Oklahoma death row inmate granted habeas relief on claim of unconstitutional “victim impact” testimony
Posted on: 9/26/2013 03:17:46 PM by Peoples

On September 16, 2013, the Tenth Circuit (Hartz, with Briscoe and Kelly) reversed the denial of sentencing relief to Rocky Eugene Dodd, ruling that testimony by six or seven relatives of the two victims recommending the death penalty violated the Eighth Amendment and was not harmless. Dodd v. Trammell, ___ F.3d ___, 2013 WL 5124331 (10th Cir. Sept. 16, 2013).

The panel first found that the state court’s determination that no error occurred was contrary to Supreme Court precedent. It next disagreed with the alternative finding by the state court, and the conclusion of the district court, that the error was harmless. Applying Brecht, the panel stated: "[The] presentation of victim requests for the death penalty was not a one-off or a mere aside. It was a drumbeat. For this court to decide that such testimony did not have a substantial effect on the jury would be to impugn the expertise of a very experienced and highly successful prosecutor, whose firsthand knowledge of Oklahoma capital juries far exceeded what we could possibly acquire." The panel acknowledged ten decisions where the Tenth Circuit had found victim sentencing recommendations to be harmless but ruled that "[t]his case is different." It noted that in seven of those ten cases, unlike the case at hand, the jury had found the aggravating circumstance that the murder was "especially heinous, atrocious, or cruel." In two of the three remaining cases, the jury had found that the defendant was a continuing threat to society. This aggravating factor was rejected by Dodd’s jury. In the last case, the two victim statements only said, without embellishment, that they agreed with the prosecutor’s recommended sentence. The panel also observed that in Dodd’s case, the two aggravating circumstances found by the jury added little more beyond the findings of guilt. The prior felony aggravator was based on a felony committed 11 years before the capital offense. The second aggravator – the knowing creation of a great risk of death to more than one person - was because the jury had found that Dodd had murdered the two victims. The panel further pointed out that the guilt of Dodd was not as clear cut as in the cases where the same type of error was found to be harmless. As for the State’s suggestion that the sentencing determination was easy given that the jury deliberated less than four hours, the panel responded by stating that the State failed to "explain why we should consider this time span to be short" and the State also did not explain "why the deliberations could not have been speeded up by the family members’ sentence recommendations."

The panel affirmed the denial of relief on the following claims: (1) insufficient evidence to support convictions; (2) exclusion of evidence of a third-party culprit; and (3) prosecutorial misconduct. In ruling on the exclusion of evidence claim, the panel found that Dodd could not rely on Holmes v. South Carolina, 547 U.S. 319 (2006) because it postdated the state court decision rejecting the claim. The panel observed, however, that the decision actually weakened Dodd’s argument in that even in Holmes the Supreme Court did not rule that third party culpability evidence must be admitted where, as here, the evidence was ambiguous and entirely speculative as to a potential alternative suspect. The panel also rejected a subsidiary claim that Dodd’s right to confront the evidence against him was denied when he was precluded from cross-examining the mother of one of the two victims about her prior statement that her son had been scared to death after someone forced him to sign over his car to repay a debt. The panel ruled that the subclaim had not been presented either to the state court or the district court and it could not be considered for the first time on appeal.   

The panel denied a COA on the following claims: (1) admission of improper hearsay and bad-acts evidence; (2) IAC; and (3) cumulative error.