning the decision to limit
presentation of his background in second stage.
This is not to say that counsel is to make all of the decisions in
the case. As I stated in my special concurrence to Grant v. State,
2004 OK CR 24, 95 P.3d 178, (Lumpkin, J. special concur), it is the
(competent) client’s case, not the lawyer’s. While, [sic] counsel has
the responsibility to advise, inform, and consult with the client, the
defendant has the right be [sic] involved in the decision process that
will affect his or her life. Id., citing Faretta v. California, 422 U.S.
806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
In the present case, there is no indication that during trial,
Appellant disagreed with counsel’s decision to limit the presentation
of mitigating evidence. Further, the record reflects no question as to
Appellant’s competency for trial. The record shows that counsel’s
decision was a strategic choice made after a thorough investigation
and within the exercise of reasonable professional judgment.
Accordingly, we find presentation of the Social History would not
have significantly influenced “the jury’s appraisal” of Appellant’s
moral culpability. Cf. Wiggins v. Smith, 539 U.S. 510, 123 S. Ct.
2527, 2544, 156 L. Ed. 2d 471 (2003) quoting Williams v. Taylor, 529
U.S. 362, 398, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).
Accordingly, having thoroughly reviewed Appellant’s Application
and accompanying affidavits, we find he has failed to show by clear
and convincing evidence a strong possibility that defense counsel
was ineffective for failing to investigate further and utilize the
complained-of evidence. We decline to grant Appellant’s application
for an evidentiary hearing on sixth amendment [sic] grounds.
77
Lott I, 98 P.3d at 351-57 (alterations in original) (footnote and internal paragraph
numbers omitted).
d) The federal district court’s analysis of the claim
Notwithstanding the OCCA’s lengthy analysis and rejection of Lott’s
ineffective assistance claim, the district court in this case concluded that it was
bound by our decision in Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009) (en
banc), to review the claim de novo:
Petitioner’s claim was presented to the OCCA through a Rule
3.11 motion because it relied upon matters outside of the record.
While thoroughly addressing the non-record evidence, the OCCA
reviewed Petitioner’s claim within its Rule 3.11 framework and
denied Petitioner his requested evidentiary hearing because he “failed
to show by clear and convincing evidence a strong possibility that
defense counsel was ineffective for failing to investigate further and
utilize the complained-of evidence.” Lott, 98 P.3d at 351-57. In
Wilson, the Tenth Circuit determined that this analysis of an
ineffectiveness claim is not owed AEDPA deference. “This is an
explicit application of the Rule 3.11 standard which . . . does not
replicate the federal standard and therefore does not constitute an
adjudication on the merits as to whether [Petitioner’s] non-record
evidence could support his Strickland claim. A federal court
therefore does not owe deference to the OCCA’s rejection of
[Petitioner’s] ineffectiveness claim.” Wilson, 577 F.3d at 1300.
Thus, in accordance with Wilson, Petitioner’s claim is subject to de
novo review.
ROA, Vol. I, Pt. 4, at 765-66 (alterations in original).
Reviewing Lott’s claim de novo, the district court concluded first that
Lott’s trial counsel “conducted a substantial mitigation investigation” and thus
“knew [Lott]’s life history” and the result of his mental health evaluations. Id. at
78
779. In turn, the district court concluded that Lott’s trial counsel, “fully aware of
the difficulties encountered by [Lott] in his life, opted to pursue a different
mitigation strategy” that focused on Lott’s “extensive history of life in
incarceration” and his ability to “be productive and nonviolent” in a prison
setting. Id. at 782. Lott’s trial counsel also, the district court noted, “presented
evidence that [Lott] had a family who loved and supported him, and a sentence
recommendation of life without parole from one of the victim’s own family
members.” Id. Considered together, the district court concluded, “[t]his was
sound trial strategy.” Id. The district court also, out of an abundance of caution,
analyzed the prejudice prong of the Strickland test and concluded that Lott had
“failed to establish prejudice.” Id. at 783.
e) Which standard of review to apply in this appeal
The parties disagree on what standard of review we must apply in
reviewing Lott’s ineffective assistance claim. Lott contends that we, like the
district court, should apply a de novo standard of review. In support, Lott cites to
Wilson. In Wilson, a majority of this court held, for three essential reasons, that
“[a] federal court . . . does not owe deference to the OCCA’s rejection of [an]
ineffectiveness claim” under the OCCA Rule 3.11 standards. 577 F.3d at 1300.
First, the majority expressed concern that the OCCA might not analyze the
proffered non-record evidence in every instance in which it denies a motion for an
evidentiary hearing under Rule 3.11. Id. at 1290-92. Second, and relatedly, the
79
majority concluded in the cases before it that, because of the summary nature of
the OCCA’s rulings, the OCCA had not analyzed the petitioners’ proffered non-
record evidence and had, instead, denied the petitioners’ ineffective assistance
claims based solely upon the record evidence. Id. at 1290-91 (“In the cases
before us, the [OCCA] disposed of mixed questions of law and fact, but did so on
a factual record that was, solely as a result of the state procedural rule,
incomplete.”). Third, the majority held that “[b]ecause [OCCA] Rule 3.11 creates
a higher evidentiary burden than the federal [Strickland] standard, [it] cannot [be
said] that the OCCA’s failure to grant an evidentiary hearing under this standard
necessarily constitutes a determination that the defendant could not satisfy the
federal standard.” Id. at 1299. The district court in this case, considering itself
bound by Wilson, afforded no deference to the OCCA’s decision in Lott I and
instead reviewed Lott’s ineffective assistance claim de novo.
Respondent argues on appeal that “[s]ince Wilson was decided, the OCCA
has clarified the relationship between the Strickland standard and OCCA Rule
3.11.” Aplee. Br. at 66. Specifically, respondent notes that in Simpson v. State,
230 P.3d 888 (Okla. Crim. App. 2010), the OCCA stated as follows:
In conjunction with [his ineffective assistance of counsel] claim,
Appellant has filed a Rule 3.11 motion for an evidentiary hearing on
the issue of ineffective assistance of counsel asserting that counsel
was ineffective for failing to adequately investigate and identify
evidence which could have been made available during the trial.
Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title
22, Ch.18, App. (2007). In accordance with the rules of this Court,
80
Appellant has properly submitted with his motion affidavits
supporting his allegations of ineffective assistance of counsel. Rule
3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals,
Title 22, Ch.18, App. (2007). As the rules specifically allow
Appellant to predicate his claim on allegations “arising from the
record or outside the record or a combination of both,” id., it is, of
course, incumbent upon this Court, to thoroughly review and
consider Appellant’s application and affidavits along with other
attached non-record evidence to determine the merits of Appellant’s
ineffective assistance of counsel claim. Our rules require us to do so
in order to evaluate whether Appellant has provided sufficient
information to show this Court by clear and convincing evidence that
there is a strong possibility trial counsel was ineffective for failing to
utilize or identify the evidence at issue. Rule 3.11(B)(3)(b), Rules of
the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App.
(2007). This standard is intended to be less demanding than the test
imposed by Strickland and we believe that this intent is realized.
Indeed, it is less of a burden to show, even by clear and convincing
evidence, merely a strong possibility that counsel was ineffective
than to show, by a preponderance of the evidence that counsel’s
performance actually was deficient and that but for the
unprofessional errors, the result of the proceeding would have been
different as is required by Strickland. Thus, when we review and
grant a request for an evidentiary hearing on a claim of ineffective
assistance under the standard set forth in Rule 3.11, we do not make
the adjudication that defense counsel actually was ineffective. We
merely find that Appellant has shown a strong possibility that
counsel was ineffective and should be afforded further opportunity to
present evidence in support of his claim. However, when we review
and deny a request for an evidentiary hearing on a claim of
ineffective assistance under the standard set forth in Rule 3.11, we
necessarily make the adjudication that Appellant has not shown
defense counsel to be ineffective under the more rigorous federal
standard set forth in Strickland.
230 P.3d at 905-06. In light of this explanation in Simpson, respondent argues, it
is now clear that “Rule 3.11 does not place on defendants a heavier burden to
demonstrate ineffectiveness of counsel than Strickland,” Aplee. Br. at 67, and we
81
must therefore apply to the OCCA’s decision the more deferential standard of
review outlined in § 2254(d)(1). Respondent also argues that, even if we apply a
de novo standard of review to the claim, “the factual findings the OCCA made in
reviewing the proffered evidence should be given a presumption of correctness”
under § 2254(d)(2). Id.
We agree with the respondent. In Simpson, the OCCA made clear that Rule
3.11 obligates it to “thoroughly review and consider [a defendant’s Rule 3.11]
application and affidavits along with other attached non-record evidence.” 230
P.3d at 905. Thus, even in cases, such as Wilson, where the OCCA summarily
disposes of a defendant’s Rule 3.11 application without discussing the non-record
evidence, we can be sure that the OCCA in fact considered the non-record
evidence in reaching its decision. Such a conclusion, we note, is entirely
consistent with the Supreme Court’s repeated admonitions that AEDPA’s
deferential standards of review “do[] not require that there be an opinion from the
state court explaining the state court’s reasoning.” Harrington v. Richter, 131 S.
Ct. 770, 784 (2011). The OCCA’s decision in Simpson also clarifies that the
interplay of Rule 3.11’s “clear and convincing” evidentiary standard and its
“strong possibility of ineffectiveness” substantive standard is “intended to be less
demanding than the test imposed by Strickland.” 230 P.3d at 906. In other
words, the OCCA in Simpson has now assured us that “when [it] review[s] and
den[ies] a request for an evidentiary hearing on a claim of ineffective assistance
82
under the standard set forth in Rule 3.11, [it] necessarily make[s] the adjudication
that Appellant has not shown defense counsel to be ineffective under the more
rigorous federal standard set forth in Strickland.” Id. Consequently, it is plain to
us, as a matter of federal law, that any denial of a request for an evidentiary
hearing on the issue of ineffective assistance of counsel filed pursuant to OCCA
Rule 3.11, including the one made by the OCCA in Lott’s direct appeal, operates
as an adjudication on the merits of the Strickland claim and is therefore entitled to
deference under § 2254(d)(1). Lastly, it is indisputable that we are bound to defer
to the OCCA’s factual findings (regarding what pretrial investigative steps Lott’s
trial counsel took) under § 2254(d)(2).
f) Analysis of the OCCA’s decision
The only aspects of the OCCA’s decision that give us some pause are its
findings, made in the course of considering the first Strickland prong, that Lott’s
trial counsel decided as a matter of trial strategy to forego presenting evidence of
Lott’s social history, and that when Lott’s trial counsel stated to Lott’s appellate
counsel after trial that there was “no way to put [the Social History] on” at trial,
they were “saying the evidence could not be ‘safely’ presented to the jury, not
that it couldn’t be put on at all.” Lott I, 98 P.3d at 356. But those findings, made
on the basis of the OCCA’s review of the record on direct appeal, must “be
presumed to be correct” unless Lott rebuts the presumption by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). And after conducting our own
83
review of the record in this case, we cannot say that Lott has made such a
showing. As the OCCA apparently concluded, the only reasonable inference that
can be drawn from the record is that Lott’s counsel determined that introduction
of Lott’s social history would be more detrimental than beneficial, and thus made
a strategic decision not to present that evidence.
Even if we were to assume that the OCCA’s first-prong analysis 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)(2), we would still be bound to
defer to the OCCA’s prejudice analysis under Strickland’s second prong. In the
OCCA’s view, although the Social History Report prepared by Dr. Russell
contained some potentially mitigating information, it also included information
“which could be described as not mitigating,” Lott I, 98 P.3d at 355, and that
“might even have been counterproductive,” id. at 356. The OCCA also noted
that, had Dr. Russell testified about the Social History Report, the prosecution
would have cross-examined her about “the Risk Assessment and the information
and conclusions therein,” and that, consequently, the jury “would certainly have
heard that [Lott] was a chronic alcohol and drug abuser, . . . was self absorbed,
lacked empathy, guilt and remorse and without warning exhibited wide mood
swings which affected his interactions with others,” his “conduct could not be
explained or excused due to a major mental illness or psychotic thinking, as there
was no evidence he suffered from either condition,” and he “ha[d] received 11
84
misconduct reports while incarcerated [during the] 10 years” prior to trial. Id.
Thus, the OCCA concluded, “[e]ven with the evidence contained in the Social
History, the State’s evidence in aggravation was great in this case, while the
mitigating evidence was much weaker.” Id. After carefully examining the record
on appeal, we cannot quarrel with this conclusion, and we in turn conclude that it
is neither contrary to, nor an unreasonable application of, Strickland.
6) Admission of improper victim impact evidence
In Proposition Six of his appellate brief, Lott contends that the state trial
court’s admission of improper victim impact testimony from witness Cynthia
Houston, the granddaughter of victim Fowler, resulted in the arbitrary and
capricious imposition of the death penalty in violation of the Eighth and
Fourteenth Amendments. According to Lott, Houston’s testimony “did not meet
[Oklahoma’s] statutory requirements of admissible victim impact evidence,”
which limit such testimony to “immediate family members.” Aplt. Br. at 101-02
& n.49. In turn, Lott argues, Houston “read a lengthy, poignant statement in
which she related several of her grandmother’s personal characteristics to the
jury,” id. at 103, and then proceeded “to testify about the impact her
grandmother’s death had on her father, her aunt and her uncles,” id. at 104.
Finally, Lott complains, “Houston concluded her testimony by giving her personal
opinion that the appropriate punishment was death.” Id. And taken as a whole,
Lott argues, the probative value of Houston’s testimony was substantially
85
outweighed by its prejudicial effect.
a) Clearly established Supreme Court precedent
The Supreme Court’s decisions in Payne and Booth v. Maryland, 482 U.S.
496 (1987), provide the clearly established federal law applicable to this claim.
In Booth, the Court held “that evidence and argument relating to the victim and
the impact of the victim’s death on the victim’s family are inadmissible [under the
Eighth Amendment] at a capital sentencing hearing.” Payne, 501 U.S. at 830 n.2.
That holding was overruled by the Court in Payne. Id. at 830 & n.2. “Booth also
held that the admission of a victim’s family members’ characterizations and
opinions about the crime, the defendant, and the appropriate sentence violates the
Eighth Amendment.” Id. at 830 n.2. Payne did not overrule this portion of
Booth. Id. “Thus, it remains constitutionally improper for the family members of
a victim to provide characterizations and opinions about the crime, the defendant,
and the appropriate sentence during the penalty phase of a capital case.” DeRosa
v. Workman, 679 F.3d 1196, 1237 (10th Cir. 2012) (internal quotation marks
omitted).
b) The OCCA’s rejection of Lott’s claim
On direct appeal, Lott asserted some, but not all, of the arguments he now
asserts in this federal habeas appeal. In Proposition X of his direct appeal brief,
Lott alleged in a heading that the admission of Houston’s testimony violated
Oklahoma state law (specifically the Oklahoma statute governing admission of
86
victim impact evidence), and also “resulted in arbitrary and capricious imposition
of the death penalty in violation of the Eighth and Fourteenth Amendments.”
Direct Appeal Br. at 74 (capitalization in original altered). But the body of the
argument in support of Proposition X made no further mention of the United
States Constitution or any Supreme Court case. Instead, Lott’s arguments focused
on the admissibility of Houston’s testimony under Oklahoma state law. And,
although Lott complained generally about Houston having offered her opinion of
the appropriate sentence, Lott did not argue that Houston’s testimony in that
regard violated his constitutional rights.
In rejecting Lott’s direct appeal, the OCCA addressed both Lott’s state law
arguments and his general assertion that the admission of Houston’s testimony
violated his constitutional rights, but did not specifically address whether the
admission of Houston’s sentencing recommendation was constitutionally
improper 9:
In his tenth assignment of error, Appellant contends the trial court
erred in admitting the victim impact testimony of Cynthia Houston.
Ms. Houston was the granddaughter of Mrs. Fowler. Appellant
argues her testimony was inadmissible for the following reasons: 1)
the testimony contained irrelevant evidence about the impact of the
victim’s death on non-immediate family members; 2) she testified as
a family designee when family members had already testified; and 3)
9
Although we question whether, in light of this procedural history, Lott has
adequately exhausted his challenge to the admission of Houston’s sentencing
recommendation, the State has expressly acknowledged that this constitutional
claim was exhausted and, thus, has waived any argument on that basis. See 28
U.S.C. § 2254(c).
87
the testimony was highly prejudicial.
Prior to trial, Appellant objected to Ms. Houston’s testimony on
the same grounds now raised on appeal. In a Cargle FN11 hearing
during the second stage of trial, the court ruled that Ms. Houston did
not qualify under the statute as a member of the victim’s immediate
family but could testify if designated as a family representative. The
trial court limited her testimony to the effects of Mrs. Fowler’s death
on her father, her aunt, and her uncles.
FN11. Cargle v. State, 1995 OK CR 77, 909 P.2d 806,
cert. denied, 519 U.S. 831, 117 S. Ct. 100, 136 L. Ed. 2d
54 (1996), habeas corpus granted and remanded for a
new trial on other grounds, Cargle v. Mullin, 317 F.3d
1196 ([10th Cir.] 2003).
During the presentation of the victim impact evidence, Mrs.
Fowler’s son and daughter, Harold Fowler and Mary Templin,
testified. Ms. Houston, having been designated the family
representative by Harold Fowler, was the third and final victim
impact witness. Reading from a prepared statement, Ms. Houston
described how her grandmother was greatly loved by the family, that
someone in the family visited her on a daily basis, and that her
kitchen was a comfortable place for the family to congregate. Ms.
Houston also testified to her grandmother’s abilities in sewing and
gardening. She described the “great impact” her grandmother’s loss
had on her father and his siblings. Ms. Houston concluded her
testimony by stating her personal opinion that the appropriate
punishment was death. No defense objections were raised during
Ms. Houston’s testimony therefore we review only for plain error.
Murphy v. State, 2002 OK CR 24, ¶ 42, 47 P.3d at 884. FN12
FN12. The trial court’s ruling on the admissibility of the
victim impact evidence was similar to a ruling on a
motion in limine, advisory only and not conclusive. See
Short v. State, 1999 OK CR 15, ¶ 65, 980 P.2d
1081,1102–03, cert. denied, 528 U.S. 1085, 120 S. Ct.
811, 145 L. Ed. 2d 683 (1999). To properly preserve the
issue for appellate review, an objection must raised [sic]
at the time the testimony is given. Id. Appellant’s
failure to object to Ms. Houston’s testimony at the time
it was offered, waives all but plain error.
88
Victim impact evidence is constitutionally acceptable unless “it is
so unduly prejudicial that it renders the trial fundamentally
unfair . . . .” Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597,
2608, 115 L. Ed. 2d 720, 735 (1991). In Cargle, 909 P.2d at 827–28,
this Court addressed at length victim impact evidence as addressed
by the Supreme Court and by our state statutes. Since that time we
have had numerous occasions to revisit the statutory guidelines that
control the content and use of victim impact evidence. However,
Appellant’s second challenge to Ms. Houston’s testimony has not
been specifically addressed by this Court in previous cases. The
resolution of this challenge determines whether it is necessary to
review his other objections to the testimony.
Victim impact evidence is set forth in 22 O.S.2001, §§ 984,
984.1. FN13 The manner in which victim impact evidence is to be
presented and used at trial is set forth in § 984.1. This section
provides in pertinent part, “each victim, or members of the
immediate family of each victim or person designated by the victim
or by family members of the victim, may present a written victim
impact statement or appear personally at the sentence
proceeding. . . . .” (emphasis added). This language limits the
persons who may give victim impact evidence to three types of
people: 1) the victim; 2) members of the victim’s immediate family;
or 3) a person designated by the victim or the victim’s family. The
listing in the disjunctive of the persons who may give victim impact
evidence indicates the Legislature’s intent to make these three
categories of victim impact witnesses mutually exclusive. This
restrictive view of who may give victim impact testimony is
consistent with the limitations placed on victim impact evidence by
the Legislature and by this Court. See Cargle, 1995 OK CR 77, ¶ 75,
909 P.2d at 828 (“victim impact evidence is intended to provide a
quick glimpse of a victim’s characteristics and the effect of the
victim’s death on survivors.”)
FN13. 22 O.S.2001, § 984 provides in pertinent part:
1. “Victim impact statements” means information about
the financial, emotional, psychological, and physical
effects of a violent crime on each victim and members of
their immediate family, or person designated by the
victim or by family members of the victim and includes
information about the victim, circumstances surrounding
89
the crime, the manner in which the crime was
perpetrated, and the victim’s opinion of a recommended
sentence;
2. “Members of the immediate family” means the
spouse, a child by birth or adoption, a stepchild, a
parent, or a sibling of each victim; (emphasis added).
22 O.S.2001, § 984.1(A) provides:
A. Each victim, or members of the immediate family of
each victim or person designated by the victim or by
family members of the victim, may present a written
victim impact statement or appear personally at the
sentence proceeding and present the statements orally.
Provided, however, if a victim or any member of the
immediate family or person designated by the victim or
by family members of a victim wishes to appear
personally, such person shall have the absolute right to
do so. (emphasis added).
The victim is usually the best person to testify to the effects of a
crime perpetrated against him or her. In a homicide case when the
victim cannot speak, family members are usually in the best position
to give victim impact evidence. However, if family members choose
not to take the witness stand or for any reason are unable to testify,
they may designate another person to speak for them. The purpose
behind a family designee is to give a voice to family members unable
to testify in court. It was not intended to provide an opportunity for
those family members not listed in the statute and other interested
persons to give victim impact testimony.
Applying the statutory language to the present case, as Mrs.
Fowler’s son and daughter testified as members of her immediate
family, it was not necessary to have a family designee or
representative testify. FN14 Therefore, it was error to allow Ms.
Houston to testify as a family designee. FN15
FN14. In Williams v. State, 2001 OK CR 9, ¶ 66, 22 P.3d
702, 719, cert. denied, 534 U.S. 1092, 122 S. Ct. 836,
151 L. Ed. 2d 716 (2002), this Court cited 22
O.S.Supp.1992, § 984.1 and stated that the Legislature
had provided that any family member who wished to
appear personally [to give victim impact evidence] shall
have the absolute right to do so. This statement was in
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response to the appellant’s argument that this Court
should adopt a rule limiting the number of victim impact
witnesses to one. This Court refused to adopt such a
rule finding no statutory authorization for setting such
limits on the number of witnesses. In that regard, the
ruling in the present case is not intended to be a
limitation of the number of victim impact witnesses. As
long as a witness properly qualifies under the statute to
give victim impact evidence, the number of witnesses
the jury will hear is left to the sound discretion of the
trial court.
FN15. Further, as a granddaughter Ms. Houston does not
fall under the statutory definition of immediate family
permitted to give victim impact evidence. This Court
has not extended the statutory definition to include
persons related to victims in ways other than those
designated by the Legislature. Hanson v. State, 2003
OK CR 12, ¶ 28, 72 P.3d 40.
However, having reviewed her testimony, we find nothing which
“improperly weighted the scales” in the trial. FN16 Ms. Houston’s
testimony was brief and did not focus on the emotional aspects of the
victim’s death. Certain portions were cumulative to the testimony of
her father and aunt.
FN16. See Payne, 501 U.S. at 822, 111 S.Ct. at 2606–07;
Further, the jury was properly instructed, pursuant to OUJI–CR
(2d) 9–45 on the use of victim impact evidence. Appellant had been
convicted of raping and killing two elderly, defenseless women in
their homes. Evidence of the aggravating circumstances was
overwhelming and evidence of the aggravating circumstances clearly
outweighs the mitigation evidence. Reviewing the entire record, we
cannot say admission of Ms. Houston’s testimony caused the verdict
to be the result of an unreasonable emotional response. Accordingly,
we find no plain error, and this assignment of error is denied.
Lott I, 98 P.3d at 346-48 (second alteration in original) (internal paragraph
numbers removed).
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c) Analysis of the OCCA’s decision
In this appeal, Lott argues that, “in determining whether [federal] habeas
relief is warranted on the basis of Payne, the question under 28 U.S.C. § 2254(d)
is whether the OCCA properly applied Chapman[ v. California, 386 U.S. 18
(1967),]” in concluding that the admission of Houston’s testimony was harmless
beyond a reasonable doubt. Aplt. Br. at 102-03. And, according to Lott, the
OCCA’s harmless error analysis was flawed because “[t]he poignant testimony
[Houston] presented regarding her grandmother, plus her recommendation of
death – the third such recommendation made to the jurors – had a substantial and
injurious effect on the jury’s verdict.” Id. at 103 (footnote omitted).
As an initial matter, we reject Lott’s suggestion that the question at issue
“is whether the OCCA properly applied Chapman.” In Fry v. Pliler, 551 U.S. 112
(2007), the Supreme Court made clear “that in § 2254 proceedings a court must
assess the prejudicial impact of constitutional error in a state-court criminal trial
under the ‘substantial and injurious effect’ standard set forth in Brecht[ v.
Abrahamson, 507 U.S. 619, 637 (1993)], whether or not the state appellate court
recognized the error and reviewed it for harmlessness under the ‘harmless beyond
a reasonable doubt’ standard set forth in Chapman . . . .” 551 U.S. at 121-22.
Thus, if we determine that the admission of Houston’s victim impact testimony
was constitutional error, then we must assess the prejudicial impact of that error
under the Brecht test, rather than “the more liberal AEDPA/Chapman standard
92
which requires only that the state court’s harmless-beyond-a-reasonable-doubt
determination be unreasonable.” Id. at 119-20.
We thus turn to the question of whether the admission of Houston’s
testimony violated Lott’s constitutional rights. As we have noted, the OCCA
concluded that it was a violation of Oklahoma state law for the trial court to allow
Houston to testify as a family designee. Consequently, as we read its decision,
the OCCA did not reach the question of whether the admission of Houston’s
testimony also violated Lott’s constitutional rights. We therefore must review
that issue de novo.
It is clear to us that Lott’s constitutional rights were violated by the
admission of Houston’s testimony opining about the appropriate sentence for
Lott. See DeRosa, 679 F.3d at 1237. As we have noted, that type of victim
impact testimony remains inadmissible under Booth. Id. The remainder of
Houston’s testimony, however, was not violative of Lott’s constitutional rights.
Specifically, the remainder of Houston’s testimony was aimed at reminding the
jury that Fowler “[wa]s an individual whose death represent[ed] a unique loss to
society and in particular to h[er] family.” Payne, 501 U.S. at 825 (internal
quotation marks omitted). Although its admission may have violated Oklahoma
state law, it did not violate the Eighth Amendment. See id. at 827 (“We thus hold
that if the State chooses to permit the admission of victim impact evidence . . . ,
the Eighth Amendment erects no per se bar.”). Thus, we must assess whether the
93
admission of Houston’s testimony regarding the appropriate sentence for Lott had
a “substantial and injurious effect” on the outcome of the second-stage
proceedings.
As the OCCA noted in conducting its own plain-error analysis, the entirety
of Houston’s testimony was brief (comprising a total of six trial transcript pages),
and the constitutionally offending testimony was comprised of four words: “My
opinion is death,” which were stated in response to the prosecutor’s question, “Do
you have an opinion as to what the appropriate punishment in this case is?”
Given the overwhelming evidence of Lott’s guilt of the two rapes/murders, as
well as his admitted guilt of the two subsequent rapes, and the cruel and brutal
nature of the crimes, we conclude that the admission of Houston’s offending
testimony did not have a substantial and injurious effect on the jury’s sentencing
determination. In other words, we can say, “with fair assurance, after pondering
all that happened [at Lott’s trial] without stripping the erroneous action from the
whole, that the [jury’s sentencing verdict] was not substantially swayed” by
Houston’s offending testimony. 10 Kotteakos v. United States, 328 U.S. 750, 765
(1946).
10
We note, in passing, that the other victim impact witnesses, Mary
Elizabeth Templin and Harold Fowler, also testified, in response to questioning
by the prosecution, that they believed that death was the appropriate punishment
for Lott’s crimes. Lott, however, has never objected to the admission of this
testimony. Out of an abundance of caution, we did not consider that testimony in
assessing the prejudicial impact of Houston’s testimony.
94
7) Sufficiency of evidence—avoid arrest or prosecution aggravator
In Proposition Seven of his appellate brief, Lott contends that insufficient
evidence was presented at his trial to support the jury’s second-stage findings that
the two murders were committed in order to avoid arrest or prosecution.
According to Lott, “[t]he cause of death [in each case] was asphyxiation,”
“[t]here was no evidence that the homicides were separate and distinct from the
rapes, and the deaths of the[] two elderly victims likely occurred without [his]
intent to kill either of the victims.” Aplt. Br. at 107. Lott further argues that
“[t]he evidence showed that in . . . three of the rapes [he] used a pillow to subdue
the three victims,” and, “[l]ikely, the asphyxiation of . . . Fowler and . . . Cutler
occurred during the rapes as they were subdued.” Id. at 107-08.
a) Clearly established Supreme Court precedent
Lott points to Jackson v. Virginia, 443 U.S. 307 (1979), and Lewis v.
Jeffers, 497 U.S. 764 (1990), as providing the clearly established law applicable
to this claim. In Jackson, the Supreme Court addressed “[t]he question . . . [of]
what standard is to be applied in a federal habeas corpus proceeding when the
claim is made that a person has been convicted in a state court upon insufficient
evidence.” 443 U.S. at 309. And it “h[e]ld that in a challenge to a state criminal
conviction brought under . . . § 2254[,] . . . the applicant is entitled to habeas
corpus relief if it is found that upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt beyond a reasonable doubt.”
95
Id. at 324. In Lewis, the Court held that this same standard of review applies “to
federal habeas review of a state court’s finding of aggravating circumstances.”
497 U.S. at 782. Under that standard, “[a] state court’s finding of an aggravating
circumstance in a particular case . . . is arbitrary or capricious if and only if no
reasonable sentencer could have so concluded.” Id. at 783.
b) The OCCA’s rejection of Lott’s claim
Lott asserted these same arguments on direct appeal. 11 The OCCA rejected
them, stating as follows:
In his twelfth assignment of error, Appellant challenges the
evidence supporting the finding that the murders were committed for
the purpose of avoiding lawful arrest or prosecution. To support a
finding of this aggravating circumstance the State must prove the
defendant killed in order to avoid arrest or prosecution. Williams,
2001 OK CR 9, ¶ 83, 22 P.3d at 723; Mollett v. State, 1997 OK CR
28, ¶ 49, 939 P.2d 1, 13, cert. denied, 522 U.S. 1079, 118 S. Ct. 859,
139 L. Ed. 2d 758 (1998).
The defendant’s intent is critical to this proof and can be inferred
from circumstantial evidence. Williams, at ¶ 83, 22 P.3d at 723.
Furthermore, there must be a predicate crime, separate from the
murder, for which the defendant seeks to avoid arrest or prosecution.
Id. When the sufficiency of the evidence of an aggravating
circumstance is challenged on appeal, the proper test is whether there
was any competent evidence to support the State’s charge that the
aggravating circumstance existed. Hain v. State, 1996 OK CR 26, ¶
62, 919 P.2d 1130, 1146, cert. denied, 519 U.S. 1031, 117 S. Ct. 588,
136 L. Ed. 2d 517 (1996). See also Abshier, 2001 OK CR 13, ¶¶
156–157, 28 P.3d 579, 610, cert. denied, 535 U.S. 991, 122 S. Ct.
1548, 152 L. Ed. 2d 472 (2002). In making this determination, this
11
In doing so, Lott also argued that neither Miller’s statements to police,
nor Detective McKenna’s testimony, were admissible and thus could not be
considered in assessing the sufficiency of the evidence to support the aggravator.
Direct Appeal Br. at 85-86.
96
Court should view the evidence in the light most favorable to the
State. Hain, at ¶ 62, 919 P.2d at 1146.
In the present case, the evidence showed Appellant subdued and
raped both victims. While Appellant and the victims did not know
one another, there is no indication Appellant attempted to hide his
identity during the rape. That the victims could have identified their
assailant if left alive is sufficient to support the conclusion that the
victims were killed in order to prevent their identification of
Appellant and his subsequent arrest and prosecution. See Wackerly
v. State, 2000 OK CR 15, ¶ 43, 12 P.3d 1, 14–15, cert. denied, 532
U.S. 1028, 121 S. Ct. 1976, 149 L. Ed. 2d 768 (2001); Mollett, 1997
OK CR 28, ¶ 49, 939 at 13, 939 P.2d 1.
Citing Barnett v. State, 1993 OK CR 26, 853 P.2d 226, Appellant
further contends the rape was not a separate predicate crime arguing,
“it is likely . . . the victims died during the rape as Appellant tried to
subdue them, rather than Appellant completing the rapes and killing
the victim before he left so that they would not tell.” In Barnett, this
Court found the “assault and battery was not separate and distinct
from the murder itself, but rather was part of a continuing transaction
which culminated in the death of the victim.” 1993 OK CR 26, ¶ 30,
853 P.2d at 233–34.
The evidence in the present case shows the victims’ deaths were
not the result of the rape. Both victims died as a result of
asphyxiation. The evidence at both crime scenes revealed numerous
bruises on the victims’ arms indicating they had been bound by the
hands. Further, both victims suffered fractured ribs that Appellant
concedes was consistent with the perpetrator having sat on the
victim. However, the existence of pillows, and their condition, at
both scenes supports the inference Appellant sat on the victims after
the completion of the rape and smothered them. Reviewing this
evidence in the light most favorable to the State, a rational jury could
have found beyond a reasonable doubt the rapes were distinct and
separate crimes from the murders, and that Appellant killed the
victims in order to avoid lawful arrest or prosecution.
Lott I, 98 P.3d at 348-49 (footnote and internal paragraph numbers omitted). 12
12
We note that although the OCCA initially identified the “proper test” for
assessing Lott’s sufficiency-of-the-evidence challenge as the “any competent
evidence” test, it ultimately framed its conclusion in terms of the standard
(continued...)
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c) Analysis of the OCCA’s decision
Lott now argues that the OCCA’s analysis was unreasonable in four
respects. To begin with, he notes that the prosecution’s “other crimes” evidence
established that “[n]either . . . Hoster nor . . . Marshall[, the surviving victims of
the rapes,] knew . . . Lott, yet neither of them was killed.” Aplt. Br. at 109.
Consequently, he asserts, it was unreasonable for the OCCA to conclude “that
because [he] did not hide his identity during the rapes [of Fowler and Cutler] he
therefore killed the[m] to prevent them from identifying him . . . .” Id. Second,
Lott argues that, contrary to the conclusion reached by the OCCA, his “supposed
use of a pillow to subdue his victims does not prove an intent to kill the victims”
because “during three of the rapes the victims were subdued with pillows, yet
only . . . Cutler and . . . Fowler were killed.” Id. Third, Lott argues that “the
OCCA’s reliance on the injuries to the victims as a basis for finding that the rapes
were separate from the crimes [wa]s likewise unreasonable” because the evidence
presented at trial established that all four victims, including the two survivors,
sustained injuries to their head, face, and arms. Id. Finally, Lott argues that
“[t]he OCCA’s finding that [he] sat on the victims ‘after the completion of the
rape and smothered them’ . . . is in direct conflict with th[e] [OCCA’s] findings
12
(...continued)
outlined by the Supreme Court in Jackson. Lott does not argue that the OCCA
applied the wrong legal standard or for application of de novo review due to the
OCCA’s reference to the “any competent evidence” standard.
98
regarding [his] claim concerning the admission of ‘other evidence’ crimes . . . .”
Id. at 109-10 (quoting Lott I, 98 P.3d at 348). “In resolving that claim,” he
asserts, “the OCCA found that ‘a pillow was placed over the faces of three of the
victims during the assault.’” Id. at 110 (quoting Lott I, 98 P.3d at 335). Thus, he
argues, “[t]he OCCA unreasonably twisted the facts in order to justify the
admissibility of the other crimes evidence and to validate the finding of the
‘avoiding arrest’ aggravator,” and its “findings regarding these two issues cannot
be reconciled.” Id.
Addressing those arguments in reverse order, it is true that the OCCA, in
discussing the admissibility of the other-crimes evidence and outlining the
similarities between the four crimes, noted that “a pillow was placed over the
faces of three of the victims during the assault . . . .” Lott I, 98 P.3d at 335. It is
also true that the OCCA in turn, in addressing Lott’s challenge to the sufficiency
of the evidence supporting the “killed to avoid arrest or prosecution” aggravator,
concluded that the evidence, viewed in the light most favorable to the
prosecution, “support[ed] the inference [that Lott] sat on [Fowler and Cutler] after
the completion of the rape[s] and smothered them.” Id. at 348. Contrary to Lott’s
assertions, however, these two separate determinations are not necessarily
inconsistent. By accurately noting that a pillow was employed in three of the
cases (the evidence was undisputed on this point), the OCCA was merely
describing one (among many) similarities in how the crimes were carried out.
99
And its language describing those similarities was not intended in any way to
suggest that the employment of the pillows occurred during any of the three rapes.
Rather, the OCCA carefully and appropriately used the word “assault” to describe
the overall attacks in the three cases (since the victims in all three cases were not
only raped, but severely beaten). In contrast, when it discussed the sufficiency of
the evidence to support the aggravator, it employed different language, noting that
Lott “sat on [Fowler and Cutler] after the completion of the rape[s] and smothered
them.” Id. (emphasis added).
Lott’s other three arguments, all of which focus on the similarities between
the four crimes, can be disposed of based upon the testimony of prosecution
witness Gerald McKenna. McKenna, the Oklahoma City Police Department
inspector who specialized in sex crimes, testified that, in his opinion, the murders
of Fowler and Cutler were committed to eliminate them as witnesses, and not
because Lott received sexual gratification from those killings. McKenna also
testified that, in his opinion, the person who committed the third crime, i.e., the
rape/assault of Marshall (the other crime that involved the use of a pillow over
the victim’s face), realized that if he killed Marshall, he would effectively alert
the police, who had already arrested and charged Miller with the murders of
Fowler and Cutler, that the killer was still on the loose. Thus, despite the fact
that there were significant similarities between the four crimes, the specific
evidence introduced regarding the Fowler and Cutler crimes, particularly when
100
viewed in the light most favorable to the prosecution, would clearly have allowed
the jury to infer that the perpetrator intended to kill those women in order to
avoid arrest or prosecution for the rapes/assaults.
In the end, we conclude that the OCCA reasonably described both the
evidence relevant to the aggravator and the reasonable inferences that a jury could
have drawn from that evidence. Thus, we in turn conclude that the OCCA’s
determination that the evidence was constitutionally sufficient to support the
jury’s finding of the aggravator was neither contrary to, nor an unreasonable
application of, clearly established federal law.
8) Cumulative error
In Proposition Eight of his appellate brief, Lott contends that the
cumulative effect of all of the constitutional errors in his case warrants federal
habeas relief. Lott raised a similar issue in his direct appeal, asserting that “the
aggregate impact of the errors in []his case warrant[ed] reversal of his convictions
and at the very least modification of his death sentence.” Lott I, 98 P.3d at 357.
The OCCA denied that assignment of error, stating: “[h]aving found no errors
warranting reversal or modification, we find relief is not warranted upon a
cumulative error argument.” Id. Because, however, the OCCA did not identify
the constitutional error arising from the introduction of the improper victim
evidence, we will not grant deference to its decision and instead review Lott’s
cumulative error claim de novo. See Hooks v. Workman, 689 F.3d 1148, 1194
101
(10th Cir. 2012).
We recently “note[d] that there is a split in the circuits on whether the need
to conduct a cumulative-error analysis is clearly established federal law under §
2254(d)(1).” Id. at 1194 n.24. Our “body of precedent may very well signal
where our court has come down on this issue—viz., that cumulative-error analysis
is clearly established law.” Id. But we have no need to resolve that question
here, as we have identified only a single constitutional error.
“In the federal habeas context, a cumulative-error analysis aggregates all
constitutional errors found to be harmless and analyzes whether their cumulative
effect on the outcome of the trial is such that collectively they can no longer be
determined to be harmless.” Alverson v. Workman, 595 F.3d 1142, 1162 (10th
Cir. 2010) (internal quotation marks and brackets omitted). “[A]s the term
‘cumulative’ suggests, . . . we undertake a cumulative-error analysis only if there
are at least two errors.” Hooks, 689 F.3d at 1194-95.
The only clear constitutional error that occurred at Lott’s trial was the
admission of the improper victim impact evidence. However, that error, standing
alone, does not implicate cumulative-error analysis. And even if we were to
assume the existence of additional constitutional errors, we cannot say, having
exhaustively examined the record on appeal, that Lott’s trial was “so infected . . .
102
with unfairness as to make the resulting conviction[s] [or sentences] a denial of
due process.” Id. at 1188 (internal quotation marks omitted).
AFFIRMED.
103