Malone v. Carpenter

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 20, 2018

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

RICKY RAY MALONE,

Petitioner - Appellant,

v. No. 17-6027

MIKE CARPENTER, Interim Warden,
Oklahoma State Penitentiary,

Respondent - Appellee.
_________________________________

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:13-CV-01115-D)
_________________________________

Robert S. Jackson, Oklahoma City, Oklahoma (Sarah M. Jernigan, Assistant Federal
Public Defender, Oklahoma City, Oklahoma, with him on the briefs), for Petitioner-
Appellant.

Jennifer L. Crabb, Assistant Attorney General (Mike Hunter, Attorney General of
Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.
_________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
_________________________________

HARTZ, Circuit Judge.
_________________________________

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
postconviction relief. Defendant then filed an unsuccessful application for relief under

28 U.S.C. § 2254 in the United States District Court for Western District of Oklahoma.

He now seeks relief in this court. We granted a certificate of appealability (COA) on the

following issues: (1) whether the trial court’s giving erroneous jury instructions on his

voluntary-intoxication defense was harmless; (2) whether those instructions deprived him

of the constitutional right to a fair trial; (3) whether he was deprived of the constitutional

right to effective assistance of counsel by (a) his trial counsel’s failure to object to those

instructions or (b) his trial counsel’s alleged failure to adequately prepare his expert

witness in support of the voluntary-intoxication defense; and (4) whether his conviction

must be set aside because of the cumulative effect of the above-mentioned errors.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the district

court’s denial of habeas relief, largely because of the overwhelming evidence of

Defendant’s guilt.

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 car 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

2
from thereafter, other officers were sent to check on him. His body was discovered about

7:15 a.m. What had happened could later be reconstructed by physical evidence,

statements by Defendant, and a videotape from a “Dashcam” recorder in Green’s vehicle

(which shows Defendant and captured much of what Defendant and Green said but does

not show Green).

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 Anthony, and a

married couple, J.C. and Jaime Rosser. The four lived together in a trailer in Lawton,

3
Oklahoma. All testified that they had spent Christmas day preparing for a

methamphetamine cook but when Anthony became ill, Defendant ended up conducting

the cook on his own. He left in Sturdevant’s car.

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 life, 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.”

Id. at 194 n.30.

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.

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 J.C. Rosser testified that he also saw Defendant the morning of the shooting.

When Defendant came home, he had a handcuff on his right wrist. Defendant asked

Rosser to drive him to Defendant’s home in Duncan, Oklahoma. Defendant changed

clothes and came out to Rosser’s car carrying a white plastic garbage bag. They stopped

at Sturdevant’s car, from which Defendant retrieved a large black case. Defendant then

disposed of the bag—which contained Defendant’s bloodied clothes from the shooting—

in a wooded area on the way to Duncan. Defendant told Rosser he had killed a

policeman and “was real sorry.” Id. at 193 (internal quotation marks omitted). After

arriving at the Duncan home, Defendant retrieved from Rosser’s car the gun he said he

used to kill Green and the large black case. Defendant showed the gun to Rosser, which

Rosser described as having blood, grass, and hair on it. Defendant said he “fucked up”

and again said he was “sorry.” Id. (internal quotation marks omitted).

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

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October 2003 he was addicted to methamphetamine, had been fired from his jobs as a

firefighter and EMT because of his addiction, and that producing and selling

methamphetamine had become his sole source of income. He said that he had not slept

from December 4 through December 26 because he was continuously high on

methamphetamine. He claimed that on the night of the December 25 cook he was

hearing voices and hallucinating. When his back began to hurt during the cook, he took

Lortab—an oral narcotic—and passed out. He testified that during the altercation with

Green the next morning, he heard “voices in [his] head” telling him to shoot Green

because he “was going to get me.” Id. at 195 (internal quotation marks omitted).

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 commit first-degree murder. Id. Dr. Smith admitted, however, that Defendant’s

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efforts to avoid detection evidenced “logical, goal-oriented behaviors” that “speak against

brain impairment.” Id. at 203.

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 instructions 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

7
but held that Defendant had not shown the requisite prejudice to establish a constitutional

violation.

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 harmless.

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.” 28 U.S.C. § 2254(d)(1), (2). As we have explained:

Under the “contrary to” clause, we grant relief only if the state court 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

8
the state court identifies the correct governing legal principle from the Supreme Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s case. Id.

(internal quotation marks omitted). Thus, a federal court may not grant relief simply

because it concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. See id. Rather, “[i]n

order for a state court’s decision to be an unreasonable application of this Court’s case

law, the ruling must be objectively unreasonable, not merely wrong; even clear error will

not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per curiam) (internal

quotation marks omitted). To prevail, “a litigant must show that the state court’s ruling

was so lacking in justification that there was an error well understood and comprehended

in existing law beyond any possibility for fairminded disagreement.” Id. (ellipsis and

internal quotation marks omitted).

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 28 U.S.C. § 2254(e)(1)).

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

9
(1993) (internal quotation marks omitted). A petitioner 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 § 2254(d)(1) a federal court can grant

relief only if the state court’s application of Supreme Court law was unreasonable. This

implies that review of a state court’s Chapman harmlessness analysis is for

unreasonableness. So which standard prevails—Brecht or § 2254(d)(1)? The Supreme

Court has answered the question by saying that both apply. Even after the enactment of

AEDPA, Brecht must be satisfied for a state prisoner to obtain federal habeas relief,

regardless of “whether or not the state appellate court recognized the error and reviewed

it for harmlessness under the [Chapman standard].” Fry v. Pliler, 551 U.S. 112, 121–22

(2007). Given the “frequent recognition that AEDPA limited rather than expanded the

availability of habeas relief,” the Court thought it “implausible that, without saying so,

AEDPA replaced the Brecht standard of “‘actual prejudice’ with the more liberal

AEDPA/Chapman standard which requires only that the state court’s harmless-beyond-a-

reasonable-doubt determination be unreasonable.” Id. at 119–20 (citations and further

internal quotation marks omitted). The Court added that because the AEDPA standard

for granting relief is easier to satisfy than the Brecht standard (thinking this comparison

so obvious as to require no further explanation), “the latter obviously subsumes the

former.” Id. at 120.

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),

10
the Court reviewed a decision by the California Supreme Court that a constitutional error

was harmless beyond a reasonable doubt under Chapman. Although the petitioner

needed to “meet the Brecht standard” for the Court to grant habeas relief, that “[did] not

mean . . . that [the] state court’s harmlessness determination ha[d] no significance under

Brecht.” Id. Rather, because the California “decision undoubtedly constitute[d] an

adjudication of [the] constitutional claim ‘on the merits,’ . . . the highly deferential

AEDPA standard applie[d] [and the Court could] not overturn the California Supreme

Court’s decision unless that court applied Chapman in an objectively unreasonable

manner.” Id. (further internal quotation marks omitted). The Court thus clarified that

Brecht did not “abrogate[ ] the limitation on federal habeas relief that [AEDPA] plainly

sets out.” Id. Accordingly, although a federal court reviewing a state conviction need not

“formally apply both Brecht and AEDPA,” AEDPA still “sets forth a precondition to the

grant of habeas relief.” Id. (brackets and internal quotation marks omitted). In other

words, as we understand the Court, satisfaction of the AEDPA/Chapman standard is a

necessary condition for relief (that is, failure to satisfy the standard requires denial of

relief), but satisfaction of the standard is not a sufficient condition for relief because

Brecht must also be satisfied. See Jensen v. Clements, 800 F.3d 892, 901–02 (7th Cir.

2015) (describing standard of review when state court holds that error was harmless).

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.

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 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 also 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).

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 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 specific 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

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“willfully” instruction was “improper.” Id. at 199–200 n.63. But it ruled that the errors

were harmless.

We hold that the OCCA harmlessness decision was not contrary to or an

unreasonable application of Supreme Court precedent.1 See Ayala, 135 S. Ct. at 2198–

99; 28 U.S.C. § 2254(d)(1). It was not contrary to Supreme Court precedent because it

applied the harmless-beyond-a-reasonable-doubt standard of Chapman. See Malone, 168

P.3d at 201 & n.68 (citing Chapman v. California). And it explicitly held that the

voluntary-intoxication instruction “was harmless beyond a reasonable doubt.” Id. at 203.

(We will later address the OCCA’s holding on the willfully instruction.)

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 a defendant

1
The State argues that, as a preliminary matter, habeas relief is not available for the
errors in the jury instructions because they were not so fundamentally unfair as to deny
Defendant a fair trial and hence did not amount to a constitutional violation. (This relates
to the second issue on which we granted a COA.) We assume, without deciding, that the
errors Defendant identifies in the jury instructions were of constitutional magnitude.

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“[t]o be entitled to relief under the plain error doctrine,” is “that the error affected [the

defendant’s] substantial rights.” Hogan v. State, 139 P.3d 907, 923 (Okla. Crim. App.

2006). But the OCCA was not saying that Defendant had satisfied all the requirements

for relief under the plain-error doctrine. After all, it denied relief. One of the elements

that must be proved for a defendant to obtain relief under the plain-error doctrine is “that

the error is plain or obvious.” Id. The OCCA was simply noting that this element had

been satisfied. It makes no sense to say that when the court declares that this element is

satisfied—that is, there has been a determination that an error was “plain”—it is

necessarily declaring also that the defendant has satisfied the separate requirement that

the error affected his substantial rights.

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,

15
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.” Malone, 168 P.3d at 203.

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
69
[Defendant’s] attorney noted early in her opening statement
that the case would be about “methamphetamine . . . what it
does to a person, how it affects a person’s life, and how it can
ruin lives—not only of the person taking it, but of others.”
Defense counsel concluded her opening statement by telling
the jury that Dr. Smith would tell them “that a person who is
using methamphetamine as much as these people were using,
and particularly [Defendant], cannot form the intent to do
anything. They cannot form the intent to commit a crime.”
In her first-stage closing argument, defense counsel argued
that [Defendant] “was a paranoid schizophrenic when he was
on that road and he was awakened by Nik Green. He could
not form the intent.” And she concluded her closing
argument as follows: “We would submit to you that

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 [Defendant] was so intoxicated on methamphetamine and
Lortab that he did not and could not have physically formed
the thought, whether that be a second before, an hour before,
or a day before, to kill Trooper Nik Green. He did not have
the ability to do that because he was smoking meth every
hour on the hour, and taking 40-some Lortab a day. He could
not do that. And we would request that you find in our
favor.”

Id. at 201 & n.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 required 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

17
way that lawyers might. Differences among them in interpretation of instructions may be

thrashed out in the deliberative process, with commonsense understanding of the

instructions in the light of all that has taken place at the trial likely to prevail over

technical hairsplitting.” (emphasis added)).

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

18
particular individual.” As a result, the defendant could not be convicted on the lesser

offense of second-degree murder if the jury found that he intended only to harm

someone, even if he did not have the intention to take a life—the exact defense on which

the defendant was proceeding. Similarly, at the penalty phase of the death-penalty trial in

Baer v. Neal, 879 F.3d 769, 779 (7th Cir. 2018), the trial judge improperly instructed the

jury that it could not consider intoxication unless it was involuntary, thus nullifying the

defendant’s mitigation evidence and argument on voluntary intoxication. In this case, in

contrast, defense counsel was fully able to present evidence and argue the intoxication

defense.

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 lack 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

19
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-range shots
fired purposefully into the back of Green’s head, leave no reasonable doubt
about [Defendant’s] intent.
73
In all of [Defendant’s] statements to his friends after the
shooting, he consistently depicted the incident as one in
which he knowingly and intentionally killed the highway
patrol trooper who was attempting to arrest him. In fact, the
allegation of hearing “voices” around the time of the shooting
was not even raised by [Defendant] or his counsel until after
the State had rested its case—after [Defendant] met with Dr.
Smith over the weekend break.

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
74
Dr. Smith acknowledged that he was neither a psychiatrist
nor a psychologist and that he had not administered any tests
on [Defendant]. At one point Smith testified, “[M]y only role
was to interview him to determine whether he had a
methamphetamine addiction problem.”
75
When cross examined about the fact that [Defendant] talked
to four different people about what happened and consistently
described the events as him purposefully killing the trooper,
with no mention of “voices” or seeing nonexistent threats,
Smith simply maintained that “there was a lot of conflict in
the record” and that he “really [had] no opinion on that.”
Smith testified that his evaluation of [Defendant] was based

20
 upon the Dashcam video and [Defendant’s] statements to
him.

In fact, Dr. Smith acknowledged that up until the preceding
weekend, [Defendant] had 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
76
Smith acknowledged that [Defendant] lied to him about not
remembering what had happened. Smith testified, however,
that [Defendant] told him that the reason he had not
previously informed his current counsel about what he
remembered was that a former attorney had told him not to do
so.
77
Smith used the phrases “logical, goal-oriented behaviors”
that “speak against brain impairment” like a mantra in his
testimony on cross examination.

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.

21
Malone, 168 P.3d at 201–03.

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-intoxication 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

22
 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 and 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

23
 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 establish that a defendant was prejudiced by counsel’s deficient

24
performance, he “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. “It is not enough for the defendant to show that the errors had

some conceivable effect on the outcome of the proceeding.” Id. at 693. “Failure to make

the required showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim.” Id. at 700 (emphasis added).

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

25
through trial. He contends that had a meeting occurred sooner, the defense could have

avoided presenting inconsistent narratives in support of his intoxication defense.

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 of 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

26
the new narrative of events presented multiple opportunities for the prosecution to

impeach both Defendant and Dr. Smith.2

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 killed 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 case, 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

2
In this court, Defendant also argues that an earlier interview would have enabled
counsel to obtain a different expert. But we do not address that argument because it was
not raised in state court and is therefore procedurally defaulted. See Ellis v. Raemisch,
872 F.3d 1069, 1092–93 (10th Cir. 2017)

27
 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

28
have been individually denied for insufficient prejudice.” Id. at 1207. We have awarded

relief when the errors had an “inherent synergistic effect” on the outcome. Id. at 1221,

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 § 2254 application.

We DENY Defendant’s motion to grant a certificate of appealability on additional issues

except insofar as this court has already done so.

29