Leading off this week is the Alabama Court of Criminal Appeal's decision in Mark Dwyatt Brown v. State.  The issue in Brown is the difference, under state law, between capital murder and felony-murder. The "trial court did not adequately inform the jury that Brown could not be convicted of capital murder unless it determined that he had the specific, particularized intent to kill." The trial court's instruction permitted, rather, "the jury to find Brown guilty of the capital offenses, even if he did not have the particularized intent to kill, as long as one of his codefendants had the particularized intent to kill." This error was compounded when the prosecution, in closing arguments. the "State incorrectly argued that Brown could be found guilty of capital murder, even if he did not have the requisite intent to kill, as long as one of his codefendants had the intent to kill the deceased or another person."

Only because the Fifth Circuit so rarely grants relief, in Warren Darrell Rivers v. Thaler, an unpublished opinion, a panel of that court has affirmed the grant of penalty phase relief in light  erroneous jury instructions under Penry I. 

In the news, DPIC reports that "[f]ive men on North Carolina’s death row filed motions to have their death sentences reduced to life without parole based on data that indicate racial disparities in the state’s justice system" in light of the passage of North Carolina’s Racial Justice Act.  A recent Adam Liptak Sidebar column looked at mail room mix up that resulted in a delayed state postconviction filing that may cost Cory R. Maples, a death row inmate in Alabama, his life.  AP reports that California regulators have approved  a new lethal injection methods. Finally, in Ohio, Kevin Keith is scheduled to be executed next month but officials there, are beginning to grow concerned over what the Governor calls "circumstances that I find troubling."

Almost the all cases in this edition can be found for free by going to Lexisone.com and typing in the appropriate Lexis cite or going to Google Scholar and typing in the name of the condemned.   As always thanks for reading .  - k

• Warren Darrell Rivers v. Thaler, No 09-70031 (5th Cir 8/5/2010)(unpublished) State appealed the district court’s grant of relief on jury instructions under Penry I.  Mr. Rivers appealed the denial of a COA on his Batson claims. District court affirmed in its entirety.

• Mark Dwyatt Brown v. State,  2010 Ala. Crim. App. LEXIS 65  (Ala. Crim. App 7/30/2010) "Based on the trial court’s instructions, the jury could have found Brown guilty of capital murder if he intended to commit another felony, i.e., first-degree robbery, first-degree burglary, second-degree burglary, or arson, but did not intend to kill the deceased or another person. Therefore, the instructions did not clearly distinguish the intent element for the offense of capital murder from the intent element for the offense of felony-murder. Brown argues that the sole issue before the jury was whether he was guilty of capital murder because he intended to kill the victims or whether he was guilty of felony-murder because he did not intend to kill the victims. He also contends   that his defense was that he only intended to rob them and that he did not have any reason to kill them. Because the trial court’s instructions effectively abolished any distinction between capital murder and felony-murder, we cannot find that the error in giving those instructions regarding intent were harmless.”

• Daniel Saranchak v. Beard, No. 08-9000 (3rd Cir 8/3/2010) Grant of relief reversed on "three claims before us arise out of Saranchak’s degree of guilt hearing: (1) whether Watkins was ineffective for failing to investigate thoroughly and present adequately a diminished capacity defense; (2) whether Watkins was ineffective for failing to ask the trial court to suppress statements made to the state police officers; and (3) whether Watkins was ineffective for failing to seek suppression of the statements made to Laurie Garber.” Remand hand so that the district court can address in the first instance penalty phase issues not previously addressed.

• State v. Derek Don Chappell, 2010 Ariz. LEXIS 34 (Az 8/3/2010) Relief denied on direct appeal on claims regarding: [A] "statements about the murder should have been excluded because the State failed to establish corpus delicti;” [B]"there was insufficient evidence to support the jury’s finding that the drowning was especially cruel;” [C]  medical examiner’s "testimony that drowning was a "horrifying experience” and a "10″ on "scale of 1 to 10″ was improper expert opinion on an ultimate issue;” [D] "prosecutorial misconduct” in light of comments to the jury in both phases of the trial; [E] "aggravation phase jury instructions failed to sufficiently narrow the (F)(6) aggravator;” [F] "trial court improperly excluded evidence about the impact his execution would have on his family, including his young daughter;” [G] "trial court’s warning that he might be subject to cross-examination if he disputed his guilt during allocution prevented him from freely exercising his right to allocution and the jury from considering all relevant mitigating evidence;”  [H] "trial court erred by admitting, over objection, evidence of prior injuries Devon suffered while in Chappell’s care as rebuttal to Chappell’s mitigation evidence;” [I] sentencing "instruction[s] misled the jury to believe [he] was eligible for parole if given a thirty-five year to life sentence;” [J] trial "court’s failure to instruct the jury that his child abuse sentence would be served consecutively to his murder sentence violated the mandates of Lockett;” [K] "trial court erred by refusing to instruct the jury that the "cumulative effect of mitigation” was a separate and independent mitigating facto;” [L] "victim’s age were improperly used to establish both the (F)(6) aggravator and the (F)(2) and (F)(9) aggravators;” and [M] "trial court erred by refusing to provide jurors with a transcript of his allocution during deliberations.”

• People v. Robert Wesley Cowan,  2010 Cal. LEXIS 7545 (Cal 8/5/2010) Relief denied, most notably, on claims relating to "the trial court‟s failure to instruct regarding reasonable doubt with respect to the Russell murder, and its failure to redefine reasonable doubt in its penalty phase instructions.” Both errors held harmless. "Conviction of defendant for first degree murder and a sentence of death are affirmed on automatic appeal over claims regarding: 1) trial court's denial of defendant's many motions to dismiss due to prearrest delay; 2) jury selection issues; 3) alleged improper exercise of peremptory challenges; 3) alleged judicial bias and related errors; 4) alleged improper admission of witness's hearsay statements; 5) alleged improper admission of expert ballistics testimony; 6) alleged error in excluding defendant's "consciousness of innocence" evidence; 7) alleged error in admitting photographs of the victims; 8) victim impact testimony; 9) failure to give a reasonable doubt instruction; 10) alleged error in including both burglary and robbery in instruction regarding other criminal activity; 11) denial of certain requested instructions; 12) alleged failure to adequately investigate potential juror misconduct; and 13) challenges to death penalty statute." [via FindLaw]
  

• People v. Nathan Verdugo,  2010 Cal. LEXIS 7524 (Cal 8/2/2010) "Conviction of defendant for first-degree murder and a sentence of death are affirmed over claims of error regarding: 1) trial court's error in refusing to appoint Keenan counsel; 2) failure to disclose Brady and section 1054.1 material; 3) evidentiary issues; 4) instructional error; 5) trial court's failure to limit the prosecution's victim impact evidence; 6) scope of cross examination; 7) alleged Griffin error; 8) timing of defense closing argument; 9) challenges to California's death penalty scheme; 10) denial of new trial motion; 11) denial of request to discharge retained counsel; 12) cumulative prejudice; and 13) alleged violation of international law." [via FindLaw] "There was no error in a trial court’s admission of victim impact evidence under Pen. Code, § 190.3, factor (a), during the penalty phase of defendant’s capital murder trial where the witnesses described the immediate effects of the murders, as well as their residual and lasting impact.” [via LexisOne]

• Oscar Roy Doster v. State,  2010 Ala. Crim. App. LEXIS 68 (Ala. Crim. App 7/30/2010) Judicial override to death of unanimous life recommendation and affirmed on numerous claimed errors arising from the trial court's override, most notably Ring.
  

• State v. Douglas Anderson Lovell,  2010 UT 48; 2010 Utah LEXIS 112 (Utah 7/27/2010) Permission to withdraw a plea of guilty, that subsequently resulted in a death sentence, granted. At the time of the guilty plea Mr. Lovell was not informed of the "presumption of innocence" and "speedy public trial before an impartial jury."  "When a trial court fails to inform a defendant of his rights, the defendant cannot knowingly and voluntarily enter a guilty plea because he lacks the information required to fully understand this decision."

• State v. Chauncey S. Starling, 2010 Del. Super. LEXIS 296 (Del Super 7/20/2010) "Agreements between a prosecutor and probation officers of a key witness, as well as understandings between the prosecutor and the witness regarding his testimony at an inmate's trial, were to be disclosed in postconviction proceedings to the inmate, who was convicted of first degree murder and sentenced to death." [via LexisOne]

• Robert Bryant Melson v. Allen,  2010 U.S. App. LEXIS 15353 (11th Cir 7/17/2010) Remand from the Supreme Court and panel remands to the district court in light of Holland v. Florida.

• People v. Richard Lacy Letner & Christopher Allan Tobin, 2010 Cal. LEXIS 7290 (Cal 7/29/2010 ) "Conviction of defendants for first degree murder, robbery, attempted rape, and theft of an automobile and sentence to death, are affirmed in its entirety on automatic appeal over claims of error regarding: 1) court's failure to set aside burglary charges and burglary special circumstance allegations; 2) failure of the information to charge first degree felony murder; 3) denial of motions to sever defendants' trials at the guilt and penalty phases; 4) use of leg brace restraints during jury voir dire; 5) erroneous evidentiary rulings; 6) the sufficiency of the evidence; 7) prosecutorial misconduct; 8) instructional error; 9) sufficiency of the appellate record; 10) improper cross-examination of one of the defendants regarding letters he wrote concerning the crimes; 11) erroneous admission of unadjudicated prior offenses; 12) the constitutionality of California's death penalty statute; and 13) the cumulative effect of the asserted errors." [via FindLaw]
  

• State v. Jose Sandoval,  280 Neb. 309; 2010 Neb. LEXIS 99 (Neb 7/30/2010) The district court erred in instructing the jury on the "mental anguish” component of the heinous, atrocious, or cruel prong of aggravator (1)(d), however, such error was harmless.  Other claims on appeal included, that the trial court erred in "(1) failing to find 2002 Neb. Laws, L.B. 1, was unconstitutional, ex post facto legislation . . .; (2) failing to conduct a preliminary examination as to the aggravating circumstances; (3) failing to give the jurors a cautionary instruction as to why [jurors] were transported from Grand Island, Nebraska, to Aurora, Nebraska, and in failing to give a curative instruction regarding the potential jurors’ discussion of the case during voir dire; (4) impaneling an anonymous jury and failing to give a curative instruction; (5) permitting the jury to believe that the responsibility for determining the appropriateness of the death penalty belonged to the three-judge sentencing panel; (6) disclosing the notice of aggravation to the jury before the verdict was rendered on the issue of Sandoval’s guilt; (7) permitting the State to endorse over 500 witnesses; (8) permitting improper statements by the prosecutor and improperly commenting on the evidence; (9) failing to require the jury to determine whether Sandoval was a major participant in the crime and exhibited reckless disregard for human life;(10) overruling trial counsel’s motions to withdraw and Sandoval’s motion for substitute counsel, and failing to discharge trial counsel;(11) failing to give a limiting instruction regarding what constituted "the murder” in four of the five aggravators; (12) instructing the jury on aggravator (1)(d); (13) instructing the jury on aggravator (1)(f); (14) overruling Sandoval’s motions for acquittal; (15) receiving evidence, denying rebuttal, and denying a jury at the mitigation and sentencing phase of the trial; and(16) not finding that the death penalty is unconstitutional. Sandoval alleges ineffective assistance of counsel with respect to many of the assignments of error listed above. (17) He also claims his trial counsel provided ineffective assistance by allowing a court-appointed psychiatrist to examine Sandoval, eliciting speculative testimony from a witness, failing to call a forensic pathologist as a rebuttal witness, and failing to adduce evidence of prior consistent statements regarding his drug use.”

• Donald Ray Wackerly’ v. State, 2010 OK CR 16; 2010 Okla. Crim. App. LEXIS 16 (Okla. Crim. App. 7/29/2010)  In this second postconviction petition "Wackerly claims that the State of Oklahoma lacked jurisdiction to prosecute” as the crime for which he stands convicted occurred on federal property  "under the exclusive jurisdiction of the United States.” Prior counsel  "were all constitutionally ineffective for not discovering and raising this claim.”

• Brown, Gentry and Stenson v. Vail, 2010 Wash. LEXIS 630 (Wash 7/29/2010) "In an unanimous opinion [ ] the Supreme Court has ruled against three death row inmates who sought to have the state's lethal injection protocol declared unconstitutional. The court declined to squarely address the constitutionality of the lethal injection procedure.. . . The Supreme Court has lifted its stay of execution entered in Cal Coburn Brown's case, which was entered the day before he was scheduled to be executed last year. We expect the Attorney General's Office will announce its plan to seek a rescheduling of the execution shortly." [via Supreme Court of Washington Blog]
  

• State v. Robert O. Finklea,  2010 S.C. LEXIS 264 (S.C. 7/26/2010) Relief denied on issues concerning "[d]id the trial court err in finding Finklea competent to assist in his own defense during the sentencing portion of the trial? [d]id the trial court err in allowing the Solicitor to ignite an incendiary device during his closing argument in the sentencing portion of the trial? [and] [p]roportionality review"