CAPITAL DEFENSE WEEKLY

Under errata, there is  Joshua Wayne Andrews v. Commonwealth in last week’s edition.  It is an odd case and if you practice in Virginia or intend to rely on it, please read more than our squibs.  By way of additional analysis LexisOne notes: “Defendant’s capital murder convictions pursuant to Va. Code Ann. § 18.2-31 were affirmed, but the death sentences were vacated, as the imposition of two death sentences upon defendant for convictions under § 18.2-31(7) and -31(8) violated the double jeopardy prohibition against multiple punishments for the same offense.”

As always thanks for reading.  - karl

• Leonard Edward Smith v. State,   2010 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App.9/21/2010) “[T]he post-conviction court erred in denying the Petitioner’s claim that his trial attorneys provided constitutionally ineffective assistance in their investigation and presentation of available evidence in support of their motion to recuse the 1995 resentencing judge.”

Week of September 20,  2010:  In Favor of the Prosecution or Warden (initial list)

• Timothy Hoffner v. Bradshaw, 2010 U.S. App. LEXIS 19747 (6th Cir. 9/23/2010)  Case “concern[s] a challenge to the district court’s denial of defendant’s request for habeas relief from a conviction for aggravated murder, aggravated kidnapping, robbery and a sentence of death.  In affirming, the court held that the district court correctly denied defendant’s request for habeas relief on his claim that the trial court violated his due process rights by improperly weighing the statutory aggravating factors of his crime.  Also, the district court properly rejected a claim that his trial counsel performed ineffectively at the guilt phase of trial as these claims were procedurally defaulted.  The court held that the state court’s resolutions of defendant’s first two claims of ineffective assistance of counsel at the penalty phase were not an unreasonable application of federal law, and defendant has waived his third claim, that the district court properly denied defendant’s request for habeas relief on his claim of ineffective assistance of appellate counsel.  Lastly, the Ohio Supreme Court’s application of federal law in affirming the admission of defendant’s statements was reasonable, and held that defendant’s claim of cumulative error is procedurally defaulted.” [via Findlaw] “Habeas petitioner argued that, the trial court could not have used kidnapping and aggravated robbery as separate aggravating circumstances as they both fell under Ohio Rev. Code Ann. § 2929.04(A)(7). However, the Ohio Supreme Court’s independent reweighing of the relevant evidence cured any error that the trial court may have committed.” [via LexisOne]

• Robert Charls Towery v. Schriro, 2010 U.S. App. LEXIS 19661 (9th Cir 9/22/2010)  “In this habeas appeal brought by an Arizona death-row prisoner, the Ninth Circuit held that a state prosecutor does not commit misconduct (under either Napue v. Illinois; Brady v. Maryland; or Darden v. Wainwright) by allowing an eyewitness (and possible accomplice) to testify in two different trials that the same defendant made a particular statement describing the victim of the robbery at issue in each trial. With respect to the Napue issue, there was no showing in this case that the prosecutor knowingly presented false testimony because the defendant was able to bring out on cross-examination that the eyewitness may have been referring to a different robbery. Moreover, the eyewitness’s testimony was at best misleading, not false outright. (How, I don’t know.) With respect to the Brady issue, the fact that the prosecutor in a different trial had the same witness make the same statement about a different person whom the same defendant had robbed didn’t violate Brady because (I surmise from the opinion) the defendant knew that the witness had previously testified in that other trial. With respect to the Darden issue, the witness’s testimony didn’t fundamentally infect the petitioner’s trial so as to render it unfair; for that reason, the court also concluded that the state courts had not unreasonably concluded that the prosecutor’s misconduct, if any there had been, was harmless beyond a reasonable doubt.” [via Keith Hilzendeger @ 2254 blog]  “Where same witness testimony that was used to prove that petitioner committed murder had been used in prior trial to prove that petitioner committed unrelated robbery, any error was harmless because witness was cross-examined about whether statements he overheard had anything to do with the murder and further impeachment would have been cumulative.” [via LexisOne]

• Thomas C. Bowling v. Commonwealth, 2010 Ky. LEXIS 242 (Ky 9/23/2010)* Attempts to test DNA evidence rebuffed under a newly established doctrine of “one bite at the apple” no matter what the test results show.   “Appellant sought a new trial based on DNA evidence not available at the time of his trial because appellant could not meet the requirements of the DNA statue, KRS 422.285, the trial court’s order denying relief is affirmed.” [KySCt Clerk’s Office]

• Marco Anthoy Montez v. Czerniak, 2010 Ore. App. LEXIS 1094 (Ore. App. 9/22/2010) " Court rejected a post-conviction petitioner's argument that his attorneys were ineffective for failing to develop evidence of his head trauma, seizure disorder, and organic impairment and to present that information to defense experts because counsel had petitioner evaluated by a neuropsychologist, who found no evidence of brain injury." [via LexisOne]
  

Week of September 20,  2010:  Other  (initial list)

• Ex Parte Jimmie Urbano Lucero, No. 76,415 (Tex. Crim App 9/15/2010) (unpublished) "We hold that applicant’s counsel failed to investigate applicant’s background or present mitigating evidence at the punishment phase in violation of Rompilla v Beard."

• Joshua Wayne Andrews v. Commonwealth, 2010 Va. LEXIS 239 (Va 9/16/2010) Death sentence vacated and remanded for assessment of punishment where the Commonwealth erred in the in which it proceeded to assert the aggravating factors in an apparent duplicitous manner. ” Upon review of the four capital murder convictions and death sentences imposed on the defendant, non-harmless errors occurred in the penalty-determination phase of the trial. The death sentences are vacated and the case is remanded for a new penalty-determination proceeding. Defendant’s convictions for robbery, malicious wounding, abduction, and various firearms charges are affirmed. Issues discussed include the propriety of simultaneous convictions under Virginia’s statutes governing multiple killings under Code §§ 18.2-31(7) and (8), liability for killings as a principal in the first degree, spoliation of evidence, expert ballistics proof, double jeopardy, alleged prosecutorial misconduct, victim impact evidence concerning unadjudicated conduct and various other evidentiary and procedural issues.”
  

Week of September 13,  2010:  In Favor of the Prosecution or Warden 

• Ronald Post v. Bradshaw, 2010 U.S. App. LEXIS 19059; 2010 FED App. 0295P (6th Cir. 9/13/2010) (dissent) A hard right majority holds counsel with a pulse & a law degree is all that is needed in a capital case for counsel to perform in a constitutional manner.  The dissent explains it perhaps best “Ronald Post faced a possible death sentence on charges of aggravated robbery and aggravated murder, his counsel advised him to forego all of his trial rights and plead no contest, without any indication from either the prosecution or the three-judge sentencing panel that this would do anything to help spare his life. Following his no-contest plea, and leading up to his sentencing hearing, his attorneys then failed to conduct an independent investigation into circumstances that might mitigate against the imposition of the death penalty. Further, at the sentencing hearing itself, his counsel requested that a member of the victim’s family be permitted to speak. Because of this choice by his attorney, the last testimony heard by the three-judge panel which sentenced him to death was the victim’s son discussing how his mother had been murdered just ten days before Christmas—the first Christmas she would have had off work in thirteen years—and his belief that “the only just punishment for execution is execution.” (J.A., vol. 4, at 913-14.) Additionally, following Post’s sentencing, new evidence came to light indicating that Richard Slusher—the jailhouse informant whose pretrial testimony about Post’s confession loomed large over the decision not to go to trial—had intentionally elicited the confession from Post at the direction of the prosecutors, in violation of Massiah v. United States.. . . Post’s counsel was constitutionally infirm both in advising him to plead no-contest and at the sentencing stage. Further, I believe we should remand to the district court to hold an evidentiary hearing on Post’s Massiah claim.” “A district court properly denied petitioner’s habeas corpus petition filed under 28 U.S.C.S. § 2254 because he failed to establish ineffective assistance of counsel on various grounds, including with regard to the entry of his no contest plea since counsel’s strategy was professionally reasonable considering the overwhelming evidence of guilt.” [via Lexisone]

• Dolan Darling v. Sec’y, Dep’t of Corr., 2010 U.S. App. LEXIS 19137 (11th Cir 9/14/2010) The panel “denied a certificate of appealability to a Florida death-row inmate. The Court noted that a certificate of appealability is not available to appeal a district court’s denial of habeas corpus relief unless the petitioner shows that reasonable jurists could debate the decision. Here, the prosecutor’s potentially erroneous closing argument suggestion that certain mitigating factors could require imposition of the death penalty was cured by the trial court’s instructions on this point.  In addition, though Darling claimed counsel was ineffective for failing to put on mitigating evidence about his background, evidence on this point was “inconclusive.” Finally, although Darling argued that the Vienna Convention was violated when Florida failed to contact the Bahamian Embassy upon his arrest, the Court found no authority indicating that such a violation could invalidate an otherwise valid conviction and sentence. Because reasonable jurists could not debate these points, Darling did not qualify for a certificate of appealability. “‘ [Tim Cone @ Defense Newsletter] “An application for a COA by a state inmate sentenced to death was denied because his two claims of ineffective assistance of counsel failed and he did not show how the State of Florida’s failure to comply with the Vienna Convention on Consular Relations affected his conviction or sentence.” [via Lexisone]

• Mark Allen Geralds v. State, 2010 Fla. LEXIS 1540 (FL 9/16/2010) Relief denied on argument that “the circuit court erroneously denied his claims regarding: (A) Brady v. Maryland and Giglio v. United States, violations; (B) ineffective assistance of counsel during the guilt and penalty phases; (C) newly discovered evidence of a conflict of interest; (D) some summarily denied claims; (E) a motion to depose a suspect; (F) access to files and records; and (G) the constitutionality of execution by lethal injection. We address each argument in turn below.” “we affirm the trial court‘s denial of Geralds‘ amended and supplemental postconviction motions, and deny his petition for writ of habeas corpus.”

• Eric  Moffett v. State, 2010 Miss. LEXIS 477 (Miss 9/16/2010) Relief denied on a grab bag of claims, including those relating to: whether “I. the trial court erred in failing to dismiss the capital charge against Moffett as a violation of the statute of limitations; II. The trial court erred in failing to dismiss the case against Moffett for violation of the speedy trial and due process clauses of the State and Federal Constitutions; III. The trial court erred in limiting the defense in the topics it could cover in voir dire; IV. The trial court erred in removing for cause jurors even though they were qualified to serve under Witherspoon; V. The trial court violated Moffett’s state and federal constitutional right to present a defense when it prohibited evidence of “Third-Party Guilt” thereby depriving Moffett of a fundamentally fair trial; VI. Eric Moffett was denied his right to testify in his own defense where the trial court ruled that the prosecution could present a rebuttal witness but Moffett would not be allowed to offer evidence that contradicted that witness with prior inconsistent statements and results of the police investigation;VII. The trial court erred in allowing the prosecution to elicit unreliable hearsay evidence in violation of Moffett’s confrontation rights and his right to a fair trial;VIII. The trial court erred in not allowing Moffett to introduce evidence that he was released from jail in 1995 without pending charges to rebut the false inference by the prosecution that his sister and mother were lying because they failed to come forward earlier to offer statements to the police; IX. The trial court erred in admitting exhibit 7, a highly prejudicial photograph with little or no evidentiary value; X. The trial court failed to safeguard Moffett’s right to a trial by a fair and impartial jury by not removing juror Loper; XI. The trial court erred in denying proposed jury instructions D-11 and D-12;XII. The prosecutor deliberately solicited opinions of the victims concerning the appropriate punishment for appellant in violation of the Sixth, Eighth, and Fourteenth amendments to the Federal Constitution, Article 3, Sections 14, 26, and 28 of the Mississippi Constitution, Miss. Code Ann. sec. 99-19-101 and 105, and other applicable law; XIII. The trial court erred in allowing Steven Hayne to testify in violation of MRE Rule 702 and the Due Process Clause of the State and Federal Constitutions.; XIV. The trial court erred in refusing instruction DS-10; XV. The trial court erred by refusing proposed instruction informing the jury that life was in their discretion, and that a jury always has the discretion to give a life sentence; XVI. The trial court erred in proceeding directly into the sentencing phase following the guilty verdict based on the unique circumstances of this case; XVII. The death sentence in this case must be vacated because the indictment failed to charge a death-penalty eligible offense; XVIII. Error in submitting and/or defining aggravating factors; [and] IX. Whether the cumulative effect of the errors in the trial court mandate reversal of the conviction or sentence of death”

• State v. Joel Richard Schmeiderer, 2010 Tenn. LEXIS 865 (Tenn 9/14/2010) Relief denied on claims that: “”the trial court abused its discretion by denying his motion for a continuance because his attorneys did not have adequate time to review the transcript of Mr. Sanderson’s trial and because his experts needed additional time to complete medical testing and evaluations;  “the trial court’s denial of a second continuance also violated his constitutional right to present mitigation evidence;” “defendant contends that the trial court’s denial of a second continuance also violated his constitutional right to present mitigation evidence;” “the prosecutor impermissibly argued for specific deterrence” in its penalty phase arguments to the jury; and mandatory review.