Malone v. CarpenterMalone v. Carpenter
Defendant Ricky Ray Malone was convicted in Oklahoma state court of first-degree murder and sentenced to death. The Oklahoma Court of Criminal Appeals (OCCA) affirmed Defendant‘s conviction on direct appeal and denied his petitions for
Exercising jurisdiction under
I. BACKGROUND
The OCCA recites the essential facts in its decision on direct appeal, Malone v. State, 168 P.3d 185, 189–95 (Okla. Crim. App. 2007), which we summarize. About 6:20 a.m. on December 26, 2003, a woman delivering newspapers in Cotton County, Oklahoma, saw a сar parked on the side of the road with a man, later determined to be Defendant, lying in the front seat with his feet hanging out of the vehicle. Thinking the man might be dead, she drove to the nearby home of Oklahoma Highway Patrol (OHP) Trooper Nik Green and alerted him to the situation. Shortly after 6:37 a.m. Green reported to the OHP dispatcher that he had arrived at the scene. When he was not heard
Green found Defendant in the car and saw evidence that the area surrounding the car had been used to cook methamphetamine the previous night. Green roused Defendant, advised him that he was under arrest, and placed a handcuff on his right wrist before he broke from Green‘s hold. In the subsequent fight Defendant ultimately gained control over Green and demanded that he lie before him with his hands up. It was during this struggle that the Dashcam was turned on.
Defendant threated to kill Green if he moved but promised he would not shoot if Green held still. Green begged Defendant not to kill him, pleading “Please! I‘ve got children.” Id. at 191. Defendant asked Green for the location of the keys to the handcuffs. After Defendant failed to find the keys on Green‘s person, Green suggested that there might be another set in his vehicle. Defendant responded that he “[didn‘t] need to know,” triggering further pleas from Green to spare his life. Id. Defendant shot Green in the back of the head, waited 11 seconds, and then shot him a second time. Defendant cleaned up portions of the makeshift methamphetamine lab and drove away by 6:55 a.m.
At trial the State called as witnesses four of Defendant‘s methamphetamine-making partners—his sister Tammy Sturdevant, her boyfriend Tyson Anthоny, and a married couple, J.C. and Jaime Rosser. The four lived together in a trailer in Lawton,
Sturdevant testified that Defendant took a gun with him when he left, “just in case there was trouble.” Id. at 193–94 (internal quotation marks omitted). She next saw Defendant about 8:00 a.m. the following morning, when Defendant told her that he “shot a trooper” and asked Sturdevant to report her car as stolen. Id. at 194. She described his account to her of what had happened:
[Defendant] woke up to a flashlight in his eyes, and an officer made him get out of the car. [Defendant] was on his stomach, with one arm behind his back, and the officer got one cuff on him, but somehow [Defendant] got up. [Defendant] tried to run, but tripped, and was hit on the head a few times, and he and the officer got into a “scuffle” and went into some barbed wire. [Defendant] saw a gun on the ground and picked it up. The officer begged for his lifе, saying “Jesus Christ, no.” [Defendant] also recounted that he said to the officer, “If I wouldn‘t have done it to you first, you‘d have done it to me.”
Anthony similarly testified that Defendant borrowed his gun the night of the cook “in case he got into trouble with the police.” 2005 Trial Tr., Vol. 3, at 672. Anthony recalled that about 8:00 a.m. on the morning of the shooting, Defendant came to his bedroom, said he had shot someone, and asked him to hide Sturdevant‘s car. Anthony moved the vehicle about 100 yards from the trailer. He saw Defendant again that evening. Defendant had shaved his head and requested that Anthony buy bleach for his hair. Defendant showed Anthony the gun he had used, which Defendant said belonged to “the cop.” Malone, 168 P.3d at 192.
Jaime Rosser accompanied her husband and Defendant to Duncan. She testified that Defendant told her he shot a “Hi-Po” (highway patrolman) two times in the head and that “on the first shot the bone part of the skull stuck to the gun, and so [I] shot it again to get the gun clean.” Id. (internal quotation marks omitted). That evening Defendant told her he had “cleaned up” the scene so “there shouldn‘t be anything left out there to identify [me].” Id. (internal quotation marks omitted). But when Mrs. Rosser asked about the police car‘s video tape, he responded, “Oh, fuck.” Id. (internal quotation marks omitted).
At trial, Defendant did not deny killing Green. His sole defense was that he did not have the intent necessary for the crime to be first-degree murder. He testified that by
Dr. David Smith, a specialist in addiction medicine, testified as an expert witness for the defense. Defendant first met with Dr. Smith midway through trial for a two-hour interview. Dr. Smith acknowledged that Defendant had initially contended that he did not remember the shooting, but upon learning from Dr. Smith that this type of “blackout” was not consistent with methamphetamine use, Defendant told him that he had experienced hallucinations on the morning of the shooting. Dr. Smith testified that when someone is very high on methamphetamine, the person can experience “amphetamine psychosis,” which has the same effect as paranoid schizophrenia and can result in audial and visual hallucinations. Id. Dr. Smith further testified that Defendant reported smoking methamphetamine “every hour” and experiencing hallucinations on the night of the cook and morning of the shooting. Id. He concluded that Defendant was likely in a state of amphetamine psychosis at the time of the shooting and thus could not form the intent to сommit first-degree murder. Id. Dr. Smith admitted, however, that Defendant‘s
The trial court did not properly instruct the jury on the defense theory that Defendant was too impaired by methamphetamine to have the intent necessary to commit first-degree murder. The instruction on the intoxication defense stated:
The crime of murder in the first degree has [as] an element the specific criminal intent of Mens Rea. A person i[s] entitled to the defense of intoxication if that person was incapable of forming the specific criminal intent because of his intoxication.
R., Vol. 2 at 524 (emphasis added). Although the instruction on first-degree murder said that the murder must have been committed with malice aforethought and defined the term, the instructions never defined mens rea and thus did not inform the jury what intent Defendant‘s intoxication needed to negate for him to prevail on his defense. Defense counsel did not object to the instructions at trial.
Defendant raised this flaw in the instruсtions with the OCCA on direct appeal. He contended that the flaw denied him a fair trial and that he was denied effective assistance of counsel by his trial attorney‘s failure to raise the error with the trial judge. The OCCA agreed that there was a flaw, but it held that the error was harmless beyond a reasonable doubt and that Defendant had not shown sufficient prejudice from his attorney‘s inaction.
Defendant also raised on direct appeal to the OCCA a claim that his trial attorney provided ineffective assistance by failing to meet with Dr. Smith until midway through the guilt phase of his trial. The OCCA agreed that counsel‘s performance was deficient
In the final matter relevant to this appeal, the OCCA rejected Defendant‘s cumulative-error claim, ruling that the only errors were those related to the intoxication-defense instructions, and those errors had already been determined to be hаrmless.
The OCCA did, however, vacate Defendant‘s death sentence because of improper victim-impact evidence and inflammatory closing arguments by the prosecution and remanded for resentencing. Defendant was again sentenced to death, and the OCCA affirmed. Defendant sought postconviction relief, which the OCCA denied.
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that when a defendant‘s claim has been adjudicated on the merits in a state court, a federal court can grant habeas relief only if the defendant establishes that the state-court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
Under the “contrary to” clause, we grant relief only if the state cоurt arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the [Supreme] Court has on a set of materially indistinguishable facts.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal quotation marks omitted). Relief is provided under the “unreasonable application” clause only if
In addition, AEDPA establishes a deferential standard of review for a state court‘s findings of fact. “AEDPA . . . mandates that state court factual findings are presumptively correct and may be rebutted only by ‘clear and convincing evidence.‘” Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting
The standard of review with respect to harmless error deserves special attention. On direct appeal, reversal is required for constitutional error unless the error was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). But a higher threshold must be satisfied for a state prisoner to obtain postconviction relief in federal court. The test is whether the error had “substantial and injurious effect or influence in determining the jury‘s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted). A рetitioner prevails under Brecht if the court is left with “grave doubt” about whether the error was harmless. O‘Neal v. McAninch, 513 U.S. 432, 434–35 (1995).
Brecht, however, predated AEDPA. Under
As the Court later explained, however, this does not exclude the application of AEDPA in the harmless-error context. In Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015),
III. DISCUSSION
The issues before us relate to the instructions on the intoxication defense and the preparation of Dr. Smith as an expert witness for the defense. We begin by discussing the pertinent instructions.
A. Intoxication Jury Instructions
As Defendant states in his opening brief, he “does not dispute that he killed Trooper Green, but he argues he did not do so with the specific intent required for first-degree murder.” Aplt. Br. at 41. His complaint is that “the jury‘s ability to consider the intoxication defense and, consequently, its ability to consider the lesser included offense instruction were affected by . . . instructional errors.” Id. at 42.
The instruction on first-degree murder, which Defendant does not challenge, informed the jury that it could not convict Defendant of that crime absent malice aforethought:
No person may be convicted of murder in the first degree unless the State has proved beyond a reasonable doubt . . . the death was caused with malice aforethought. . . . ‘Malice aforethought’ means a deliberate intention to take away the life of a human being. As used in these instructions, ‘malice aforethought’ does not mean hatred, spite or ill-will. The deliberate intent to take a human life must be formed before the act and must exist at the time a homicidal act is committed. No particular length of time is required for formation of this deliberate intent. The intent may have been formed instantly before commission of the act.
R., Vol. 2 at 498–99.
The instructions alsо explained that if the jury found Defendant not guilty of first-degree murder because of his intoxication, it could convict him of second-degree murder:
It is the burden of the State to prove beyond a reasonable doubt that the defendant formed the specific criminal intent of the crime of murder in the first degree. If you find that the State has failed to sustain that burden, by reason of the intoxication of [Defendant] then [Defendant] must be found not guilty of murder in the first degree. You may find [Defendant] guilty of murder in the second degree if the State has proved beyond a reasonable doubt each element of the crime of murder in the second degree.
Id. at 526 (emphasis added).
But the instructions failed to clearly connect Defendant‘s intoxication defense to malice aforethought. Instead, as previously noted, the instruction on the intoxication defense stated:
The crime of murder in the first degree has [as] an element the specific criminal intent of Mens Rea. A person i[s] entitled to the defense of intoxication if that person was incapable of forming the speсific criminal intent because of his intoxication.
Id. at 524 (emphasis added). The problem is that mens rea is not defined in the instructions, so the instructions did not expressly inform the jury that Defendant would not be guilty of first-degree murder if his intoxication made him incapable of acting with malice aforethought.
Defendant also points to a problematic definitional instruction which read:
“Incapable of Forming Special Mental Element” is defined as the state in which one‘s mental powers have been overcome through intoxication, rendering it impossible to form the special state of mind known as willfully.
Id. at 527 (emphasis added). The term Incapable of Forming Special Mental Element does not appear elsewhere in the instructions, and Defendant contends that the use of “willfully” in that instruction “may very well have misled jurors into believing first-degree murder was merely a general intent crime with the mental state of willfully.” Aplt. Br. at 28.
The OCCA agreed with Defendant that the voluntary-intoxication instruction was “incorrect, confusing, and legally nonsensical” because of its use of the undefined term mens rea. Malone, 168 P.3d at 198. And it noted that the inclusion of the irrelevant
We hold that the OCCA harmlessness decision was not contrary to or an unrеasonable application of Supreme Court precedent.1 See Ayala, 135 S. Ct. at 2198–99;
Defendant makes an interesting, but wholly unpersuasive, argument that the OCCA actually held that the error in the voluntary-intoxication instruction was not harmless. He points out that the OCCA referred to the error as “plain error” and stated that its review of the issue was for “plain error” because the issue had not been raised at trial. See id. at 197, 203. He then notes that under Oklahoma law “a finding of plain error entails as a component that such error resulted in a violation of substantial rights,” and concludes that when the OCCA said that giving the instruction was plain error, it was holding that the erroneous instruction violated his substantial rights. Aplt. Br. at 30. But this is wordplay. To be sure, one of the elements that must be proved for а defendant
We add that Defendant‘s reliance on Kyles v. Whitley, 514 U.S. 419 (1995), is misplaced. In that case the Supreme Court held that once a reviewing court has determined that there has been a violation of the constitutional right to government disclosure of favorable evidence under United States v. Bagley, 473 U.S. 667 (1985), “there is no need for further harmless-error review.” Kyles, 514 U.S. at 435. It so held because the Bagley issue has a built-in prejudice component—a court cannot determine that there has been a Bagley violation without first determining that there is a reasonable probability that the failure to disclose affected the result of the defendant‘s trial. See id. But here, as explained above, the OCCA‘s statement that there was “plain error” encompassed no determination regarding prejudice.
In any event, it cannot be gainsaid that the OCCA did make a Chapman determination. It concluded its discussion of the issue by saying: “Consequently,
The OCCA‘s determination that the error in the voluntary-intoxication instruction was harmless was an eminently reasonable application of Chapman. That ruling rested on two strong foundations. First, despite the incorrect instruction, the jury could not have had any question about what it had to decide. Second, no reasonable jury could have decided otherwise on the evidence at trial.
The OCCA explained the first point as follows:
[U]pon a thorough review of the entire record in this case, this Court is convinced that despite the inadequacy of the jury instructions, no juror could possibly have been unaware that [Defendant‘s] defense was voluntary intoxication and that he should prevail on this defense if he could establish that due to his drug-induced intoxication, he did not deliberately intend to kill Green. A review of the transcripts in this case makes readily apparent that [Defendant‘s] fundamental defense—from opening statements to closing arguments of the first stage of his trial—was that his methamphetamine use, coupled with his use of Lortab, left him so intoxicated that he was unable to and did not intend to kill Trooper Green.69
In support of this analysis we further note that the instructions, although failing to expressly connect Defendant‘s intoxication defense with the intent of malice aforethought, did not affirmatively mislead the jury. They rеquired the jury to find malice aforethought to convict Defendant of first-degree murder and explained that malice aforethought requires an intent to kill.
The essential point here is that the erroneous instruction on voluntary intoxication did not prevent Defendant from raising his voluntary-intoxication defense. Indeed, that defense was the entire thrust of the defense case. The problem with the instruction is that it was not sufficiently precise. It said that intoxication could establish lack of the requisite “mens rea,” but it did not define that term. As the OCCA‘s discussion shows, however, that definition was supplied by the attorneys, who agreed that the question before the jury was whether Defendant was so affected by methamphetamine that he could not form the requisite malice aforethought. Cf. Boyde v. California, 494 U.S. 370, 380–81 (1990) (in assessing whether ambiguous instruction, which was “subject to an erroneous interpretation,” was ground for reversal, Court said: “Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same
The context provided by the presentation of evidence and argument by trial counsel also requires us to reject Defendant‘s argument that the OCCA engaged in unreasonable fact finding when it ruled both that the instructions were erroneous and that the error was harmless beyond a reasonable doubt. It was not inconsistent or unreasonable for the OCCA to observe that the “jury instructions did not, by themselves, adequately or accurately inform the jury that [Defendant] should prevail on his intoxication defense if he could establish that due to methamphetamine intoxication . . . he was unable to form the required malice aforethought for first-degree murder,” Malone, 168 P.3d at 200 (emphasis added and internal quotation marks omitted), but go on to hold that—in light of the context provided at trial— “no juror could possibly have been unaware that [Defendant] . . . should prevail on [his] defense if he could establish that due to his drug-induced intoxication, he did not deliberately intend to kill Green.” Id. at 201.
The error here was wholly unlike that in the cases relied upon by Defendant where we held that instructional errors were harmful. In each of those cases the erroneous instruction precluded a defense. In Taylor v. Workman, 554 F.3d 879, 886 (10th Cir. 2009), the instruction on second-degree murder required the State to prove that the defendant‘s conduct was “not done with the intention of taking the life of or harming any
As for the second foundation of the OCCA‘s harmless-error ruling—that no reasonable juror could have found that Defendant was too intoxicated by methamphetamine to deliberately intend to kill Green—the court wrote as follows:
The real problem for [Defendant] was not his jury instructions. The problem was that no reasonable juror who heard all the evidence in the first stage of his trial could possibly have concluded that he was unable to form “malice aforethought” at the time of the shooting or that he did not deliberately intend to kill Trooper Green. . . . The evidence in this case, though not uncontested, was overwhelming and clearly established that [Defendant] knew what he was doing and deliberately chose to shoot and kill Green. . . .
[Defendant‘s] testimony about what happened and his lаck of comprehension at the time of the shooting was thoroughly impeached by the State, mainly by going through the audio contents of the Dashcam video, in addition to the physical evidence at the crime scene. . . . The prosecutor focused particularly on the theme that [Defendant‘s] words and actions, both during his encounter with Green and in the days afterward, were logical and goal-oriented and did not suggest that [Defendant] was experiencing any sort of disconnect from reality. The prosecutor cross examined [Defendant] about the fact that he never mentioned anything to his friends about seeing things or hearing “voices” on the morning of the
shooting.73 [Defendant] acknowledged on cross examination that he was “solely responsible for this trooper‘s death,” and that he shot him “[t]o make sure he don‘t get up” and “to keep him down.” Although [Defendant] would not ultimately admit that he intended to kill Green, his own statements—on tape and afterward—as well as the two close-rangе shots fired purposefully into the back of Green‘s head, leave no reasonable doubt about [Defendant‘s] intent.
Furthermore, although [Defendant] presented an impressive expert on methamphetamine and its potential effects generally, Dr. Smith‘s case-specific testimony about [Defendant] and his likely mental state at the time of the shooting was thoroughly and convincingly impeached by the State.74 The State demonstrated, through cross examination, that Smith had met with [Defendant] for at most two hours, on a single occasion, in the middle of his trial; that Dr. Smith was remarkably unquestioning when it came to accepting the credibility of [Defendant‘s] statements; that he could not verify [Defendant‘s] reports regarding the extent of his drug use at the time; that he did not talk to any of [Defendant‘s] family members; and that Dr. Smith did not seriously consider or take into account evidence that contradicted [Defendant‘s] account to him.75
In fact, Dr. Smith acknowledged that up until the preceding weekend, [Defendant] hаd maintained (and Smith‘s expected testimony had been) that [Defendant] had a “total blackout” about the shooting and did not remember anything, but that after meeting with Smith—who informed [Defendant] that such memory loss “didn‘t make sense” in the methamphetamine context—[Defendant] finally provided what Dr. Smith “perceived was an accurate history,” i.e., the story about [Defendant] hearing voices.76 Smith acknowledged that there was nothing in the Dashcam exchanges between [Defendant] and Green that was illogical or that suggested [Defendant] was delusional. Smith was also forced to acknowledge, when presented with the extensive evidence about [Defendant‘s] efforts to avoid being caught, that all of these actions were examples of “logical, goal-oriented behaviors,” and that all of them “speak against brain impairment.”77
Although [Defendant] presented a bare prima facie case of intoxication and was able to produce an expert who would say that he didn‘t think [Defendant] “could have formed the intent to commit murder in the first degree,” [Defendant‘s] testimony and that of his expert were thoroughly and convincingly impeached on the issue of whether [Defendant] could have and did deliberately intend to kill Trooper Green. While [Defendant] may well have experienced “methamphetamine psychosis” at some point . . . no reasonable juror could have concluded, based upon the entire record in this case, that he was in such a state at the time he shot Green or that he did not deliberately intend to kill Green. Consequently, although we find plain error in the trial court‘s failure to properly instruct [Defendant‘s] jury on his voluntary intoxication defense, we do not hesitate to conclude that this error was harmless beyond a reasonable doubt in this case.
The recited evidence of intent is extraordinary. The way Defendant executed the murder is itself powerful evidence. In Grissom v. Carpenter, 902 F.3d 1265, 1290–91 (10th Cir. 2018), we said that a second-degree murder instruction would have been inappropriate at the trial of a similar crime; we explained that:
[N]o juror could have reasonably found that [the defendant] did not intend to take the life of [the victim]. Specifically, the evidence clearly established that [the defendant], after wrestling with [the victim‘s friend] and shooting and seriously injuring her, chased [the victim] from the living room of [her friend‘s] house into a bedroom and, despite her pleas for mercy, proceeded to shoot her not once, but twice in the head at close range.
And here there was additional compelling evidence of Defendant‘s lucidity and ability to form intent: his exchange with Green—including his instruction that Green lie before him with his hands up, his threat to kill Green if he moved, and his demand that Green turn over the keys to the handcuff on his wrist—and his actions soon after the shooting, including his attempts to hide the incriminating evidence and his cogent accounts of the shooting to his friends.
Defendant argues that the OCCA unreasonably determined that no reasonable juror could have accepted his voluntary-intоxication defense because it also made the contradictory factual determination that Defendant was entitled to an instruction on that defense. The court wrote:
The evidence presented at [Defendant‘s] trial—in particular, [Defendant‘s] own testimony about his drug use and the effects it was having on him at the time of the shooting, as well as the testimony of Dr. Smith that [Defendant] could not have formed the intent of malice aforethought—when looked at simply to determine if, on its face, it established a prima
case of intoxication, certainly was sufficient to raise a voluntary intoxication defense, such that [Defendant] was entitled to have his jury instructed on this defense.
Malone, 168 P.3d at 197. But whether the determinations are contradictory depends on what standard the OCCA applied to determine whether Defendant was entitled to the instruction. The OCCA held that the instruction should have been given because there was evidence that, if believed, would support the voluntary-intoxication defense—namely the testimony by Defendant аnd Dr. Smith. See id. at 196–97. That holding is not inconsistent with a determination that, given the trial record as a whole, no reasonable jury would credit that testimony, or at least that part of the testimony asserting Defendant‘s inability to form the requisite intent.
We conclude that the OCCA was not only reasonable, but persuasive, in determining that the error in the voluntary-intoxication instruction was harmless beyond a reasonable doubt.
We now turn to the other instructional error, which can be disposed of with little discussion. We repeat the challenged instruction:
“Incapable of Forming Special Mental Element” is defined as the state in which one‘s mental powers have been overcome through intoxication, rendering it impossible to form the special state of mind known as willfully.
R., Vol. 2 at 527 (emphasis added). The OCCA rejected the challenge in a footnote:
The record contains no explanation of why the “incapable of forming special mental element” definition was included in [Defendant‘s] instructions, since this term was not otherwise used in the instructions; nor does the record reveal why the “special state of mind” referenced in that definition is “willfully.” The record reveals only that it was the trial court who prepared the instructions and that the parties did not object. [Defendant] makes much of the improper inclusion of this definition in his
instructions, particularly the reference to “willfully.” This Court finds, however, that this error was not significant. The phrase “special mental element” was not otherwise used in [Defendant‘s] instructions; thus a reasonable jury reading its instructions as a whole, as it was directed to do, would have no occasion to apply this definition in [Defendant‘s] case.
Malone, 168 P.3d at 199 n.63. The footnote makes sense to us. The OCCA did not unreasonably apply Supreme Court precedent in holding that the superfluous instruction and its inclusion of the term “willfully” were harmless. And even if Defendant were to question whether the OCCA applied the correct harmless-error standard, we would hold that on independent review the Brecht standard has not been satisfied because the error did not have a substantial and injurious effect on the trial.
B. Ineffective Assistance of Counsel in Failing to Object to Jury Instructions
Defendant argues that his trial counsel was ineffective in failing to object to the instructions on his intoxication defense. To prevail on a claim of ineffective assistance of counsel, a defendant must show both that his counsel‘s performance was deficient—“that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment“—and that “the deficient performance prejudiced [his] defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In conducting this analysis, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal quotation marks omitted). And to estаblish that a defendant was prejudiced by counsel‘s deficient
The OCCA rejected Defendant‘s ineffective-assistance claim on the prejudice prong. After reciting the standard for prejudice set forth in Strickland, the court wrote:
Regarding the voluntary intoxication jury instructions, this Court has thoroughly addressed this issue [earlier in the opinion]; and the failure of defense counsel to ensure that [Defendant‘s] jury was accurately and comprehensibly instructed on his theory of defense, i.e., drug-induced intoxication, does suggest deficient and unreasonable performance in this regard. Nevertheless, just as we concluded [earlier] that the instructional errors in this regard were harmless beyond a reasonable doubt, we likewise conclude that [Defendant] could not have been prejudiced thereby.
Malone, 168 P.3d at 220–21. The OCCA did not unreasonably apply Strickland in holding that Defendant was not prejudiced here. Even had counsel objected to the erroneous instructions, there is no reasonable probability that the jury would have reached a different result, given the overwhelming evidence of Defendant‘s guilt. We therefore uphold the OCCA ruling.
C. Ineffective Assistance of Counsel in Belated Expert Preparation
Defendant argues that his trial counsel was ineffective in failing to arrange for a meeting between Defendant and the defense‘s expert witness, Dr. Smith, until midway
We briefly review the relevant part of the record. Before meeting with Dr. Smith, Defendant asserted that he had no recollection of the murder. In a statement to police, he said that he “couldn‘t remember” the shooting and that it was “like it didn‘t happen. It‘s like it was a dream.” 2005 Trial Tr., Vol. 3 at 861. In a pretrial report submitted by Dr. Smith based on his review of materials provided by counsel, Dr. Smith indicated that Defendant had entirely blacked out the events. Defense counsel argued in her opening statement that “methamphetamine . . . causes all kinds of problems. You can‘t remember what happened; you can‘t remember what you did. It makes you very forgetful.” 2005 Trial Tr., Vol. 2 at 528.
Even upon meeting with Dr. Smith, Defendant at first maintained that he could not remember the shooting. But when Dr. Smith told him that his account did not “make sense because methamphetamine abusers remember delusional memory” and do not have total blackouts, he instead insisted that he was experiencing auditory hallucinations on the morning оf the shooting. Id., Vol. 4 at 1121. At trial Dr. Smith adopted the hallucination narrative.
On appeal Defendant argues that his belated interview with Dr. Smith caused significant problems for the defense, both strategic and factual. The defense theory switched from failure to remember the events to hallucinating about the events, and a voluntary-intoxication defense was supplemented by an insanity defense. The switch to
Again, however, the OCCA did not unreasonably apply Supreme Court precedent in denying relief on this claim. The court did agree with Defendant that counsel‘s performance was defective:
This Court does not hesitate to conclude that it is unreasonable and deficient performance for attorneys who are defending a case in which the only plausible defense to first-degree murder involves drug use that impaired the defendant‘s mental processes—where the fact that the defendant killеd the victim is established by overwhelming evidence—to fail to arrange a meeting between the defendant and his chosen expert until the defendant‘s murder trial is well underway. This certainly does not exemplify diligent trial preparation; and the resulting mid-trial switch of defense theory made the State‘s task of discrediting [Defendant‘s] expert witness that much easier.
Malone, 168 P.3d at 220. But it found that there was not the requisite prejudice:
[Defendant] cannot show prejudice, since he cannot demonstrate a reasonable probability that his jury would have rejected the murder charge against him if he had met with Smith earlier. [Defendant] argues that if his attorneys “had not waited until the middle of trial to have their client evaluated by their expert, the true facts of Appellant‘s memory of events would have come out much sooner.” Yet the “true facts” of [Defendant‘s] memory did come out at trial—just as [Defendant‘s] memory of what occurred came out the day of the murder, when he accurately described to his friends what happened and what he did. In the current cаse, it would not have mattered how defense counsel attempted to “contextualize” [Defendant‘s] mental state. The State‘s evidence that [Defendant] willfully, knowingly, and deliberately shot Trooper Green, with the intent to kill him, was simply too compelling. Hence even though counsel‘s failure to arrange a timely (pre-trial) meeting between [Defendant] and his intended expert made impeachment of this witness that much easier for the State, the result
of the first stage of [Defendant‘s] trial was not affected thereby. [Defendant] would still have been convicted of the first-degree murder of Green.
Id. In other words, even if Dr. Smith had been interviewed well before trial and the defense had put on a coherent theory with consistent testimony, the evidence of the crime would have compelled the jury to convict. We would add that extensive impeachment of Defendant and Dr. Smith would likely have occurred even if the interview had been conducted much sooner. Defendant would have been impeached by his statements to the police and his friends, which mentioned no voices or hallucinations. And it is likely that an earlier meeting between Defendant and Dr. Smith would have transpired in the same manner as the midtrial meeting—with Defendant initially insisting that he blacked out the shooting until learning that account was inconsistent with heavy methamphetamine use. The OCCA‘s determination that Defendant was not prejudiced by the belated expert meeting was not unreasonable.
D. Cumulative Error
Defendant‘s final claim is that the cumulative effect of the erroneous jury instructions, counsel‘s failure to object to the jury instructions, and counsel‘s belated expert preparation deprived him of a fair trial. A cumulative-error analysis “aggregates all errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Cargle v. Mullin, 317 F.3d 1196, 1206 (10th Cir. 2003) (internal quotation marks omitted). Claims should be included in a cumulative-error analysis even if “they
On direct appeal to the OCCA, Defendant argued that the accumulation of all the errors at his trial merited relief. The OCCA, however, considered only those errors stemming from Defendant‘s “challenge to the intoxication jury instructions” in ruling on Defendant‘s cumulative-error claim. Malone, 168 P.3d at 233. We therefore choose to apply the Brecht harmless-error standard to Defendant‘s claim.
Under that standard, we hold that the cumulative errors did not have a “substantial and injurious effect or influence in determining the jury‘s verdict.” Brecht, 507 U.S. at 637. The evidence against Defendant was far too compelling.
IV. CONCLUSION
We AFFIRM the district court‘s order denying Defendant‘s