F I L E D
United States Court of Appeals
Tenth Circuit
DEC 29 1999
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
KENNETH WAYNE PAXTON,
Petitioner-Appellee/
Cross-Appellant,
v. No. 98-6236, 98-6238
RON WARD,
Respondent-Appellant/
Cross-Appellee.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-96-1042-A)
Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A.
Drew Edmondson, Attorney General of Oklahoma, with her on the brief),
Oklahoma City, Oklahoma, for Respondent-Appellant/Cross-Appellee.
Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbison & Lewis, Oklahoma
City, Oklahoma (Gloyd L. McCoy, of Coyle & McCoy, Oklahoma City,
Oklahoma, with him on the brief), for Petitioner-Appellee/Cross-Appellant.
Before SEYMOUR, Chief Judge, TACHA and KELLY, Circuit Judges.
SEYMOUR, Chief Judge.
Petitioner Kenneth Wayne Paxton was convicted of first degree murder by a
jury in Oklahoma state court and sentenced to death. After he unsuccessfully
brought a direct appeal and petitions for state post-conviction relief, he filed a
writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254
asserting that numerous constitutional errors occurred during both his trial and his
sentencing proceeding. The district court upheld Mr. Paxton’s conviction, but
determined that the sentencing proceeding was constitutionally flawed by the
exclusion of mitigating evidence, the admission of hearsay evidence, and
prosecutorial misconduct. Accordingly, the court granted a conditional writ, and
allowed the state to elect whether to hold a new sentencing trial or to resentence
Mr. Paxton in accordance with state law.
Both parties appeal. The state contends that in holding the death penalty
invalid, the district court failed to properly apply the relevant provisions of the
Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214 (1996) (codified in relevant part at 28 U.S.C. § 2254), and failed
to defer to the state court’s interpretation of its own law. The state also asserts
that the district court abused its discretion in fashioning the remedy. Mr. Paxton
argues that he was improperly denied an instruction on a lesser included offense,
and that evidence of an invalid prior conviction was improperly admitted during
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the sentencing phase of his trial to support two of the three aggravating
circumstances found by the jury. 1
We agree with the district court’s decision to uphold Mr. Paxton’s
conviction. We also agree that Mr. Paxton’s death sentence is constitutionally
infirm and that he is therefore entitled to habeas corpus relief. Finally, we hold
that the district court did not abuse its discretion in remanding the matter to state
court for further sentencing proceedings.
I. Background
Prior to the crime, Mr. Paxton and the victim, Donna Kay Neal, maintained
a relationship that had at one point been intimate. Donna used cocaine, and Mr.
Paxton sometimes handled her money for her and occasionally gave her additional
money when she needed it. The night of the crime, Donna and her sister Linda
Neal played bingo and then went to Donna’s house, where they drank beer. They
later went to the house of Edward Peters, where they all smoked cocaine. They
purchased more cocaine several times during the late evening and early morning
hours.
1
We grant Mr. Paxton’s motion for a Certificate of Appealability on these
claims.
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After they had spent all the money they had with them, the sisters drove to
Mr. Paxton’s house to borrow more. While her sister waited in the car, Donna
went into the house and came back with twenty dollars. They returned to Mr.
Peters’ house and Mr. Peters bought more cocaine. As they sat smoking it and
talking, Donna looked out the window repeatedly and said she had seen Mr.
Paxton’s car. When someone knocked on the door, Donna thought it was Mr.
Paxton and went to the door to open it.
The trial testimony as to the events that followed is in conflict. Linda Neal
testified that Donna did not have a weapon with her, and that Mr. Paxton had a
gun and shot Donna after she opened the door. Mr. Peters also testified that
Donna was unarmed, and that after she opened the door Mr. Paxton hit her in the
face. Mr. Peters testified he told Mr. Paxton to go outside, whereupon Mr. Paxton
pulled a gun from his coveralls and began shooting. Mr. Paxton, on the other
hand, testified that Donna took him by the hand and led him into the house,
kicked him in the thigh and in the crotch, and struck at him with a knife. He
stated that he then pulled out the gun to protect himself and fired toward the
doorway.
After Mr. Paxton began shooting, Linda ran out the front door and Mr.
Peters ran into the bathroom. Mr. Peters testified that Mr. Paxton followed him,
pushed the bathroom door open, pointed the gun at his head and fired, hitting him
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in the neck. After he recovered consciousness, he went out and saw Donna lying
on the floor. He did not see a knife lying beside her. Mr. Peters testified that he
ran outside and was pounding on the doors of neighboring houses when he saw
Mr. Paxton’s car return. He saw the driver get out and walk toward his house,
and then saw the driver come out and head back toward the car. Mr. Paxton
testified to the contrary, stating that Mr. Peters had a gun and had tried to shoot
him but the gun misfired, and that he shot back in self-defense. He denied
returning to the house after initially driving away.
Linda Neal testified that after Mr. Paxton began shooting, she ran out the
front door past the body of her sister and tried to get into the passenger side of
her car. She noticed no knife lying on the floor by her sister. As she tried to get
her car door open she saw Mr. Paxton standing by the front door, and she thought
he was reloading his gun. He chased her around her car and then rested the gun
on the hood and shot at her. She heard the bullet go past her head and ran to a
filling station, where she called the police. Mr. Paxton denied chasing Linda Neal
or shooting at her, stating that he only got into his car and left.
When the police arrived at Mr. Peters’ house, they found Donna Neal lying
dead inside. A knife was lying by her left hand and she had a small cut on her
left palm. She had been shot in the back of the head, and also had bruises and
scratches to her mouth and nose.
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Mr. Paxton was tried on charges of first degree murder in the death of
Donna Neal, shooting with intent to kill Mr. Peters, discharging a firearm with
intent to kill Linda Neal, and possession of a loaded firearm. In addition to
giving an instruction on first degree murder, the trial court instructed the jury on
the lesser included offense of first degree manslaughter and on Mr. Paxton’s
claim of self-defense. The jury convicted Mr. Paxton of first degree murder as
well as the other three counts.
At sentencing, the state sought the death penalty on the basis of three
aggravating circumstances, arguing that Mr. Paxton had previously been
convicted of a felony involving the use of violence, that he knowingly created a
great risk of death to more than one person, and that he would constitute a
continuing threat to society. In addition to the evidence introduced during the
guilt phase of the trial, the state offered in support of these aggravating
circumstances evidence that Mr. Paxton had been convicted of first degree
manslaughter in 1965, and that he had been charged in the 1979 shooting death of
his wife. Over the objection of Mr. Paxton, the trial court concluded that hearsay
statements made by Mr. Paxton’s then-three-year-old daughter, Pamela,
implicating him in her mother’s death were admissible as excited utterances.
Mr. Paxton’s 1979 prosecution for the shooting of his wife had been
dismissed upon the state’s motion. The court order in that case recited the state’s
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assertion that dismissal would best meet the ends of justice because Mr. Paxton
had been cleared by a polygraph test. Although the jury was presented with a
stipulation that the proceeding had been dismissed, the trial court did not allow
the defense to tell the jury the reason for the dismissal, citing state law forbidding
admission of polygraph results in any circumstances. In closing argument at Mr.
Paxton’s capital sentencing proceeding, the prosecutor addressed the dismissal
and argued to the jury that the defense could have put on evidence, if it had any,
to show that Mr. Paxton had not shot his wife. The prosecutor further asserted
that the reason for the dismissal was unknown and implied it might have occurred
because Pamela was afraid to testify against her father. The jury found all three
aggravating circumstances established and fixed Mr. Paxton’s punishment at
death.
Mr. Paxton filed a direct criminal appeal contending, inter alia, that the
trial court erred in refusing to give his requested instruction on second degree
murder, in allowing the admission of Pamela’s statements as excited utterances,
and in refusing to allow admission of the results of the polygraph. Mr. Paxton
also contended that the prosecutor’s closing argument regarding the dismissal of
the 1979 prosecution rendered his sentencing proceeding fundamentally unfair.
The state court of criminal appeals affirmed his conviction and sentence. See
Paxton v. State, 867 P.2d 1309 (Okla. Crim. App. 1993).
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Mr. Paxton then filed a petition for state post-conviction relief, seeking to
appeal out of time his 1965 manslaughter conviction on the ground that he was
denied the effective assistance of appellate counsel. The state court held that Mr.
Paxton had waited too long to make this claim and that consideration of the issue
was therefore barred by laches. See Paxton v. State, 903 P.2d 325 (Okla. Crim.
App. 1995). Mr. Paxton thereafter filed another application for state post-
conviction relief challenging his capital murder conviction and sentence, again
raising, among other issues, the invalidity of his 1965 manslaughter conviction.
The state appellate court concluded that Mr. Paxton had waived this issue by
failing to raise it on direct review, see Paxton v. State, 910 P.2d 1059, 1062 & n.3
(Okla. Crim. App. 1996), and affirmed the denial of relief.
II. AEDPA
Mr. Paxton filed his petition for federal habeas corpus relief on December
20, 1996. This court has held that the provisions of the AEDPA apply to cases
filed after its April 24, 1996, effective date even when the challenged state court
proceedings took place before that date. See Moore v. Gibson, Nos. 98-6004, 98-
6010, 1999 WL 765893, at *7 (10th Cir. Sept. 28, 1999) (citing Rogers v. Gibson,
173 F.3d 1278, 1282 n.1 (10th Cir. 1999), petition for cert. filed (U.S. Nov. 5,
1999) (No. 99-6954)). Accordingly, we apply the AEDPA here.
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Our review of a federal district court’s ruling on a request for habeas
corpus relief depends on whether the claim was decided on the merits in state
court. “If the claim was not heard on the merits by the state courts, and the
federal district court made its own determination in the first instance, we review
the district court’s conclusions of law de novo and its findings of fact, if any, for
clear error.” LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999). If, on the
other hand, the state courts adjudicated the merits, a petitioner is not entitled to
relief unless the state court ruling “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” id. § 2254(d)(2).
The above-quoted language from section 2254(d)(1), which conditions the
availability of habeas relief on a determination that a state court adjudication is
“contrary to” or an “unreasonable application of” federal law, has generated
various interpretations and is currently under certiorari review by the United
States Supreme Court. See Williams v. Taylor, 163 F.3d 860 (4th Cir. 1998), cert.
granted, 119 S. Ct. 1355 (1999) (No. 98-8384); Moore, 1999 WL 765893, at *8.
Here as in Moore, however, we need not define the standards of review embodied
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in section 2254(d)(1) because the outcome of this appeal would be the same under
any possible interpretation of the language at issue.
III. Lesser Included Offense Instruction
We turn first to Mr. Paxton’s contention that his conviction and death
sentence are invalid because the trial court denied his request for a jury
instruction on the lesser included offense of second degree murder. Mr. Paxton
argues that in rejecting this claim, the state courts improperly usurped the
function of the jury by weighing conflicting evidence rather than assessing
whether the evidence, even though disputed, could have supported a finding of
second degree murder. In support of his claim Mr. Paxton relies on Beck v.
Alabama, 447 U.S. 625 (1980), in which the Supreme 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.
Beck, however, is distinguishable. Under the statutory scheme at issue in
that case, the trial judge was prohibited from instructing the jury on any lesser
included offense. See id. at 628 & n.3. Instead, the jury was given the choice of
either convicting the defendant of a capital offense, which mandated imposition
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of the death penalty, or acquitting him of any criminal liability. See id. at 628-29.
The Court stated that “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. at 637. Accordingly, the Court held that the
resulting level of uncertainty and unreliability in the fact finding process was
constitutionally intolerable in a capital case. See id. at 643.
The Court revisited the issue in Schad v. Arizona, 501 U.S. 624 (1991).
There the trial court refused to give an instruction on one lesser included offense
but had instructed on another, giving the jury the choice of returning a verdict of
capital murder, second-degree murder, or not guilty. The defendant argued that
the “due process principles underlying Beck require that the jury in a capital case
be instructed on every lesser included non-capital offense supported by the
evidence . . . .” Id. at 646. The Supreme Court disagreed, holding instead that
the diminished reliability of the verdict in Beck caused by the “all-or-nothing”
nature of the decision presented to the jury is not implicated when the jury is
given a third option by way of one lesser included offense instruction. See id. at
646-48. Accordingly, the Court held that a defendant is not constitutionally
entitled “to instructions on all offenses that are lesser than, and included within, a
capital offense as charged.” Id. at 627. We have followed Schad, reiterating that
the Beck requirement is “satisfied so long as the jury had the option of at least one
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lesser included offense which was supported by the evidence.” Hooks v. Ward,
184 F.3d 1206, 1225 (10th Cir. 1999).
In the case before us, the trial court instructed the jury on the lesser
included offense of first degree manslaughter. Under Schad and Hooks, this
instruction was sufficient to satisfy the constitutional concerns at issue in Beck.
Mr. Paxton is not entitled to habeas relief on this claim.
IV. Use of Prior Conviction at Sentencing
Mr. Paxton asserts that his sentencing was rendered unreliable by the use of
his 1965 manslaughter conviction to support two of the aggravating circumstances
upon which the state sought the death penalty. Citing Penson v. Ohio, 488 U.S.
75 (1988), he contends that the 1965 conviction is invalid because his appellate
counsel in that case did not file a brief, thus constructively denying him an appeal
and triggering a presumption of prejudice. The state asserts that Mr. Paxton’s
challenge to the use of this conviction in his sentencing proceeding is
procedurally barred by Mr. Paxton’s failure to raise it in the direct appeal of his
capital case.
Our review of this issue is complicated by the fact that the parties, the state
courts, and the federal district court all failed to address the fact that Mr. Paxton
had presented two separate but related post-conviction proceedings. As set out
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above, Mr. Paxton filed an application for post-conviction relief challenging the
validity of the 1965 conviction, which the state court ruled was barred by laches.
See Paxton, 903 P.2d at 327-28. Mr. Paxton subsequently filed another
application in which he challenged the use of the 1965 conviction to support his
capital sentence. The court ruled that the claim was waived by Mr. Paxton’s
failure to raise it in the direct appeal of his murder conviction and death sentence.
See Paxton, 910 P.2d at 1062 & n.3. The court also rejected Mr. Paxton’s claim
that his appellate counsel was ineffective in failing to raise the issue on direct
appeal. Id. at 1062-63. 2
In his federal habeas petition, Mr. Paxton again asserted that his appellate
counsel was ineffective in failing to challenge the validity of his 1965 conviction
on direct appeal. However, this petition addressed only the merits of the first
post-conviction decision barring the challenge under laches. Mr. Paxton did not
refer to the state court ruling that the challenge to the use of his 1965 conviction
in sentencing was waived by counsel’s failure to raise it on direct appeal. The
state responded that the challenge was procedurally barred, relying exclusively on
2
We note that appeals in both post-conviction proceedings were before the
Court of Criminal Appeals at the same time. Indeed, Mr. Paxton’s counsel
requested that the second proceeding be held in abeyance until the first appeal
was decided. The decision applying laches and upholding the 1965 conviction
was handed down while the second appeal was under consideration. Neither
appellate decision refers to the other.
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the second post-conviction ruling. The federal district court, on the other hand,
determined that the state court’s first habeas decision barring the claim on the
basis of laches was not “an unreasonable determination of the facts” or “contrary
to clearly established federal law.” The court did not address the state’s argument
that the claim was procedurally barred by Mr. Paxton’s failure to raise it on direct
appeal, but instead held that Mr. Paxton’s appellate counsel was not ineffective
for failing to raise the matter on direct appeal.
We agree with the state’s position that the waiver holding raises a
procedural bar to our consideration of Mr. Paxton’s challenge to the use of the
1965 conviction in his capital sentencing. Mr. Paxton does not argue to this court
that the state waiver rule barring an issue not raised on direct appeal is not an
adequate and independent state ground. Accordingly, we may not hear this
defaulted claim unless Mr. Paxton establishes cause for the default and actual
prejudice, or a fundamental miscarriage of justice. See Jackson v. Shanks, 143
F.3d 1313, 1317 (10th Cir. 1998), cert. denied 119 S. Ct. 378 (1998). Mr. Paxton
does not assert on appeal that his capital appellate counsel was ineffective for
failing to raise the issue on direct appeal, nor does he argue that the default will
result in a fundamental miscarriage of justice. Indeed he simply does not address
the waiver holding in the second state post-conviction proceeding, focusing his
argument instead on the first post-conviction proceeding, which applied laches.
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We therefore conclude we are procedurally barred from considering Mr. Paxton’s
challenge to the use of the 1965 conviction in his capital sentencing.
Moreover, even if Mr. Paxton’s challenge to the validity of the 1965
conviction were properly before us, we agree with the district court that we
cannot grant habeas relief with respect to the first state court decision applying
laches. Under the AEDPA, habeas relief may not be granted with respect to a
claim adjudicated on the merits 3 in state court unless the resulting decision is
“contrary to” or involved “an unreasonable application of clearly established
federal law” as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). The
Supreme Court has expressly left open the issue of whether a state is
constitutionally required to provide a defendant an opportunity to collaterally
challenge a prior conviction once it is used for sentencing enhancement purposes.
See Parke v. Raley, 506 U.S. 20, 28 (1992). 4 We therefore cannot say that the
state court decision applying laches to Mr. Paxton’s challenge to his 1965
3
We note that dismissals on the basis of laches are considered decisions on
the merits. See, e.g., Smith v. City of Chicago, 820 F.2d 916, 918-19 (7th Cir.
1987); Cannon v. Loyola Univ. of Chicago, 784 F.2d 777, 781 (7th Cir. 1986).
4
Moreover, the circuits are split on whether a state may deny such review
on the basis of pre-enhancement delay. Compare Tredway v. Farley, 35 F.3d 288,
293-95 (7th Cir. 1994) (per curiam) (holding initial collateral challenge to
enhancement cannot be barred on basis of pre-enhancement delay); and Smith v.
Farley, 25 F.3d 1363, 1367-68 (7th Cir. 1994) (same), with Moore v. Roberts, 83
F.3d 699, 701-03 (5th Cir. 1996) (failure to challenge prior conviction within
statutory time limit for bringing post-conviction relief bars subsequent challenge
to use of that conviction for enhancement).
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conviction is contrary to clearly established federal law. 5 Accordingly, we affirm
the district court’s denial of habeas relief on this claim.
V. Sentencing Errors
We turn next to the district court’s decision that the sentencing proceeding
was constitutionally flawed. The court’s ruling was based on its conclusion that
three interrelated constitutional errors occurred when the state used the 1979
shooting death of Mr. Paxton’s wife Gloria as grounds for seeking the death
penalty. The court held that Mr. Paxton’s constitutional right to confront the
witnesses against him was violated by the admission of hearsay statements of Mr.
Paxton’s daughter Pamela, who was three years old at the time of her mother’s
death and had no present recollection of the event at the time of the trial in the
present case. The court further ruled that Mr. Paxton’s constitutional right to
present mitigating evidence was denied by the state court’s exclusion of evidence
that Mr. Paxton was cleared in the death of his wife by a polygraph examination.
5
Under federal law as set out in Rule 9(a) of the Rules Governing Section
2254 Cases, delay is not grounds for dismissal of a petition unless the state shows
that the delay has prejudiced its ability to respond. In contrast, Oklahoma law
does not require a showing of prejudice for the laches doctrine to apply to a
petition for state post-conviction relief. See Paxton, 903 P.2d at 327. This
divergence between state and federal law is not of moment here in view of the
fact that federal law is unsettled on whether due process requires a state to
provide any opportunity to challenge a state conviction once it is used for
enhancement purposes. See supra n.4.
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Finally, the district court held that the prosecutor, Robert Macy, deceived the jury
in closing argument by falsely stating that he did not know why the charges
against Mr. Paxton had been dismissed and by inviting the jury to be suspicious of
the reason for the dismissal. The court held that Mr. Macy’s prosecutorial
misconduct exacerbated both the erroneous admission of the hearsay and the
erroneous exclusion of the polygraph test. We address each of the district court’s
rulings in turn.
A. Admission of Hearsay
We begin with Mr. Paxton’s contention that the admission of Pamela’s
hearsay statements was constitutional error. “The Sixth Amendment’s
Confrontation Clause, made applicable to the States through the Fourteenth
Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.’” Ohio v. Roberts, 448
U.S. 56, 62-63 (1980) (citations omitted). While the Confrontation Clause does
not bar the admission of all hearsay, it “reflects a preference for face-to-face
confrontation at trial.” Id. at 63. The Supreme Court has struck a balance
between the need to protect the integrity of the fact-finding process through cross-
examination and the needs of effective law enforcement, see id. at 63-65, by
holding that admission of a hearsay statement does not violate the Confrontation
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Clause “if it bears adequate ‘indicia of reliability,’” id. at 66. “Reliability can be
inferred without more in a case where the evidence falls within a firmly rooted
hearsay exception. In other cases, the evidence must be excluded, at least absent
a showing of particularized guarantees of trustworthiness.” Id.
In this case, the state trial judge allowed the admission of a hearsay
statement made by Pamela on the day of her mother’s death under Oklahoma’s
excited utterance exception to the hearsay rule. See Okla. Stat. tit. 12, § 2803(2)
(1991). This is a firmly rooted hearsay exception. See White v. Illinois, 502 U.S.
346, 355 n.8 (1992); Fed. R. Evid. 803(2); 2 McCormick on Evidence § 272 (John
W. Strong ed. 5th ed. 1999). On direct appeal, the Oklahoma Court of Criminal
Appeals affirmed the trial court’s ruling in a divided opinion. See Paxton, 867
P.2d at 1320-21 (majority opinion), 1331-32 (Lane, J., concurring in result but
disagreeing with majority on excited utterance issue), 1332 (Chapel, J.,
dissenting). The federal district court disagreed, holding that the admission of
Pamela’s statement violated Mr. Paxton’s Confrontation Clause rights because it
did not fall within the excited utterance exception and lacked reliability. In
addition, the court was persuaded that Mr. Macy’s speculation during closing
argument that the charges had been dismissed because Pamela was afraid to
testify against her father made the admission of her statement highly prejudicial.
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Pamela was three years old at the time of her mother’s death and does not
remember the event. The state introduced statements she made on the day Gloria
died through the testimony of Lavern Smith, Gloria’s sister. The record reveals
that Gloria was shot shortly after her son left for school in the morning. Pamela
was sleeping on the couch when her brother left and Gloria was upstairs in bed.
After the shooting, Mr. Paxton’s sister, Zuemac Dunlap, took Pamela home with
her. Pamela stayed there with Mrs. Dunlap’s adult daughter and others until she
was picked up by Lavern Smith and taken to her home.
Ms. Smith testified that she went to Mrs. Dunlap’s house around noon with
her two sisters and her brother-in-law and stayed there quite some time. Mr.
Dunlap was also there, as well as someone from the union where Mr. Paxton
worked. Ms. Smith testified that they all discussed the shooting while at the
Dunlap home and that she did not know where Pamela was when these
discussions took place. Ms. Smith further testified that after she brought Pamela
to her home in the mid to late afternoon, she was crying uncontrollably. Ms.
Smith tried to quiet her down, talking to her and asking her why she was crying.
Pamela said “my daddy went upstairs and my daddy shot my mama and my mama
rolled her eyes back in her head.” Trial Tr., Rec., vol. VI, at 1248.
As noted, the federal district court concluded these statements were not
admissible as excited utterances and were not otherwise reliable. In so doing, the
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court rejected the state court decision to the contrary as based on an unreasonable
determination of the facts. On appeal, the state acknowledges that we examine de
novo Mr. Paxton’s claim that the admission of hearsay violated his constitutional
right to confront the witnesses against him. See Hatch v. Oklahoma, 58 F.3d
1447, 1467 (10th Cir. 1995). Nonetheless, the state contends the district court
erred in failing to defer to the state courts’ determination that because the hearsay
fell within the state’s excited utterance exception, no constitutional violation
occurred.
The Supreme Court has rejected the argument that a state court
determination admitting hearsay under state law is dispositive of a petitioner’s
habeas claim that his constitutional confrontation rights were violated by the
admission. See Lee v. Illinois, 476 U.S. 530, 539 (1986) (admissibility of hearsay
evidence as a matter of state law does not resolve Confrontation Clause issue).
Circuit courts have elaborated on this proposition.
Plainly, the mere fact that a state court, in admitting evidence, tucks
it into a pigeonhole which bears the label of a time-honored hearsay
exception cannot be entirely dispositive. Our habeas powers are not
so blunted that we pay obeisance to the symbols of justice at the
expense of substance. Thus, the state court record must show a
sufficient factual predicate rationally to support the affixation of the
label.
Puleio v. Vose, 830 F.2d 1197, 1207 (1st Cir. 1987). See also Martinez v.
McCaughtry, 951 F.2d 130, 134 (7th Cir. 1991) (to decide Confrontation Clause
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issue, “we go beyond the inference of reliability, looking to the record to see if it
supports admission under [the excited utterance] exception”); Crespin v. New
Mexico, 144 F.3d 641, 648 n.4 (10th Cir. 1998) (“We are charged with examining
the [hearsay] statement in its entirety in the context of the trial record and ‘in
light of all the surrounding circumstances,’ to determine whether the state court’s
application of the legal test . . . is constitutionally sound.”) (citation omitted),
cert. denied 119 S. Ct. 378 (1998).
In considering a Confrontation Clause claim on habeas, therefore, we
review a state court decision by assessing whether it is reasonably supported by
the record and whether its legal analysis is constitutionally sound. This approach
is congruent with the standards of review imposed by the AEDPA, under which
we may grant habeas relief only when a state court decision on the merits involves
an unreasonable application of clearly established federal law as determined by
the Supreme Court, or is based on an unreasonable determination of the facts in
light of the evidence presented in state court. See 28 U.S.C.
§ 2254(d).
Under Oklahoma law, hearsay is admissible as an excited utterance if the
statement relates to a startling event or condition and was made while the
declarant was under the stress of excitement caused by the event or condition.
See Okla. Stat. tit. 12, § 2803(2) (1991). This is the standard recognized as the
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firmly rooted hearsay exception. See Fed. R. Evid. 803(2); McCormick § 272,
supra. Thus, if the evidence before the state trial court supports the applicability
of this exception, Mr. Paxton’s constitutional confrontation rights were not
violated.
As Oklahoma law recognizes, “[t]he critical question under this exception
is whether the statements by the declarant were spoken under the extreme stress
of a startling event so that there was no time to fabricate.” Johnson v. State, 665
P.2d 815, 820 (Okla. Crim. App. 1982). The Supreme Court has elaborated as
follows:
[t]he basis for the “excited utterance” exception . . . is that such
statements are given under circumstances that eliminate the
possibility of fabrication, coaching, or confabulation, and that
therefore the circumstances surrounding the making of the statement
provide sufficient assurance that the statement is trustworthy and that
cross-examination would be superfluous. See, e.g., 6 Wigmore,
supra, §§ 1745-1764; 4 J. Weinstein & M. Berger, Weinstein’s
Evidence ¶ 803(2)[01] (1988); Advisory Committee’s Note on Fed.
Rule Evid. 803(2), 28 U.S.C. App., p. 778.
Idaho v. Wright, 497 U.S. 805, 820 (1990) (emphasis added). The question, then,
is whether the circumstances under which Pamela made the statement were such
that the court could be assured there was no possibility that this three year old
child either was coached or overheard others state or speculate that her father shot
her mother.
-22-
In ruling the hearsay admissible as an excited utterance, the state trial
court expressly relied on three Oklahoma cases, Moore v. State, 761 P.2d 866
(Okla. Crim. App. 1988), DeVooght v. State, 722 P.2d 705 (Okla. Crim. App.
1986), and Newbury v. State, 695 P.2d 531 (Okla. Crim. App. 1985) (holding
admissible as excited utterance statement made by four year old after sleeping all
night following the startling event). Of these cases, only Newbury
addressed the admissibility of hearsay under Oklahoma’s excited utterance
exception and that case had been previously overruled. 6 See McCalip v. State,
778 P.2d 488, 489-90 (Okla. Crim. App. 1989) (overruling Newbury; listing
articles describing Newbury as “highly questionable,” “difficult to defend,”
“stretch[ing] the excited utterance exception beyond its logical extreme,” and
“result-oriented”).
McCalip, 778 P.2d 488, addressed the admission of a hearsay statement as
an excited utterance that was made by a two year old child between ten and
twelve hours after the startling event. The court ruled the admission improper,
6
Moore, 761 P.2d 866, dealt with the admission of evidence under the state
of mind exception, id. at 870, the dying declaration exception, id. at 871-72, and
the exception for statements of medical history made for the purpose of medical
treatment, id. at 873. DeVooght, 722 P.2d 705, addressed the admission of the
hearsay statements of a four-year-old child under the residual exception to the
hearsay rule on the ground that the trustworthiness of the statements was borne
out by their consistency and by corroborating evidence. See id. at 712. Thus,
neither of these cases provides guidance on whether, given the facts presented,
Pamela’s statement falls within the recognized excited utterance exception.
-23-
pointing out the lack of evidence that the declarant was emotionally upset or
excited at the time of the statement, the length of time between the event and the
statement, the fact that during this time the declarant slept soundly, and, more
importantly, the lack of evidence that the statement was spontaneously
volunteered. See id. at 490. The court stated that “[t]he underlying justification
for the excited utterance exception ‘is that the spontaneity of the statement in
relation to the exciting event gives rise to trustworthiness,’” and held that the
statement at issue was not truly spontaneous because the child made it in response
to his mother asking him what was wrong several hours after the startling event.
Id. at 490 (citation omitted). The court overruled Newbury insofar as it was
inconsistent with its holding. See id.
In the present case, the Oklahoma Court of Criminal Appeals recognized
that Newbury had been overruled prior to trial but nonetheless was untroubled by
the trial court’s reliance on it because it had been overruled “on factual grounds
only.” Paxton, 867 P.2d at 1320. Whether a statement falls within the exception
for excited utterances is, however, clearly an intensely factual inquiry. Most
significantly, in affirming the trial court’s admission of Pamela’s statement as an
excited utterance despite that court’s reliance on Newbury, the state appellate
court clearly proceeded on an unreasonable determination of the facts in light of
the evidence presented at trial.
-24-
The appellate court stated that evidence introduced by the state showed
“then three (3) year old Pam Paxton followed [her father] as he took a shotgun
from the back seat of his car into the house, up the stairs and shot his wife as she
lay in bed.” Id. The record reflects instead that during in camera questioning,
Ms. Smith stated she could not remember whether Pamela said she had seen the
shooting or said someone had told her about it. See Trial Tr., Rec., vol. VI, at
1173. There is no other admissible evidence on this significant point. The
evidence to which the state court referred was apparently hearsay proffered
through a police officer who questioned Pamela two days after the shooting,
asking her a series of questions about the event, all of which she responded to by
nodding her head. See id. at 1182-83. The trial court ruled this testimony
inadmissible as hearsay. See id. at 1304.
The state appellate court further stated that Pamela stayed at Ms. Dunlap’s
home for a “short time,” and that she “may have been around adults who may or
may not have been talking about the shooting.” Paxton, 867 P.2d at 1320. The
trial record establishes to the contrary that Pamela was at Mrs. Dunlap’s home
with relatives of the shooting victim for a considerable period of time during
which Ms. Smith testified that they did indeed discuss the shooting. See Trial Tr.,
Rec., vol. VI, at 1251-52. Finally, the appellate court distinguished both Newbury
and McCalip on the ground that in those cases the declarant had slept between the
-25-
event and the time the statement was made. See Paxton, 867 P.2d at 1320. Ms.
Smith testified, however, that she did not remember seeing or talking to Pamela
while at Mrs. Dunlap’s house, see Trial Tr., Rec., vol. VI, at 1252, and the state
presented no evidence as to what Pamela was doing during the time the adults
were gathered there. The discrepancies between the record evidence and the state
appellate court’s recitation of the facts concern circumstances critical to the
admission of the statement as an excited utterance.
In light of the state appellate court’s factually incorrect description of the
evidence, we cannot conclude its determination that Pamela’s statement
constituted an excited utterance was supported by the record. While there is no
doubt that the shooting death of Pamela’s mother was a startling event, several
hours passed between that event and the making of the statement. The evidence
does not reveal anything about Pamela’s activities or state of mind during that
intervening period. We simply do not know whether she was present when the
shooting was discussed, what form that discussion took, what if anything she was
told about it, whether she was continuously upset, or whether she fell asleep. Any
number of intervening events could have occurred that would have influenced or
indeed brought about the statement at issue, such as speculation by the adults that
her dad had shot her mom. And while it is true that Pamela was crying when the
statement was made, there is no evidence that she had been crying or was upset
-26-
during the entire period up to that time or whether something she overheard
caused her to be upset. In addition, her statement was not spontaneously
volunteered, but rather was offered in response to questioning from Ms. Smith.
See Trial Tr., Rec., vol. VI, at 1173 (“I kept asking [Pamela] why she was
upset.”).
It is the state’s burden to establish that the statement was sufficiently
reliable to meet the constitutional standard. See Wright, 497 U.S. at 816. If the
hearsay statements do not fall within a firmly rooted hearsay exception, “they are
‘presumptively unreliable and inadmissible for Confrontation Clause purposes,’
and ‘must be excluded, at least absent a showing of particularized guarantees of
trustworthiness.’” Id. at 818 (citations omitted). Such guarantees of
trustworthiness must come from “the totality of circumstances that surround the
making of the statement and that render the declarant particularly worthy of
belief,” id. at 820, and “must be at least as reliable as evidence admitted under a
firmly rooted hearsay exception,” id. at 821 (citations omitted).
Thus, unless an affirmative reason, arising from the circumstances in
which the statement was made, provides a basis for rebutting the
presumption that a hearsay statement is not worthy of reliance at
trial, the Confrontation Clause requires exclusion of the out-of-court
statement.
Id. Under this standard, we hold that on the record before us the state has not met
its burden to rebut the presumption that Pamela’s statement was unreliable for
-27-
Confrontation Clause purposes. The admission of her statement therefore
violated Mr. Paxton’s right to confront the witness and to test her statement
through cross-examination.
B. Exclusion of Mitigating Evidence
We next consider Mr. Paxton’s argument that he was denied the right to
present mitigating evidence. This claim arises from the trial court’s refusal to
admit a court order stating that Mr. Paxton had been cleared in his wife’s death by
a polygraph examination. In ruling the polygraph results inadmissible, the state
courts relied on settled state law holding that the results of a polygraph test may
not be admitted for any purpose. See Paxton, 867 P.2d at 1323. The federal
district court concluded that in relying on this rule the state courts violated clearly
established federal law, which holds that state evidentiary rules may not be used
to deny a capital defendant’s rights under the Eighth and Fourteenth Amendments
to present mitigating evidence as a basis for a sentence less than death. On
appeal, the state argues that no constitutional violation resulted from the
exclusion of this evidence because the Supreme Court has recognized that
polygraph results are unreliable. In so doing, the state relies on a Supreme Court
-28-
case not relevant to a capital sentencing proceeding and disregards or attempts to
distinguish controlling cases. 7
During the sentencing proceeding, the bulk of the state’s evidence was
directed to the circumstances surrounding the death of Gloria Paxton. In addition
to presenting Lavern Smith’s testimony on Pamela’s hearsay statements, the state
presented testimony from Gloria’s son describing events on the day of the
shooting, testimony from the medical examiner who had examined Gloria’s body
and who described the shotgun wound, testimony from the police officer who had
gathered evidence at the scene and taken pictures of Gloria’s body, the pictures
themselves, testimony from a ballistics expert who examined the shotgun that
7
The state appellate court also concluded that the Supreme Court authority
relied on by Mr. Paxton and cited by the federal district court was distinguishable
because here “[t]he court’s ruling did not prevent [Mr. Paxton] from presenting
other evidence concerning the dismissal of the prior charge, such as the testimony
of the polygraph examiner or any of the attorneys involved in the dismissal.”
Paxton, 867 P.2d at 1324. We reject this contention out of hand as contrary to the
trial record. In refusing to admit the order dismissing the criminal proceedings
against Mr. Paxton, the trial court stated:
It is clear to this Court that the results of a polygraph test is [sic] not
admissible for any purpose. . . .[T]he credibility of the evidence in
this case must not be determined by the admissibility of the results of
the polygraph test . . . and the Court excludes and directs all the
witnesses and the attorneys and the parties to refrain from making
any statements or references in the presence of the jury that, quote,
defendant cleared by polygraph test, close quote.
Trial Tr., Rec., vol. VI, at 1356-57. This emphatic and unambiguous ruling did
not leave Mr. Paxton’s defense the option of introducing the test results through
the polygraph examiner, the attorneys involved, or indeed from any other source
whatsoever.
-29-
killed Gloria and stated his opinion that it would not have discharged
accidentally, 8 and testimony from a homicide detective who did the follow up
investigation of the shooting and who testified that after his reports were turned
over to the district attorney’s office, the case was dismissed.
In order to counter the possibility that the jury would conclude from this
evidence that Mr. Paxton had deliberately killed Gloria with a shotgun, defense
counsel sought to admit an order entered by a state court judge dismissing the
prosecution of Mr. Paxton for the shooting at the request of the then-district
attorney. The order itself recited that the district attorney moved the court to
dismiss the proceeding “for the following reasons, to wit: TO BEST MEET THE
ENDS OF JUSTICE. . . DEFENDANT CLEARED BY POLYGRAPH TEST.”
Def’s. Ex. 5 (admitted during in camera proceedings, see Trial Tr., Rec., vol. VI,
at 1357). The state objected to the language stating that Mr. Paxton had been
cleared by a polygraph test. The trial judge sustained the objection and directed
all parties to refrain from referring to the polygraph results. See supra note 7.
Thereafter the parties stipulated to the fact that after review of the investigation
into Gloria’s death, criminal proceedings against Mr. Paxton were dismissed at
the request of the district attorney.
8
On cross examination, the expert also testified that tests administered to
Mr. Paxton’s hands revealed no trace of gunshot residue.
-30-
In closing argument on behalf of the state, Mr. Macy made the following
remarks:
I’ll tell you what, ladies and gentlemen, he had the same opportunity
to put evidence on that witness stand about that killing that we did.
Everything – if he had any evidence – if the defense had any
evidence to show that that crime didn’t happen exactly the way that
our witnesses told you it did he could have put a witness on the
witness stand. You didn’t hear from anybody.
. . . And there could be a lot of reasons as to why it [was
dismissed] – one of them may have been the fact that Pam Paxton
wouldn’t talk about it and she was the only eyewitness that witnessed
it and who knows. We don’t know why it was dismissed.
Trial Tr., Rec., vol. VI, at 1392. In so doing, Mr. Macy clearly and deliberately
made two critical misrepresentations to the jury: he told the jury that Mr. Paxton
had been given the opportunity to present any evidence showing that he had not
killed his wife, and he told the jury that the reason for the dismissal was
unknown. In fact, as Mr. Macy well knew, his objections had prevented Mr.
Paxton from presenting evidence that he had passed a polygraph test in
connection with the shooting, and that those test results were the reason for the
dismissal. It is against this factual background that we assess whether Mr.
Paxton’s inability to present mitigating evidence rendered his sentencing
proceeding constitutionally invalid.
In Skipper v. South Carolina, 476 U.S. 1 (1986), the defendant was
prevented during the sentencing phase of his capital trial from presenting
disinterested witnesses who would have testified he had made a good adjustment
-31-
to jail during his pretrial incarceration. The state trial judge ruled that this
evidence was irrelevant under state law and therefore inadmissible. The
prosecutor in closing argument contended the defendant would be a discipline
problem in prison and would likely rape other prisoners. The defendant argued on
appeal that evidence of his good behavior in jail was both relevant and mitigating
and that its exclusion was constitutional error under Lockett v. Ohio, 438 U.S. 586
(1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982).
The Supreme Court agreed and reversed the death penalty, reiterating its
holding in Lockett and Eddings.
There is no disputing that this Court’s decision in Eddings
requires that in capital cases “‘the sentencer . . . not be precluded
from considering, as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than death.’”
Skipper, 476 U.S. at 4 (quoting Eddings, 455 U.S. at 110 (quoting Lockett, 438
U.S. at 604)) (emphasis in original). Accordingly, the Court held that the
defendant was deprived of his right to place relevant evidence in mitigation
before the jury. See id. at 8. The Court noted that the relevance of the evidence
was underscored in that case
by the prosecutor’s closing argument, which urged the jury to return
a sentence of death in part because petitioner could not be trusted to
behave if he were simply returned to prison. Where the prosecution
specifically relies on a prediction of future dangerousness in asking
for the death penalty, it is not only the rule of Lockett and Eddings
that requires that the defendant be afforded an opportunity to
-32-
introduce evidence on this point; it is also the elemental due process
requirement that a defendant not be sentenced to death “on the basis
of information which he had no opportunity to deny or explain.”
Id. at 5 n.1 (quoting Gardner v. Florida, 430 U.S. 349, 362 (1977)). The
concurrence in Skipper agreed with the result reached by the majority but would
have reversed on the ground that the defendant was not allowed to rebut evidence
and argument used against him, citing Gardner. See id. at 9 (Powell, J.
concurring). As did the majority, the concurrence pointed out that the
constitutional error was aggravated by the prosecutor’s closing argument, which
emphasized the very evidence the excluded testimony would have rebutted. See
id. at 11. Significant for our purposes here, the Court held that the prosecutor’s
argument both underscored the relevance of the evidence and aggravated the error
arising from its exclusion, and found reversible error notwithstanding the fact that
the excluded evidence was inadmissible under state law.
Also relevant to our inquiry is the Supreme Court’s treatment in Green v.
Georgia, 442 U.S. 95 (1979) (per curiam), of facts analogous to those before us.
There the trial court had denied the introduction of evidence that was
inadmissible hearsay under state law. Citing Lockett, the Court held the exclusion
constitutional error, stating that “[r]egardless of whether the proffered testimony
comes within Georgia’s hearsay rule, under the facts of this case its exclusion
constituted a violation of the Due Process Clause of the Fourteenth Amendment”
-33-
because it “was highly relevant to a critical issue in the punishment phase of the
trial.” Id. at 97. Moreover, in holding the evidence sufficiently reliable despite
its hearsay status, the Court pointed out that “the State considered the testimony
sufficiently reliable to use it against [a codefendant], and to base a sentence of
death upon it.” Id. Accordingly, the Court held that in such circumstances “‘the
hearsay rule may not be applied mechanistically to defeat the ends of justice.’”
Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). Here, as in
Green, the excluded evidence was highly relevant to punishment, and the state
had considered it sufficiently reliable to warrant the dismissal of the earlier
charges against Mr. Paxton.
Finally, in Rock v. Arkansas, 483 U.S. 44 (1987), the Supreme Court
addressed the applicability of state evidentiary rules when they interfere with a
defendant’s constitutional right to testify in his own defense. At issue there was a
per se rule excluding a witness’ hypnotically refreshed testimony. The Court held
that application of a state per se rule of inadmissibility designed to ensure reliable
testimony “does not extend to per se exclusions that may be reliable in an
individual case. Wholesale inadmissibility of a defendant’s testimony is an
arbitrary restriction on the right to testify in the absence of clear evidence by the
State repudiating the validity of all posthypnosis recollections.” Id. at 61. The
Court ruled the exclusion there infringed on the defendant’s right to testify,
-34-
pointing out that the challenged testimony was corroborated by other evidence.
See id. at 62. In the instant case, the reliability of the excluded polygraph test
was corroborated by the fact that the state relied upon it in dismissing the earlier
charges against Mr. Paxton.
This Supreme Court authority makes clear that a state court may not apply a
state rule of evidence in a per se or mechanistic manner so as to infringe upon a
defendant’s constitutional right to a fundamentally fair trial and to present
mitigating evidence in a capital proceeding. Indeed this court and others have
viewed the above cases as controlling on the issue in similar circumstances. In
Dutton v. Brown, 812 F.2d 593 (10th Cir. 1987), for example, after reviewing the
holdings in Lockett, Eddings, Green, and Skipper, we held that constitutional
error occurred when mitigating evidence was excluded in the sentencing phase of
a capital case on the basis of a state witness sequestration rule. We pointed out
that “[t]he Supreme Court has been exceedingly cautious to ensure that a person
found guilty of a capital offense is given every opportunity to present potentially
mitigating evidence that might form the basis for a sentence less than death.” Id.
at 602. See also Gonzales v. Lytle, 167 F.3d 1318 (10th Cir. 1999) (admission of
witness’ inculpatory statements and exclusion of exculpatory recantation rendered
trial fundamentally unfair and required grant of habeas relief).
-35-
The Ninth Circuit has also held under very similar circumstances that the
exclusion of polygraph evidence under state evidence rules violated a defendant’s
right to present relevant mitigating evidence in a capital case. See Rupe v. Wood,
93 F.3d 1434, 1439-41 (9th Cir. 1996). There the state courts, citing Lockett, had
recognized that “under controlling United States Supreme Court authority, relaxed
standards govern the admission of mitigating evidence during the penalty phase of
a death penalty trial.” Id. at 1439. Nonetheless the state court summarily
affirmed the exclusion of polygraph evidence as unreliable. The Ninth Circuit
affirmed the grant of habeas corpus relief, holding that the refusal to admit the
polygraph evidence at sentencing “violated the principle of Lockett and Eddings
by interfering with the jury’s ability to weigh the mitigating factors.” Id. at 1440.
In holding the polygraph results relevant, the court pointed out that the evidence
not only bore on the defendant’s role in the crimes, it was also relevant to the
state’s case because it would have refuted assertions made by the prosecutor in
closing argument. See id. at 1441.
Notwithstanding the compelling authority discussed above, the state argues
on appeal that no constitutional violation occurred here, relying heavily on United
States v. Scheffer, 523 U.S. 303 (1998). There the defendant in a court-martial
proceeding sought admission of polygraph results to support his testimony that he
had not knowingly used drugs. The military judge excluded the results in reliance
-36-
upon a military rule of evidence making polygraph evidence inadmissible. The
Supreme Court held that application of the rule did not abridge the defendant’s
right to present a defense. Scheffer is distinguishable in at least one dispositive
respect: it did not involve a capital defendant’s constitutional right to present
mitigating evidence. Indeed the Court there was careful to distinguish its facts
from those in which the exclusion of evidence “has infringed upon a weighty
interest of the accused,” id. at 308, or “implicate[s] a sufficiently weighty interest
of the defendant to raise a constitutional concern under our precedents,” id. at
309.
The Court pointed out that state evidentiary rules “do not abridge an
accused’s right to present a defense so long as they are not ‘arbitrary’ or
‘disproportionate to the purposes they are designed to serve.’” Id. at 308 (citing
Rock). Significantly, the Court specifically distinguished Rock, which involved a
state evidentiary rule that infringed on the right to testify on one’s own behalf;
Chambers, 410 U.S. 284, which involved state evidentiary rules that infringed on
the right to present witnesses in one’s own defense and to confront and cross-
examine the witnesses; and Washington v. Texas, 388 U.S. 14 (1967), which
involved a state evidentiary rule that denied the right to compulsory process for
obtaining favorable witnesses. See id. at 316. After pointing out that “[t]he
exclusions of evidence that we declared unconstitutional in those cases
-37-
significantly undermined fundamental elements of the defendant’s defense,” id.
at 315, the Court upheld the evidentiary rule barring the admission of polygraph
results because as applied in the case before it the rule “did not implicate any
significant interest of the accused,” id. at 316-17, or significantly impair the
defense, id. at 317. 9
Here, the mechanistic application of a per se evidentiary rule operated to
exclude evidence that proceedings against Mr. Paxton in the death of his wife
were dismissed because in the district attorney’s view he had been cleared by a
polygraph examination. Under our view of controlling Supreme Court authority,
this exclusion denied Mr. Paxton his right to present mitigating evidence as a
basis for a sentence less than death. Moreover, in view of the prosecutor’s
mendacious closing argument that Mr. Paxton had failed to refute the state’s
version of his wife’s death, that the reason for the dismissal of charges against
him was unknown, and implying that his daughter had not testified against him
9
The Court also pointed out that unlike the circumstances in Rock,
Washington, and Chambers, the evidentiary rule as applied in Scheffer did not
prevent the defendant from presenting the relevant details of the defense from the
defendant’s prospective. See Scheffer, 523 U.S. at 317. Here, to the contrary,
application of the per se rule barring polygraph results prevented Mr. Paxton from
telling the jury the reason why the prior criminal proceedings had been dismissed,
thus significantly impairing his ability to defend against the death penalty. As we
discuss infra in text, the effect on Mr. Paxton’s defense was exacerbated by Mr.
Macy’s closing argument misrepresenting the circumstances of the dismissal and
inviting the jury to speculate as to the reason.
-38-
out of fear, Mr. Paxton was denied his due process right to explain or deny the
evidence against him. Because Scheffer specifically limited its holding to cases in
which exclusion did not undermine the accused’s defense or implicate other
significant interests, it is inapposite here. We thus conclude that the state court
decision affirming Mr. Paxton’s death penalty despite the exclusion is contrary to
clearly established federal law as determined by the Supreme Court.
C. Prosecutorial Misconduct
Finally, we address directly Mr. Paxton’s claim that Mr. Macy’s closing
argument resulted in constitutional error requiring habeas relief. As we have
mentioned, the state presented copious evidence on the circumstances surrounding
the shooting of Gloria Paxton from which the jury would likely infer that Mr.
Paxton was responsible for her death. In addition, the state successfully
prevented Mr. Paxton from telling the jury that the former district attorney had
dismissed the case upon concluding that Mr. Paxton had been cleared by
polygraph results. In closing argument, Mr. Macy took advantage of Mr. Paxton’s
inability to present the reason for the dismissal, deceitfully telling the jury that
Mr. Paxton had failed to avail himself of the opportunity to counter the state’s
case and inviting the jury to draw an adverse inference from that failure.
I’ll tell you what, ladies and gentlemen, he had the same opportunity
to put evidence on that witness stand about that killing that we did. .
-39-
. . [I]f the defense had any evidence to show that that crime didn’t
happen exactly the way that our witnesses told you it did he could
have put a witness on the witness stand. You didn’t hear from
anybody.
Trial Tr., Rec., vol. VI, at 1392.
Mr. Macy then invited the jury to speculate on the reasons for the dismissal,
implying that it was somehow improper or that it was because Pamela was afraid
or reluctant to testify against her father:
Andy Coats [the former district attorney] didn’t dismiss that
case. The Assistant District Attorney did named Robert Mildfelt
dismissed it. We have no . . . way of knowing whether Mr. Coats
even knew about it or not. And there could be a lot of reasons as to
why it wasn’t – one of them may have been the fact that Pam Paxton
wouldn’t talk about it and she was the only eyewitness that witnessed
it and who knows. We don’t know why it was dismissed.
Id.
The state court held that the above comments did not deny Mr. Paxton his
constitutional right to a fair sentencing proceeding, without acknowledging the
fact that the comments contained material misrepresentations designed to mislead
the jury. Instead, the state appellate court held that the reference to Mr. Paxton’s
failure to present evidence rebutting the state’s version of events was “a
legitimate matter for comment during the State’s argument.” Paxton, 867 P.2d at
1330. The court likewise had no problem with Mr. Macy’s statement on the
reason for the dismissal, stating that “comments that ‘we don’t know why it (the
-40-
prior murder charge) was dismissed’ were properly based upon the record as no
evidence concerning the basis for the dismissal was introduced.” Id.
The federal district court considered Mr. Macy’s remarks in combination
with the erroneous exclusion of the evidence that the state had dismissed the
criminal proceedings on the basis of polygraph results and the erroneous
admission of Pamela’s hearsay statements. After holding that the exclusion of the
polygraph evidence was constitutional error, the district court stated that
the prosecution made the results to the polygraph test relevant by
stating [the state] did not know why the prior charge had been
dismissed and by speculating that the lack of witness testimony was
based upon the daughter’s fear. Although the jury was notified that
the prior charge was dismissed by the State, it was simultaneously
asked to be suspicious of the reason for the dismissal. This argument
by the prosecution misrepresented the facts and made rebuttal
necessary, but unavailable.
Rec., vol. I, doc. 29 at 36-37 (citations omitted). The district court determined
that Mr. Macy’s argument in this regard struck a foul blow and constituted
prosecutorial misconduct.
The district court then determined that the admission of Pamela’s hearsay
statement was improper and prejudicial because it “had a substantial and injurious
[e]ffect on the jury’s determination whether [Mr. Paxton] was a continuing threat
to society. More specifically, the prosecutor’s speculation during closing
argument that the charge was dismissed because Ms. Paxton was afraid to testify
-41-
against her father made the admission of her testimony highly prejudicial.” Id. at
41.
On appeal, the state contends that in characterizing Mr. Macy’s comments as
prosecutorial misconduct, the federal district court failed to give deference to the
state court’s determination that the challenged remarks were proper comments on
the evidence. The state also argues that the remarks were in fact not improper, and
that they did not deprive Mr. Paxton of a fundamentally fair sentencing hearing in
any event. These arguments misstate the inquiry and border on the specious.
We begin by rejecting summarily the state’s invitation to parse the
prosecutor’s argument word by word in a vacuum and justify it on the ground that
there was in fact no evidence in the record as to why the charge had been
dismissed. The argument was clearly meant to be understood as inviting the jury to
infer that Mr. Paxton had no evidence to rebut the state’s assertion that he killed
his wife and to speculate at Mr. Paxton’s expense on the reasons for dismissal.
While it may be true that Mr. Macy could not have commented on facts not in the
record, rather than saying nothing he chose to misrepresent the reason for the
absence of those facts.
We also disagree with the state’s contention that the appropriate inquiry is
whether the prosecutor’s argument denied Mr. Paxton his right to a fundamentally
fair sentencing proceeding under the analysis of prosecutorial misconduct set forth
-42-
in Darden v. Wainwright, 477 U.S. 168 (1986). “When specific guarantees of the
Bill of Rights are involved, [the Supreme Court] has taken special care to assure
that prosecutorial conduct in no way impermissibly infringes them.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). Accordingly, this court has drawn an
important distinction between an ordinary claim of prosecutorial misconduct, which
warrants habeas relief only when the entire proceeding is rendered fundamentally
unfair, and a claim that the misconduct effectively deprived the defendant of a
specific constitutional right, which may be the basis for habeas relief without proof
that the entire proceeding was unfair. See Mahorney v. Wallman, 917 F.2d 469,
472 (10th Cir. 1990); see also Brecheen v. Reynolds, 41 F.3d 1343, 1355 (10th Cir.
1994); Yarrington v. Davies, 992 F.2d 1077, 1079-80 (10th Cir. 1993).
We agree with the district court that the misconduct which undisputedly
occurred here was an integral part of the deprivation of Mr. Paxton’s constitutional
rights to present mitigating evidence, to rebut evidence and argument used against
him, and to confront and cross-examine the state’s witnesses. Because Mr. Macy’s
remarks infringed upon specific constitutional rights, Mr. Paxton may establish his
entitlement to habeas relief without showing that the comments rendered his
sentencing fundamentally unfair. 10
We also note the Court in Darden indicated that prosecutorial misconduct
10
may be grounds for habeas relief when it “manipulate[s] or misstate[s] the
(continued...)
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We further conclude that Mr. Macy’s comments had a substantial prejudicial
effect on those rights by implying to the jury that Mr. Paxton had no evidence in
mitigation, that the reason for the dismissal of the charges was suspect, and that his
daughter was afraid to testify against him. These remarks cannot be characterized
as an invited response, nor did the defense have any means for effectively rebutting
them. See Darden, 477 U.S. at 182. We thus have no doubt that Mr. Macy’s
conduct crossed the line between a hard blow and a foul one, consequently giving
rise to a valid constitutional claim.
We are mindful that we may not grant habeas relief on this claim unless the
state court’s ruling was contrary to or involved an unreasonable application of
clearly established Supreme Court authority, or was based on an unreasonable
determination of the facts in light of the evidence presented at trial. See 28 U.S.C.
§ 2254(d). In our view, both grounds of the AEDPA compel us to conclude that the
state court’s resolution of this claim is not entitled to deference. First, in
considering whether the closing argument denied Mr. Paxton fundamental fairness,
the state appellate court did not assess the remarks under the appropriate
constitutional standard; indeed, the state court simply did not refer to controlling
10
(...continued)
evidence,” as well as when it “implicate[s] other specific rights of the accused
such as the right to counsel or the right to remain silent.” 477 U.S. at 182. Fairly
read in context, Mr. Macy’s statements fall squarely within the category of
misstatement and manipulation condemned by the Court in Darden.
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Supreme Court authority for guidance either directly or indirectly. In our view that
authority compels the conclusion that the argument here prejudicially infringed on
Mr. Paxton’s constitutional rights. Second, in upholding the statements as properly
based on the record, the state court disregarded the fact that the statements
deliberately misrepresented the reason for the record’s condition. We thus
conclude that the state court ruling was both contrary to governing Supreme Court
authority and based on an unreasonable view of the state court proceedings.
In sum, we hold that Mr. Paxton was denied his right to confront the
witnesses against him, his right to present mitigating evidence in support of a
sentence less than death, and his due process rights to explain or deny the evidence
against him. We further hold that the prosecutorial misconduct at issue was an
integral and prejudicial part of that denial. We therefore turn to the propriety of
the remedy ordered by the district court.
VI. Habeas Remedy
The state sought the death penalty on the basis of three aggravating
circumstances, asserting Mr. Paxton had been convicted of a prior violent felony,
had knowingly created a great risk of death to more than one person, and would
constitute a continuing threat to society. As support for its claim that Mr. Paxton
would pose a continuing threat to society, the state introduced evidence concerning
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the shooting death of his wife that generated the constitutional errors described
above. The federal district court ruled that these errors had a substantial and
injurious effect on the jury’s determination that this aggravating factor supported
imposition of the death penalty and granted a conditional writ requiring the state to
hold a new sentencing hearing.
The state moved to alter or amend the judgment, contending the district court
erred in ordering a new sentencing proceeding rather than reweighing the remaining
aggravating and the mitigating evidence or allowing the state appellate court to do
so. The district court denied the motion, observing that it had not struck down the
aggravator itself as invalid but had only found constitutional error in the
presentation of evidence to support it. Accordingly, the court pointed out that its
ruling did not preclude the state from again relying on the continuing threat
aggravator at resentencing so long as it did so in a constitutional manner.
On appeal, the state has apparently decided to forego the opportunity
provided by the district court to pursue resentencing on the basis of all three
aggravating circumstances. Instead, the state argues that the district court erred in
failing to preface its grant of habeas relief with a harmless error analysis to
determine whether the errors with respect to the continuing threat aggravator had a
substantial and injurious effect not only on the jury’s consideration of that
aggravator, but on the outcome of the sentencing proceeding as a whole. The state
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also argues that the district court failed to follow state law, which provides that the
state appellate court may conduct a reweighing when an aggravating factor has
been struck down. See, e.g., Stouffer v. State, 742 P.2d 562 (Okla. Crim. App.
1987). Although these arguments are interrelated, they appear to make two
separate assertions: habeas relief is not warranted because any constitutional errors
were harmless; and if relief is warranted, the district court abused its discretion in
formulating that relief.
In arguing on appeal that the district court erred in awarding habeas relief
without first performing a harmless error analysis, the state does not address the
effect of the district court’s ruling that the prosecutorial misconduct here
prejudiced specific constitutional rights, or Mr. Paxton’s argument on appeal that
he therefore need not demonstrate the entire proceeding was rendered unfair to be
entitled to habeas relief. Assuming that habeas relief is nonetheless only
appropriate when grave doubt exists as to whether the errors had a substantial and
injurious effect on the sentencing proceeding as a whole, see O’Neal v. McAninch,
513 U.S. 432, 435-36 (1995), we harbor such a doubt.
The record reflects that the circumstances surrounding the shooting of Mrs.
Paxton were the primary focus of the state’s argument and evidence at sentencing.
Indeed the proceedings can fairly be characterized as effectively putting Mr. Paxton
on trial in that death. The prejudicial nature of the improperly admitted hearsay of
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Mr. Paxton’s daughter, the significance of the improperly excluded state court
order dismissing the case against Mr. Paxton, and the aggravating role played by
the prosecutorial misconduct together so permeated the proceedings that we cannot
separate the effect they had on the jury’s finding of the continuing threat
aggravator from its decision to impose the death penalty. Because we have grave
doubt as to whether the constitutional errors had a substantial and injurious effect
on the sentencing jury, habeas relief is appropriate.
We next turn to the state’s argument that in formulating habeas relief, the
district court abused its discretion by requiring a new sentencing proceeding rather
than reweighing evidence or allowing the state appellate court to do so. “In issuing
a writ of habeas corpus, a federal court has the power and authority to dispose of
habeas corpus matters ‘as law and justice require.’” Burton v. Johnson, 975 F.2d
690, 693 (10th Cir. 1992) (quoting 28 U.S.C. § 2243). “The statute vests the
federal courts with ‘the largest power to control and direct the form of judgment to
be entered in cases brought . . . on habeas corpus.’” Capps v. Sullivan, 13 F.3d
350, 352 (10th Cir. 1993) (quoting Hilton v. Braunskill, 481 U.S. 770, 775 (1987)).
See also Carafas v. LaVallee, 391 U.S. 234, 239 (1968) (habeas statute’s mandate
is broad with respect to relief that may be granted); Osborn v. Shillinger, 861 F.2d
612, 630 (10th Cir. 1988).
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The district court did not rule that the continuing threat aggravator was itself
invalid, but rather determined that the state had not presented it to the jury in a
constitutional manner. The state indicates that it does not wish to pursue that
aggravator, and instead argues that either this court or the district court should
reweigh the remaining aggravating circumstances against the mitigating evidence,
or allow the state court to do so. This argument misperceives the nature of the
constitutional errors requiring redress.
The continuing threat aggravator was featured prominently in the state’s case
at sentencing. Given the magnitude of the constitutional errors arising from the
presentation of that aggravator, the prejudicial nature of the evidence improperly
excluded and admitted, and the nature of the prosecutorial misconduct that
occurred, we are not confident that the resulting prejudice can be neatly excised
from the sentencing process. See, e.g., Stout v. State, 817 P.2d 737, 739 (Okla.
Crim. App. 1991) (remanding for new sentencing hearing in capital case).
Moreover, unlike the reweighing cases cited by the state, the sentencing
process here was rendered unreliable not because the jury weighed an invalid or
unsupported aggravating circumstance, but because in reaching its result the jury
was denied consideration of relevant mitigating evidence, see Skipper, 476 U.S. at
8 (remanding for new sentencing proceeding at which petitioner could present
previously excluded mitigating evidence), and was exposed to prejudicial evidence
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and argument, see Gardner, 430 U.S. at 362 (remanding for new sentencing hearing
when appellate review “could not fully correct” error in denying petitioner
opportunity to rebut evidence and argument used against him). 11 Under these
circumstances, reweighing does not address the nature of the constitutional
violations or fully correct the errors. See id. Accordingly, we affirm the district
court’s ruling that Mr. Paxton be given a new sentencing proceeding.
AFFIRMED.
11
Indeed, in holding that reweighing was appropriate after invalidating an
aggravating circumstance, the court in Stouffer v. State, 742 P.2d 562 (Okla.
Crim. App. 1987), “note[d] specially that the jury, in evaluating the existence of
[the invalid] aggravating circumstance, was not presented with any
constitutionally infirm or otherwise improper evidence,” id. at 564 (citing Zant v.
Stephens, 462 U.S. 862 (1983), and Barclay v. Florida, 463 U.S. 939 (1983)).
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