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Robison v. Ward, 10th Cir. (2007)
Robison v. Ward, 10th Cir. (2007)
May 3, 2007
Elisabeth A. Shumaker
Clerk of Court
D A V ID E. R OB ISO N ,
Petitioner-A ppellant,
No. 06-7121
v.
R ON W A R D ,
Respondent-Appellee.
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
Go shopping activities. In addition to the testimony of Ryals and Randol, codefendants M cClaskey and W agner testified that M r. Robison often obtained the
precursor chemicals for methamphetamine production on their behalf. In return
for his services, M r. Robison received some of the product, which he used or
distributed. As a defense, M r. Robison claimed that Officer Randol either was
mistaken or lied about identifying M r. Robison as the W al-M art shopper. He also
claimed that while he sometimes purchased food items for M r. M cClaskey at W alM art, he had never purchased anything used to manufacture methamphetamine.
A jury convicted M r. Robison of endeavoring to manufacture methamphetamine
in violation of O kla. Stat. tit. 63, 2-408 (1971).
M r. Robison sets forth the following grounds for relief:
1.
2.
The trial court committed plain and highly prejudicial error in failing
sua sponte to instruct the jury on the extremely careful scrutiny
required in considering the issue of eyewitness identifaction [sic]
where misidentification was an essential part of M r. Robinsons [sic]
defense. . . .
3.
4.
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5.
The jury should have been instructed that seven years imprisionment
[sic], rather than twenty years imprisonment, was the minimum for
the crime. . . .
6.
7.
8.
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A.
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between the crime and the confrontation. Id. (quoting Neil v. Biggers, 409 U.S.
188, 199-200 (1972)).
In this case, M r. Ryals realized that M r. Robison was the W al-M art shopper
after he saw M r. Robisons name on a subpoena that neither contained Robisons
picture nor identified him as the W al-M art shopper. This procedure was not
unnecessarily suggestive indeed, it was not suggestive at all within the meaning
of our case law. Consequently, it did not violate M r. Robisons constitutional
right to due process. Even if it were suggestive, M r. Ryalss testimony was
reliable given the totality of the circumstances. Ryals observed M r. Robison
shopping for at least several minutes, during which time he closely followed M r.
Robisons actions. Though Ryals did not identify M r. Robison until more than a
year after his observations, he expressed absolute certainty that M r. Robison was
the man he observed in W al-M art. Because the identification procedure was not
suggestive and M r. Ryalss eyew itness testimony was reliable, the district court
did not err in admitting the testimony.
B.
M r. Robison contends that the court should have issued sua sponte a
cautionary jury instruction regarding eyewitness testimony. He also claims that
the court should have instructed the jury that, in order to convict, it must find
both a specific intent to manufacture methamphetamine and an overt act in
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furtherance of that crime. Finally, he argues that the jury should have been
instructed that the minimum sentence for his offense was seven rather than twenty
years because the legislature changed the minimum sentence prior to his trial.
M r. Robison did not object to any of these instructions at trial. The Oklahoma
Court of Criminal Appeals (OCCA) upheld the instructions under plain error
review.
A state courts interpretation of a state statute is a matter of state law
binding on this court. Parker v. Scott, 394 F.3d 1302, 1319 (10th Cir. 2005)
(internal quotations omitted). W e will not employ the writ of habeas corpus to set
aside a state conviction on the basis of erroneous jury instructions unless the
errors had the effect of rendering the trial so fundamentally unfair as to cause a
denial of a fair trial in the constitutional sense. Shaffer v. Stratton, 906 F.2d
506, 508 (10th Cir. 1990) (internal quotations omitted). W hen determining
whether a jury instruction has rendered a trial fundamentally unfair, the question
is not whether the [challenged] instruction is undesirable, erroneous, or even
universally condemned, but whether the instruction so infected the trial that the
resulting conviction violates due process. Nguyen v. Reynolds, 131 F.3d 1340,
1357 (10th Cir. 1997) (internal quotations omitted). H ere, Nguyens already high
bar is even higher, because the defendant failed to object to the instructions at
trial.
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The OCCA determined that the jury instructions outlining the elements of
the offense and the sentencing requirements complied with state law . W e are
bound by the OCCAs interpretation of the Oklahoma statute. Parker, 394 F.3d at
1319. M r. Robison has not met his burden to show that these instructions
rendered his trial constitutionally unfair.
C.
M r. Robison claims that his trial was unfair because the prosecutor
presented improper rebuttal testimony and argued facts not in evidence. He does
not, however, point to any specific instances of such conduct.
He also claims
that the prosecutor made unfairly prejudicial remarks to jurors when he told them
that by asserting his right to a jury trial, M r. Robison was thumbing his nose at
them. R. vol. 2, Trial Tr. at 315. This behavior does not rise to the level of
prosecutorial misconduct. [P]rosecutorial misconduct in a state court violates a
defendants right to a fair trial only if the prosecutors actions so infected the
trial with unfairness as to make the resulting conviction a denial of due process.
Nguyen, 131 F.3d at 1358 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). W e will consider the strength of the evidence against the defendant and
decide whether the prosecutors statements plausibly could have tipped the scales
in favor of the prosecution. Cummings v. Evans, 161 F.3d 610, 618 (10th Cir.
1998). W e review the OCCAs denial of this claim only for unreasonable
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application of the standard. Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir.
2006). In light of the powerful evidence against M r. Robison, it was reasonable
for the O CCA to rule that the prosecutors remarks did not render his trial unfair.
D.
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not object to the jury instruction that explained the elements necessary for
conviction. An ineffective assistance of counsel claim requires M r. Robison to
show that counsels performance was deficient and that the deficient
performance prejudiced [his] defense. Strickland v. Washington, 466 U.S. 668,
687 (1984).
M r. Robison first contends that his counsel should have objected to the
admission of M r. Ryalss eyewitness testimony. To prevail, he must show both
that trial counsel was deficient in failing to object to the eyewitness identification
and that but for counsels failure, the result at trial would have been different.
Snow v. Sirmons, 474 F.3d 693, 720-21 (10th Cir. 2007) (citing Strickland v.
Washington, 466 U.S. 668, 694 (1984)). In Snow, trial counsel did not object to
eyewitness testimony from two witnesses who had both previously failed to pick
the defendant out of a lineup. Id. at 721. Both the OCCA and the federal habeas
court determined that the failure to object to the admission of the testimony
constituted a trial strategy since counsel attempted to discredit the witnesses
through extensive cross-examination. In addition, the court in Snow expressed
doubt as to whether an objection to the testimony would have been successful. Id.
Counsels failure in this case to object to the admission of M r. Ryalss
testimony can be similarly interpreted as a trial strategy. M r. Robisons counsel
cross-examined M r. Ryals regarding how he knew M r. Robison and how he came
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to identify him as the W al-M art shopper. And while the court in Snow expressed
uncertainty regarding whether the eyewitness testimony at issue there would have
been admitted over counsels objection, the record in this case makes clear that
M r. Robisons chances of excluding Ryalss testimony were slender. M r. Ryals
recognized M r. Robison without any suggestion from law enforcement and under
the totality of the circumstances test, his eyewitness identification was reliable.
Trial counsel was not deficient in failing to object to the admission of the
eyewitness testimony: that failure was a deliberate trial strategy and in any
event, the testimony was properly admitted.
M r. Robison also claims ineffective assistance of counsel because his
attorney failed to request a cautionary jury instruction regarding eyewitness
testimony. M r. Robison cannot claim ineffective assistance on this ground
unless the failure to request such an instruction represent[s] a substantial
violation of [his] rights. Snow, 474 F.3d at 721 (quoting Snow v. State, 876
P.2d 291, 295 (Okla. Crim. App. 1994)). Such a violation occurs only when there
is a very substantial likelihood of misidentification. Id. (internal quotations
omitted). Though the court did not issue an instruction on eyewitness testimony
in particular, it did instruct the jury that to determine the credibility of w itness
testimony it may consider the ability of the witness to remember and relate past
occurrences, the means of observation, and the opportunity of knowing the
matters about which the witness has testified. R. vol. 2, doc. 13 at 66.
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properly outlined the elements of the crime, counsel was not deficient in failing to
object to the instruction.
F.
Cumulative error analysis does not apply to the cumulative effect of nonerrors. M oore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998). Because the
trial court committed no errors, there can be no cumulative error.
III. Conclusion
Accordingly, we D EN Y M r. Robisons request for a COA and DISM ISS
this appeal.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge