FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 12, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ERNEST EUGENE PHILLIPS,
Petitioner - Appellant,
v. No. 08-7043
RANDALL G. WORKMAN, Warden,
Oklahoma State Penitentiary,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:01-CV-45-JHP-KEW)
Gregory W. Laird, Foshee & Yaffe, Oklahoma City, Oklahoma (James L.
Hankins, Ogle Law Office, PLLC, Oklahoma City, Oklahoma with him on the
briefs), for Petitioner-Appellant.
Jennifer J. Dickson, Assistant Attorney General (W.A. Drew Edmondson,
Attorney General of Oklahoma, with her on the brief), for Respondent-Appellee.
Before HENRY, MURPHY, and O’BRIEN, Circuit Judges.
HENRY, Circuit Judge.
After hearing evidence regarding the tragic death of Jason McFail, a jury in
the District Court for Bryan County, Oklahoma convicted Eugene Phillips on one
count of first-degree malice aforethought murder and sentenced him to death.
The trial court denied his request to instruct the jury regarding the non-capital
lesser-included offense of second-degree depraved mind murder. The Oklahoma
Court of Criminal Appeals (“OCCA”) affirmed Mr. Phillips’s conviction and
sentence and denied post-conviction relief.
In this 28 U.S.C. § 2254 proceeding, Mr. Phillips contends that under
clearly established constitutional principles set forth in Beck v. Alabama, 447
U.S. 625 (1980), the jury should have been instructed on second-degree depraved
mind murder. The district court denied that claim, and Mr. Phillips reargues it on
appeal.
In analyzing Mr. Phillips’s Beck argument, we must grapple with a rather
confusing and shifting line of Oklahoma cases. At the time of Mr. Phillips’s trial,
second-degree depraved mind murder was a lesser-included offense of first-
degree malice aforethought murder. By the time that the OCCA issued its
decision in Mr. Phillips’s direct appeal, that court had overturned its precedent —
second-degree depraved mind murder was no longer a lesser-included offense.
However, twelve days after the OCCA issued its opinion in Mr. Phillips’s direct
appeal – and before it denied his petition for rehearing – the court returned to its
earlier view, adopting the overwhelming majority view that second-degree
depraved mind murder is a lesser-included offense of first-degree malice
aforethought murder.
2
In light of this change in the law and because we conclude that the evidence
would have supported a verdict on both first-degree murder and the
lesser-included non-capital offense of second-degree depraved mind murder, we
hold that the OCCA’s decision was contrary to Beck and we reverse and remand
with instructions to conditionally grant Mr. Phillips’s petition, subject to the
State’s right to retry him within a reasonable time.
I. BACKGROUND
The facts underlying the death of Mr. McFail are difficult to comprehend.
We draw largely on the OCCA’s description of the factual underpinnings of the
events that unfolded in late July 1996. See Phillips v. State, 989 P.2d 1017, 1024-
25 (Okla. Crim. App. 1999).
On July 17, 1996, Brian Ezell and his parents traveled to Sherman, Texas,
to pick up the seventeen-year old Mr. McFail. They returned with him to their
home in Durant, Oklahoma for a several day visit. On the evening of July 19, Mr.
Ezell and Mr. McFail picked up Mr. Ezell’s cousin, Shannon Hearn, and went to
get gas for the car. Around 11 p.m., they saw two of Mr. Ezell’s friends, Davida
Clark and Christina Chambers, parked outside of the Love’s Country Store. Mr.
Ezell drove over to the Love’s parking lot where the three youths exited the car.
Shortly thereafter, Mr. Phillips walked across the parking lot, and the group heard
him shouting obscenities as he approached them: “you niggers need to get your
3
asses the hell out of town” and “run nigger run.” 989 P.2d at 1024.
Mr. Phillips approached Mr. McFail, who backed up, asked Mr. Phillips to
leave him alone, and said that he was leaving the area. Mr. Phillips then shoved
Mr. McFail in the chest so that he fell onto Mr. Ezell’s car. Still uttering
obscenities, Mr. Phillips next approached Mr. Ezell and similarly shoved him up
against Ms. Chambers’s nearby car. Mr. Ezell then got up and backed away from
Mr. Phillips, at which time he observed a knife in Mr. Phillips’s hand. Mr. Ezell
testified that Mr. Phillips smelled like beer and agreed that Mr. Phillips was
“basically a man with liquor on his breath [who] came up and picked a fight . . .
for no reason.” State Trial Tr. vol. III, at 410.
Mr. Phillips proceeded to enter the convenience store and ask the attendant
for a light for his cigarette. A few other customers in the store had already told
the attendant that there was someone outside with a knife. When the attendant
rejected Mr. Phillips’s request for a light and told him to leave, he shouted
“nigger lover” and threatened to come over the counter at the attendant. Phillips,
989 P.2d at 1025.
The attendant again told Mr. Phillips to leave, and Mr. Phillips “just kind
of stood at the door for a little bit and stared [him] down.” State Trial Tr. vol. III,
at 465. Mr. Phillips then turned around and left the store. The convenience store
attendant also testified that Mr. Phillips was “hyped up” and “wasn’t in a normal
state.” Id. at 471.
4
Meanwhile, Mr. McFail had approached Ms. Clark and said he thought he
had been stabbed. When he lifted his shirt, blood pumped from his chest each
time his heart beat. He collapsed on Ms. Clark, who laid him on the ground. Mr.
McFail was conscious, but unable to speak. As Mr. Phillips left the convenience
store, he walked past the gravely injured Mr. McFail lying on the ground and said
“that’s right nigger,” “how do you like that you fucking nigger” and “feels good
don’t it.” 989 P.2d at 1025.
The first police officers on the scene found Mr. McFail conscious and
attempted to question him, but he was still unable to speak. Within two minutes
of the officers’ arrival, while the officers continued to attempt to question him,
Mr. McFail took a big breath and closed his eyes. The officers were unable to
find a pulse. The ambulance arrived soon thereafter, but Mr. McFail did not
respond to life- saving procedures.
Meanwhile, after leaving the convenience store parking lot, Mr. Phillips
went to a nearby bar called The Watering Hole. He told the bartender that he had
arrived in town three days earlier. The bartender testified that Mr. Phillips told
her that he had returned from his work on an oil rig, and that his wife or girlfriend
and young child were living with Mr. Phillips’s father in Oklahoma. State Trial
Tr. vol. III, at 475-76, 482. He told her that he had “fucked up” and had “messed
up his whole life.” Id. at 476, 482. According to the bartender, Mr. Phillips
became emotional talking about his family. Id. at 483-84. During the hour and a
5
half he was at the bar that night, he told the bartender that he did not want to
cause any problems, he had a knife, and she could take it if she wanted. The
bartender did not ask to see or take the knife.
In talking with the bartender, Mr. Phillips asked her what she would do if
she had done something really bad. Mr. Phillips then told her that he would turn
himself in to the police the next day. He gave her the number of his brother
Johnny. Mr. Phillips asked her to call his brother if the police were looking for
him. He asked her to tell his brother he was sorry, that he did not mean to “do
it,” and that his brother should come visit him. Id. at 485. The bartender testified
that Mr. Phillips repeatedly said that he was sorry and appeared regretful. Id. at
485-86.
The next day, July 20, 1996, seven or eight police officers arrested Mr.
Phillips at his brother’s home outside of Blue, Oklahoma on a 1995 city warrant
for driving with a suspended license. All of the officers and their vehicles were
visible to Mr. Phillips, and he remarked, apparently before he had been
Mirandized, that “all these cops for a city warrant, you act like I killed somebody
or something.” Id. vol. IV, at 62. After he was placed under arrest, Mr. Phillips
asked if he could have his wallet. The officers escorted him to the living room,
where he pointed to his wallet on the coffee table. The officer who retrieved the
wallet noticed a knife sitting about two inches from Mr. Phillips’s wallet, and
took the knife into custody.
6
Once in custody, Mr. Phillips told police he had been working in Louisiana
and had been in Durant only three or four days. Mr. Phillips denied any
involvement in the stabbing, stating he had been with friends at various bars on
the evening of July 19.
On July 22, 1996, Mr. Phillips was charged by information with first-
degree murder. Mr. Phillips’s trial counsel sought a determination of
competency, and on September 5, 1996, Mr. Phillips was committed to Eastern
State Hospital for observation and a competency evaluation. At a November 6,
1996 post-examination competency hearing, the State and defense counsel
stipulated that the doctor who had performed the competency evaluation at
Eastern State Hospital found Mr. Phillips competent. The trial court ordered Mr.
Phillips to stand trial.
On April 8, 1997, a few weeks before trial was to begin, Mr. Phillips’s
counsel filed a motion seeking to have his client medicated for a psychotic
disorder. According to counsel, Mr. Phillips was expressing thoughts of suicide
and experiencing delusions and hallucinations, increasing the possibility of a
violent outburst during trial. The following day, the trial court acknowledged that
Mr. Phillips had been diagnosed “as having a psychotic disorder by a licensed,
board-certified psychiatrist” who ordered medication for treatment of the
disorder. State Ct. Rec. vol. III, at 433. The court granted counsel’s motion that
Mr. Phillips be medicated at state expense.
7
On April 21, 1997, defense counsel filed a motion for a continuance and an
application for a determination of competency. Defense counsel noted that Mr.
Phillips had still not received the medication that the court had ordered two weeks
before. Counsel submitted affidavits from the same board-certified psychiatrist
and also from a licensed psychologist who determined that Mr. Phillips was not
competent to stand trial because he was unable to assist his counsel.
The trial court held a hearing in which the defense put forth affidavits from
the two doctors and presented testimony of two criminal defense investigators
with experience in mental health issues. Mr. Phillips’s counsel also testified as to
his client’s behavior. The State offered testimony from the unit manager where
Mr. Phillips was housed. After hearing the testimony, despite the lack of the
court-ordered medication, the trial court denied defense counsel’s motion, noting
that Mr. Phillips appeared to be “thinking pretty soundly.” Tr. of April 22, 1997
Competency Hr’g, at 55. The day before trial, defense counsel again sought a
continuance. He informed the court that his client still had not received the court-
ordered medication. The court denied the motion, and the case proceeded to trial.
During the first stage of trial, defense counsel repeatedly attempted to
present testimony regarding Mr. Phillips’s state of mind. He sought to dispute the
element of Mr. Phillips’s alleged intent to kill.
In particular, defense counsel argued that evidence of Mr. Phillips’s
emotional state and his history of being abused by his father were relevant to his
8
state of mind on the day of the homicide. Defense counsel also asserted that Mr.
Phillips had come to Durant to confront his father about this history of abuse and
to check on Mr. Phillip’s child. Defense counsel contended that as a result, Mr.
Phillips had been intoxicated during his two or three days in Durant and had
threatened suicide. Defense counsel also submitted a proposed instruction on the
lesser-included offense of second-degree depraved mind murder.
The State, in response, argued that this mitigation evidence might be
admissible only during the sentencing phase of the trial, should there be one. The
trial judge agreed with the State’s argument and refused to give the lesser-
included offense instruction. Because Mr. Phillips could not present this
evidence, his counsel called no witnesses to testify during the guilt phase. The
defense did make an offer of proof concerning Mr. Phillips’s emotional state and
his relationship with his father. See 989 P.2d at 1029-30.
Also at trial, the State medical examiner, Dr. Fred Jordan, determined that
Mr. McFail died from a single stab wound from a pocketknife or a similar
implement. The wound was about two to three inches deep and “caused a 1.2
centimeter cut on the anterior surface of [Mr. McFail’s] heart.” State Trial Tr.
vol. IV, at 110. Dr. Jordan testified that blood loss caused Mr. McFail’s death.
“This is not a wound that is going to kill you instantly, you can live for several
minutes perhaps half an hour or so. . . . It’s a survivable wound if you can get to
a chest surgeon quickly enough.” Id. at 126-27.
9
Dr. Jordan also testified that “most people [who] just get a single stab
wound to the chest probably survive” because the more typical injury from such a
stab wound is to a lung. Id. at 127. “And if it goes into the lung and they receive
medical attention probably most people survive.” Id. Additionally, Dr. Jordan
stated that “[i]t’s unusual to see a stab wound through the ribs.” Id. at 128. In
the conclusion to the cross examination, Dr. Jordan stated that “[p]eople with
knife wounds of the lung and heart survive. Some people die. A lot of it depends
on the individual and depends on how rapidly they get medical care and depends
on what medical care is available.” Id. at 133. He explained that “[w]hen you
have a stab wound to the chest, you are in grave danger. You may live or you
may die.” Id. at 134. He added that “[n]o stab wound to the chest is sure to kill
someone.” Id.
The jury convicted Mr. Phillips of first-degree malice aforethought murder.
O KLA . S TAT . tit. 21, § 701.7(A). During the sentencing stage, the jury found two
aggravating circumstances: first, that the killing was heinous, atrocious, and
cruel; and second, that Mr. Phillips posed a continuing threat to society.
Accordingly, it imposed the death penalty. The OCCA affirmed Mr. Phillips’s
conviction and sentence on direct appeal, see 989 P.2d 1017, and denied his
petition for rehearing. The Supreme Court denied certiorari, and the OCCA then
denied post-conviction relief.
Mr. Phillips filed a habeas petition under 28 U.S.C. § 2254 in federal
10
district court, where he raised seventeen issues. The district court denied relief
on each claim. However, as to two issues, the district court determined that Mr.
Phillips had demonstrated a “substantial showing of the denial of a constitutional
right,” which means that reasonable jurists could resolve those issues differently.
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) It
therefore granted a certificate of appealability on two issues: (1) the sufficiency
of evidence to support each of the aggravating circumstances; and (2) Mr.
Phillips’s competency to stand trial. Subsequently, this court issued a case
management order granting a certificate of appealability on three additional
issues: (3) whether the trial court violated Mr. Phillips’s right to due process
when it failed to grant an instruction on a lesser-included offense; (4) whether
Mr. Phillips was denied due process at the penalty stage of the state trial because
the court permitted improper victim impact testimony; and (5) whether Mr.
Phillips received ineffective assistance of counsel during the sentencing stage of
the trial because his counsel failed to present testimony that Mr. Phillips lacked a
history of racial animus. See Case Management Order, filed July 17, 2008.
II. DISCUSSION
Mr. Phillips raised five contentions in his briefs before us. Upon thorough
review of the record and the applicable law, we are persuaded by his first
argument. We hold that the OCCA’s conclusion that Mr. Phillips was not entitled
11
to an instruction on second-degree depraved mind murder is contrary to the
principles set forth in Beck v. Alabama, 447 U.S. 625 (1980), and that the Due
Process Clause of the Fourteenth Amendment entitles him to a new trial. We
therefore reverse and remand, so that the district court may grant the petition for
habeas corpus, and allow the state to retry him. As a result, we do not address
Mr. Phillips’s remaining four claims.
A. Second-degree murder was a lesser-included offense at the time of Mr.
Phillips trial and at the time the OCCA denied Mr. Phillips’s petition
for rehearing.
Before we turn to Mr. Phillips’s contention that the Due Process Clause
entitled him to an instruction on the lesser-included offense of second-degree
depraved mind murder, we must consider Oklahoma’s shifting precedents and
statutes. In May 1997, at the time of Mr. Phillips’s trial, the OCCA considered
second-degree depraved mind murder to be a lesser-included offense of first-
degree murder. See Willingham v. Mullin, 296 F.3d 917, 922-26 (10th Cir. 2002).
In October 1997, while Mr. Phillips’s direct appeal was pending, the OCCA
issued Willingham v. State, 947 P.2d 1074, 1080-81 (Okla. Crim. App. 1997),
which “revisit[ed] the elements of second degree depraved mind murder” and
recognized that the OCCA’s “case law failed to recognize [a 1976 amendment to
the state’s murder scheme] in the statutes.” Id. at 1081. Because of that amended
statute, the OCCA decided Mr. Phillips’s direct appeal (Oct. 15, 1999) by
applying Willingham v. State’s holding that second-degree depraved mind murder
12
was not a lesser-included offense of first-degree murder. Phillips, 989 P.2d 1034.
However, on October 27, 1999, just twelve days after the OCCA decided
Mr. Phillips’s direct appeal, the OCCA candidly recognized its “continue[d] . . .
inconsisten[cy] in its approach to lesser included offenses.” Shrum v. State, 991
P.2d 1032, 1036 (Okla. Crim. App. 1999). The court adopted the common law
and majority view that “all lesser forms of homicide are necessarily included and
instructions on lesser forms of homicide should be administered if they are
supported by the evidence.” Id. The OCCA’s decision was “prospective only”
and would apply “only to those cases now pending on appeal and in all future
cases.” Id.
While his case was still on direct appeal, on November 4, 1999, Mr.
Phillips filed a petition for rehearing, and again raised the lesser-included
offense/Beck argument, citing Shrum. 1 The OCCA denied Mr. Phillips’s petition
on December 14, 1999. The OCCA determined “that while Shrum was not cited
in the [OCCA opinion], 2 the same analysis used in the Shrum case was utilized in
1
Mr. Phillips’s filing of the petition for rehearing is especially important,
because had the OCCA denied Mr. Phillips’s Beck claim during the period of time
when Oklahoma did not recognize second-degree depraved mind murder to be a
lesser-included offense of first degree murder, and relied “on the ground that
second degree murder was not a lesser-included offense of first degree murder,
his petition for relief would fail even though second degree murder was a lesser
included offense at the time of his trial.” Taylor v. Workman, 554 F.3d 879, 888
(10th Cir. 2009) (citation omitted).
2
Shrum was probably not cited initially by the OCCA because it had not
(continued...)
13
[Mr. Phillips’s] case.” Order Denying Rehearing at 4.
We now turn to the substance of Mr. Phillips’s argument that he was
entitled to a second-degree depraved mind murder instruction under Beck v.
Alabama. As we explain below, to the extent the OCCA applied Shrum, its
application was contrary to the clearly established Supreme Court law of Beck.
B. AEDPA governs our review of Mr. Phillips’s § 2254 petition.
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), we cannot grant an application for a writ of habeas corpus on behalf
of a person in state custody pursuant to the judgment of a state court with respect
to any claim that was adjudicated on the merits in state court proceedings unless
the adjudication of the claim: (1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1), (2).
A state court decision is “contrary” to clearly established law “if the state
court applies a rule different from the governing law set forth in [Supreme Court]
cases, or if it decides a case differently than [the Supreme Court has] done on a
set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002).
2
(...continued)
yet been decided.
14
A state court decision is an “unreasonable application” of clearly established law
when the state court “‘identifies the correct governing legal principle from [the
Supreme Court’s] decisions but unreasonably applies that principle to the facts’ of
petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams
v. Taylor, 529 U.S. 362, 413 (2000)).
C. The OCCA’s decision is contrary to Beck.
The Supreme Court’s decision in Beck provides the basis for Mr. Phillips’s
contention that the OCCA’s decision concluding that Mr. Phillips was not entitled
to an instruction on second-degree depraved mind murder violated clearly
established federal law. In Beck, the Court held that “a sentence of death [may
not] constitutionally be imposed after a jury verdict of guilt of a capital offense,
when the jury was not permitted to consider a verdict of guilt of a lesser included
non-capital offense, and when the evidence would have supported such a verdict.”
Id. at 627. As a result, “state rules barring properly supported lesser-included
offense instructions in a capital case are constitutionally impermissible because
such rules ‘diminish the reliability of the guilt determination’ and ‘enhance the
risk of an unwarranted conviction.’” Mitchell v. Gibson, 262 F.3d 1036, 1050
(10th Cir. 2001) (quoting Beck, 447 U.S. at 638). The Supreme Court has
reiterated that the goal in Beck was to “eliminate the distortion of the factfinding
process that is created when the jury is forced into an all-or-nothing choice
between capital murder and innocence.” Schad v. Arizona, 501 U.S. 624, 646-47
15
(1991) (quoting Spaziano v. Florida, 468 U.S. 447, 455 (1984)).
Beck emphasized that “when the evidence unquestionably establishes that
the defendant is guilty of a serious, violent offense – but leaves some doubt with
respect to an element that would justify conviction of a capital offense – the
failure to give the jury the ‘third option’ of convicting on a lesser included
offense would seem inevitably to enhance the risk of an unwarranted conviction.”
447 U.S. at 637. The Court concluded that “[s]uch a risk cannot be tolerated in a
case in which the defendant’s life is at stake” and that “if the unavailability of a
lesser included offense instruction enhances the risk of an unwarranted
conviction, [a state] is constitutionally prohibited from withdrawing that option
from the jury in a capital case.” Id. at 637-638. The Court has since “reaffirm[ed
its] commitment to the demands of reliability in decisions involving death and to
the defendant’s right to the benefit of a lesser included offense instruction that
may reduce the risk of unwarranted capital convictions.” Spaziano, 468 U.S.
at 456.
Mr. Phillips’s Beck claim has two components. First, he must establish that
the crime on which the trial court refused to instruct was actually a lesser-
included offense of the capital crime of which he was convicted. Hogan v.
Gibson, 197 F.3d 1297, 1306 (10th Cir. 1999). Second, he “must show that the
evidence presented at trial would permit a rational jury to find him guilty of the
lesser included offense and acquit him of first degree murder.” Young v. Sirmons,
16
486 F.3d 655, 670 (10th Cir. 2007); see Taylor, 554 F.3d 879, 888 (10th Cir.
2009) (noting that “[t]he proper inquiry is whether the defendant presented
sufficient evidence to ‘allow a jury to rationally conclude’ that the defendant was
guilty of the lesser-included offense” (citing Hogan, 197 F.3d at 1308)); Hooks v.
Ward, 184 F.3d 1206, 1223-29 (10th Cir. 1999) (discussing Beck). We consider
the OCCA’s analysis of each component in turn.
1. The trial court refused to instruct on a requested lesser-included
offense.
We have already noted that second-degree depraved mind murder was a
lesser-included offense of first-degree murder at the time of trial and while Mr.
Phillips’s conviction was on direct appeal. There is no dispute that Mr. Phillips
sought and was denied his proffered instruction. See State. Ct. Rec. vol. III, at
516 - 518, 524. Thus, Mr. Phillips has established the first component of a Beck
claim.
2. The OCCA considered the evidence presented at trial and concluded
that a rational jury could not acquit Mr. Phillips of first-degree
murder and convict him of second-degree depraved mind murder, but
its analysis was contrary to Beck.
The jury convicted Mr. Phillips of first-degree malice aforethought murder.
21 Okla. Stat tit. 21, § 701.7(A) (1991). In analyzing his Beck claim, we must
consider the elements of both first-degree malice aforethought murder and
second-degree depraved mind murder in light of the evidence presented at Mr.
Phillips’s trial. See Malicoat v. Mullin, 426 F.3d 1241, 1253 (10th Cir. 2005).
17
As the trial court instructed the jury, the elements of first-degree malice
aforethought murder are:
“First, the death of a human; Second, the death was unlawful; Third, the
death was caused by the Defendant; [and] Fourth, the death was caused with
malice aforethought.” State Ct. Rec. vol. IV, at 598; see Okla. Stat. tit. 21, §
701.7(A). “Malice is that deliberate intention unlawfully to take away the life of
a human being, which is manifested by external circumstances capable of proof.”
See Okla. Stat. tit. 21, § 701.7(A)
The elements of second-degree depraved mind murder are: (1) the death of
a human; (2) caused by conduct which was imminently dangerous to another
person; (3) the conduct was that of the defendant; (4) the conduct evinced a
depraved mind in extreme disregard of human life; and (5) the conduct was not
done with the intention of taking the life of any particular individual. Taylor v.
State, 998 P.2d 1225, 1231 (Okla. Crim. App. 2000), abrogated on other grounds
by Malone v. State, 168 P.3d 185 (Okla. Crim. App. 2007); Okla. Stat. tit. 21, §
701.8.
In rejecting Mr. Phillips’s argument that the jury should have been
instructed on second-degree depraved mind murder, the OCCA divided its
analysis into two parts.
First, after recognizing that under Oklahoma law “[a] defendant is entitled
to an instruction on every degree of homicide which is a lesser included offense
18
of the primary charge and which is supported by the evidence,” 989 P.2d at 1034,
the court reiterated that “second degree depraved mind murder was not a lesser-
included offense [of first-degree malice murder]. Id. As we have noted, twelve
days after the initial opinion in Mr. Phillips’s direct appeal, the OCCA overturned
its precedent and held that second-degree depraved mind murder was a lesser-
included offense of first-degree malice aforethought murder. See Shrum, 991
P.2d at 1036. Nevertheless, in its order denying Mr. Phillips’s petition for
rehearing, the OCCA stated that it had “applied the same analysis used in the
Shrum case.” Order Denying Rehearing, at 4.
Second, the OCCA considered whether Mr. Phillips was entitled to an
instruction on second-degree depraved mind murder under Beck. In its view, “the
evidence in the present case did not support a second degree murder instruction”
and ‘the jury was thus properly precluded from considering that particular non-
capital option.’” 989 P.2d at 1035 (quoting Valdez v. State, 900 P.2d 363, 378-79
(Okla. Crim App. 1995)).
The OCCA’s assessment of the lack of evidence supporting a second-
degree murder instruction appears to be based largely on its view that the
evidence did support Mr. Phillips’s conviction for first-degree malice
aforethought murder. It reasoned that:
[Mr. Phillips] argues that given the fact he stabbed the victim, only
once, with a small pocket knife, and that he did so while he was angry
with his father, a reasonable juror could have found that his acts were
19
imminently dangerous and evinced a depraved mind but were
committed without the design to effect death. [He] specifically relies
on testimony by the medical examiner that the type of wound suffered
by the victim was “survivable.”
[Mr. Phillips] fails to note that the medical examiner testified that such
a wound was survivable only if the victim got to a “chest surgeon
quickly enough.” . . . We find the evidence showed [Mr. Phillips] acted
with the specific intent to effect the death of the victim.
Id. at 1034-35 (emphasis supplied).
The OCCA arrived at the
unmistakable conclusion that [Mr. Phillips] fully intended the
consequences of his acts. An obviously agitated [Mr. Phillips]
approached the unarmed victim shouting obscenities and ignoring the
victim’s pleas to be left alone. [He] stabbed the victim on the left side
of his chest. [Mr. Phillips] walked over the fallen victim as he both
entered and exited the convenience store. As he exited, [Mr. Phillips]
was heard to say “that’s right nigger,” “how do you like that you
fucking nigger” and “feels good don’t it.” If [Mr. Phillips]’s words
were more akin to “fighting words” as he argues, and he did not intend
for anyone to die, then he could have stabbed the victim somewhere
other than the heart. However, the uncontradicted evidence concerning
the location of the victim’s wound and [Mr. Phillips]’s conduct toward
the victim, both before and after the stabbing, clearly show he intended
to kill the victim. Accordingly, we find the evidence sufficient to
support the conviction for first degree malice aforethought murder.
989 P.2d at 1029 (emphasis supplied).
In our view, by limiting its analysis of Mr. Phillips’s Beck claim to the
sufficiency of the evidence supporting the first-degree murder conviction, the
OCCA’s reasoning turns Beck on its head, and “is in gross deviation from, and
disregard for, the Court’s rule in Beck.” Hogan, 197 F.3d at 1305. As Judge
Lucero explained for our court in Hogan,
20
[a] Beck claim is not the functional equivalent of a challenge to the
sufficiency of the evidence for conviction; rather, Beck focuses on the
constitutionality of the procedures employed in the conviction of a
defendant in a capital trial and is specifically concerned with the
enhanced risk of an unwarranted capital conviction where the
defendant’s life is at stake and a reasonable jury could have convicted
on a lesser included offense.
Id. “Under Beck, courts are not directed to evaluate the evidence to determine
whether it would support a first degree murder conviction, or even whether a
conviction for first degree murder or a lesser-included offense is better
supported.” Taylor, 554 F.3d at 887 (emphasis supplied).
And, as Judge McConnell explained recently in Taylor,
If the evidence would support a verdict of either first degree murder or
second degree murder, the jury must be allowed to make the choice.
The effect of the OCCA’s contrary approach is to deny the defendant
the benefit of the second-degree murder instruction in precisely the
circumstance where it is most important: where the evidence would
support conviction for first degree murder but would also support
conviction on the lesser-included offense.
Id. (emphasis supplied).
By relying upon the evidence that supported the conviction for first-degree
murder, the OCCA committed the same error we identified in Hogan and Taylor.
See Hogan v. State, 877 P.2d 1157, 1160 (Okla. Crim. App. 1994) (concluding
that a lesser-included instruction was unwarranted because the facts “show a clear
design to effect the victim’s death in a cold and calculated manner”); rev’d by
Hogan, 197 F.3d at 1305-11; Taylor, 998 P.2d at 1231 (reaching the same
conclusion because “the [] facts suggest a design to effect the death of [the
21
victim]”), rev’d by Taylor, 554 F.3d at 887. And, as in Hogan and Taylor, “the
OCCA’s analysis here . . . was “contrary to clearly established federal law, as set
forth by the Supreme Court.” Taylor, 554 F.3d at 888 (internal quotation marks
omitted).
D. Mr. Phillips was entitled to an instruction on second-degree depraved
mind murder.
Having determined that the OCCA’s decision was contrary to Beck,
we must now consider whether, under the proper Beck standard, the evidence was
sufficient to warrant a jury instruction on the lesser-included offense of second-
degree depraved mind murder. As we explained in Gilson v. Sirmons, 520 F.3d
1196 (10th Cir. 2008), “a state court’s determination of whether the evidence
presented at trial was sufficient under the Beck standard to justify a
lesser-included instruction is not a finding of historical fact, but rather
a legal determination reached after assessing a body of evidence in light of the
elements of the alleged lesser-included offense.” Id. at 1234. Because the OCCA
did not apply the correct legal standard in assessing the evidence in Mr. Phillips’s
trial, we engage in de novo review. See Bell, 535 U.S. at 694; Taylor, 554 F.3d at
887 (10th Cir. 2009) (analyzing the evidence de novo in determining whether the
facts warranted a proper second-degree murder instruction because the OCCA’s
analysis was “contrary to clearly established federal law, as set forth by the
Supreme Court in Beck”).
22
As we have noted, “[t]o succeed in his claim that the trial court’s failure to
instruct the jury on [second-degree depraved mind murder] violated Beck, “[Mr.
Phillips] must demonstrate that the evidence presented at trial would permit a
rational jury to find him guilty of [second-degree depraved mind murder] and
acquit him of first-degree murder.” Id. “Our question is not whether the
evidence pointing to the lesser offense . . . was weak,” or whether he was likely to
prevail. United States v. Humphrey, 208 F.3d 1190, 1207 (10th Cir. 2000).
As ably outlined by the OCCA, and reiterated by the district court, the State
presented ample evidence that Mr. Phillips’s behavior was unlawful, inexplicable,
callous, and hateful. Nevertheless “[w]hether a jury was more likely to convict
on first or second degree grounds is not the question. Due process demands that a
jury be permitted to consider a lesser-included offense of first-degree murder
before imposing death so long as ‘the evidence would have supported such a
verdict.’” Taylor, 554 F.3d at 892-93 (quoting Beck, 447 U.S. at 627). Because
the facts here show that Mr. Phillips may have been severely emotionally
disturbed and raise doubts whether he had the requisite mental state for first-
degree murder, we conclude that a jury could rationally find Mr. Phillips “guilty
of the lesser offense and acquit him of the greater.” Beck, 447 U.S. at 635. See
Taylor, 554 F.3d at 892 (concluding “the evidence would have “allowed a jury to
rationally conclude that the defendant did not intend to kill [the victim]”)
(internal quotation marks omitted); see Richie v. Workman, __ F.3d __, 2010 WL
23
1115850, at *9 (10th Cir. Mar. 25, 2010) (affirming grant of application for a writ
of habeas corpus and noting that “[a]lthough the state’s alternative theory of
first-degree murder is a plausible one, the state must show more than plausibility
to prevail on the lesser-included-offense issue”).
Mr. Phillips had days earlier returned to Oklahoma apparently concerned
about his father, with whom he had a very troubled and violent relationship, who
had moved in with his former girlfriend and his young daughter. 3 Apparently en
route to get a light at the Love’s Store, he walked across the parking lot with his
pocket knife exposed, according to some witnesses. He inexplicably starting
shouting at Mr. McFail and his friends, and shoved Mr. McFail first, then Mr.
Ezell. He did not injure Mr. Ezell beyond the shove.
As to the injury he inflicted on Mr. McFail, Dr. Jordan testified that the
3
We note that the Beck violation here is further complicated by the
apparent shortcomings in the record regarding Mr. Phillips’s state of mind. As
noted above, in Section I, when Mr. Phillips attempted to present evidence of his
mental state in an effort to contest the intent element of the malice aforethought
murder charges, the prosecution objected on the grounds the evidence was only
relevant to the second-stage issue of mitigation. The trial court sustained the
objection and also refused to instruct the jury on the lesser included offense of
depraved mind murder. In light of this ruling, Mr. Phillips did not present any
witnesses of his own during the guilt phase of the trial. Even though we address
Mr. Phillips’s Beck claim on the basis of a seriously stunted record, we remain
convinced that a Beck violation occurred. However, we note that any
shortcomings in the record are attributable exclusively to the trial court’s highly
questionable ruling that evidence of Mr. Phillips’s state of mind at the time of the
murder was irrelevant, which seems to impinge upon Mr. Phillips’s Fifth, Sixth,
and Fourteenth Amendment right to present an adequate defense to the first
degree murder charges.
24
more typical wound resulting from a single stab to the chest with a pocketknife
would be to a lung, which is more easily treated. The wound was a “1.2
centimeter cut,” that, although grave, was potentially survivable if treatment was
given quickly. State Trial Tr. vol. IV, at 110.
The convenience store clerk indicated that he “got real emotional.” Id. vol.
III, at 483. After retreating to the bar down the street, he told the bartender he
was “a fuck up and he had been that way his whole life,” and “[h]e just kept
saying I’m sorry.” Id. at 483, 486. Based on this version of events, a jury could
rationally conclude that Mr. McFail’s death was perpetrated by an act imminently
dangerous to the victim and evincing a depraved mind, but without a premeditated
design to effect death. In sum, Mr. Phillips presented an alternative version of
events to the jury which could negate the intent element of first-degree murder.
Numerous precedents have addressed the reality that depraved mental states
can occur and that such mental conditions may not involve the premeditated intent
required for first-degree murder. For example, in Hogan, we concluded, under
similarly atrocious facts, that Mr. Hogan was entitled to a lesser-included offense
instruction on first-degree manslaughter. Mr. Hogan grabbed a knife from a long-
time friend, who, after a dispute, had threatened to harm Mr. Hogan with it.
Fearing that the friend was retreating to obtain another weapon, Mr. Hogan
stabbed the victim approximately twenty-five times, “creating three wounds that
would have been independently fatal.” 197 F.3d at 1310. We concluded, despite
25
the horrific nature of the crime, and the repeated stabbings, that a reasonable jury
might find adequate provocation, heat of passion resulting from fear and terror,
causation and immediacy, so as to warrant a first-degree manslaughter instruction.
Id. at 1309. To correct the error of the denial of the requested lesser-included
offense instruction, we reversed and ordered a new trial. Id. (citing Williams v.
State, 513 P.2d 335, 337, 338-39 (Okla. Crim. App. 1973) (when defendant shot
his wife eight times at close range, and when defendant testified that “I just went
blank and just stood there just pumping that gun,” the OCCA ordered a new trial,
holding that “[t]he lack of a premeditated design to effect death should have been
submitted to the jury by a proper manslaughter in the first degree instruction”)).
More recently, in Taylor, a jury convicted the defendant of one count of
first-degree murder and three counts of shooting with intent to kill, and sentenced
him to death. During a visit with a business contact who owed him $800, Mr.
Taylor became startled and shot two people in the head, shot a third person twice,
and killed a fourth person, by shooting him twice in the back.
The trial court gave a depraved mind lesser-included offense instruction,
but the instruction was incorrect. After Mr. Taylor was convicted of first-degree
murder, the OCCA found any error in the instruction harmless, because “[Mr.
Taylor] testified that as he ran through the living room, he saw movement out of
the corner of his eyes and fired in that direction twice, killing [the victim]. These
facts suggest a design to effect the death of [the victim] and therefore do not
26
support a second degree murder instruction.” Taylor v. State, 998 P.2d at 1231.
Reviewing the OCCA’s legal conclusions de novo, we concluded that if Mr.
Taylor did not aim, but rather the gun was simply flailing around as he testified,
such behavior would be imminently dangerous to another person, and it would
evince a depraved mind with a disregard of human life, but it would not indicate
any premeditated design to kill the victim. Taylor, 554 F.3d at 891. We noted
that there was no direct evidence regarding Mr. Taylor’s state of mind towards the
victim, and that even if Mr. Taylor was intentionally seeking to harm the victim, a
jury could have believed that Mr. Taylor had not intended to kill him. Id. We
concluded:
Whether a jury was more likely to convict on first or second degree
grounds is not the question. Due process demands that a jury be
permitted to consider a lesser-included offense of first degree murder
before imposing death so long as “the evidence would have supported
such a verdict.”
Id. at 892-93 (quoting Beck, 447 U.S. at 427) (emphasis supplied). See also
Turrentine v. Mullin, 390 F.3d 1181, 1193-94 (10th Cir. 2004) (holding that when
the defendant believed his sister and girlfriend were cheating him out of money,
shot his sister in the head, and then drove to his girlfriend’s house, shot her in the
head, and proceeded to shoot her two children (aged 13 and 22) in the head,
erroneous second-degree depraved mind murder instructions given on the
shooting of the two children required reversal because the defendant had
presented substantial evidence of his own diminished capacity at the time of the
27
murders).
This case, like Hogan, Taylor, and Turrentine, stands in stark contrast to
others in which this court and the OCCA concluded that a lesser-offense
instruction was not needed, because in those cases, the evidence did not support
the lesser-included offense. See Darks v. Mullin, 327 F.3d 1001, 1010 (10th Cir.
2003) (holding that the defendant was not entitled to a lesser-included first-degree
manslaughter instruction when “[his] attorney was forced to concede at oral
argument, that no evidence support[ed] the adequate provocation element”);
Harris v. State, 84 P.3d 731, 750 (Okla. Crim. App. 2004) (holding that when
defendant drove to a transmission shop where the victim worked, pushed the
victim to the ground and shot him twice at close range, the evidence did not
support a lesser-included offense instruction on second-degree depraved mind
murder); Young v. State, 12 P.3d 20, 38-40 (Okla. Crim. App. 2000) (holding that
instructions on depraved mind murder were correctly refused when the defendant
entered a restaurant with intent to rob its occupants with a firearm, stood directly
in front of the victim, raised the firearm, demanded money, and fatally shot the
victim in the back of the chest when the victim tried to defend himself); Boyd v.
State, 839 P.2d 1363, 1367-68 (Okla. Crim. App. 1992) (holding that instructions
on depraved mind murder were correctly refused when the defendant shot the
victim a second time in the chest at close range); see also Taylor, 554 F.3d at
891-892 (collecting OCCA cases where “[t]he OCCA has upheld second degree
28
depraved mind murder convictions in a variety of cases in which the facts were
similar to these, or arguably even more suggestive of an intent to kill” (citing
Dorsey v. State, 739 P.2d 528, 529 (Okla. Crim. App. 1987); Quilliams v. State,
779 P.2d 990, 991 (Okla. Crim. App. 1989); Hall v. State, 698 P.2d 33 (Okla.
Crim. App. 1985); Tucker v. State, 675 P.2d 459 (Okla. Crim. App. 1984)).
Here, the evidence unquestionably establishes that Mr. Phillips was guilty
of a serious and violent offense, but there is “some doubt with respect to an
element that would justify conviction of a capital offense.” Beck, 447 U.S. at
637. Under Beck, “the failure to give the jury the “third option” of convicting on
a lesser-included offense would seem inevitably to enhance the risk of an
unwarranted conviction.” Id. Because “[s]uch a risk cannot be tolerated in a case
in which the defendant’s life is at stake,” we must reverse and remand so that Mr.
Phillips may be retried.
III. CONCLUSION
We conclude that because “the evidence would support a verdict of either
first degree murder or second degree murder, the jury must be allowed to make
the choice.” Taylor, 554 F.3d at 887. Even if a jury believed that Mr. Phillips
intended to harm Mr. McFail, it might have also believed that Mr. Phillips did not
intend to kill him. Id. at 891. A jury might believe that Mr. Phillips was out of
his mind, emotionally distraught about returning to Oklahoma, and that he meant
29
to merely harm Mr. McFail and to scare the young people in front of the
convenience store. “The effect of the OCCA’s contrary approach is to deny the
defendant the benefit of the second-degree murder instruction in precisely the
circumstance where it is most important: where the evidence would support
conviction for first degree murder but would also support conviction on the
lesser-included offense.” Id. at 887 (emphasis supplied). And, although the
State’s case for first-degree murder was plausible, the jury did not have to believe
it. The OCCA’s failure to give the jury the third option of convicting on the
lesser-included offense of second-degree depraved mind murder “inevitab[ly] . . .
enhance[d] the risk of an unwarranted conviction.” Beck, 447 U.S. at 637. As the
Supreme Court has instructed, we cannot tolerate such a risk where “the
defendant’s life is at stake.” Id.
For the reasons set forth above, we REVERSE the district court’s decision
denying Mr. Phillips’s petition for a writ of habeas corpus. We REMAND the
case to the district court with instructions to conditionally grant the writ as to Mr.
Phillips’s conviction and sentence for first-degree murder, subject to the State’s
right to retry him within a reasonable time. See Fisher v. Gibson, 282 F.3d 1283,
1311 (10th Cir. 2002).
30