Capital Defense Weekly
[Available at http://capitaldefenseweekly.com/archives/070430.htm]

Pending Executions
May
9 Philip Workman (Tennessee)
10 Jose Moreno (Texas)
16 David Ivy  (Tennessee)
16 Charles Smith (Texas)
22 Robert Comers (Az. -- vol.)
23 William Rogers  (Tennessee)
24 Christopher Newton  (Ohio)

• People v. Edward Montour, No. 02SA365 (Colo. 4/23/2007) Montour’s death sentence struck down on the basis of Ring and Blakely, which require jury determination of crucial facts in sentencing defendants. Specifically, the Court holds if a Defendant takes a guilty plea in Colorado to a murder charge the jury is waived for sentencing and such a result violates Ring / Blakely. Montour will now face resentencing.

• Charles Ross v. State, 2007 Miss. LEXIS 235 (Miss 4/26/2007)  "In the present case, we find reversible error in the failure of the trial court to adhere to Rule 9.04(I) in excluding the statement of Margaret Jones taken by Ross' investigator. Similarly, defense counsel's failure to investigate substantial mitigating factors during the sentencing phase requires reversal of Ross' sentence. Arguing that Ross' life should be spared because he could have functioned appropriately as a prisoner was not a valid defense given Ross' disciplinary record in prison. During the sentencing, defense counsel also failed to address substantial non-statutory mitigating factors noted by the state mental hospital. Other errors provide further justification for reversal because of their cumulative effort. These include the State maintaining in closing argument that Ross had been seen at the crime scene when he had not; defense counsel's failure to explore the possible tainting of the venire panel, particularly after Martindale's second prejudicial statement; and the exclusion of the State's ballistics report from evidence, which took a tangible document away from Ross that could have been argued to the jury. These errors are of particular concern because much of the State's case against Ross, absent the inconsistent testimony of Margaret Jones, was indirect. We therefore reverse Ross' conviction and sentence and remand his case for a new trial."

• State v. Ricky Thompson, 2007 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 4/25/2007) "Based upon our review of all cases 'involving similar defendants and similar crimes,' we conclude that the death penalty imposed in the present case is excessive and disproportionate to the penalty imposed in the other cases."
  

• Ian Lightbourne v. State,  2007 Fla. LEXIS 724 (FL 4/16/2007) (unpublished) In a cryptic memorandum opinion on lethal injection, matter is returned to the trial court.  On Vienna Convention claim relief is summarily denied.

 Favoring Death -- Week of  April 23, 2007

• Earl Berry v. Epps, 2007 U.S. App. LEXIS 9395 (5th Cir 4/24/2007) "As discussed, as he did in district court, Berry seeks a COA for each of the following five claims. First, at his first trial, because his testimony on whether he was afforded his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), conflicted with that of the State's witnesses, his confession should not have been admitted. Second, the trial court's refusal to change venue for that first trial, despite extensive pre-trial publicity, denied him his rights to trial by an impartial jury, in violation of the Sixth Amendment. Third, at his resentencing trial, his counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)  [*11]  because: he allowed the trial court to refer to Berry as a "habitual offender"; and he did not secure a meaningful review of certain conduct by the prosecutor. Fourth, for that trial, the prosecutor acted vindictively in denying him a plea bargain and the district court failed to address this in its analysis. Fifth, at that resentencing trial, inflammatory photographs and videotape evidence denied him a fair trial. As a collateral claim, Berry asserts, as he did in district court, that certain of his other claims should not be procedurally defaulted because of asserted deficiencies in the State's post-conviction review process, in violation of 28 U.S.C. § 2254(b)(1)(B). (This is not a COA request because it does not concern a claim for the violation of a constitutional right. Instead, it is presented to establish cause to overcome procedural default on claims concerning such a right.)"

• John Stephenson v. State , 2007 Ind. LEXIS 282 (Ind. 4/26/2007)  Relief denied: "(1) Stephenson's freestanding claims of error based on his wearing a stun belt at trial were available on direct appeal and are therefore foreclosed in post-conviction proceedings; (2) Because appearing in readily visible restraints is inherently prejudicial, if the issue had been raised on appeal, reversal would have been required unless the State had proved beyond a reasonable doubt that the error did not affect the result as to either guilt or the penalty; (3) Stephenson's claim of ineffective assistance of counsel requires him to establish substandard performance of counsel and a reasonable probability that the result would have been different but for counsel's errors and omissions; (4) Even if Stephenson's trial counsel's failure to object to the belt or to the lack of finding of need for any form of restraint fell below prevailing professional norms, Stephenson has failed to establish a reasonable probability that any such objection would have prevailed; (5) In death penalty cases, we are to evaluate claims of newly discovered evidence under the standard established in 2003 by Indiana Code section 35-50-2-9(k), which is whether the previously undiscovered evidence undermines confidence in the conviction or sentence; (6) Because Stephenson's claims of newly discovered evidence largely turn on the credibility of various witnesses and were rejected by the post-conviction court, they do not undermine confidence in Stephenson's convictions or death sentence; (7) Stephenson was not deprived of his right to a fair trial or due process because of the jury's exposure to various extraneous influences; and (8) The post-conviction court's conclusion that Stephenson failed to prove by a preponderance of the evidence that the State suppressed evidence that was material to his guilt or punishment is affirmed."

• Aaron Jones v. Allen, 2007 U.S. App. LEXIS 9571 (11th Cir 4/27/2007) Challenge to the three-drug protocol in Alabama denied due to delay.

• Ivan Teleguz v. Comm, 2007 Va. LEXIS 64 (VA 4/20/2007) Turning aside many challenges on procedural grounds, relief denied on claims including: (A) change of venue; (B) Commonwealth's treatment of Teleguz's brother as a hostile witness; (C) admission of alleged connection to the "Russian Mafia;" (D) vileness aggravator; (E) Brady; and (F) proportionality.

• Ex parte Robert Campbell, 2007 Tex. Crim. App. LEXIS 504 (Tex. Crim. App. 4/25/2007) Relief denied on claims relating to:  "(1) his conviction and sentence are unconstitutional because the State withheld evidence favorable to him in violation of his constitutional right to due process; (2) he was deprived of a fundamentally fair trial because of the admission of inherently unreliable DNA evidence; and (3) newly discovered evidence of his innocence independently warrants habeas relief."

• Michael Smith v. State, 2007 OK CR 16 (Okla Crim. App. 4/26/2007) Relief denied on claims including: Batson; joinder of counts at trial; improper arraignment; Miranda Waiver; trial court's answering of jury notes without counsel's input; admission of other crimes evidence; sufficiency; use of HAC aggravator; use of "continuing threat to society" aggravator; weighing of aggravators versus mitigators; mandatory review; and cumulative error.

• John Stephenson v. State, 2007 Ind. LEXIS 282 (Ind 4/26/2007) Relief denied on claims relating to: "(1) Stephenson's freestanding claims of error based on his wearing a stun belt at trial were available on direct appeal and are therefore foreclosed in post-conviction proceedings; (2) Because appearing in readily visible restraints is inherently prejudicial, if the issue had been raised on appeal, reversal would have been required unless the State had proved beyond a reasonable doubt that the error did not affect the result as to either guilt or the penalty; (3) Stephenson's claim of ineffective assistance of counsel requires him to establish substandard performance of counsel and a reasonable probability that the result would have been different but for counsel's errors and omissions; (4) Even if Stephenson's trial counsel's failure to object to the belt or to the lack of finding of need for any form of restraint fell below prevailing professional norms, Stephenson has failed to establish a reasonable probability that any such objection would have prevailed; he therefore has not established a reasonable probability that the result of either the guilt or the penalty phases would have changed. (5) In death penalty cases, we are to evaluate claims of newly discovered evidence under the standard established in 2003 by Indiana Code section 35-50-2-9(k), which is whether the previously undiscovered evidence undermines confidence in the conviction or sentence; (6) Because Stephenson's claims of newly discovered evidence largely turn on the credibility of various witnesses and were rejected by the post-conviction court, they do not undermine confidence in Stephenson's convictions or death sentence; (7) Stephenson was not deprived of his right to a fair trial or due process because of the jury's exposure to various extraneous influences; and(8) The post-conviction court's conclusion that Stephenson failed to prove by a preponderance of the evidence that the State suppressed evidence that was material to his guilt or punishment is affirmed."

(Advance Sheet for the Week of  April 30, 2007) In Favor of Life or Liberty

• Phillip Workman v. Bresden, NO. 3:07-0490 (M.D. Tn. 5/4/2007) A TRO was issued for the Phillip Workman execution on lethal injection. A hearing on a motion for preliminary injunction is scheduled for Monday May 14, 2007.

• State v. Carey Moore, NO S-95-485 (Neb. 5/2/2007) Execution by electrocution stayed for further hearings.

(Advance Sheet for the Week of  April 30, 2007) In Favor of Death

• David Woods v. Buss, 2007 U.S. App. LEXIS 10683 (7thCir 5/2/2007) (unpublished) Counsel appointed for successor claim, Atkins / Panetti claim denied, stay denied.
  

• People v. Cleophus Prince, 2007 Cal. LEXIS 4272 (Cal 4/30/2007) [via Findlaw] Relief denied "over claims of error regarding: 1) a failure to change the venue; 2) expert opinion evidence of an FBI agent; 3) discovery; 4) the admissibility of evidence of defendant's statements; 5) exclusion of a victim's statements concerning conflict with her boyfriend; 6) a witness's testimony; 7) evidence of defense counsel's participation in the lineup; 8) admissibility of knives; 9) sufficiency of the evidence; 10) a failure to instruct on second degree murder; 11) testimony of a witness over a claim that the evidence was more prejudicial than probative and should be excluded; 12) exclusion of third party culpability evidence; 13) prosecutorial misconduct; 14) closing the proceedings during certain testimony; 15) cumulative prejudice; 16) a motion for a separate penalty phase jury; 17) a Pitchess motion; 18) victim-impact evidence; 19) instruction on, and the jury's consideration of, burglaries not! directly related to the murders; 20) a failure to exclude evidence of defendant's possession of a weapon while he was in custody; 21) challenges to California's death penalty scheme; and 22) cumulative prejudice."

• Juan Castillo v. State, 2007 Tex. Crim. App. LEXIS 605 (Tex. Crim. App. 5/2/2007) Relief denied on claims that [1] "evidence is insufficient to corroborate the accomplice-witness testimony;" [2] "evidence is factually insufficient to support a finding that he robbed the victim or that he shot the victime;" [3] "under evolving standards of decency, the death penalty should be abolished, and he therefore seeks to have his death sentence commuted to life;" and [4] "the trial court erred when it denied appellant's pretrial motion objecting to the testimony of the two accomplices witnesses on the ground that their testimony would violate"

• State v. John Badgett,  2007 N.C. LEXIS 416 (N.C. 5/4/2007) Relief denied on: [1]improper admission of a defendant's prior conviction;  [2] clerk allegedly drew random names from the pool of prospective jurors outside of defendant's presence; [3] trial court erred by denying his request to submit certain mitigating circumstances to the jury. N.C.G.S. § 15A-2000(b) provides, in pertinent part; [4] trial court erred by failing to submit the mitigating circumstance described in N.C.G.S. § 15A-2000(f)(6) because substantial  evidence existed that the murder was committed while "the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of [the] law was impaired;" [5] trial court erred by failing to order a competency hearing sua sponte in the presence of an allegedly bona fide doubt as to defendant's competency to stand trial.

• Termane Wood v. State, 2007 OK CR 17 (Okla. Crim. App. 4/30/2007) [to be updated]

Selected Excerpts from, & Commentary on, this Edition's Cases
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