                                                                              FILED
                                                                  United States Court of Appeals
                                       PUBLISH                            Tenth Circuit

                       UNITED STATES COURT OF APPEALS                      May 12, 2020

                                                                     Christopher M. Wolpert
                                 FOR THE TENTH CIRCUIT                   Clerk of Court


    JAMES CODDINGTON,

         Petitioner-Appellant,

    v.                                                       No. 16-6295

    TOMMY SHARP, Warden, Oklahoma
    State Penitentiary,*

         Respondent-Appellee.



             APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE WESTERN DISTRICT OF OKLAHOMA
                        (D.C. No. 5:11-CV-01457-HE)


John T. Carlson, Ridley, McGreevy & Winocur P.C., Denver, Colorado (Seth A. Day, Hall
Estill P.C., Oklahoma City, Oklahoma, with him on the briefs), for Petitioner-Appellant.

Caroline E.J. Hunt, Assistant Attorney General (Mike Hunter, Attorney General of
Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.


Before LUCERO, MORITZ, and EID, Circuit Judges.


EID, Circuit Judge.




*
  Pursuant to Fed. R. App. P. 43(c)(2), Mike Carpenter is replaced by Tommy Sharp as
the Warden of the Oklahoma Department of Corrections.
       Petitioner James Coddington seeks collateral review of the Oklahoma Court of

Criminal Appeals’ (OCCA) resolution of his constitutional challenges to his conviction

and sentence. Coddington argues that the trial court deprived him of his constitutional

right to present a defense when it refused to allow his expert to testify that he was unable

to form the requisite intent for malice murder. He also argues that his confession to the

murder should have been suppressed because he did not knowingly and voluntarily waive

his Miranda rights. The OCCA denied relief, and, applying AEDPA deference, the

district court below did the same. For the reasons set forth below, we affirm the district

court’s denial of Coddington’s petition because Coddington has failed to show that the

OCCA’s rejection of his challenges involved an unreasonable application of federal law.

                                          I.

       In March of 1997, Coddington, who had a history of cocaine use, relapsed and

began using cocaine again. Coddington v. State, 142 P.3d 437, 442 (Okla. Crim. App.

2006). He spent approximately $1,000 per day to support his habit. See id. Eventually,

he ran out of money. See id. On March 5, following a three or four-day cocaine binge,

he was desperate for cocaine and robbed a convenience store. See id. But the money he

took from the store was insufficient, so later that day he went over to Al Hale’s house.

See id. Hale and Coddington were friends, and Coddington knew that Hale usually kept

large sums of cash (on March 5, Hale had over $24,000 in cash in his home). See id.

       Coddington did not immediately ask Hale for money—he watched TV with him

for a couple hours. See id. At some point though, Coddington asked Hale if he could

borrow some money. See id. According to Coddington, Hale could tell that Coddington

                                               2
had “relapsed on drugs.” 2003 Tr. VI at 47. He refused Coddington’s request, told him

to go back to treatment, and then asked him to leave. Id. at 48. Coddington began to

leave. Id. But after noticing a hammer on the counter when he walked through the

kitchen toward the door, Coddington stopped. State Ex. 89 at 14. Hale then went into

the kitchen and “pushed* [Coddington] and told [him] to get out.” 2003 Tr. VI at 76.

Coddington then grabbed the hammer and hit Hale in the head, causing him to fall. Id. at

69. When Hale was lying face-down on the ground, Coddington hit him several more

times in the back of the head. Id. at 69–70. He then took the money that Hale had on his

person ($525) and, believing Hale was dead, left the house. State Ex. 89 at 15.

      Coddington was mistaken; Hale was not dead. See id. at 443. Hale’s son, Ron,

discovered his father later that day. See id. There was “blood and blood spatter

everywhere.” Id. “Hale was lying in his bed, soaked in blood, still breathing but unable

to speak.” Id. Hale had moved from the kitchen to his bedroom. See id. Hale was

rushed to a hospital, where he died 24 hours later. See id. The autopsy showed he died

from blunt-force trauma to the head. See id.

      After Coddington left Hale’s house, Coddington immediately bought more cocaine

and continued committing crimes to finance his purchases. He robbed five more

convenience stores. See id. at 442. When he eventually got back home, he threw the

hammer in a creek behind his apartment. See id. at 455.




      *
       Coddington told the police that Hale pushed him, but he did not volunteer this
information in his trial testimony. State Ex. 89 at 15; 2003 Tr. VI at 49.
                                               3
       Two days later, the police arrested Coddington at his apartment. See id. at 443.

When the police arrived, Coddington began voluntarily making statements. See id. at

447. Realizing that Coddington may have been starting to confess, the police officers

read him his Miranda rights. See id. Coddington waived his Miranda rights and

continued making statements to officers. See id. About two to three hours after he

initially waived his rights outside of his apartment, the police officers interrogated him at

the station. See id. At the station, the officers reminded Coddington of his waiver from a

few hours earlier, and Coddington stated he remembered waiving his rights. See id.

Coddington then confessed to the convenience store robberies and to murdering Hale.

See id. at 443.

       At the station, Coddington was able to recall the murder in detail. See State Ex. 89

at 13–21 (Transcript of Police Station Interview); see also 2003 Tr. VI 47–48, 62–63. He

recalled the clothes he wore, that he and Hale conversed for a couple hours, that they

watched TV, that he had gone to Hale’s home to ask for money, that Hale refused his

request for money, that Hale then asked him to leave, and that he struck Hale with a claw

hammer as Hale was showing him out. See State Ex. 89 at 14–15. He also remembered

specific details about the hammer—that it had a chrome handle with a rubber grip. See

id. at 20. He remembered how many times he struck Hale. See id. at 15. He

remembered how much money he took from Hale’s person and the denominations of the

bills. See id. at 18. Finally, he stated that he did not call the police when he left Hale’s

home because he did not want to get caught. See Coddington, 142 P.3d at 443.



                                              4
       The state charged Coddington with multiple armed robberies, murder, and robbery

with a dangerous weapon. Coddington pleaded guilty to six armed robberies and

proceeded to trial on the murder and robbery with a dangerous weapon charges. Prior to

trial, the court resolved two motions in limine relevant to this petition. First, the court

considered the state’s motion to exclude Coddington’s expert’s testimony on whether

Coddington was able to form intent. See id. at 448–51. Coddington proffered that his

expert—Dr. Smith—would have testified that his cocaine use leading up to and during

the murder rendered him unable to form malice aforethought. See id. at 448–51. The

state moved to have this portion of Dr. Smith’s testimony excluded, and the trial judge

granted the motion. See id.

       Second, the court considered Coddington’s motion to suppress his confession. See

id. at 446–48. Coddington believed that he did not knowingly or voluntarily waive his

Miranda rights. See id. The court did not agree and denied the motion. See id.

       The case proceeded to trial. At the guilt phase of trial, the jury convicted

Coddington of first-degree murder and robbery with a dangerous weapon. See id. at 442.

At the sentencing phase, the jury found the existence of two aggravating circumstances

and sentenced Coddington to death. See id. Coddington appealed his conviction and

sentence to the OCCA. See id. Among other things, he challenged the pretrial rulings (1)

denying his motion to suppress his confession and (2) excluding a portion of Dr. Smith’s

testimony. See id. at 446–51. The OCCA first concluded that Coddington’s confession

was sufficiently knowing and voluntary, but it agreed with Coddington that the trial court

erred by restricting Dr. Smith’s testimony. See id. The OCCA summarily determined

                                              5
that this amounted to a constitutional error and applied Chapman v. California, 386 U.S.

18 (1967), to determine whether the error was harmless beyond a reasonable doubt. See

id. at 448–51. The OCCA determined that the evidence that Coddington acted with

malice aforethought was overwhelming. See id. at 451. Accordingly, it held that “Dr.

Smith’s expert opinion on the ultimate issue of whether Coddington could form the

requisite malice would not have made a difference in the jury’s determination of guilt.”

Id.

       The OCCA similarly rejected Coddington’s other guilt-phase arguments and

affirmed his conviction. It did, however, find that reversible error occurred at the

sentencing phase. See id. at 461.† It therefore vacated Coddington’s death sentence and

remanded for resentencing. See id. At resentencing, the jury found the existence of

aggravating circumstances and again sentenced Coddington to death. Coddington v.

State, 254 P.3d 684, 693 (Okla. Crim. App. 2011). The OCCA affirmed, see id. at 718,

and the United States Supreme Court denied certiorari, see Coddington v. Oklahoma, 565

U.S. 1040 (2011). Coddington then filed a petition for post-conviction relief with the

OCCA. Coddington v. State, 259 P.3d 833 (Okla. Crim. App. 2011). The OCCA denied

the petition. See id. at 840. Subsequently, Coddington filed a 28 U.S.C. § 2254 petition.




       †
        The OCCA found that the trial court made two reversible errors during the
sentencing phase. The first was that the court did not allow Coddington to play a video
tape of his mother’s testimony, but instead only allowed Coddington to show the jury a
written transcript of it. The trial court’s second error was its allowance of a confusingly-
worded jury instruction that potentially misled the jury about the significance of various
testimony from Coddington’s family members. Coddington, 142 P.3d at 460–61.
                                             6
Coddington v. Royal, No. CIV-11-1457-HE, 2016 WL 4991685 (W.D. Okla. Sept. 15,

2016).

         In his § 2254 petition, Coddington raised nine grounds for relief. See id. at *1.

The district court denied relief on all of them. See id. We granted a Certificate of

Appealability (COA) as to the first and second grounds: (1) whether the OCCA

unreasonably applied federal law when it held that the exclusion of Dr. Smith’s testimony

was harmless, and (2) whether the OCCA unreasonably applied federal law when it

affirmed the lower court’s decision that Coddington’s waiver of his Miranda rights was

knowing and voluntary.

                                              II.

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the

standard under which we review the district court’s disposition of a state petitioner’s

habeas petition depends on how the claim at issue was resolved in the state court. Byrd v.

Workman, 645 F.3d 1159, 1165 (10th Cir. 2011). Here, because the issues in

Coddington’s habeas petition were already adjudicated on the merits by the OCCA, “we

review the district court’s legal analysis of the state court decision de novo.” Littlejohn v.

Trammell, 704 F.3d 817, 825 (10th Cir. 2013). We therefore—like the district court

before us—review the OCCA decision under the AEDPA deference standards.

         The AEDPA, 28 U.S.C. § 2254(d), provides that:

         An application for a writ of habeas corpus on behalf of a person in custody
         pursuant to the judgment of a State court shall not be granted with respect to
         any claim that was adjudicated on the merits in State court proceedings
         unless the adjudication of the claim--


                                               7
              (1) resulted in a decision that was contrary to, or involved an
              unreasonable application of, clearly established Federal law, as
              determined by the Supreme Court of the United States; or

              (2) resulted in a decision that was based on an unreasonable
              determination of the facts in light of the evidence presented in the
              State court proceeding.

       A decision is contrary to federal law “if the state court arrives at a conclusion

opposite to that reached by [the Supreme Court] on a question of law or if the state court

decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Valdez v. Bravo, 373 F.3d 1093, 1096 (10th Cir. 2004)

(quotations omitted) (alterations in original). Relatedly, a decision is an unreasonable

application of federal law “if the state court identifies the correct governing legal

principle from [the Supreme Court’s] decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Id. (same). Finally, a federal court may only grant

habeas relief if “there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with the Supreme Court’s precedents.” Frost v. Pryor, 749

F.3d 1212, 1223 (10th Cir. 2014) (quotations omitted).

                                              III.

       In his first claim for relief, Coddington argues that the trial court deprived him of

his constitutional right to present a defense when it refused to allow his expert to testify

that he was unable to form the requisite intent for malice murder, and that the OCCA

wrongfully concluded that the trial court’s error was harmless. We affirm the district

court’s denial of this claim, concluding that the OCCA did not unreasonably apply



                                               8
Chapman in holding that the exclusion of a portion of Dr. Smith’s testimony was

harmless.

                                              A.

       On direct appeal, a state appellate court evaluates a state trial court’s federal

constitutional error for harmlessness. See Chapman v. California, 386 U.S. 18 (1967).

Specifically, the court considers whether the state has proven beyond a reasonable doubt

that the federal constitutional error was harmless. See id. When a state court’s Chapman

decision is reviewed by a federal court under AEDPA, “a federal court may not award

habeas relief under § 2254 unless the harmlessness determination itself was

unreasonable.” Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015) (emphasis in original).

This AEDPA limitation to Chapman is subsumed by the Brecht test for harmlessness,

which is used by courts engaging in collateral review. Id. Under this test, a petitioner

cannot gain relief for a trial court’s error unless he can establish that the error “had [a]

substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (quotations omitted). In other words, the

petitioner must establish actual prejudice. See id. Coddington must therefore “show that

he was actually prejudiced by” the trial court’s failure to admit the expert’s testimony, “a

standard that he necessarily cannot satisfy if a fairminded jurist could agree with the

[OCCA’s] decision that [the error] . . . met the Chapman standard of harmlessness.”

Davis, 135 S. Ct. at 2199.

       The Brecht test for harmlessness also applies to Coddington’s claim that the trial

court’s rejection of Dr. Smith’s testimony separately amounted to a violation of due

                                               9
process. Any constitutional due process violations are likewise reviewed for

harmlessness. See Patton v. Mullin, 425 F.3d 788, 800 (10th Cir. 2005) (applying Brecht

harmlessness analysis to petitioner’s allegation of due process violation at trial).‡

                                              B.

       As a preliminary matter, the state argues that Coddington has not shown the

existence of a constitutional error sufficient to trigger Chapman/Brecht. See Resp.’s Br.

at 16 (“[T]he application of the Brecht harmless error standard presupposes the existence

of an actual federal constitutional error.”). It contends that expert testimony on the

ultimate issue of intent is generally not allowed in the federal system because it is

prohibited by Federal Rule of Evidence 704. See Fed. R. Evid. 704(b) (“In a criminal

case, an expert witness must not state an opinion about whether the defendant did or did

not have a mental state or condition that constitutes an element of the crime charged or of

a defense. Those matters are for the trier of fact alone.”). Additionally, it notes that

multiple federal courts—including the Tenth Circuit—have upheld Rule 704 in the face


       ‡
         We have previously stated that “once a showing of fundamental unfairness is
made, a petitioner is entitled to habeas relief without an assessment of harmless error.”
Spears v. Mullin, 343 F.3d 1215, 1229 n.9 (10th Cir. 2003). We based this statement on
our belief that the fundamental unfairness inquiry “essentially duplicate[s] the function of
harmless error review.” Id. (alteration in original) (quotations omitted). The Supreme
Court, however, has commented that “the Chapman harmless-error standard is more
demanding than the ‘fundamental fairness’ inquiry of the Due Process Clause.” Greer v.
Miller, 483 U.S. 756, 765 n.7 (1987). One standard that is less demanding than another
cannot “duplicate” the more demanding standard. Accordingly, we decline to follow this
court’s earlier holding in Spears that would preclude harmlessness review when a due
process violation is found on habeas review. See Bryan A. Garner et al., The Law of
Judicial Precedent 303–04 (2016) (noting that, while earlier horizontal precedent nearly
always controls, an exception exists if that decision was “clearly contrary to a then-
standing vertical precedent”).
                                              10
of constitutional challenges because testimony on the ultimate issue of intent is not

actually evidence. See id. at 17 (citing United States v. Austin, 981 F.2d 1163, 1165 (10th

Cir. 1992)). Under those precedents, the testimony Coddington sought to have admitted

was not evidence at all. See, e.g., Austin, 981 F.2d at 1165. So, the argument goes,

Coddington’s constitutional right to present a defense was not violated, and the analysis

should end there.

       We disagree. Even if a state law violation cannot be tied to the denial of a specific

federal constitutional right (such as the right to present a defense), it is still reviewed to

determine whether the violation “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Romano v. Oklahoma, 512 U.S. 1, 12

(2004). And whether we analyze Coddington’s claim as a violation of a specific

constitutional right or as a violation of constitutional due process, we still must determine

whether the alleged error was harmless. See Patton, 425 F.3d at 800 (“[A]ny trial errors

will be deemed harmless unless they had a substantial and injurious effect or influence in

determining the verdict. . . . If we are in grave doubt as to the harmlessness of an error,

the habeas petitioner must prevail.”).

       Because we ultimately conclude that the trial court’s error in excluding a portion

of Dr. Smith’s testimony was harmless, see infra, we need not determine whether the

error committed by the trial court amounted to a violation of a specific constitutional

right or a more general constitutional due process violation. Instead, we “assume,

without deciding, that the error[ ] [Coddington] identifies . . . [is] of constitutional

magnitude.” Malone v. Carpenter, 911 F.3d 1022, 1032 n.1 (10th Cir. 2018) (rejecting

                                               11
state’s argument that habeas relief was not available because there was no constitutional

violation).

                                             C.

       The OCCA concluded that, even if Dr. Smith had been permitted to testify on

intent, the jury would have still found malice aforethought. See Coddington, 142 P.3d at

451. Coddington argues that the OCCA’s harmlessness determination was unreasonable

because, while he was allowed to present substantial testimony about the effects of

cocaine use, none of the evidence went to whether he was able to form the requisite

intent. See Pet’r Br. at 17–26. After reviewing the state court record, we do not find that

the exclusion had a substantial and injurious effect on the jury’s verdict. First, though he

was unable to present testimony explicitly asserting that his cocaine use might have

precluded his ability to form malice aforethought, Coddington was permitted to present

copious testimony on how his cocaine use negatively affected his rationality and self-

awareness. Second, it was disputed as to whether Coddington was even intoxicated at the

time of the murder. And third, the excluded testimony would have been heavily

contradicted by other evidence in the record indicating that Coddington not only was

capable of self-awareness, but that he indeed hit Hale with the deliberate intent “to take

away [his] life.” See Criminal Appeal Original Record (C.A.O.R.) I at 88 (jury

instruction defining “malice aforethought”).

                                               1.

       Even without Dr. Smith’s excluded testimony, the jury considered evidence

regarding Coddington’s cocaine use and the ill-effects of such use on his brain. Dr.

                                             12
Smith told the jury that he had diagnosed Coddington with cocaine dependency. See

2003 Tr. V at 81. He then told the jury that cocaine affects the “thinking part of the

brain,” i.e., the cortex and frontal lobes. See id. at 81–82. He also told the jury that the

cortex is what “makes you aware of yourself and what you’re doing and your ethics and

your judgment and how to make decisions and therefore how to behave.” Id. at 82. He

showed the jury a PET-scan of a drug-addict’s brain to give the jury a visual

representation of how drug use can cause brain damage. See id. at 83. He further told the

jury that cocaine use can cause paranoia and agitation. See id. at 88.

       Dr. Smith then applied these general statements about cocaine use to Coddington

in particular. He noted that Coddington’s cocaine use “had a marked effect on

[Coddington’s] brain function” the day of the murder. See id. at 92.

       It made him -- it had multiple effects on his brain function. His paranoia, his
       fearfulness, his belief he was being followed and watched constantly, his
       desperation to get more cocaine, his over-responsiveness to stimulation of
       any kind, including touching. So I think it markedly affected his ability to
       exercise reasonable judgment and control.

Id. Dr. Smith also told the jury that Coddington’s cocaine binge likely made these effects

even worse. Specifically, it likely made it “difficult for [Coddington] to control his

behavior.” See 2003 Tr. VI at 5. He testified that, to a reasonable degree of medical

certainty, Coddington was not thinking reasonably or rationally. See id. at 6.§


       §
         Coddington also contends that the OCCA’s opinion is internally inconsistent. He
says that the OCCA acknowledged that Dr. Smith’s excluded testimony would have
lowered the degree of murder. See Pet’r Br. at 18. This assertion is factually inaccurate.
The OCCA stated that Dr. Smith’s testimony would have lowered the degree of murder if
the jury believed it. See Coddington, 142 P.3d at 451. The OCCA then went on to
explain that the jury would not have believed it. See id.
                                              13
       In addition to Dr. Smith’s comprehensive testimony, Coddington himself testified

that he never intended to kill Hale. He also stated that the murder basically just

happened: “the next thing I know he was laying on the floor and I had hit him with [the

hammer].” Id. at 48. Also, Coddington’s counsel repeatedly argued that Coddington’s

cocaine use and addiction rendered him incapable of forming the requisite intent.

Counsel referred to the killing as “mindless” and having occurred “in the middle of a

drug-inspired frenzy.” Id. at 150–51. In fact, in closing, Coddington’s counsel explicitly

told the jury that Coddington’s “cocaine intoxication rendered him at the moment of truth

incapable of forming malice aforethought.” Id. at 161.

                                             2.

       With or without the excluded portion, the jury might have disregarded Dr. Smith’s

testimony altogether if it found that Coddington was not “intoxicated” at the time of the

murder. Coddington offered Dr. Smith’s testimony to support his intoxication defense,

which applies where the defendant’s “mental powers” were so “overcome with

intoxication” that it would have been “impossible [for him] to form the special state of

mind known as malice aforethought.” C.A.O.R. I at 106 (Jury Instruction 39) (emphasis

added). But Dr. Smith’s testimony focused less on how a person behaves while

intoxicated from cocaine and more on how repeated cocaine use can damage a person’s

brain. He explained that cocaine can impair a person’s judgment and self-awareness by

damaging their pre-frontal cortex. He described these effects not necessarily as cocaine

intoxication, but instead as “cocaine dependency.” 2003 Tr. V at 81. And it is unclear



                                             14
whether the jury would have equated such chronic effects of cocaine with the

“intoxication” language existing in the pertinent jury instruction.

       With the above said, the jury considered evidence that Coddington likely was not

“high” at the time of the murder. Dr. Smith informed the jury that the “high” from

cocaine can last anywhere from several minutes to several hours. Id. at 94. On numerous

occasions, Dr. Smith described the effects of cocaine as “momentary.” Id. at 64, 66. His

testimony further suggested that smoking—which was Coddington’s typical method of

ingestion—crack cocaine typically resulted in a “quicker” high. Id. at 63. With that said,

Coddington was at Hale’s house for roughly two to three hours before he murdered Hale.

Therefore, for Coddington to have been intoxicated with cocaine at the time of the

murder, he likely would have either had to have smoked cocaine while at Hale’s house,

or potentially immediately before arriving there.

       And whether Coddington had indeed smoked cocaine while—or immediately

before—visiting Hale was in dispute during the trial. Coddington testified at trial that he

smoked cocaine in Hale’s bathroom during the visit. 2003 Tr. VI at 47. And Dr. Smith

testified that Coddington had allegedly smoked cocaine sometime before arriving at

Hale’s house. Id. at 29. However, this testimony contrasts with Coddington’s original

confession during which he described the murder and surrounding events in detail, yet

never alleged that he had smoked crack cocaine in Hale’s bathroom. Id. at 55; State Ex.

89.

       Moreover, in contrast to the above testimony, other evidence showed that it was

implausible for Coddington to have possessed and smoked cocaine at those alleged times.

                                             15
By Coddington’s own admission, after conducting a robbery or a burglary, he would

immediately use the stolen money to buy cocaine, and “as soon as [he] bought that

cocaine [he] smoked it up.” Id. at 56. “And when [he] got to wanting another fix [he]

went and got some money and did the same thing.” Id. On the day of the murder, which

occurred sometime between 6:00pm and 7:00pm, the last time Coddington had stolen

money was at 2:30am when he robbed a convenience store. Id.** These admissions from

Coddington suggest that the last time he would have smoked cocaine on the day of the

murder was likely early in the morning after his last robbery, and that it would have been

uncharacteristic of him to have retained enough cocaine to smoke it in the evening. And

the fact that Coddington—again, by his own admission—quickly after the murder bought

more cocaine with the money he took from Hale’s wallet further suggests that

Coddington had already run out of the narcotic by that time and was desperate for more.

See id. at 78.

       The jury therefore considered evidence suggesting that Coddington likely did not

ingest cocaine immediately before or during his visit with Hale, and that the effects of

any cocaine he smoked earlier in the day likely would have receded by the time of the



       **
         In his trial testimony, which took place over six years after the murder,
Coddington said he did not remember whether he committed any robberies between the
time he robbed the 7-11 at 2:30am and the time of the murder. 2003 Tr. VI at 56.
However, during his interrogation two days after the murder, he indicated that he did not
conduct another robbery until after the murder. Ex. 8 at 5, 20 (asserting that his first
robbery—the 7-11—took place on Tuesday night, while his second robbery—the
Texaco—took place on Wednesday night after the murder). Further, Coddington pleaded
guilty to six robberies, the first of which was the 7-11 at 2:50am on March 5, and the
second of which was the Texaco at 1:15am on March 6. C.A.O.R. I at 12–13.
                                            16
murder. Considering this evidence, the jury could have found that Dr. Smith’s excluded

testimony—about Coddington’s alleged inability to form the requisite intent while under

the influence of cocaine—was irrelevant altogether.

                                             3.

       Even if the jury believed that Coddington was under the influence of cocaine—

from either a “high” or other cocaine-related effects—at the time of the murder, it still

likely would have found Coddington was capable of forming the requisite intent of

malice aforethought. Coddington testified that though he decided to take the cash from

Hale’s pocket, he deliberately refrained from taking Hale’s diamond ring because he

“couldn’t do that.” State Ex. 89 at 15. Therefore, if Coddington was indeed “high” at the

time of the murder, his actions immediately thereafter showed that he was nonetheless

capable of self-awareness during that period. Additionally, while allegedly “high on

cocaine,” Coddington successfully robbed three venues and intentionally began targeting

gas stations because they were more likely to carry cash. 2003 Tr. VI 58, 80; State Ex.

89 at 4–7, 9, 11. And during one of these robberies, Coddington devised a scheme in

which he first scoped-out the venue while pretending to buy a soft drink, then—after

ensuring the store was empty—returned with a knife so that he could rob the clerk. Id. at

57.

       Further, the available evidence showed not only that Coddington was capable of

self-awareness at the time of the murder, but that he indeed had formed malice

aforethought when killing Hale. We agree with the OCCA that “the circumstances

surrounding [t]his murder suggest it was committed with intent. Coddington attacked

                                             17
Hale after Hale refused to give him money for drugs. He hit Hale with the hammer three

times; Hale had defensive wounds, and there was significant blood spatter.” Coddington,

142 P.3d at 455–56. Not only did Coddington hit Hale so hard that he made Hale fall

over, but he continued to pound the back of Hale’s head with the hammer while Hale was

lying face-down on the floor. 2003 Tr. VI at 69–70. The repetition and force with which

Coddington struck Hale, along with evidence suggesting that Hale tried to defend

himself, could support a finding that Coddington had formed “the deliberate intention to

take away the life of a human being.” C.A.O.R. I at 88 (jury instruction defining “malice

aforethought”).

                                             4.

       In sum, we conclude that Coddington was not prejudiced by the trial court’s

decision to exclude Dr. Smith’s testimony that, in his opinion, Coddington “would not

have been able to form the intent of malice aforethought” while “experiencing the effects

of the cocaine.” 2003 Tr. V at 81. Despite the exclusion, the jury still heard evidence

about how cocaine could have made Coddington unaware of what he was doing. And

even with the excluded testimony, the jury still would have had to grapple with whether

Coddington was indeed intoxicated at the time of the murder. Regardless, Dr. Smith’s

excluded testimony would have been contradicted by evidence showing not only that

Coddington was capable of self-awareness at the time of the murder, but that he

repeatedly hit Hale with the intent to deliberately take away his life. Given this, we

simply cannot conclude that no “fairminded jurist could agree with the [OCCA’s]

decision that,” beyond a reasonable doubt, Dr. Smith’s testimony regarding intent would

                                            18
not have made a difference in the outcome of the trial.†† Davis, 135 S. Ct. at 2199. Put

another way, we do not find that the exclusion “had [a] substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637.

                                             IV.

       In his second claim for relief, Coddington argues that his confession to the murder

should have been suppressed because he did not knowingly and voluntarily waive his

Miranda rights. We find that the OCCA did not unreasonably apply federal law in

concluding that Coddington’s waiver was both knowing and voluntary. Neither the delay

between Coddington’s confession and the station-house interrogation, nor Coddington’s

drug use, were sufficient to render his confession unknowing or involuntary.

                                              A.

       Testimony from a custodial interrogation will be suppressed if the prisoner did not

knowingly and voluntarily waive his Miranda rights. See Patterson v. Illinois, 487 U.S.

285, 292 (1988); see also Miranda v. Arizona, 384 U.S. 436 (1966). This “inquiry has

two distinct dimensions.” Moran v. Burbine, 475 U.S. 412, 421 (1986).

       First, the relinquishment of the right must have been voluntary in the sense
       that it was the product of a free and deliberate choice rather than intimidation,
       coercion, or deception. Second, the waiver must have been made with a full
       awareness of both the nature of the right being abandoned and the
       consequences of the decision to abandon it.

       ††
         As noted above, the district court concluded that the OCCA’s determination was
not unreasonable. In the alternative, it held that even if the exclusion of Dr. Smith’s
testimony was not harmless, the jury would have still convicted Coddington of first
degree felony murder (because it convicted him of robbery with a dangerous weapon).
See Coddington, 2016 WL 4991685, at *6. Because we conclude the OCCA’s
determination was not unreasonable, we do not address the district court’s alternate
holding.
                                              19
Id.

       “We engage in a totality of the circumstances approach, where no single factor—

whether intoxication, exhaustion, or other—is dispositive.” United States v. Burson, 531

F.3d 1254, 1258 (10th Cir. 2008). However, one circumstance that is not relevant to our

analysis is whether the suspect was aware of each possible subject of questioning. See

Colorado v. Spring, 479 U.S. 564, 577 (1987) (“[A] suspect’s awareness of all the

possible subjects of questioning in advance of interrogation is not relevant to determining

whether the suspect voluntarily, knowingly, and intelligently waived his Fifth

Amendment privilege.” (emphasis added)). Additionally, “[t]he mere fact of drug or

alcohol use will not” render a confession unknowing or involuntary. Burson, 531 F.3d at

1258. Drug use will only render a confession unknowing if it rises “to the level of

substantial impairment.” Id. (“The defendant must produce evidence showing his

condition was such that it rose to the level of substantial impairment [because] . . . [o]nly

then could we conclude the government has failed to prove the defendant possessed full

awareness of both the nature of his rights and the consequences of waiving them.”).

Likewise, drug use will render a confession involuntary only if the suspect’s “will was

overborne by the circumstances surrounding the giving of a confession.” United States v.

Smith, 606 F.3d 1270, 1276–77 (10th Cir. 2010) (quotations omitted).

                                             B.

       Coddington advances several arguments for why his waiver was unknowing and

involuntary. See Pet’r Br. at 30–39. First, he contends that the officers misled him about

the nature of their questioning. Specifically, Coddington believes that the officers told

                                             20
him that they wanted to question him about the robberies, when they clearly intended to

also question him about Hale’s murder. Coddington’s argument is unconvincing. “[A]

suspect’s awareness of all the possible subjects of questioning in advance of interrogation

is not relevant to determining whether the suspect voluntarily, knowingly, and

intelligently waived his Fifth Amendment privilege.” Spring, 479 U.S. at 577. The

OCCA’s rejection of this argument, therefore, was a reasonable application of federal

law. See Coddington, 142 P.3d at 448 (citing Spring, 479 U.S. at 573, 577 to conclude

trial court properly admitted Coddington’s confession).

       Second, Coddington argues that the interrogation at the police station occurred 2.5

to 3 hours after the officers initially read him his Miranda rights at his home. He believes

that this time gap between his waiver and the interrogation rendered his confession

unknowing. This argument overlooks key facts. First, before the police officers

interrogated Coddington at the police station, they asked him if he remembered being

advised of—and subsequently waiving—his Miranda rights several hours earlier; and

Coddington replied in the affirmative. Id. at 447; State Ex. 89 at 1–2. This court has

found that such a reminder under similar circumstances was adequate. See Burson, 531

F.3d at 1259 (concluding the defendant “knew his constitutional rights” where the

interrogating officer “asked [the defendant] if he remembered the Miranda warning he

was given at the time of his arrest less than two hours earlier” and the defendant

“responded affirmatively”). Second, Coddington had previous encounters with law

enforcement and was familiar with his Miranda rights. The Tenth Circuit has previously

held that a suspect’s knowledge of Miranda rights from previous encounters with law

                                            21
enforcement is an appropriate consideration in determining whether a later waiver is

voluntary. Smith v. Mullin, 379 F.3d 919, 934 (10th Cir. 2004). Accordingly, it was

proper for the OCCA to consider Coddington’s previous law enforcement encounters in

its analysis. Coddington, 142 P.3d at 448 (“[F]rom his prior contacts with law

enforcement and prior convictions, we can assume he was familiar with and understood

the concepts encompassed in Miranda.” (quotations omitted)).

       Third, Coddington contends that he could not have knowingly or voluntarily

waived his rights because he was intoxicated and sleep-deprived. It is well established

that intoxication alone will not render a confession involuntary. The intoxication must

rise to the level of “substantial impairment” to render the confession unknowing. See

Burson, 531 F.3d at 1258, 1260 (finding that the defendant—who was allegedly

“exhausted” and under the influence of drugs during an interrogation—voluntarily and

knowingly waived his rights where his “mental faculties were sufficient for him to

engage in an intelligent, rational dialogue with [the officer]”). Similarly, for intoxication

to render a confession involuntary, the circumstances of the confession must show that

the suspect’s will was overborne. See Smith, 606 F.3d at 1276–77.

       The OCCA’s decision was consistent with these legal principles. Looking first to

the knowingness of Coddington’s confession, the OCCA observed that “[s]elf-induced

intoxication, short of mania, or such an impairment of the will and mind as to make the

person confessing unconscious of the meaning of his words, will not render a confession

inadmissible, but goes only to the weight to be accorded to it.” Coddington, 142 P.3d at

448 (quotations omitted). The OCCA then held that Coddington’s will was not

                                             22
sufficiently impaired to render his confession inadmissible. See id. This was not an

unreasonable application of federal law. Coddington was able to recall “specific details

about the robberies and Hale’s murder, and appeared to understand exactly what was

going on.” Id. This shows that, like the defendant in Burson, Coddington’s “mental

faculties were sufficient” enough for him to voluntarily and knowingly waive his rights.

Burson, 531 F.3d at 1260.

       Coddington also argued before the OCCA, as he does here, that his heightened

intoxication is demonstrated by the fact that he confessed to crimes that authorities in

Oklahoma were unable to corroborate. However, we agree with the OCCA that this fact

on its own “does not show he was so intoxicated that his Miranda waiver was not

knowingly and voluntarily made.” Id. Coddington confessed to numerous crimes that

Oklahoma was able to verify, and he recalled specific details from those crimes.

       Finally, the OCCA did not unreasonably apply federal law in concluding that

Coddington’s drug use did not render his confession involuntary. See id. at 447–48. The

totality of the circumstances demonstrate that Coddington was aware of his surroundings

and that the officers did not pressure or coerce him into confessing. Accordingly, even if

Coddington was intoxicated at the time of the confession, Coddington has not shown that

his “will was overborne.” Smith, 606 F.3d at 1276 (quotation marks omitted).

                                             V.

       For the reasons set forth above, we AFFIRM the district court’s denial of

Coddington’s petition for habeas relief.



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