By Andrea Ahn
In Wackerly v. Workman, the Tenth Circuit upheld a death penalty sentencing finding that Mr. Wackerly had failed to demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Nos. 07-7034 & 07-7056 (10th Cir. Sept. 15, 2009).
The petitioner, Donald Ray Wackerly, was convicted of first-degree murder and robbery of Pan Sayakhoummane near a fishing dam. At trial, the State argued that Mr. Wackerly was eligible for the death penalty due to two aggravating circumstances: (1) that the murder was committed in a manner aimed to avoid or prevent a lawful arrest or protection; and, (2) that there was a probability that Mr. Wackerly would commit future criminal acts of violence that would constitute a continuing threat to society. Okla. Stat. tit. 21 § 701.12.
The State presented testimony from both Mr. Wackerly’s estranged wife and her brother, Curtis Jones. Mrs. Wackerly accounted the details of what had happened including how Mr. Wackerly went to a remote location to select his victim and instructed her to make sure no one else was around. She further stated that Mr. Wackerly casually proceeded to a Sonic Drive-In for dinner, without any remorse, after murdering and disposing of Mr. Sayakhoummane’s body. Mr. Jones further testified that Mr. Wackerly had confessed to him that he had “killed a man at the dam.” As additional support for the second argument, the State presented evidence that Mr. Wackerly committed armed robbery of a convenience store only nine days after Mr. Sayakhoummane’s murder. For its part, the defense presented three witnesses who testified that Mr. Wackerly had been a reliable employee, had been unprepared for life by his parents, and had a great relationship with his step-sister’s son.
At the end of the trial, the jury sentenced Mr. Wackerly to death for murder and life imprisonment for robbery. The judgment was affirmed on direct appeal by the Oklahoma Court of Criminal Appeals, and Mr. Wackerly’s motion for post-conviction relief was denied. Mr. Wackerly then filed a 28 U.S.C. § 2254 habeas petition attesting his conviction in federal district court. The district court denied relief and also denied a certificate of appealability (COA). The Tenth Circuit granted Mr. Wackerly a COA to decide whether the “trial counsel was ineffective for failing to investigate and present mitigating evidence at the penalty phase of his trial.”
In the Tenth Circuit’s de novo review, the Court followed Strickland analysis of evaluating whether trial counsel “committed serious errors in light of ‘prevailing professional norms’ such that his legal representation fell below an objective standard of reasonableness” and whether the deficient performance mattered in the sentencing. Strickland v. Washington, 466 U.S. 668, 694, 688 (1984). Addressing the second prong, the Court concluded that the State’s case and aggravating factors were strong enough to overcome the totality of the mitigating factors that counsel failed to develop or present. Finding no serious question of Mr. Wackerly’s “moral culpability and awareness of his actions,” the Court of Appeals pointed at evidence supporting the two statutory aggravating factors to reason that “this case [was] in no way analogous to those in which [the court has] found the State’s evidence on guilt and the aggravating circumstances comparatively weak.” See, e.g., Mayes v. Gibson, 210 F.3d 1284, 1291 (10th Cir. 2000).
Next, the Tenth Circuit focused on the double-edged nature of the mitigating evidence proffered by Mr. Wackerly, concluding that “whatever mitigating effect such evidence might have had if presented, ‘it is just as likely the jury would react negatively’ to it.” Mr. Wackerly blamed his counsel for failing to represent, among other things, evidence of his substance abuse, evidence that he suffered from certain psychological maladies, and evidence of his difficult childhood. Although Mr. Wackerly believed there was some mitigating value in his suggested evidence, the Court of Appeals emphasized that the evidence would have also acted to strengthen the State’s case of guilt by providing further proof of criminal motivation, threat, and behavior. In affirming the district court’s decision, the Tenth Circuit found that this “simply [was] not a case where unproduced mitigation evidence is of such a kind and quality as to call into question the outcome of Mr. Wackerly’s penalty phase proceedings.”