*1 of all the clear absence does not act
jurisdiction.
Moreover, agency itself is an the Board court, supreme established
of the state 17-101, court, and its deci- see Rule subject supreme review the
sions are case,
court, In this id. 17-316. see only
Thayer which was opinion, Committee recommendation, apparently report aby panel Board
could not be reviewed disquali- Board members were all
because Therefore, need- supreme court
fied. problem. action resolve the
ed to take step extraordinary take
Rather than special panel, it decided to
appointing Nothing in dispute
hear itself. rules that court of this
disciplinary divests authority.
inherent state establish provisions of law
These the Justices clear ab-
New did not act Mexico jurisdiction issuing
sence the show- They protected are therefore
cause order. judicial immunity.
by absolute
III. CONCLUSION judgment of the dis-
We AFFIRM the
trict court. GILSON, Lee Petitioner-
Donald
Appellant, Warden,
Marty SIRMONS, Oklahoma Penitentiary, Respondent-
State
Appellee.
No. 06-6287. Appeals,
United States Court
Tenth Circuit.
April *2 Federal
Timothy Payne, R. Assistant (James Drummond, A. Public Defender Defender, and Mariatu Federal Public Writing Specialist, Kargbo, Research *3 briefs) Penalty Death with him on the Division, Office of Corpus Habeas Federal Defender, City, Federal Public Oklahoma OK, Petitioner-Appellant. for Attorney Draper, Saul Assistant Preston Edmondson, (W.A. Attorney Drew General Oklahoma, with him on the General of brief), OK, City, Respon- Oklahoma denb-Appellee. HENRY, Judge,
Before Chief Circuit BRISCOE, Judges. TACHA and Circuit BRISCOE, Judge. Circuit Gilson, Lee an Donald Okla- Petitioner de- prisoner homa state convicted first murder and sentenced to gree child abuse death, court’s appeals the district denial § corpus peti- 2254 habeas his U.S.C. jurisdiction pursuant to tion. exercise We § 1291 and affirm. 28 U.S.C.
I. BACKGROUND facts of this case were pertinent well summarized the Oklahoma Court (OCCA) Appeals resolving of Criminal appeal: Gilson’s direct February On re- skeletal (8) eight year Shane mains of old Coff- man in an freezer were found abandoned formerly next home located to mobile mother, by his Bertha Jean Coff- rented mo- subsequent man. A search photograph of [Gil- bile home revealed son], February On authorities County from the Cleveland Sheriffs Of- fice met with mobile [Gilson] Living home. mobile home with was Bertha Jean Coffman [Gilson] (12) children, year her twelve old four (10) (11) Isaac, Tia, year old eleven ten (7) year and seven old year Tranny old The children were Crystal. immediately found the deplorable conditions and un- the trailer taken removed from sanitary. The children were removed Hospital City. in Oklahoma Children’s from Coffman’s home until conditions and Bertha Jean Coffman were [Gilson] improved. It was about this time that deputies. detained Coffman Bertha Jean met [Gilson]. Examinations of the children conduct- They were working janitors both emergency ed room revealed Little Axe Schools. fixed up Tranny Crystal healthy were with a Coffman’s trailer get so she could her However, small few scars on each. children back. The children were sub- Tia Isaac and were malnourished and sequently returned their mother. emaciated. Tia’s feet were swollen and *4 Thereafter, began [Gilson] spending difficulty had walking. she She had more and more with time Coffman and gangrenous tissue her right on foot. On given authority was the discipline to right large open her buttocks was a children. In June of the oldest condition, ulcer. was in Isaac the worst child, Jeremy, away ran [as a result of needing emaciated and assistance to Gilson], by his mistreatment The next was walk. He malnourished and had month, Coffman her and children walked injuries, stages several in various [Gilsonjs to trailer for a visit and healing, never throughout and scars his body. returned their to home. pos- Whatever In their initial interview police, with they sessions had were left at Coffman’s and Coffman both [Gilson] denied trailer. knowledge only [Gilson]’s as to trailer had the manner which bed- rooms; They Shane died. had stated he run slept [Gilson] and Coffman away during early from home part room and one the other room contained they November and had him found dead working [Gilson]’s leather material. As in the weeds near Coffman’s trailer. result, a all five children were forced to They decided that him in the putting sleep living on blankets in the room. thing freezer would the best to do. They outside, permitted were not go to However, in subsequent interviews both but had to remain the trailer at inside all and Coffman this story [Gilson] recanted times. The children were taken out of knowing and to admitted more about the school and claimed to be homeschooled surrounding circumstances Shane’s Coffman, although no evidence of [Gilson], death. From interviews with homeschooling was ever found. The Coffman, the Coffman children and oth- permitted go children were also not witnesses, picture er the following church. emerged. disciplined and Coffman both [Gilson] The four Coffman children mentioned discipline the children. This took sever- above, with along victim in the murder forms, wall, including al standing at case, brother, this another thirteen time, a sometimes for hours at and beat- (13) year old Jeremy, lived with their belt, stick, boards, ings with a bamboo Coffman, in mother Bertha Jean a mo- rulers, ruler, wooden metal bull- home. fall During bile whip. The children were also made to County Department Cleveland Sheriffs bathtub, sit often for hours at a complaints received of sexual abuse withheld, time. particularly Food was committed upon one of the Coffman chil- Tia, punishment. Isaac and (not from as The boyfriend dren Coffman’s then [Gilson]). upon abuse inflicted Shane Coffman re- investigating detective visited Coffman’s mobile home August sulted his death on crying. they He could hear Shane trial, Tranny testified that he last said At sitting in the later Shane further stated his brother Isaac saw had Tranny gotten said Shane and Coffman told them night, bathtub. [Gilson] going the bathroom away. in trouble for had run Shane carpet. He said that living room shortly police In a made to statement bathtub, put into the was before Shane arrest, trial as after his admitted Tranny him with board. beat [Gilson] stated that on [Gilson] State’s Exhibit beatings received several Shane said 17,1995, he in the August put had Shane board, body. all over his After he punishment. said [Gilson] bathtub beating, put Shane into [Gilson] lesson, trying teach Shane a so hours, couple Shane After bathtub. him put him and in the spanked he got the bathtub. He then let out of where he was to remain until he bathtub Tranny said again. [Gilson] trouble into disruptive behavior. He stopped the took outside then Shane and Coffman in the bathtub was initial- said water Tranny know what did not the trailer. help pain from the ly warm to outside, while he was Shane happened changed then it to a spanking, but scream- said he could hear Shane but he cry- said Shane was cold bath. *5 and carried Coffman ing. [Gilson] him ing as Coffman talked to about his Tranny the inside trailer. back Shane said he then laid down on behavior. He swollen, he was arms were said Shane’s couch with the the to watch television “weird”, had breathing and he a soft he fell eventually rest of kids where to [Gilson]’s his head. Pursuant spot on asleep. was in and out Coffman rules”, children the other were “house talking to before she bathroom Shane [Gilson] to talk to Shane. permitted not lay to to A went the bedroom down. to the bathroom and carried Shane then later, living came into while Coffman placed Tranny him in the bathtub. said room tears and told to come [Gilson] heard few the other children a he and He Coffman had to bathroom. said and He banging screams noises. more laid taken Shane out the bathtub and and Coffman were said both [Gilson] lips him on floor. Shane’s were blue they Shane when heard with breathing. and he said [Gilson] The children then decided to screams. performed approximately he CPR for an sleep. they said were try go and to He his hour to an hour and half. When time [Gilson] later awakened some unsuccessful, were took [Gilson] efforts and told that Shane had and Coffman bed, wrapped the comforter off away, and [Gilson] run and Coffman up placed him back in the Shane and for him. going to look were bathtub. first sent [Gilson] Isaac testified said he and Coffman dis- [Gilson] wetting at the to stand wall Shane cussed to do next. He what said Coff- standing he the bed. While Department man was that the worried wall, hit him [Gil- with board. [Gilson] DHS) (hereinafter Human Services eventually took and Coffman Shane son] away take kids if the would her authori- and him in the put to the bathroom they died. ties found out Shane had So said made all [Gilson] bathtub. Isaac bathtub, waiting in the until left Shane go the other children to bathroom to gone sleep the other had children bоy tell Shane what bad he was. and remove him from the house. [Gilson] and He said that both Coffman [Gilson] they carried Shane said outside remained in the with bathroom Shane him in the back of a truck. He placed while the children watched television. “just him they dumping said discussed were knocked off railing. their Coffman him out “buryfing] somewhere” called for [Gilson] to come and fix the they of the boonies.” But decid- middle living doors. left [Gilson] room options right neither of were ed those he had been watching where television though “even he alive he wasn’t with put the other children and family bein part would still doors back on their railings. [Gilson] (sic) on ... property, thought her about left the bathroom. Coffman Shane freezer, putting him the it wouldn’t struggled again. returned [Gilson] concreting hurt him over. and then it the bathroom to see what the noise was making And bed of it.” flower out So about. He saw the doors had fallen off body took and Coffman Shane’s [Gilson] again so took them and them set on to the freezer located next Coffman’s the floor. Coffman said she remained in put trailer and him inside. said [Gilson] the bathroom with Shane while [Gilson] he and Coffman told the other children went back to the room. living had run away. Shane while, After a stepped [Gilson] into Bertha Coffman at trial Jean testified the bathroom and told Coffman to leave disciplining by making her children Shane alone for a while. So Coffman wall, them stand the time-out left the bathroom get dry Shane them, only bottoms, spanking on their prepare clothes and lunch. When she a cloth belt paddle. or wooden saw that already prepared [Gilson] had She also testified that [Gilson] disci- lunch, Coffman laid down on her bed. plined her children spanking them She aby was awakened in the noise with the paddle, wooden but various coming bathroom and saw out places their bodies. Coffman stated *6 the bathroom. When asked how Shane quick a temper [Gilson] had and did not was, responded he fine [Gilson] was and up the children tearing want his trailer. was blowing he bubbles. Coffman police August In her on statement coffee, sat cup down to have a of then 17, 1995, Coffman said she and [Gilson] decided to check on Shane. She found sexually found Shane assaulting him quiet breathing. but not She called younger punishment, they brother. As for they and out pulled [Gilson] Shane wall, him made stand at the time-out gave the bathtub and him CPR. She said paddled then Coffman him. When they until waited the other children wall, Shane refused to stand at the Coff- asleep taking body were before the spanked again. man him When Shane the freezer. Coffman also stated that directed, still would not do as Coffman died, began once Isaac and Tia Shane screamed at she him. Shane then faint- receiving discipline the brunt the get ed. Coffman could not When a re- [Gilson], from Shane, sponse put piece from she Shane’s skeletal remains were not on his still ice chest. When he did not (6) approximately found until six months picked respond, up Coffman him and Therefore, after his death. the medical him took to the bathroom where she examiner, Dr. was Balding, not able to placed him a of cool She tub water. make a determination as to the cause of eventually said Shane came and want- The testify death. medical examiner did to get ed out of the tub. She said injuries to certain bones which were hit slipped and his head on the faucet. upon his examination of the evident re- pushed stated Coffman she Shane’s injuries him The included a keep shoulders to in the mains. fracture bathtub. They struggled, right jawbone. injury and the shower doors the The was second-stage proceed it showed conclusion to be “acute”
determined a result ings, was which were conducted as healing, and therefore signs of no conviction, jury found old at the murder than a week Gilson’s less probably factors aggravating fracture was of both Another existence time death. of the skull. and recommended by the left side State alleged also found on formally the two fractures sen testified Gilson was Balding Dr. death sentence. of two different blunt trial court at a later by were the result the state tenced from missing A was tooth force blows. hearing. were also jaw. Fractures right appeal challenging filed direct Gilson blades, collarbone, shoulder found in July his convictions and sentences. On ribs, legs, both several numerous OCCA, dissent- judge with one spine. All the fractures in the vertebrae sen- ing, convictions and affirmed Gilson’s acute, and not result were ruled I, The P.3d at 929. tences. Gilson play. normal childhood re- subsequently denied Gilson’s OCCA Bertha Jean Coffman quest rehearing. petition Gilson filed a for charged degree first with jointly
were
with
for
of certiorari
the United
writ
in the death of
by child abuse
murder
That
Supreme
petition
Court.
States
Coffman,
injury
count of
and one
Shane
April
Court on
denied
for the abuse suffered
to a minor child
Oklahoma,
U.S.
2001. Gilson
remaining
children.
by each of
(2001).
1496,
If a claim was addressed on the merits force said person able or who shall by courts, may grant cause, the state we not willfully procure permit any or relief federal habeas on the basis of that said acts upon done pur- the child claim unless the state court decision “was suant to Section 7115 of 10 of Title to, contrary an or involved unreasonable Oklahoma It Statutes. is sufficient for of, application clearly established Federal the crime of murder in the first degree law, as determined person willfully either tortured States,” the United 28 U.S.C. or used upon unreasonable force 2254(d)(1), § or “was based on an unrea- injured child or maliciously or maimed in light sоnable determination of the facts the child. presented of the evidence in the State 701.7(C). § Okla. Stat. tit. According 2254(d)(2). proceeding,” § court id. record, to the alleged State two alter- reviewing “When applica- state court’s native theories how Gilson violated law, precluded tion of federal we are from i.e., 701.7(C), § that Gilson either was di- issuing simply the writ because con- rectly responsible willfully or mali- in our independent judgment clude ciously injuring, torturing, maiming or us- applied the state court the law erroneously ing upon Shane, unreasonable force or that Abbott, incorrectly.” McLuckie knowingly permitted Bertha Jean Coff- (10th Cir.2003). “Rather, F.3d man to do so. we must application be convinced that the trial, At the State submitted verdict objectively was also unreasonable.” charge form for the murder that listed not does require abject “This standard our only option guilty or not guilty, but deference, ... but prohibits nonetheless us also stated: substituting from our own judgment for FURTHER, Snow, following the state we make the court.” F.3d (internal omitted). quotation finding
at 696
marks
of fact as to the
for our
basis
guilty:
verdict of
If
claim
was not resolved
the state
Unanimous as to child
[ ]
abuse murder
courts on the merits and is not otherwise
barred,
procedurally
permitting
our
Unanimous as to
[ ]
standard
re-
child
is,
searching.
view more
That
because
abuse murder
*8
2254(d)’s
§
deferential
of
standards
review
to
underlying theory
[] Divided as
the
apply
circumstances,
do
in
not
such
we
I,
object-
Gilson
at
P.3d
898-99. Gilson
the
court’s legal
review
district
conclusions
ed
the underlying
to
instruction that
in-
de
findings,
any,
novo
its factual
if
jury
formed the
“that while
verdict
their
McLuckie,
clear error.
at
F.3d
1197.
guilt
degree
of
as to first
murder must be
unanimous,
they
not unanimously
need
III. ANALYSIS
agree
theory
they
as to the
under which
Split
underlying
verdict on theories
at
Id.
899.
arrived
their verdict.”
at
The
child abuse murder conviction
trial
objec-
state
court overruled Gilson’s
charged
adopted
was
tion and
the verdict form submit-
degree
Gilson
first
by
jury
child abuse murder in
of
violation
Okla.
ted
the State.
“When the
con-
in
this conviction.
its
death
connection with
and returned
deliberations
eluded its
the
argued
Schad
that
finding
appeal,
to
On direct
verdicts,
in addition
(‘divided
requiring the
trial court erred in not
last
listed above
state
the
box
guilty,
underlying
theory’)
agree
theory
was
a
of first-
jury
single
to
the
as
to
Supreme
Arizona
murder. The
checked....”
rejected
argument
that
and affirmed
Court
proceed
habeas
federal
In these
and sentence. Schad
Schad’s conviction
that
“conviction for
his
ings, Gilson
a
sought
subsequently
granted
and was
murder,
jury
on a
based
divided
capital
petition for
of certiorari
the United
writ
guilty
was
of
to whether he
verdict as
that
Supreme Court on
issue.
States
child abuse
led
‘committing’ the
death,
such
the
‘permitting’
Although
urged
Supreme
Schad
Shane’s
constitutional
abuse,
by holding
in
his
“to
case
th[e]
is
violation
Court
decide
”
Sixth,
Br.
22.
process....
Aplt.
at
and Fourteenth Amend-
right
Eighth,
to due
require
jury
a
in state
ments
unanimous
a)
v. Arizona
Schad
cases,” 501
111 S.Ct.
capital
U.S.
2491, the
to do
More
Court1 declined
so.
“clearly
federal
law”
established
The
it
specifically,
“ha[d]
the Court noted that
support
argu-
in
of his
cites
suggested
returning general
that in
never
in
ment
Court’s decision
is
jurors
cases
be
Arizona,
verdicts
such
should
111 S.Ct.
U.S.
Schad
(1991).
agree upon
single
a
means
required
peti-
L.Ed.2d 555
commission,
indict-
any more than the
Schad,
Schad, Jr.,
Edward
tioner
required
specify
one
ments were
in Arizona state court with first-
charged
In-
The Court
charged
he was
perform
of mental state
that differences
with child abuse mur-
the alternative
the relative seriousness of other-
defining
der
the commission of child abuse or
criminal acts.”
wise similar or identical
abuse
According
permitting
child
which
1207 murder, in degree first the no general requirement resulted there is that the jury’s disagreement verdict as showed jury reach a agreement unanimous on “just what [he] [citation did.” and the preliminary factual issues which un- omitted]. [Gilson] footnote acknowl- derlie the verdict. edges this has that a general Court said Schad, Supreme the Court ad- guilt process verdict satisfies due and the constitutionality dressed Ari- the unanimity concerns where defendant is zona holding Court’s that a in charged the alternative with malice general verdict as to first-degree mur- murder, aforethought felony long and so permissible der is under Arizona law as as a facie case made each prima premeditation and the commission State, alternative. v. See James 637 felony independent are not elements of (Okl.Cr.1981). However, P.2d crime, but rather are mere means of distinguishable by he asserts his case is satisfying a single mens rea element. unique its circumstances. sub- [Gilson] analysis, In its the Court looked “both to jury mits that the in disagreement history practice and guides wide as legal, case went to the rather than the values, fundamental as well as to nar- factual, basis of the crime charged, “be- analytical rower methods testing the 1) ‘committing’ ‘permitting’ cause moral practical equivalence of the abuse murder conceptually child are dis- different mental may satisfy states that 2) tinct crimes and these alternative the- the mens rea element of a of- single guilt ories fundamentally repug- are 637-38, fense.” 501 at U.S. S.Ct. each nant to other.” [citation omitted]. argues contradictory [Gilson] nature language The found the of the charged the alternative crimes is illus- first-degree Arizona murder statute was by differing trated actus reus re- in respects identical all relevant to the quirements for each crime. language defining the first statute argues response The State by degree, murder differences of passed committing permitting child abuse by Pennsylvania Legislature in 1794. merely are by different means which U.S. 111 S.Ct. 2502. The child abuse may murder committed. Court also looked to oth- decisions from Court, Citing cases from this the State “ er agreed state courts which ‘it was jury not required was necessary jurors that all the should agree specific by means which agree in the determination that there committed, the crime only that the was a and premeditated deliberate de- charged. defendant committed crime deceased, sign to take life of the Both [Gilson] the State cite to in the conclusion that the defendant was Arizona,
Schad
at the time
engaged
the commission
(1991).
Having these made 7115 Title 10 of the Oklahoma Stat- of rather, question, “[t]he the stated Court for the crime of utes. It is sufficient ever may murder be felony is whether the degree in the that murder first by of murder equivalent the treated as willfully or person either tortured deliberation, particular in whether upon used unreasonable force charged this as case robbery murder injured maimed maliciously child or or equivalent.” thus 501 treated as may be the child. 644, 111 S.Ct. 2503. The
U.S. mur- degree This of first section Court concluded: Supreme ways der statute sets out different agree everyone or would Whether degree offense of murder which the first that precipitates the mental state that It by may child abuse be committed. robbery of is in the course death mali- may by the willful or be committed premeditation, it equivalent moral injuring, torturing, maiming, cious or us- equivalence that could clear such is by unreasonable force the defen- ing of found, enough reasonably which is child, by upon dant or defendant’s argument this to rule out the causing, permit- or willfully procuring them treating disparity moral bars ting abuse. This sec- the acts child men- satisfy alternative means person tion that “a specifically states single of a tal element offense. degree murder in the first commits 644, 111 at 2503- child ...” S.Ct. when the death of a results at 501 U.S. injury” from “willful 4. either or malicious “willfully permitting” those acts to be “consid- recognizing their While Therefore, statutory done. under exhaust the universe [did not] erations mur- degree of first language crime judg- relevant potentially those by under der child abuse is committed legitimacy defining ments about the provision This either circumstance. com- facts as mere means to the certain felony-murder provisions not unlike offense”, of one mission 701.7(B) set alter- of section which forth not fall found the Arizona law “did felony-mur- ways committing native beyond the bounds of fun- constitutional der. rationality.” 501 damental fairness argument at 2504.
U.S. at
is correct
[Gilson]
child
to commit
including
intent
we are not con-
present
In the
case
the first
stat
abuse into
murder
premedi-
cerned with the alternatives of
enactment,
relatively
see
murder,
ute is
recent
but with those
felony
tated and
(Okl.
State,
Tucker
P.2d
by permitting
child abuse
Cr.1984),
crime of child
and that
child abuse murder
child abuse and
child abuse
permitting
abuse murder
the commission of child abuse.
prior
did not exist
to 1982. See 1982
all
when
elements
the crime
However,
§
c.
Okla. Sess. Laws
(citations
charged
proven,
were
omit
legal culpability
the fact that
of a
ted).
defendant whose abuse of a child results
State,
See
also Neill v.
896 P.2d
permits
that child’s death or who
(Okl.Cr.1994),
denied,
552-53
cert.
child to be abused to the
extent
U.S.
116 S.Ct.
133 L.Ed.2d
*13
only recently
death results has
been ac
(1996);
State,
740
840 P.2d
Crawford
knowledged by this State does not mean
627,
(Okl.Cr.1992);
Newsted v.
Legislature
the
cannot define first de
State,
734,
(Okl.Cr.),
720 P.2d
737-38
gree child abuse murder to
been
have
denied,
cert.
107 S.Ct.
by
committed either
actual
the
commis
(1986);
State,
With the enactment of the a prima showed facie case was made and Legislature clearly has stated its inten all of the proven sup- elements were to punish tion to first degree murder the port guilt a finding of as to either child use upon of unreasonable force a child by abuse murder the permitting or commission of the of force unreasonable child to used a abuse or child upon by be child when the death abuse murder of a child results. permitting child abuse. The evidence supporting the
Having the conclusion [Gilson] found commission of child perpetrator abuse and the of was the of permitting child abuse the abuse inflict- to be to committing alternative means ed upon Shane came from the other the crime of first degree by Coffman children who testified that both abuse, require child constitutional “[t]he [Gilson] their mother beat Shane ment of a jury unanimous verdict applies day murder, of the carried him to only appel to the ultimate of issue bathtub, stayed him in guilt lant’s or innocence of crime bathroom while he cried and screamed. charged, not the by alternative means Supporting can evidence also be found in which the crime was committed.” Coffman’s statement that she saw [Gil- (Okl. State, Rounds v. 679 P.2d coming of son] out bathroom Cr.1984). State, In Powell v. P.2d then in found Shane the bathroom not (Okl.Cr.1995), 775-76 this Court breathing. stated: supporting Evidence conclusion prior Court has [T]his reaffirmed its permitted the abuse from [Gilson] comes holdings that a jury failure of to indi Coffman’s statement she was in the guilt cate the of their finding basis struggling bathroom with Shane when was not error there where was but a the shower doors fell down. charged, single crime i.e. first bathroom, entered the but once murder. “Whether or not [murder] twice to attend the shower doors. was committed with malice afore supports own statement [Gilson]’s during thought, the commission of that he was conclusion aware that Coff- felony goes to the factual basis of abusing man was Shane the bath- the crime.” When the verdict room. unanimous that a defendant commit jury’s indicating The it guilt verdict murder in the degree,
ted first such underlying theory verdict satisfies Fur divided as to the process. due ther, there is no due process disagreement violation was a as to the factual O.S.1991, death, enacting 21 man- ed the offense and as
basis 701.7(C) was committed. merely the crime has Legislature § in which ner Supreme Court stated Schad: theAs way committing first created another suggested that in re- have never We degree murder. general verdicts such cases
turning
statute, setting
language
agree
jurors
required
be
should
committing
means of
forth alternative
commission,
single
means
upon
murder, makes
the crime
child abuse
were
any more than
indictments
analogous
felony-mur
the crime of
it
specify
one alone.
required
701.7(B)
O.S.1991, §
fel
Under
der.
cases,
litigation generally,
as in
these
when a death
ony-murder is committed
may
jurors
persuaded
“different
commission of
evidence,
results from a defendant’s
even
pieces
different
upon
underly
line.
they agree
specifically
bottom
of several
listed
when
*14
Plainly
general require-
is no
there
prosecu
felony-murder
In a
ing felonies.
jury
agreement
ment that the
reach
tion,
underlying felony
the
is
proof of
factual
the
issues
preliminary
necessary
the
to
intent
prove
needed
(citation
the
which underlie
verdict.”
felony
v.
a
murder conviction. Fields
omitted).
(Okl.Cr.1996),
State, 923 P.2d
634
631-32,
111
at
at 501 U.S.
S.Ct.
denied,
117
cert.
(1997). Further,
1704,
Gilson
900-03
homa’s choice is
with principles
consistent
omitted).
graph numbers
sure,
of due process. To be
Oklahoma’s
directly
decision to
include both the com-
c)
Gilson’s entitlement
habeas
federal
permission
mission and
resulting
abuse
on this claim
relief
in the death of a child in its definition of
above-quoted language
ap-
makes
first-degree
appears
unique
parent
properly
OCCA
conducted
among
said,
the states.3
however,
That
part
analysis.
first
Spe-
Schad
there is contemporary support from other
cifically, it
as a
concluded
matter of state
states for
treating
the notion of
the willful
that,
law
“[w]ith
enactment
commission and willful permission of child
701.7(C),
§
Legislature
[Oklahoma]
abuse as alternative means of satisfying
clearly
punish
ha[d]
stated its intention to
the actus
requirements
reus
single
as first
murder the
unrea-
use of
offense. In particular, several other states
upon
permit-
sonable force
a child or the
treat willful commission and willful permis-
ting of
upon
unreasonable force to be used
sion as alternative
means
satisfying the
a child when the
of a
death
child results.”
requirement
actus reus
of lesser criminal
I, 8
P.3d at 902. Unfortunately,
E.g.,
offenses.
§
Cal.Penal Code
11165.3
however, the OCCA failed to conduct the
(defining
crime of
harming
“Willful
second,
arguably
more important, part
endangering of child” to include
situa-
“a
i.e.,
analysis,
the Schad
determining
*15
tion in
any person
which
willfully causes or
whether the
Legislature’s
Oklahoma
deci-
suffer,
permits any child to
or inflicts
sion to treat “the commission of child
thereon, unjustifiable physical pain or
permitting
abuse and the
of child abuse
mental suffering”);
§
Conn. GemStat.
committing
[as] alternative means to
53-
the
crime
first
21
degree
by
(defining
“Injury
of
the crime of
murder
child
or risk of
to,
abuse”
principles
injury
of,
was consistent with
impairing
of
or
morals
children”
process.
place
due
In
of
analysis,
this
any
the
to
person
“wilfully
include
who
or
simply
OCCA
the
pre-
reviewed
evidence
unlawfully
permits any
causes or
...
child
sented at trial and concluded
“a prima
placed
to be
in such situation that the life
facie case was
and all
made
of the ele-
endangered”);
or limb of such child is
Ida-
proven
support
ments were
to
finding
of
§
ho Code Ann.
18-1501 (defining the
guilt as to either
by
child abuse murder
“Injury
crime of
to children” to include
the commission of child abuse or child “[a]ny
who,
person
under circumstances or
by
abuse
permitting
murder
child abuse.”
likely
produce great bodily
conditions
to
Id. at 902.
death,
harm or
willfully
permits
causes or
Conducting
part
suffer”);
the second
of the Schad
child to
111.Comp.
720
Stat.
analysis
novo,
de
we conclude that Okla-
(defining the crime of “Endan-
5/12-21.6
2007)
3. Although
("this
we have
Sept.20,
not found
(Mich.App.
another first-
in-
cаse
Oklahoma’s,
degree murder statute similar to
felony
volved
underlying
murder ... with the
significant
abuse”);
find it
other
felony
first-degree
states routine-
child
Tenn
ly
charged
39-13-202(a)(2)
allow criminal defendants to be
§
Code Ann.
(defining first
first-degree felony
degree
with
death
"killing
when
murder to
the
include
an-
permission
results
the
perpetration
from
commission or
other committed in the
of or
E.g., People Morgan,
severe
attempt
aggravated
child abuse.
v.
perpetrate
to
...
child
593,
Cal.Rptr.3d
Cal.4th
aggravated
neglect”).
170 P.3d
abuse [and]
child
(2007)
Thus,
(noting
that a violation of
the end result in those
effec-
states is
felony
Oklahoma, i.e.,
"merg-
tively
California’s
child abuse statute
the same as in
de-
the
homicide”);
resulting
es
People
with a
charged
fendant in such
case is
first-
with
Moore,
degree
No.
causing]”
a)
Enmund and Tison
The decisions in
(de-
§Ann.
40.1-103
lowing]”); Va.Code.
injuries
“Cruelty and
fining
crime
Tison,
Supreme
In Enmund and
“willfully
causing]
...
include
children” to
explored
culpability
Court
[a]
the life of
child
be
permitting]
or
pun-
necessary
imposition
capital
for
§Ann.
Wyo.
6-4-405
endangered”);
Stat.
felony-murder
involving
ishment
cases
chil-
(defining
“Endangering
crime of
so,
doing
In
both cases
convictions.
“willfully causing]
per-
dren”
include
Punish-
to the
and Unusual
looked
Cruel
mit[ting]”).4 As noted
Amendment,
Eighth
Clause of the
ments
Schad,
“unlikely”
it is
that such
which
prohibits “punishments
which
legal
would
relatively common
definitions
severity
length or
are
their excessive
they
“at
acceptance” if
were
“retain wide
greatly disproportioned
the offenses
and rationali-
fairness
odds with notions
Enmund,
charged.”
458 U.S. at
compre-
fundamental
ty sufficiently
(internal quotation marks omit-
S.Ct.
501 U.S. at
process.”
hended
due
ted).
Moreover,
Gilson has
1213
Tison,
the Court expanded on the Ultimately,
the Court held that “major
principle of proportionality by addressing
participation in
felony
committed, com-
two related
cases
fell between the
bined with reckless indifference to human
categories
felony-murder
expressly ad-
life, is sufficient
satisfy
the Enmund
dressed in Enmund.
petitioners
in culpability requirement.”
Id.
Tison,
brothers,
two
had assisted their
S.Ct. 1676.
inmate father and another convict in es-
Although not
by Gilson,
cited
the Su
caping
prison.
from
During the course of
preme Court’s decision in Cabana v. Bull
the escape, the group’s car broke down ock, 474
U.S.
and one of the brothers flagged
down
L.Ed.2d
(1986),
is also relevant to our
passing car which
family
contained a
analysis.
Enmund/Tison
Cabana
awas
four. The group proceeded to kidnap procedural case in which the Court “deter
family.
rob the
While
brothers were
mine[d] whose hands the [Enmund/Ti
nearby, the father and the other convict
son-mandated] decision that a defendant
shot and killed all four members
possesses
requisite
degree of culpabili
kidnapped family. Neither
at-
brother
ty properly lies.” 474
U.S. at
tempted to assist the victims before, dur-
S.Ct. 689.
In addressing
issue,
ing, or after the shooting. Moreover, both
Court emphasized that its “ruling in En-
brothers
continued with the two escap-
mund d[id] not concern the guilt or inno
ees and the group was not apprehended
cence of the defendant” and “establishe[d]
until
days
several
151-52,
later.
Id. at
no new elements of the
crime murder
S.Ct. 1676.
that must be
found
jury.”
Id. at
The Supreme Court concluded that al-
385,
precise capital sentence. of imposition determina- the Enmund make chooses facts standpoint that response the in the from concern State of little tion is Thus, the Court support Id. sufficient are Constitution.” in this case court reviews habeas the held, a federal for eligible “when finding [Gilson] that been has penalty the death that a claim sentence. death the meet does one who” on imposed shows record note the Initially we impo- for requirements or Tison Enmund rendered, were the verdicts after “the court’s penalty, the of death sition the Bill strike counsel moved defense to an examina- limited cannot be inquiry [Gilson] arguing Particulars of Rather, the instructions. jury of tion the for constitutionally eligible longer no course entire examine the must court failed to because penalty death the de- against proceedings the state-court committed unanimously that he find whether, at to determine in order fendant to the death led act which intentional requisite process, in the point some properly has objection This the victim. culpa- the defendant’s finding as to factual review. appellate the issue for preserved 387, 106 Id. made.” bility has been I, the Proposition in addressed As held, “the has,” the Court it “If 689. verdict general in this case was verdict by vir- correct presumed must be finding murder with first guilt 2254(d), unless ... and § tue of 28 U.S.C. underlying as to heavy jury disagreeing can bear petitioner the habeas Therefore, will review we presumption, factual basis. overcoming the burden applica- Eighth light basis to hold that factual obliged the court is eligibility. Enmund interpreted death as determine law to Amendment ble death by the is not offended ] Tison [and (Okl. State, 918 P.2d In Wisdom 387-88, 106 S.Ct. sentence.” con Cr.1996), held defendant by Child Degree Murder of First victed En- b) rejection Gilson’s The OCCA’s victim actually killed Abuse who claim mund/Tison for the eligible hand was own his/her raised his first Enmund/Tison acknowledges [Gilson] sentence. death reject- OCCA appeal. The direct claim urges reconsideration. but ruling this merits, stating claim on ed the offer, omitted). (citation We decline follows: finding supports a Here, the evidence assign- second his contends [Gilson] victim. killed the actually that [Gilson] death sentence that his of error ment vic beating the participated and Fourteenth Eighth violates to the he was the time taken prior tim II, 9,§ Article Amendments, as well as in the bathroom [Gilson]was bathroom. because Constitution the Oklahoma Coffman, after the victim O.S.1991, under conviction room, exiting was seen Coffman left *18 701.7(C), eligibility § establish failed immediately before Shane the bathroom of In the first sentence. the death for certainly This evidence found dead. [Gilson] subpropositions, several death for the eligible [Gilson] renders killed, fact he in prove failed to the State sentence. major partici- kill or was attempted to ruled on previously not has This Court indif- showing reckless felony in a pant First convicted defendant whether a He contends life. to human ference by permit- Murder Abuse Degree Child only each if can sentence stand his death Both eligible. abuse is death child ting underlying murder the theories and the State direct us to Tison [Gilson] case is by the permitting of child Arizona, v. 481 U.S. 107 S.Ct. abuse, apply we analysis used in (1987) L.Ed.2d 127 application Enmund and Tison. the death penalty to a defendant who Here, the evidence shows [Gilson] was not kill does own hand. his/her a major participant in the felony. Act- Tison, felony-murder case in which the ing jointly Coffman, with he took Shane kill, defendant did himself not the Su- outside the trailer and was party to con- preme Court held that a defendant who duct which elicited screams from the not actually did commit the act which child. He and Coffman took Shane back death, caused who major but was a par- trailer, inside the they took both him ticipant felony in the and who had dis- back to the bathroom they both played reckless indifference to human remained him in the bathroom for life, may be sufficiently culpable to re- periods of time. This clearly evidence ceive the death penalty. 481 U.S. at supports the conclusion partic- that his 158, 107 at S.Ct. 1688. ipation was major and substantial. Court stated: argues that, worst,
Similarly,
his con-
we hold that
the reckless
duct was that of an
disregard for human life
omission-of
implicit
failing
knowingly
protect
engaging in
the victim
criminal
from
activi-
a potentially
ties known
carry
a grave
dаngerous
risk of
situation-and not
that of
death represents a highly culpable
knowingly permitting the abuse to occur.
state,
mental
a mental state that may
To the contrary, [Gilson]’s conduct was
be taken
account
into
in making a
merely
the nonperformance of what
capital
sentencing judgment when
ought
done,
to be
as in
cases
criminal
natural,
conduct causes
its
omissions, (citation omitted). His active
though
inevitable,
also not
lethal re-
participation in the abuse occurring in-
sult.
side his small trailer is very different
Id. at 481
157-58,
U.S.
107 S.Ct. at
from a passive act of failing
provide
what is required by law.
Tison modified the Supreme Court’s
We next determine whether [Gilson]
Florida,
holding
Enmund
displayed reckless indifference to human
102 S.Ct.
defense in the felo- hand, participation some the defendant’s the other ... On excuse murder, likely that acted may be the more ny murderers nonintentional life. and inhu- to human dangerous indifference most reckless among the 153-54, at who tortures 107 S.Ct. person Id., of all-the U.S. mane the victim caring whether another not 1685-86. dies, robber who shoots or the lives or reckless in has addressed This Court robbery, of the in the course someone only per as it human life difference fact the to the utterly indifferent actually killed. In who to those tains have the unintended may to rob desire indiffer so, found a doing we reckless victim as killing the consequence of largely on life turns ence to human property. taking victim’s
well as case, evidenced in but was facts to the value indifference This reckless of a creation by the defendant’s part every bit may be as life of human inherently danger situation desperate as an sense to the moral shocking State, life. Hain v. ous human (“[I]n com- ... kill.” “intent to denied, (Okl.Cr.), cert. P.2d killing is not the law, intentional mon 1031, 117 519 U.S. the most establishing only basis (1996), and the defendant’s L.Ed.2d 517 homi- of criminal form egregious physical serious conscious causing the Pe- the Model example, cide .... For the victim. and death suffering ‘mani- killing, nal treats reckless Code (Okl. State, 913, 931 Brown v. P.2d to the festing extreme indifference Cr.1998). life,’ equivalent to human value of support present in case The facts killing”). knowing and purposeful with reck- finding that acted [Gilson] “intent that when Enmund held Acts human life. in less indifference though not logical in its kill” results outside participated [Gilson] which taking of consequence-the inevitable injury to the child which caused trailer Eighth Amendment life-the human The child was pain. elicited screams the death permits the State exact trailer with back inside the brought weighing of the a careful penalty after head, arms, on his spot a soft swollen circum- mitigating and aggravating breathing. The victim irregular had and Similarly, hold stances. bathroom, an act in to the to be carried life im- for human disregard reckless Fur- again participated. [Gilson] which in crimi- knowingly plicit engaging in participated in [Gilson] acts whiсh ther carry grave nal known to activities the victim to bathroom caused inside the cul- highly represents risk of death cry. was and again scream state, state a mental pable mental that. Coffman struggle between aware of making may into account be taken the victim which victim judgment when sentencing capital bathroom in the injured property natural, its causes conduct damaged. inevitable, lethal re- though also [Gilsonj’s ele- argument focuses sult. child permitting of the offense ments Id., 157-58, 107 S.Ct. at “willfully” asserts that terms abuse and 1687-88. the statute “knowingly” contained determination, the above making degree mur- on first instruction looked to the Court also are not abuse by permitting child der found laws of states and several indifference equivalent of reckless capital pun- authorize which states *20 for human life. The elements of the convicted of felony murder for a killing offense of first murder per- occurring during the course of a robbery mitting child previously abuse have been kills, who neither does not intend that opinion. addressed in this We found the taken, life be nor contemplates that le- evidence this supported case a finding thal force will be employed by others. of the existence of those be- elements The against evidence appellant was that yond Here, doubt. reasonable we look he entered his victims’ home with a shot- beyond those elements and find [Gil- gun in hand. His confederate entered son]’s conduct illustrated a in- reckless too with a handgun. loaded Appellant difference to human life. The evidence held the victims at gunpoint while Ake supports finding subjec- looted the and attempted home to rape tively appreciated that his conduct would year victims’ twelve old daughter. likely result in the taking innocent Appellant also took a turn attempting to life. This is sufficient to make him eligi- rape her. Appellant frequently threat- ble for the penalty. death ened the lives of his as they lay victims In opinion, this we have previously hog-tied on the floor. After a discussion compared the crime child abuse mur plan action, to their appellant went der the crime of felony-murder for outside and turned his automobile purposes of determining sufficiency of around while he waited sound”, “for the the evidence to sustain a conviction. as Ake had instructed him to do. a comparison Such of the two offenses is again agree We during warranted this with the trial discussion court’s finding applicability of the death penalty. “the Defendant Hatch contemplated eligibility of a defendant convicted that a killing only was not possible, but of child abuse the permitting probable and further that lethal force of child abuse similar of a non- probably be employed.” Therefore, we triggerman convicted of felony-murder. find that appellant’s sentences of death Hatch, In P.2d at non-trig- justified are and are in compliance with german was sentenced to death for his Enmund and we AFFIRM each. participation the underlying felonies. Hatch, 701 P.2d Hatch and co-defendant Ake forced their The death sentence for a non-trigger- way into the home, victim’s ransacked man has also upheld been juris- in other the home at gunpoint and repeatedly White, dictions. In Florida v. 470 So.2d threatened to kill family of four who (Fla.1985), occupied defendant and two the house. Ake instructed companions outside, gained Hatch to entrance go to a home turn the car around, under a subterfuge. “listen for All the sound.” three men were Hatch did as he was told. Ake then armed and They wore masks. tied up shot each family member and fled the the people in the house and ransacked it. scene with Hatch. The two adult vic When one of the assailants’ mask fell tims died while two children sur face, from his the three assailants dis- State, (Okl. vived. Ake P.2d cussed victims. killing The defen- Cr.1983). dant vеrbally opposed killing. The In reviewing sentence, Hatch’s death two other victims, assailants shot the this Court stated: killing eight. six of the The three assail- Enmund, ants gathered then up Court held their loot and
that the death penalty cannot be returned consti- to the motel defendant’s room tutionally imposed against one who is where the loot divided. The Su-
1218 from those himself that En- to disassociate failure found Florida
preme Court
by Bertha
perpetrated
the
abuse
acts of
imposition
the
not bar
mund
did
Coffman,
failure to either
to the defendant’s
and his
due
penalty
death
before,
in
respond
and after
during
conduct or
in his
both
deterred
presence
and active role in
murders;
surely
his full
must
to what
any
the
manner
positive
guarding the
intimidating and
mercy
the
capturing,
from
pleas for
have been
him-
to disassociate
victims; his failure
victim,
for a reasonable
were sufficient
robbery
the mur-
the
from either
self
beyond a reasonable doubt
to find
juror
any killing;
opposing
verbally
der while
in the
major participant
was a
that he
he acted
evidence
any
the lack
with reck-
that he acted
child abuse and
coercion.
under
life.
to human
indifference
less
Norris,
799
v.
21 F.3d
In Fairchild
sen
his death
next
(8th Cir.1994),
Eighth
Court
the
Circuit
as an En
modified
should be
tence
supported
evidence
held the
Appeals
not done
analysis was
mund/Tison
non-trigger-
the defendant
finding that
a
improper
it would be
trial court and
the
penalty.
the death
eligible for
man was
such a
to conduct
review
for this Court
an ac-
case,
defendant and
the
In that
Bullock, In Cabana
appeal.
and killed a
raped
kidnapped,
complice
88 L.Ed.2d
S.Ct.
U.S.
the defendant
found
The Court
woman.
(1986),
stated
the
kidnapping
the
in
fully participated
require
does not
Eighth
the
Amendment
car, forced
to her
her
the victim-followed
findings
jury
required
a
the
make
money
and took
gunpoint,
inside
her
Enmund;
court,
trial
appellate
a
an
arriving at
Upon
a
purse.
her
from
may
requisite
make the
or a
judge,
house,
subsequently raped
deserted
Id. at 474 U.S.
findings.
was outside of the
defendant
her. The
can
the
at 700. This Court
review
S.Ct.
by the
was shot
victim
house when
findings required
record and make
However,
the defendant
accomplice.
Reviewing the
by Enmund and Tison.
gun
when
present
been
had
case,
find the facts
in this
evidence
victim and death
initially
to the
shown
major
finding that
support
[Gilson]’s
a
Eighth
Circuit
made.
threats were
abuse,
felony
child
participation in
in
participation
the defendant’s
found
indifference to
with reckless
combined
robbery, kidnapping and
the armed
life,
satisfy
is sufficient
human
leaving
victim alone
his
rape;
Enmund
culpability requirement.
and his failure
accomplice,
the armed
(internal
I,
para-
8 P.3d
919-22
by the vic-
in his conduct
be deterred
omitted).
graph numbers
for
mercy were sufficient
for
pleas
tim’s
Following the issuance of
OCCA’s
juror
find that he
a
reasonable
decision,
for rehear-
petition
Gilson filed
the felonies and
major
in
participant
arguing that
Su-
with the OCCA
ing
indifference
that he acted with reckless
just issued its decision
preme Court had
to human life.
466, 120
Jersey,
v. New
Apprendi
present
evidence
Accordingly,
(2000)5, and
147 L.Ed.2d
full, active and know-
case of [GilsonJ’s
only jury
could
light Apprendi,
that,
underlying
in the
acts
ing participation
find-
Shane,
requisite
Enmund/Tison
upon
make
inflicted
of child abuse
appeal,
resolving
direct
approximately
Gilson’s
Apprendi
was decided
its
the OCCA issued
decision
month before
29, 2000,
ings.
August
On
is-
explained
OCCA
have
capital
cases are
denying
an order
petition
sued
Gilson’s
not controlling:
rehearing
stating,
pertinent part,
cited,
“Neither the cases
nor
oth
*22
follows:
case,
er
permits a judge to determine
valid prior case law holding that
must be
by finding
reasonable doubt.”
vided for an
range
decision in
defendant
handicap, religion, sexual orientation or
intimidate an individual
it
ment
ponderance of the
“[i]t
[at]
ethnicity.
of facts that
criminal offense acted with а purpose to
stitutional
statute. The New
Supreme
defendant in committing
dividuals
We have reviewed
is not
2363. The
remove from the
2362-63. The
“unconstitutional for a
is
if
the trial
equally
established
because of
penalties
applicable.
the New
is
the
Apprendi
extended term of
exposed.”
principles
increase
Supreme
struck
judge
clear that such facts
to which a criminal
jury
Jersey
Jersey
Id.,
Court further said
race, color,
evidence,
by proof beyond
Apprendi
did not render in-
In
found,
Court continued
down as uncon-
or
the
the assessment
102 [120] S.Ct.
the
involved in its
Apprendi,
Court said it
“hate crime”
group
statute
[120]
underlying
prescribed
legislature
by
imprison-
that
and find
gender,
a pre-
of in-
S.Ct.
it is
pro-
the
the
ings required by
not
i.e.,
not render invalid the rule of
court,
judge to decide whether
Accordingly,
person
that expose him to
leted).
mum
trial on all
has
U.S.,
the existence of a factor which makes
the elements of an offense which car
ries as its maximum penalty the sen
charge.” Almendarez-Torres,
tence of
has found the
one, ought
(Scalia, J., dissenting) (emphasis de
cited cases hold is
a crime a capital offense. What the
requisite
[120] S.Ct.
require
a trial
an
at
penalty,
the
who is
absolute
death,
that a
findings.
judge,
Eighth
to be imposed....
we find
the elements of the
Enmund;
2n.
defendant
rather
may be left to the
it charged
jury
or a
entitlement
the death
Amendment does
that,
Cabana,
[
the defendant. any confession made the defendant. AND IN THE ALTERNATIVE evidence, however, Such may be circum- person may No convicted MUR- stantial and need not proof include DER IN THE FIRST DEGREE unless the identity of the person who caused *24 proved the State has beyond a reason- the death. able doubt each of element the crime. (Instruction 9). Id. at 949 No. FIRST, These elements are: the death of a child under age eighteen; that, You are instructed although your Second, the death resulted from the will- guilt verdict as to of the crime of FIRST ful or injuring, malicious torturing or DEGREE MURDER must be unani- using force; Third, unreasonable mous, you need agree unanimously which was knowingly permitted; theory to the upon you which arrive FOURTH, by person responsible for at that verdict. the child’s health or welfare. (Instruction 14). Id. at 954 No. CF96-245, State ROA—Case No. # File You are further instructed as to the (Instruction 6). at 946 No. The state trial following Definitions: gave court also the following instructions Knowingly personal awareness —With provided that more detail regarding how of the facts. apply was to the elements of first- Malicious —The imports term a wish degree murder: vex, annoy injure or person. another You are further as to instructed Responsible Person a Child’s Wel- for following Definitiоns: parent, Includes a legal guardian, fare— Direct Result —Immediate conse- custodian, parent, foster person eigh- quence which separated is not from its years age teen or older with whom initial cause other, independent fac- parent child’s any cohabitates or oth- tors. residing er adult in the home of the (Instruction 7). Id. No. child. No person may be convicted of Torture —Infliction great physical FIRST DEGREE MURDER unless his pain. conduct or the per- conduct another Unreasonable than Force—More that
son which he criminally responsi- is ordinarily used as a means of discipline. ble caused the death person of the alleg- edly killed. A -Purposeful. death is caused “Willful” is a Willful— conduct if the willingness conduct is a substantial to commit the act or omis- in bringing factor to, the death and about sion referred require but does not acts, that law, committed those ing permission, or to ac- violate the intent any necessarily group that this does not mean advantage. any quire role played no other also found 18). (Instruction No. at 958 differently, it is in the offense. Stated and the these instructions light of group of entirely possible that this second form, it is the verdict indicated on results played an active jurors found that Gilson jurors agreed that all twelve indisputable severely abusing role in Shane Coffman resulted Coffman the death of Shane death, that Ber- to his but prior the hours injuring, tor- or malicious from the willful the final act or tha committed Coffman As of unreasonable force. turing using or In- that resulted in Shane’s death. acts however, noted, jurors were divided deed, been di- finding such a could have sup- theories the two alternative which a combination of wit- rectly derived from conviction. One or the murder ported testimony from the testimony: nesses’ beyond a reason- jurors found more of regarding severe abuse surviving children another en- doubt that Gilson able “and/or jointly perpetrated by Gilson and Bertha i.e., Coffman, him, Bertha gaged with” leading up the hours Coffman injuring, or malicious committed the willful death, and Bertha Coffman’s own Shane’s force. torturing using of unreasonable in the testimony that she was bathroom words, jurors found group In other this just to his death prior alone with Shane that Gilson beyond a reasonable doubt the bathroom on and that Gilson entered togeth- alone or part, took an active either time during period two occasions Coffman, specific in the with Bertha er fix the shower doors. directly resulted Shane Coff- acts whether question The next generally man’s death. See Webster’s *25 culpability find- OCCA’s (1993) (de- Enmund/Tison Dictionary Int’l Third New jury’s with the find- ings were inconsistent involve or fining “engage” the term as “to found that Gilson “ac- ings. The OCCA (as person) in some affair or entangle in the abuse” of tively] participated] (defining id. the term “en- enterprise”); I, Coffman, 8 P.3d at Shane Gilson in gaged” esp. “involved a hostile en- as counter”). doing in “acted with reckless indif- and so jurors group The second human Id. at 921. More (which, ference to life.” would have group, like the first that specifically, the OCCA found Gilson encompassed anywhere from one to eleven “participated outside the trailer jurors) beyond [in acts] a reasonable doubt found injury the child which “person responsible that for” caused to [that] Gilson was pain,” “brought screams of [the Shane Coffman’s health or welfare and elicited trailer with “knowingly permitted” that another back inside the swollen child] Gilson arms, head, Coffman, person, spot irregular to commit the a soft on his Bertha breathing,” “carried to the bath- specific directly [the child] acts that resulted room,” Importantly, “participated inside the [in acts] Shane Coffman’s death. caused the to nothing group’s findings [that] [child] about this second bathroom Gilson, meant, aware of the necessarily suggested by cry,” scream and and “was rejected finding struggle between Coffman and the they “specifically [child] injured prop- in in the was participated [that [child] even with another which he] noted, erty damaged.” the in the Aplt. crime.” Br. at 49. As the bathroom “subjec- required jury to focus The also found that Gilson instructions the OCCA directly tively appreciated on the resulted that his conduct would specific acts Although likely taking the result in the of innocent life.” Shane Coffman’s death. sum, jurors In the found that Gilson’s group second had to have found Id. OCCA Coffman, felony child “major participation that Bertha know- the with Gilson’s abuse, combined with reckless Reviewing indifference the light record in of these life, satisfy standards, to human sufficient to [wa]s the readily reject we argu- Gilson’s culpability requirement.” Enmund Id. at ments. Although each of eyewitnesses the 922. the leading events up to the murder (Bertha Coffman and the four surviving We conclude that none of the OCCA’s children) gave slightly differing accounts, findings were inconsistent with the factual testimony, particularly their when com- findings jury necessarily that the had to physical bined evidence found at have made in reaching its verdict on the the trailer and the results of the autopsy first-degree charge. particular, murder performed Coffman, on Shane was more findings regarding OCCA’s Gilson’s ac- than sufficient each support tive participation leading the events up OCCA’s findings. In par- Enmund/Tison Coffman, death of Shane and Gil- ticular, Tranny Coffman testified that on life, son’s reckless indifference human day (i.e., last saw day Shane are not inconsistent with or precluded by death), Shane’s Gilson disciplined Shane findings jurors of those who deter- inside the trailer beating him with a mined that Gilson knowingly permitted, board, day later that accompanied Gilson committed, directly rather than specif- Shane and Bertha Coffman outside the directly ic acts that resulted in Shane’s trailer and Shane be heard could scream- Thus, reject death. Gilson’s assertion ing, Gilson and then jointly Coffman car- that the findings effectively OCCA’s nulli- ried Shane back inside trailer and jury’s fied verdict on the first-degree couch, him on placed as Shane sat on charge. couch, Tranny observed that Shane’s In his third final challenge swollen, were arms head had a soft decision, OCCA’s it, spot on and he breathing in a “the facts and in his simply evidence case (i.e., “weird” fashion making gargling-type support a finding d[id] of death eligibil sounds), Gilson then carried Shane to the ity” under Enmund Aplt. and Tison. Br. bathroom, point some thereafter More specifically, Gilson takes issue could Shane be heard inside the bathroom. finding with “[t]he OCCA’s [that he] was Tranny’s testimony was bolstered *26 ‘major in participant’ the offense and brother, Coffman, his of Isaac who testi- showed ‘reckless indifference for human that fied he used the day, bathroom that life’.Id. in observed Shane the bathtub with some gone, his hair of on his arms and bruises review, On federal habeas we must legs, making funny and failing noises to the presume OCCA’s factual determina respond questions to Isaac. In from addi- tions are correct and a presumption such to this testimony, tion all five witnesses may only be rebutted by clear and convinc testified more generally Gilson rou- ing contrary. evidence to the 28 U.S.C. tinely children, “disciplined” the including 2254(e)(1); Mullin, § Willingham v. 296 Shane, by beating them with various ob- (10th Cir.2002). 917, F.3d 922 Unless the jects. together, Considered this evidence OCCA’s factual determinations are shown more than support to each sufficient of clearly be wrong objectively and unrea findings the OCCA’s regarding Gilson’s ac- sonable, may we not overturn them on tions and mental state.7 federal habeas review. Miller-El v. Cock rell, 322, 324, 537 U.S. sum, 123 S.Ct. In conclude the OCCA’s (2003). L.Ed.2d 931 to, contrary decision was neither nor an Although correctly Gilson testimony, notes that tions of Bertha Coffman’s does findings OCCA's por- were findings improper inconsistent with not render the OCCA’s or be, subjective views merely the of, appear principles application unreasonable Justices; judgment should of individual and Tison. in Enmund outlined the maxi- factors to by objective informed end, sentenсe death Is Gilson’s Id. “To this possible mum extent.” disproportionate atti- public to the given must be attention his his- sentence concerning particular tudes offense? attitudes, legislative tory precedent, ar- Gilson appeal, issue his third In juries reflected response of and the violates the sentence his death gues that con- are to be sentencing decisions their of Clause Punishment and Unusual Cruel Id. sulted.” it is dis- because Amendment Eighth support In offense. proportionate b) propor- application OCCA’s asserts Gilson proposition, this tionality standards role in a direct find he had not “jury did Gil- analysis its In connection death,” [wa]s his “crime and that Shane’s on direct arguments son’s Enmund/Tison omission, Aplt. to act.” failing one of rejected addressed appeal, the OCCA circumstances,” “Under these Br. at 58. stating arguments, proportionality Gilson’s the death “imposition of argues, follows: as severity and irrevo- in its unique penalty, pen- argues the death Finally, [Gilson] in relation to the cability, is ‘excessive constitutionally disproportionate alty is consti- of his violation committed’ crime child abuse permitting to the crime v. Coker (quoting rights.” tutional penalty He the death murder. contends 584, 592, 97 S.Ct. Georgia, 433 U.S. (1) it does contribute (1977)). excessive as: is L.Ed.2d 982 punishment results goals to the a) Supreme Court Clearly established pain and suffer- imposition of needless
precedent
(2)
punishment
grossly
ing, and
severity of the
to the
disproportionate
clearly
first task is to determine
Our
Georgia,
v.
See Coker
crime.
applicable
this
federal law
established
2861, 2866,
L.Ed.2d
97 S.Ct.
Court,
in several
Supreme
claim.
(1977).
constitu-
discussing
In
Coker,
cases, including
as well Enmund
sentence for
tionality of the death
Tison,
general propor-
has outlined
kill,
did not
defendant who
imposition
tionality standards
stated:
Court Enmund
standards,
those
“a
penalty.
death
Under
153, 96
Georgia
U.S.
Gregg
[428
and unconstitu-
is ‘excessive’
punishment
(1976)]
L.Ed.2d 859
(1)
contri-
if it makes no measurable
tional
ob-
announcing
judgment
opinion
punishment
acceptable goals
bution to
*27
penalty is
death
pur-
“[t]he
served that
nothing more than the
hence is
and
pur-
principal
two
social
pain
said
serve
imposition
poseless and needless
and deterrence
(2)
retribution
poses:
out of
grossly
or
suffering;
by prospective offend-
capital crimes
severity of the crime.”
proportion to the
omitted).
(citation
Unless
Coker,
2861. “A
ers.”
at
97 S.Ct.
applied
when
those
penalty
death
the test on either
punishment might fail
con-
“Furthermore,
measurably
Eighth
position
Enmund’s
these
ground.” Id.
goals,
of these
be,
or both
tributes
one
judgments should
Amendment
Moreover,
noted,
tran-
the entire trial
a review of
unsupported by the evidence. As
strongly suggests that much of Bertha
script
amply supported by
findings were
OCCA's
testimony
than truthful.
was less
Coffman's
Tranny
testimony
and Isaac Coffman.
than
nothing
purpose-
dwelling.
occupants
house,
it “is
more
The
imposition
pain
elderly couple,
less and needless
an
resisted and En-
suffering,” and hence an unconsti-
accomplices
mund’s
killed them. The
punishment.
tutional
Coker v. Geor-
result
Enmund did not turn on the
gia,
The Court stated that nei- that case. ther the deterrent nor the retributive case,
purposes
penalty
present
of the death
were ad-
was con-
by imposing
penalty
vanced
the death
victed of
degree
by
first
murder
child
upon Enmund as the Court was uncon-
by
abuse
the commission of the child
vinced “that the threat
the death
abuse or in
degree
the alternative first
penalty
imposed
will be
for murder will
child
through
abuse
the will-
measurably deter one who does not Mil
permitting
ful
of child abuse. 21 O.S.
purpose
701.7(C).
and has no intention or
that life
1991, §
We have determined
Id.,
will be taken.”
at 458
at 798-
U.S.
the evidence is sufficient to support ei-
reaching
As for care retribution as a Enmund, and guidance. Depending age executing very we think this depends physical development they much En- tend to be degree on the harm, culpability-what susceptible physical mund’s in- more Enmund’s tentions, death, expectations, if and actions even unreasonable force is in- context, were. American criminal long upon law has flicted them. Within this considered a legislative defendant’s intention-and action specific to address the guilt-to therefore his moral be critical legally crime of child abuse murder is to “the criminal culpa- justified. [his] (citation
bility,” omitted), and the Applying penalty death to this has penalties found criminal [Gilson], willfully, situation pur- wherein *28 unconstitutionally excessive in the posefully knowingly and vic- allowed the wrongdoing. absence of intentional tim to be to that abused the extent Id., at 458 U.S. at at 3378. resulted, in posi- death when he was a abuse, “geta- prevented
Enmund was the driver of the
tion to have
that
cer-
in
way”
robbery
tainly
car
an armed
of a
serves both the deterrent and re-
“Indeed,”
argues,
Br. at 62.
he
penalty. Aplt.
of the death
purposes
tributive
precedent
to be no
whatso-
appears
“there
penalty
will be
death
The threat
a
for a crime
executing
for
defendant
ever
child abuse
permitting
for
imposed
failing
prevent
or
permitting
based on
death of the child
in the
results
which
offense;
of an
nor is
another’s commission
responsibility
parent
a
accentuates
executing a defendant
precedent
there
for
with the care and
charged
person
or
Id. “His-
there is no actus reus.”
where
that child
a child has to
protection
legal
a
torically,”
argues, “absent
Gilson
permits
one who
deter
and will
act,
a
duty
prevent
failure to act to
abuse.
all, let
constituted no offense at
crime has
retribution,
personal
[Gilson]’s
As for
Second,
Id.
Gilson
capital
alone a
one.”
high.
in
is
The
this situation
culpability
precedent
imposing
is “no
for
argues there
from that
quite
is
different
situation
based on a state criminal statute
death
and the
child abuse occurs
where the
require,
does not
and
deter-
which
not aware of the abuse.
individual is
find,
fails to
the defendant
mination which
the death of
responsibility for
[Gilson]’s
in
offense.” Id. at
participant
was a
attenuated as was
the victim was not so
Third,
finally,
argues that
64.
and
Gilson
merely waited in
Enmund who
that of
penalty based on
imposition of the death
car
the victims were shot
while
“permitting” makes no meas-
an offense of
knowledge of or immediate con-
had no
goals
punish-
to the
urable contribution
of his co-defen-
trol over the actions
argument,
support
ment.
of this
Gilson
participation
personal
dants.
[GilsonJ’s
produced
proof
trial
no
“[t]he
asserts
the vic-
Coffman to abuse
permitting
harm,
any
resulting
committed
acts
[he]
resulted was
tim to the extent that death
(by
harm be inflicted
nor intended
substantial, and there was
major and
another),
children,”
upon the
and thus “the
wilful
participation
that such
proof
unlikely
threat of execution is
to deter the
the death
knowing.
Therefore
[sic]
required
inaction
to sustain the convic-
for
is not excessive retribution
penalty
(italics
original).
tion.” Id. at 67
Relat-
his crime.
edly,
“executing
Gilson asserts that
a de-
requirements
Accordingly, we find
avenge
killing
fendant
he had no
met,
have been
of Enmund
Tison
committing
causing
or
intention of
does
penalty
appropriate
is an
and the death
measurably contribute to the retribu-
first
punishment for the crime of
ensuring
gets
tive end of
the criminal
by permitting
child abuse
”
‘just
deserts.’
68-69.
assignment
This
these circumstances.
problem
arguments
Gilson’s
of error is denied.
complete
there is a
disconnect be-
(internal
I,
para-
made
the state trial or
courts.
a) Clearly
findings
Supreme
The OCCA’s
established
re-
Court
Enmund/Tison
garding
significant par-
precedent
Gilson’s active and
ticipation and his reckless indifference to
Gilson identifies Collins v. Youngblood,
human
effectively equated
life
Gilson with
37, 110
2715,
497 U.S.
S.Ct.
1228 tively the definition of crimes or that makes an action alter Every law
“1st.
law,
passing of the
punishment
increase the
for criminal
done before
* * *
done,
innocent when
which was
acts.
criminal;
such action.
punishes
41-43,110
497 U.S. at
S.Ct. 2715.
Every
aggravates
law that
2d.
Gilson,
is
Although not cited
there
was,
crime,
than it
greater
makes it
or
Supreme
opinion
another relevant
Cоurt
Every
3d.
law that
committed.
when
2000,
May
In
that needs to be mentioned.
and inflicts a
punishment,
changes
approximately
prior
two months
to the
than the law an-
punishment,
greater
ap-
resolution of Gilson’s direct
crime,
OCCA’s
when committed.
nexed to
peal,
Court issued its deci-
Every
legal
that alters the
4th.
law
evidence,
less,
Texas,
513,
in
and receives
sion Carmell v.
rules of
(2000).
different, testimony,
1620,
than the law re-
A is under a to given authority she had [Gilson] to disci- aid to a if render child statute she, [a pline the children and that the chil- imposes duty a to render aid to the dren trying were all to a (husband-wife) (parent-child) child] [a evidence, family. Under this the State relationship per- exists that between proved parent-child relationship as and the duty [a son contractual child] §§ forth in Any set both 843 and 7115. to render aid to the child has been differences in the by definitions of one person] assumed that person [that legal duty under a to render aid to the voluntarily has assumed the care of child person responsible child’s the child]. [Gilson], welfare disadvantage did not (1st) 424. OUJI-CR deprive defense, him anof available nor O.S.1991, 843, §
Under in оrder to change necessary the facts to establish prove legal duty aid, to render Therefore, guilt. post no ex facto viola- prosecution had prove relationship to tion occurred. victim,
between the defendant and the
(internal
I,
Gilson
Trial court’s death refusal instructions re lesser imposed under ... circumstances” where
included
jury
permitted
“the
was not
to consider a
offenses
guilt
verdict of
of a lesser included non-
appeal,
In
fifth
Gilson con-
his
issue
offense,
capital
and when the evidence
“Eighth and Fourteenth
tends that his
supported
would have
such a verdict....”
rights
violated” as a re-
Amendment
were
627, 100
judge’s
trial
to instruct
sult of “the
refusal
447 U.S. at
S.Ct. 2382. The Court
jury
on the lesser included offenses of
explained that “when
unques
the evidence
murder,
degree depraved
second
mind
and tionably establishes that the defendant is
degree manslaughter.” Aplt.
on second
serious,
guilty of a
violent offense—but
Br. at
relevant to
84-85. The facts
this
leaves some doubt
respect
with
to an ele
contention are as follows. At the conclu-
justify
ment
that would
conviction of a
evidence,
first-stage
sion of the
Gilson re-
capital
give
jury
offense—the failure to
quested that
the trial court instruct
the ‘third option’
convicting
on a lesser
jury on what Gilson asserted were the
included offense would
inevitably
seem
lesser included offenses of murder in the
enhance the
risk
an unwarranted convic
degree
second
and second
man-
tion.” Id. at
come-determinative in this a) Clearly established Supreme Court question with the dissent that it is a mixed
precedent
and fact
thus
law
and is
reviewable
2254(d)(1). See,
Elo,
§
e.g.,
under
Samu v.
Alabama,
Gilson identifies Beck v.
447
(6th Cir.2001) (re
477,
Fed.Appx.
14
478
2382,
100
U.S.
1234 evidence, (citation supported by included offense are give a lesser sion not omitted). question determining a mixed of law and and footnote instruction as fact). sufficiency sup we conclude that specifically, More the evidence to of whether port a court’s determination a lesser offense we look at whether state at trial was suffi- presented might jury acquit the evidence a the evidence allow justify the Beck standard cient under greater the defendant offense finding is not a lesser-included instruction Hogan convict him of the lesser. v. See fact, legal (10th rather a deter- Gibson, of historical but 197 F.3d Cir. аssessing body 1999) Alabama, mination reached after v. citing Beck U.S. of the elements of the light evidence 625, 636, 2382, 2388, 100 S.Ct. alleged offense. (1980). lesser-included Only L.Ed.2d 392 if there is negate evidence which tends to an ele law, “all Oklahoma lesser Under offense, greater ment of which would are forms of homicide considered lesser charge, reduce the should instructions degree offenses of first murder.” included given. on a lesser included offense be State, (citing v. 991 P.2d Shrum State], [611,] See Fairchild 998 P.2d [v. Thus, (Okla.Crim.App.1999)). both of (Okla.Crim.App.1999) 627 [ ]. See also Gilson, i.e., second- the offenses cited Scalf, United States 708 F.2d degree second-degree murder and man (10th Cir.1983) (“a lesser included slaughter, are were and considered lesser- given offense instruction should not be first-degree included offenses of murder. unless there is evidence to support
b) finding that the lesser offense was com rejection OCCA’s Gilson’s Beck greater mitted while the offense was claim not”). Gilson asserted his Beck claim on direct Murder in the second degree occurs rejected appeal. The OCCA it on the mer- perpetrated by imminently “when an act its: dangerous person to another and evinc- error, assignment In his ninth [Gil- mind, ing depraved regardless hu- trial contends the court erred son] life, although any man without premedi- failing to instruct the on the lesser design tated to effect the death of included offenses of second mur- O.S.1991, particular individual.” degree manslaughter. der and second 701.8(1). § argues, and the request- The trial court denied [GilsonJ’s concedes, State when an individual finding ed instructions “no sufficient evi- *36 wilfully maliciously injures, tor- [sic] an dence to establish element of de- tures, or uses unreasonable force on praved support mind and conduct” to child can question there be no but that degree second murder and “no evidence acting the individual is with a depraved possible negligent conduct” to support mind. agree and the also [Gilson] State degree manslaughter. second addition, in committing the abuse prosecution, In a criminal the trial child, in which results the death of a but duty correctly court has the instruct kill, without the imminently intent to is jury on the salient features of the However, dangerous conduct. as the law raised the evidence without a defendant, out, points State these elements do not (citations request by negate the element that the victim was a omitted). This means that all lesser child. necessarily forms of homicide are includ- O.S.1991, 701.7(C),
ed By enacting § and instructions on lesser 21 forms they Legislature clearly homicide should be administered if intended to make
1235
occurring during
fully
intentionally
a homicide
the commis
inflicted such
permitting
or the
of child abuse
sion of
abuse to the extent that Shane died as a
Drew,
degree murder.
771
to be first
result or that he did nothing at all. The
P.2d
228. Where child abuse commit
support
evidence does not
a finding that
O.S.1991, 7115,
§
21
ted
violation of
merely acted
depraved
[Gilson]
with a
child,
results
the death of the
having
mind
taking
no intention of
21
specific
provision
homicide
O.S.
victim’s life.
1991, 701.7(C),
§
should be used. Fair
As for the
degree
offense of second
child,
Here,
its discretion
assignment of error
This
Aplt.
challenge,
instructions.
Br. at 87-88. This
howev-
er,
with,
easily rejected.
is denied.
To begin
is
Gil-
cases,
cites to no
and we
found
son
have
(internal
I,
para-
P.3d
917-18
Gilson
none, that would have bound the
omitted).
OCCA
graph numbers
purported
the State’s
concession as to the
e)
challenge to
OCCA’s
Gilson’s
sufficiency
impor-
of the evidence. More
analysis
tantly,
apparent
it is
that the OCCA’s con-
challenges each
Gilson
hinged
clusion
not on its view of the evi-
by
offered
the OCCA in
three rationales
trial,
presented
dence
but instead on its
that he was entitled to
rejecting his claim
that,
legal conclusion
under Oklahoma’s
degree
on second
murder.
an instruction
scheme,
statutory
an
guilty
individual
below,
greater
detail
As outlined
degree
murder
second
child was
that the final two rationales of
conclude
effectively responsible
having
for
commit-
are, indeed,
by
suspect,
fered
the OCCA
ted,
required
and thus was
to be convicted
rationale, standing
initial
but
that
of,
degree
first
child abuse murder. Stat-
alone, represents
application
a reasonable
Beck,
effectively
ed
terms of
the OCCA
2254(d)(1).
§
We
Beck. See 28 U.S.C.
concluded,
view,
reasonably
inso
our
reasonably
also conclude
the OCCA
that Gilson was not entitled to an instruc-
applied
rejecting
Beck in
Gilson’s claim
because,
degree
tion on second
murder
jury
that he was entitled to
instruction
scheme,
statutory
jury
under Oklahoma’s
on the lesser included offense of second
rationally
acquitted
could not
have
Gilson
degree manslaughter.
degree
of first
child abuse murder and
The first rationale offered
the OCCA
him
degree
convicted
of second
murder.
rejecting
request
Gilson’s
for an in-
The OCCA’s second rationale for affirm-
degree
struction on second
murder was
ing the state trial
reject
court’s decision to
that,
assuming
present-
the evidence
even
request
Gilson’s
for a
degree
second
mur-
jury
ed at trial would have аllowed a
that,
view,
der instruction
its
reasonably find the existence of all the
“evidence would lead a
reasonable
murder,
degree
elements of second
willfully
conclude
either
fact that the victim in
uncontroverted
intentionally inflicted such abuse to the
effectively required
case was a child
Gilson
extent that Shane died as a result or that
degree
of first
be convicted
I,
nothing
he did
at all.” Gilson
8 P.3d at
degree
rather than second
murder. More
represents
918. Gilson
this
specifically, the
noted that
OCCA
“an unreasonable interpretation
of the
Legislature “clearly
Oklahoma
intended to
facts in
Aplt.
evidence.”
Br. at 89.
occurring during
make a homicide
particular,
contends “the
statement
commission
permitting
of or the
of child
verdict,”
jury’s
is belied
divided
abuse
degree
to be first
murder.” Gilson
simply contrary
“is
to the
pre-
evidence
I,
The dissent
Coffman also testified that at one point
relying on Bertha Coffman’s trial testimo-
slipped
Shane
in the
and fell
bathtub and
and,
ny
apparently, Gilson’s post-arrest
hit his head or face on the bathtub faucet.
police,
statements to
could have found that
worst,
assuming
Even
none of
these
played
part
abusing
“Gilson
no
Shane
jury
events could have allowed the
to make
day
he died and
he
asleep
during
on the couch
the abuse that
findings regarding
rational
how Shane
because,
“whipped”
felony”
"[a]cting jointly
arrest
interview
Gilson had
in the
with
Coffman,
days”
couple
"a
Shane
before Shane’s
he took Shane outside the trailer
trial, Coffman, having
at 147. At
party
death.
and was
to conduct which elicited
child,”
also,
separated
been
together
from Gilson for over two
screams from the
had,
fact,
Coffman,
years, acknowledged that Gilsоn
with
“took Shane back inside the
to,the
severely
all of her
abused
children. More-
trailer ...
and ... remained
bathroom
over,
observing
admitted
periods
Coffman
use
him
in the bathroom
head,
I,
turn,
top
a board to hit Shane on the
of his
time.” Gilson
at 920.
P.3d
shoulders,
chest,
legs.
his
his
She
findings
concluded
have
that those
were am-
person
also
that Gilson
ply supported by
presented
testified
last
the evidence
prior
Although
alone with Shane in the bathroom
to his
suggests
trial.
the dissent
that the
death,
and that she was awakened
a loud
rationally
could
have found that Gilson
during
sound
bathroom
"played
part
from the
that time.
abusing
day
no
Shane the
died,”
3, any
Dissent at
such conclusion
noted,
OCCA,
already
contrary
As we have
would be
to both the OCCA’sEn-
making
findings, specifical-
findings
its
and our affirmance of
Enmund/Tison
mund/Tison
ly
major participant
findings.
found that Gilson "was a
those
*40
witness,
pert
acute
multiple
Draper,
sustained the
fractures
Dr. Wanda
testify
or,
by
regarding
credibility
found
the medical examiner14 more
the
of the Coffman
importantly,
testimony
how he died.15
children’s
violated his constitu-
rights.
tional
begin
analysis
We
our
Lastly,
assuming, arguendo,
that
even
by reviewing
key
this issue
events that
rationally
could
have found that
culminated in the
ruling.
state trial court’s
asleep
on the couch while
Gilson
Coff-
Shane,
ultimately
man abused and
April
court,
killed
On
the state trial
then
been
an
request,
Gilson would have
entitled to
Gilson’s
conducted an
camera
acquittal, not a
of second-degree
hearing regarding
conviction
competency
of the
is,
manslaughter.
surviving
That
Gilson’s conduct
testify
Coffman children to
dur-
would not
ing
have risen even to the level of
the State’s
Tr.
case-in-chief.
Vol. TV
necessary
culpable negligence
to be con-
During
at 840.
hearing,
that
Gilson pre-
of second-degree manslaughter.
victed
In-
testimony
sented the
of Dr.
Drap-
Wanda
deed,
trial
argued
er,
Gilson’s
counsel
this
who holds a Ph.D in
development
child
(i.e.,
theory
same factual
being
Gilson
and was a
professor
Department
death)
asleep during the abuse and
to the Psychiatry and Behavioral
Sciences
jury at the close of the first-stage proceed- College of Medicine at
University
ings
jury rejected
and the
it. Dissent at 9 Oklahoma. Draper indicated that she had
(discussing first-stage closing arguments
competency
concerns about
of the
counsel).
of defense
testify.
Coffman children to
Id. at 855.
with,
begin
Draper
To
noted that the chil-
testimony
Trial court’s
to allow
refusal
period
dren “for a
living
of months were
expert witness
from defense
under
assumption
by
[created
their
issue,
In his sixth
that the mother and
Gilson]
one of their broth-
state trial court’s refusal to allow his ex-
ers
run away,
[Shane] had
but the assump-
(i.e.,
Larry Balding,
deputy
vertebrae),
14. Dr.
medical ex-
brae
the lower-most neck
T-
2, T-3, T-4,
remains,
aminer who examined
T-10. Id. at 1953-54.
Shane’s
testi-
fied that he found evidence of acute fractures
Ball,
this with
Contrast
recent OCCA
with,
throughout
body.
begin
Shane's
To
alleged support
case cited
the dissent in
Balding testified there was a fracture to
therein,
position.
its
The defendant
Carlis
jaw,
separation
Shane’s
and a fracture
of the
Ball,
Anthony
charged with
and convict-
(i.e.,
zygoma
right
on the
side of the skull
first-degree
ed of
child abuse murder in the
bone).
Balding opined
cheek
Tr. at 1943.
scalding
two-year-old
death of his
son. On
by sepa-
that these two fractures were caused
appeal,
argued
Ball
trial
court erred
they
opposite
rate blows because
were on
refusing
request
for instructions on the
head,
1944-46,
sides of the
id. at
and that it
second-degree
lesser-included offense of
man-
great
would have taken a
deal of force to
slaughter.
agreed, noting
The OCCA
jaw
Balding
cause the
fracture.
Id. at 1946.
spill injury
Ball had described an "accidental
further testified that he found a "localized
subsequent
...
in his 911 call and
state-
complex fracturing involving the
clavicle
left
responding firеfighters,
ments” to
P.3d
collarbone,”
id. at
fractures of "the
and that these "statements about his
ribs, first,
ribs," id.,
left
second and third
handling
boiling
of the
water were sufficient
blade,
right
a fracture of the
shoulder
id. at
support
as a matter of law
an
inference of
Balding
1950-51.
testified he found a left
culpable negligence.” Id. at 91. Unlike the
fracture,
metaphyseal
distal
tibial
here,
which
pro-
situation
the evidence cited Ball
would have been consistent with some form
explanation
vided an alternate
for how his
twisting
of blunt force or a severe
young
ultimately
son was scalded and
died.
Lastly, Balding
ankle.
Id. at 1952.
testified
testimony
Neither Bertha
nor Gil-
Coffman's
spinal pro-
that there were
post-arrest
provided
fractures of the
son’s
statements
an ex-
(the bony protrusions)
planation
why
cesses
of the C-7 verte-
of how or
Shane died.
a)
Clearly
established
still alive. And then
that he was
tion was
precedent
they
that he
discovered
changed
Draper questioned
not alive.”
[wa]s
Alaska,
Davis v.
Gilson identifies
*41
“appreciate
could
the
children
whether the
308,
1105,
L.Ed.2d 347
94 S.Ct.
39
U.S.
the truth when their own
to tell
obligation
(1974),
Mississippi,
410
and Chambers
”
them....
Id. at 859.
lied to
mother
284,
1038,
297
35 L.Ed.2d
U.S.
93 S.Ct.
be-
stories
“[t]he
also noted
Draper
(1973),
“clearly
the
estab-
providing
as
the children
among
ha[d]
tween and
claim.
applicable
federal law”
to this
lished
862,
opined that
at
and she
changed,” id.
Davis,
emphasized
In
the
Court
trauma in
enough
had
ha[d]
the “children
a criminal de-
importance
allowing
very
pros-
it would be
difficult
adequately
their lives that
fendant to
cross-examine
accurately
particular,
recall
witnesses. In
the Court
them over time to
ecution
exposure
[prosecution]
of a
at
At noted “that
Id.
actually happened.”
what
testifying
proper
is a
witness’ motivation
Draper’s testimony, Gil-
the conclusion
function of the constitution-
important
the testi-
suppress
moved to
son’s counsel
of cross-examination.”
ally protected right
children
on
mony
based
Coffman
316-17,
at
94
1105. Such
415 U.S.
S.Ct.
accurately
to
competence
lack of
tes-
their
cross-examination,
noted, would
the Court
relevant to the case. Id.
tify about events
revealing possible
toward
bi-
be “directed
state trial court overruled
at 890. The
ases, prejudices, or ulterior motives of the
motion,
ruling
reserved a final
but
they may
directly
witness as
relate
to is-
competency to testi-
each of the children’s
personalities
in the case at hand.”
sues
their individual voir
fy until it had heard
316,
right
Id. at
1105. If this
S.Ct.
re-
895. With
dire examinations.
held,
violated, the Court
“no amount of
testimony
Draper,
of Dr.
spect to the
showing
prejudice
of want of
would cure
concluded it
“d[id]
state trial court
(internal
it.” Id. at
qualify
meet the Daubert standards
omitted).
quotation marks
testimony regarding credibil-
expert direct
Chambers,
In
the defendant in a Missis-
“credibility ...
a mat-
ity,”
[wa]s
and that
sippi
proceeding sought
state criminal
fact.” Id.
ter for the finder of
prosecu-
introduce reliable evidence that a
7, 1998, during the course of
April
Oh
had, orally
through
tion witness
case-in-chief, the state
prosecution’s
(that
written confession
was later recant-
proceedings
voir dire
trial court conducted
ed),
being guilty of the murder
admitted
of each of the
competency
determine
charged
with.
offense
Chambers
testify. At
the conclusion
children to
trial
to allow
The state
court refused
thereof,
trial court determined
the state
Chambers to cross-examine the witness on
competent
that all
the children were
credibility. Although
Mississippi
Su-
at 1540. The
testify.
Id. Vol. VII
State
conviction,
preme
affirmed the
Court
testimony
proceeded to introduce the
of Supreme
granted
peti-
Chambers’
children,
each of the
and Gilson’s trial
and reversed.
In
tion for writ of certiorari
counsel
allowed to cross-examine each
so,
right
doing
“[t]he
the Court noted that
case-in-chief,
During
child.
his own
an
in a criminal trial to due
accused
rеquest
present
essence,
the testi-
is,
renewed his
process
right
to a fair
regarding
credibil-
mony
Draper
of Dr.
opportunity
against
to defend
the State’s
Chambers,
testimony.
ity of
children’s
the Coffman
accusations.”
U.S.
rights,”
“Few
the Court
request.
The state trial court denied that
years she had once, trial, only just prior to directly worked dren which program The tri- five or six uniform neglected children. asked each of them abused have excluded her she had no questions. She testified al court seems theory her testimony upon knowledge of whether the statements based to testi- compеtent concerning not the facts the children were the children made qualifica- her lack of fy, upon or false. of the case were embellished tions. disclosure piecemeal She also stated among the facts is common child fac- generally to Draper
Dr. testified abuse victims. determining tors to be considered a competent could be whether child Having thoroughly reviewed the rec- ability including capacity and witness ord, trial court did not abuse we find the observe, ability to memory, intelligence, testimony. excluding its discretion in asked whether “it communicate. When testimony did not meet the Draper’s Dr. say failing correct to would be requirements Daubert “scientific or elicit information properly interview knowledge” testimony would not and the or impact a child can taint their from have assisted the trier of fact. Once the *43 ability accurately then relate an determined the children were trial court event?”, very answered “[t]hat’s she witnesses, competent Draper’s Dr. testi- yes.” Draper Dr. then great possibility, mony confusing and its would have been children specifi- addressed the Coffman speculative nature would not have been cally. Draper Dr. stated she inter- jury’s relevant to the determination of of the Coffman children viewed each credibility testimony. of children’s material from individually and studied Accordingly, testimony we find the was proceedings court and DHS. She assignment excluded. This properly as to whether each gave her conclusion error is denied. competent was of the Coffman children (internal I, para- at 907-08 Gilson P.3d concluded that testify. generally She omitted). graph numbers history life upon based the children’s c) challenge to the OCCA’s Gilson’s trauma, and neglect, abuse and the ef- analysis memory ability fect that on has not address Because the OCCA did Gil-
recall,
the death of their
combined with
trial
argument
son’s
the state
court’s
Shane,
brother
and the numerous inter-
ruling
rights,
violated his constitutional
in connection with the
views conducted
arguments de novo.
must review those
proceedings,
court
none
the Coffman
(“If
Young,
See
In terms
Gilson,
trial court’s
the state
permanent
extensive and
establishing
cases cited
[his]
depri-
in a
did not result
evidentiary ruling
Aplt. Br. at 110. “This
damage.”
brain
right
adequately
vation of Gilson’s
information,”
argues, “could have
Gilson
(as
witnesses
prosecution
cross-examine
challenge
capaci-
been used to
mental
[his]
Davis)16,
deprive
nor did it
discussed
and,
crime”
im-
ty
“[m]ore
to commit the
opportunity
a fair
right to
Gilson of his
...
should have been used as
portantly,
(as
accusations
the State’s
against
defend
very well have result-
mitigation and could
).17
noted,
As
Gil-
in Chambers
discussed
in a
less than death.”
Id.
ed
sentence
afforded a full and
trial counsel was
son’s
arguments,
each of
opportunity
support
to cross-examine
of these
Gilson
fair
children,
doing
and in
so was
the Coffman
temporarily paralyzed
asserts that he “was
credibility
place
their
able to attack
prolonged
... and
unconscious
suffered
Further,
jury.
Gil-
issue before
of “an auto accident on
ness” as
result
vigorously attacked
son’s trial counsel
12, 1993.”
According
at 111.
March
Id.
first-stage
credibility during the
children’s
Gilson,
impact caused severe head
“[t]he
Tr.,
X at
E.g.,
Vol.
closing arguments.
injuries, including multiple, extensive facial
(“These
they
to come
kids know
have
fractures,”
“in
and cranial
and resulted
many
things
bad
about
say
in here and
organic
damage.”
brain
Id. In
permanent
convicted.”);
make sure he’s
Don Gilson to
turn,
asserts, citing
expert
Gilson
various
all
(“Unfortunately,
pres-
those
id.
witnesses,
damage
that the “brain
had re
all the trauma that
light
and in
sures
percussions
personality
on his
and behav
through,
have been
combi-
these kids
In particular,
ior.” Id. at 112.
Gilson
unreliable, unbelieva-
nation renders them
damage
asserts that the brain
resulted
ble.”).
therefore conclude
Gilson
We
personality dysfunc
“severe executive and
federal habeas relief on
is not entitled to
tion,”
ability
self-regu
and a “decreased
this claim.
impulses....”
late behavior or inhibit
(internal
omitted).
present
Trial counsel’s
quotation marks
These
failure
Gilson’s brain
evidence
behavior,
post-accident changes in
*45
damage
contends,
could have been affirmed
tes
timony
family
from
members
issue,
“[n]umerous
final
that his
failing
acquaintances....”
Id. at 113.
trial
“were ineffective for
counsel
omitted).
view,
simply inapposite.
It
16. In
Davis is
tion marks
is difficult to see how
our
Supreme
in Davis "that the
Davis is relevant to the issue of the state trial
Court noted
Draper
testify.
exposure
[prosecution]
court's refusal to allow
Al-
of a
motiva-
witness'
though Draper would have testified as to the
testifying
proper
important
tion in
is
children,
credibility
constitutionally
of the Coffman
the state
protected right
function of the
316-17,
ruling
directly impact
did
trial court’s
at
of cross-examination.” 415 U.S.
cross-examination,
right
Gilson's
to cross-examine the Coffman
precedent
Washington,
687,
at 466 U.S. at
S.Ct.
2064. See also Williams v.
surprisingly,
Not
Gilson identifies
Taylor,
862,
120 S.Ct.
Strickland v. Washington, 466 U.S.
(2000).
competent Evidentiary for provide Hearing to guiding hand needed, Sixth accused Amendment and therefore Claim and Motion to the burden is on the Supplement, to pursuant accused demon- Rule strate both a performance deficient 3.11(B)(3)(b), and Rules of the Oklahoma upon that Penitentiary. Based State Title Ch. Appeals, of Criminal [Gilson] concluded (1998). testing, Hopewell in the Dr. asserts [Gilson] App. brain organic was ineffective from “irreversible counsel suffers
Application
utilize avail-
in nature and
investigate and
which is chronic
failing
syndrome
in
Attached to
type
damage
evidence.
mitigating
classic for this
able
which [is]
(12) affida-
are twelve
Application
of traumatic
a direct result
and which is
(2)
are
18).
two
affidavits
first
(Exhibit
The
D,
vits.
Dr.
pg.
injury.”
head
trial counsel wherein
[Gilson]’s
from
the C.A.T.
he evaluated
stated
Messina
medi-
they received boxes
they state
concerning
and medical records
scans
Hospi-
Anthony’s
Saint
from
cal records
the records indi-
He concluded
[Gilson].
suf-
injuries [Gilson]
pertaining
tal
damage
[Gil-
extensive brain
cated
accident.
automobile
fered
tempo-
right
and
right frontal lobe
son]’s
see
they did not
state
counsel
Both
and results from
which remains
ral lobe
Axial
(Computer
C.A.T.
to a
reference
accident on
motor
prior
vehicle
records,
there-
scan
Tomograph)
(Exhibit E). Dr.
12, 1993.
March
attempt
locate
no
they made
fore
evaluated
re-
Rosenblum stated he
dur-
also state that
Both counsel
?uch.
Messina,
Hopewell and
as
ports of Drs.
case, they
of the
investigation
ing their
records. He
as
medical
[Gilson]’s
well
who
people
mentioned
to several
spoke
Hopewell
of Drs.
findings
verified
changes
[Gilson]
personality
drastic
that [Gil-
and
and Messina
concluded
also
accident. Counsel
the 1993
since
damage in the area
brain
“severe
son]’s
trial, they did
the time of
that at
stated
Dr.
compatible with
affected is
most
physical
extent
the true
not know
evalua-
neuropsychological
Hopewell’s
damage suffered
psychological
and/or
result,
prognosis
As a
[Gilson’s]
tion.
(Ex-
accident.
a result of the
as
[Gilson]
very poor
per-
and
improvement is
B).
A and
hibits
(Exhibit F).
manent.”
from
L.
Michael
third affidavit
The
(6) affidavits are
remaining six
The
Capital
Di-
Johns,
investigator
an
co-workers
family, friends and
from
of the Oklahoma
Division
Appeal
rect
drastic
exhibited
[Gilson]
who state
System. Mr. Johns
Indigent Defense
the 1993 au-
changes after
personality
provided
the files
he reviewed
stated
mother
[Gilson]’s
accident.
tomobile
and
counsel
discovered
trial
[Gilson]’s
to the
prior
step-father
and
state
which indicat-
Radiological Reports
“two
out of the
did not act
accident [Gilson]
were
of C.A.T. scans
that two
ed
series
attention to his
ordinary, and showed
and skull.
brain
[Gilson’s]
taken of
However,
appearance
household.
15, 1993,
on March
done
first series was
withdrew,
accident he
became
after the
done on
series was
and the second
took
appearance,
careless
stated
Mr. Johns also
March
1993.”
eating only
habits
on bizarre
such
personally
May
that on
unnatural
having an
foods and
certain
Anthony’s Hospital
picked up from Saint
(Exhibits G
other food
fear of
items.
conduct-
the C.A.T. scans
all of
copies of
H.)
co-workers stated
Friends and
C).
(Exhibit
[Gilson],
ed on
distant
un-
often seemed
(3)
are from
affidavits
The next three
ac-
surroundings after the
of his
aware
Ph.D., Albert V.
*47
Alan Hopewell,
C.
L).
(Exhibits I, J, K, and
cident
Rosenblum,
Messina, M.D.,
Jay A.
and
contends
in-
Application
[Gilson]’s
he conducted
Hopewell stated
M.D. Dr.
in the affidavits
contained
formation
of [Gil-
evaluation
a neuropsychological
convincing
and
the “clear
1999,
24,
[sic]
constitute
May
Oklahoma
on
son]
necessary
evidence”
under
143,
Rule 3.
(1991),
indicative of
performance
deficient
as a
considerably weakened both defenses.
defense of actual innocence was reason-
Counsel’s decision in this case was rea
able based upon information provided to
sonable trial strategy, which we will not
counsel
family
[Gilson]’s
and friends.
guess
second
on appeal. Bernay v.
attorney
“[A]n
who makes a strategic
State,
(Okl.Cr.1999).
989 P.2d
choice to channel
investigation
into
Further, counsel was not ineffective
fewer than all plausible lines of de-
failing
present
evidence of the
upon
fense
which he bases his strate-
injury during
stage.
second
The record
gy arе reasonable and his choices on
shows
stage
the second
the basis of
defense focused
assumptions
those
are
...,”
being
reasonable
attorney’s
An
and con-
productive
deci-
sion not to
tributing
interview
society therefore,
witnesses and to
member of
rely on
information,
other
sources
if
punishment
deserved a
less than
made in the
professional
exercise of
death. This included evidence of his
judgment,
is not ineffective counsel.
lack of
prior violent conduct and his
State,
(Okl.Cr.1991),
Boltz v.
806 P.2d
skills and ability
employ-
to maintain
denied,
t.
ment. While evidence of [Gilson]’smen-
cer
*48
Smith,
510, 524, 123
Wiggins v.
inability to control
his
and
condition
tal
(2003)).
Sec-
likely
people,
and the
States
during
jury
courts between
to the
evidence
this
of
entation
federal
not
people’s
of
would
proceedings
guardians
second-stage
uncon
people
outcome.
from
a different
protect
in
rights
have resulted
—to
presenta-
Ross,
that
conclude
468 U.S.
we
Reed v.
particular,
action.”
stitutional
have
likely
(1984)
would
this evidence
1
2901,
tion of
L.Ed.2d
10,
82
1,
104 S.Ct.
lin-
any
by erasing
omitted).
Gilson
against
weighed
This
(internal
marks
quotation
as to
existed
may-have
that
gering doubts
the defen
when
most crucial
is
protection
con-
murder,
and
in Shane’s
his role
“[D]eath
in the balance.
hangs
dant’s life
repre-
that he
conclusion
jury’s
firming the
any
from
punishment
of
a different kind
is
threat,
if confined
even
continuing
sented a
this coun
may
imposed in
which
other
Thus,
Gil-
we conclude
for life.
prison
in
importance
vital
...
It
is of
try.
of
by the failure
prejudiced
son was
that
community
to the
and
defendant
this
present
and
gather
attorneys to
trial
be,
sentence
the death
impose
decision
second-
during the
jury
to the
evidence
rather
be,
on reason
based
appear to
stage proceedings.
v.
Gardner
or emotion.”
caprice
than
is
court
the district
of
judgment
The
357-58,
349,
97 S.Ct.
Florida, 430 U.S.
AFFIRMED.
(1977).
1197,
393
51 L.Ed.2d
is well-written
majority opinion
The
dissenting in
HENRY,
Judge,
Chief
in
issues
a number of
carefully resolves
part.
relatively
a
new
prosecution under
this
v.
crime.” Gilson
horrible
“This was a
much
agree
I
with
statute. While
unique
883,
(Okla.Crim.App.
State,
930
P.3d
us, I
issues
before
resolution of
its
It
diffi
2000)
J., dissenting).
is
(Chapel,
pro-
issue
on one vital
company
part
must
heart-rending set
more
imagine a
cult to
heritage.
In a case
legal
by our
tected
helpless and
befell a
those
facts than
facts,
against
filed
disturbing
such
with
is no
There
Coffman.
innocent Shane
history of
at least some
who had
defendant
history
had
Donald Gilson
question
convic-
abuse,
risk of an unwarranted
at least some
Coffman
abusing
of a
“The
high.
absence
especially
is
tion
him,
I
children,
fear of
lived in
who
increas-
offense instruction
included
lesser
punished
he will be
rest assured
...
jury will convict
that the
es
risk
two out
abuse,
as he
convicted
was
defendant
setting the
to avoid
simply
Fur
injury
a minor.
of five counts
Florida,
447,
U.S.
v.
Spaziano
free.”
adopt
fit to
ther,
court see
should
(1984).
82 L.Ed.2d
104 S.Ct.
dissent,
Gil-
partial
this
Mr.
reasoning of
in a
case
cannot be tolerated
“risk
This
trial for murder
again
son would
face
at stake.”
life is
the defendant’s
which
properly instructed
manslaughter with a
Alabama,
625, 637, 100
v.
Beck
jury.
(1980).
65 L.Ed.2d
courts
owe state
aware that
I
we
am
may
Coffman,
ac-
guilty plea
AEDPA.
was
under
We
great deference
whose
Ms.
in the
court,
their
only reverse
determinations
was
by the
convicted
cepted
state
Nevertheless,
most
circumstances.
limited
sen-
and received
first-degree murder
must
imposed
a death sentence
when
dispositive
prison.
of life
tence
protec-
the full
that it
be certain
only about
appeal is
of Mr. Gilson’s
portion
the Constitution.
tions of
played
Shane’s
role Mr. Gilson
what
narrow
determining the
murder. When
Congress
mind that
It
with this in
entitled
Mr. Gilson was
whether
question
habe-
§
providing
enacted 28 U.S.C.
to a
second-degree
instruction on
The Oklahoma Court of Criminal Ap
manslaughter,
only
we have
question
one
peals characterizes the sufficiency of the
before us—what
could
reasonable jury
support
evidence to
a lesser included of
have
regarding
found
Mr.
culpa-
Gilson’s
fense instruction as a legal issue. See e.g.,
bility in
death?
Shane’s
Evidence was Young State,
(Okla.Crim.
12 P.3d
presented at trial that Mr.
played
App.2000). Moreover, in direct criminal
part
no
abusing
day
Shane the
died
*51
appeals, we treat denials of lesser included
and that he
asleep
on the couch during
offense instructions as legal determina
the abuse that
led to Shane’s
A
death.
See,
tions.
e.g.,
Castillo,
United
v.
States
rational jury could have believed this evi-
(10th
874,
Cir.1998).
140 F.3d
886
dence and found
guilty
Mr. Gilson
culpa-
of
negligence,
ble
but not of actively permit-
Consistent with this approach, the suffi-
ting
abuse,
child
as the Oklahoma statute
ciency of the evidence to
a
support
lesser
requires for a first-degree murder convic-
included offense instruction seems to me
Because,
tion.
even under our deferential
not to be a purely factual determination.
review,
standard of
supported
evidence
See Hogan,
and whatever she stated about Mr. Gil- facts and find that Mr. Gilson did not son’s temper general, she was consistent actively permit Ms. abuse Coffman’s that one, as to this point. critical Shane, killed but instead negligently failed intervene,
A jury, rational believing falling asleep Ms. Coffman’s while she was testimony with, along instance, for alone him. A Mr. rational could have Gilson’s claims that he was asleep on found act, that this failure to tragic, while couch during the abuse leading Shane’s did not rise to the level of affirmatively, See, VI, e.g., 2. Transcript, Trial vol. at 1403- [Shane before spanked died] that he had (Ms. that, stating Coffman Shane,” as she "Nobody boy touched that [Shane] said in the February police, 9 interview with and, but day. Nobody,” me that gone "I have Don Gilson did day not touch Shane on the this, this, over and over and over this and for died and that Mr. Gilson any- hadn't done six, me, for almost six months. But believe I thing discipline else to day). Shane that See day every day lived my this since life then. Br., also Add. 145, 154, Aplt's (Okla- And I don’t spanking remember him ever homa State Bureau Investigation Interview Shane that day.”). Transcript) (stating "[I]t was days about two by any ra- testimony unbelievable man’s Ms. Coffman wilfully permitting
actively, is, along jury. that tional Shane —that to abuse fail- Mr. Gilson’s culpability, spectrum Application of Beck negligent. culpably act was
ure to Ms. Coffman’s that majority states nor OCCA’s job, our The neither It is inconsistencies” testimony’s “internal side’s which and decide weigh the evidence of the State’s weight overwhelming “the not whether is question stronger. “Our is juror no rational establish evidence” offense to the lesser pointing evidence manslaughter Mr. convict could v. Hum States United ... was weak.” mur- first-degree him of acquitting Cir.2000). while (10th 1190, 1207 208 F.3d phrey, majority at 1237-38. Maj. Op. der. “there is Instead, must ask whether presented the State certainly right upon bear fairly tending to any evidence Mr. support Gilson’s evidence abundant offense, weak however lesser included but, re- first-degree conviction— trial court Id. A may be.” evidence question: is not the this spectfully, request deny a defendant’s may properly equiv- functional claim is A Beck instruction offense a lesser included for sufficiency of challenge to the alent of to reason no evidence there is only when rather, conviction; Beck the evidence See, e.g., that conviction. support ably constitutionality on the focuses (10th Sirmons, 486 F.3d Young v. conviction in the employed procedures Cir.2007) (defendant to a less not entitled and is trial capital in a a defendant instruc second-degree murder er included with the enhanced concerned specifically revealed evidence when “forensic tion capital conviction unwarranted of an risk weapons used three were least there stake life is at the defendant’s where no and there during gunfíght, con- jury could have and a reasonable [the but by anyone fired of shots evidence offense. a lesser included victed on *54 ”) (emphasis others] and two defendant added). (emphasis F.3d Hogan, 197 — -, denied, added), U.S. cert. closing in its noted itself As the State — -, (2008); L.Ed.2d during guilt phase argument (10th Mullin, 327 F.3d v. Darks consistently trial, has claimed Ms. Coffman Cir.2003) (defendant to a less not entitled responsible for is and she alone that she in manslaughter first-degree er included X, Transcript, Trial vol. death. Shane’s attorney was forced “[his] when struction argued that further 2161. The State evi that no argument, at oral to concede ver- Ms. Coffman’s not jury should believe adequate provoca supported] dence “[tjherе a bond is because sion of events added). element”) (emphasis tion two, Don- Jean and Bertha between those ample evi- Here, present did the State Lee,” Coff- “[Ms. id. at and ald of the treatment that Mr. Gilson’s dence the death got penalty she’s thinks man] was, times, nothing children Coffman try to her damnedest going and beat she Nevertheless, in con- of atrocious. short you.... gift the same out give him inquiry, offense our included ducting lesser is still jail cell Bertha Jean From her with ourselves only we must concern you if let things, she will trying to run death. The Shane’s that caused events certainly it is at 2163. her.” Id. While the State on which prior abuse evidence cov- may have been Coffman possible Ms. support capital relied Gilson, mere the State’s ering up for Mr. Gilson Mr. not charge is evidence moti- Coffman’s regarding intimations Ms. wilfully permitted necessarily caused render Coff- enough Ms. vation is death. Although Shane’s the State’s case himself and all similarly others situ- was strong, the presentation State’s ated; Sotpal Singh, on behalf of him- was not the only facts reasonable interpre- self all similarly others situated, evidence, tation of the jury and the did not Plaintiffs-Appellees, (and have believe it in fact did not believe the evidence in three of five WOODRUFF; Robert S. Joseph minor). injury counts of to a already We Nacchio, P. Defendants- jury know split as to whether Appellants, actively Mr. Gilson permitted the abuse or committed it himself. Especially light of Ms. Coffman’s unequivocal testimony Qwest International, Communications that Mr. played Gilson part no in abusing Inc.; Drake S. Tempest; James A. died, day Shane the and the testimony Smith; Arthur L.L.P.; Andersen of both that Mr. was asleep Gilson on the Craig Slater; D. Philip Anschutz, F. couch, it is not the case there was no Defendants-Appellees. evidence to support an instruction on sec- ond-degree manslaughter. No. 06-1482. progeny Beck its are meant to en- United States Appeals, Court of sure that no in capital case is faced Tenth Circuit. an
with all-or-nothing decision when the April supports evidence a third option. In this case, the just evidence did that. Because
“permitting” child requires abuse affirma- action,
tive juror rational could have
found that Mr. guilty culpa- negligence
ble of second-degree man-
slaughter, without finding that his failure
to act rose to the level affirmative action
required prove first-degree murder be-
yond a reasonable However, doubt.
jury was still faced an all-or-nothing Because, view,
decision. my
OCCA’s determination was an unreason- application able Herbert J. Stern Kilcullen, Beck and of Stern Mr. & LLC, Roseland, was entitled to a second-degree Jersey, New man- and David instruction, slaughter Chance, US, Meister LLP, I of Clifford must dissent. New (James
York, New York
Miller and David
Cook
US,
of Clifford Chance,
LLP, New
York,
York;
Jeffrey
New
Speiser and
Joel M. Silverstein of
& Kilcullen,
Stern
LLC, Roseland,
Jersey,
New
with them on
NEW ENGLAND HEALTH CARE EM-
briefs),
for Defendants-Appellants.
FUND,
PLOYEES PENSION
on be-
half of itself
similarly
and all others
Boyd Boies,
David R.
Schiller & Flex-
situated;
Mosher,
LLP,
(Jonathan
Clifford
on behalf
ner
Washington, D.C.
D.
of himself and all others similarly
Schiller,
sit-
Levitt,
Alfred P.
and Jorge
uated; Tejinder Singh, on
Boies,
behalf of Schmidt P. of
Schiller & Flexner
notes
in his
J.).
Florida,
See Miller v.
case “was instructed that ‘permitting’ child
430, 107
2446, 2451,