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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 4:09-CV-00164-JHP-TLW).
Ryan A. Ray of Norman Wohlgemuth Chandler & Jeter, P.C., Tulsa, Oklahoma (Randy A. Bauman of the Office of the Federal Public Defender, Oklahoma City, Oklahoma, with him on the briefs) for Petitioner-Appellant.
Jennifer J. Dickson of the Office of Attorney General, Oklahoma City, Oklahoma (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief) for Respondent-Appellee.
Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
In this habeas case, Jeremy Alan Williams challenges his Oklahoma conviction for first-degree murder and his accompanying sentence of death. The district court denied relief but issued a certificate of appealability, giving Williams the ability to appeal his claims of ineffective assistance of counsel. In addition, this court also agreed to hear Williams's sufficiency-of-the-evidence and cumulative-prejudice claims. Exercising jurisdiction under 28 U.S.C. § § 1291 and 2253(a), we agree with the district court and conclude that Williams is not entitled to relief.
The following facts come from the direct-appeal decision of the Oklahoma Court of Criminal Appeals (OCCA) unless otherwise noted. See Williams v. State, 2008 OK CR 19, 188 P.3d 208, 214-218 (Okla. Crim. App.
2008). We presume that the OCCA's factual findings are correct. See 28 U.S.C. § 2254 (e)(1).
On the morning of June 22, 2004, two gunmen (one wearing a black-hooded sweatshirt and the other wearing a white-hooded sweatshirt) robbed the First Fidelity Bank in Tulsa, Oklahoma. Williams, 188 P.3d at 214. Both men wore ski masks. Id. During the robbery, the gunmen shot three people--bank customer Howard Smith, bank president Mark Poole, and bank teller Amber Rogers. Id. When the gunmen entered the bank, the one wearing white ordered Poole to open the safe. He complied, but the safe would not open because it was on a fifteen-minute time delay. Id. Not long after, Smith entered the bank. He saw the gunman wearing white, but not the one wearing black. As Smith raised his arms, the gunman in black shot him twice from behind. Id. ; (Trial. Tr. vol. III at 745-46.) That gunman then went behind the teller area, where the gunman wearing white was arguing with Poole. The gunman in black shot Poole in his side, with the bullet traveling through his right arm before entering his chest. (Trial Tr. vol. III at 666, 679-80). Then the one in white stood above Poole and also shot him, hitting Poole in the leg. Williams, 188 P.3d at 214; (Trial Tr. vol. III at 671). As the two gunmen left, the one wearing white turned around and fired a shot that killed Rogers as she lowered her head and crouched on the floor. Id. ; (Trial. Tr. vol. III at 721-22). Smith and Poole survived their gunshot wounds.
A witness's description of the getaway car led police to Jeremy Williams and, soon after, to Alvin Jordan. The state charged both men with first-degree murder (under alternate theories of malice murder and felony murder), armed bank robbery, and shooting with intent to kill. Williams alone went to trial.
The evidence connecting Williams to the robbery was compelling. One of Jordan's girlfriends testified that, sometime before the June 22 bank robbery, she overheard Williams tell Jordan about having previously robbed a bank located on the second floor of a building. First Fidelity was on the second story of a multi-use office building. In fact, a single gunman had robbed that same bank on May 11. After arresting Williams for the second bank robbery, police matched his fingerprints to those lifted from the bank after this first robbery.
Before the June 22 bank robbery, the same girlfriend went to Williams's apartment with Jordan. While there, she saw a revolver resembling the one that the masked gunman dressed in black used on June 22. She also heard Williams tell Jordan that he would kill if he had to.
Another one of Jordan's girlfriends placed Williams, Jordan, and the alleged getaway driver together at 4:00 a.m. the morning of the crime. In addition, Jordan's aunt placed the three men together soon after the robbery and testified that Williams had boasted that he had shot some people and that he had divided the money with Jordan and the driver. According to her testimony, Williams said that he and Jordan each came away with $1100, leaving $700 for the driver. The bank reported just under $3000 stolen during the June 22 bank robbery.
Williams's girlfriend testified that he arrived at their apartment later that morning with the same wad of stolen cash. That evening, the girlfriend saw Williams retrieve a ski mask and guns from the yard of an abandoned house and wipe the guns clean. Williams owned those guns, and their caliber and appearance matched the firearms used in the robbery. Police later determined that Williams's DNA matched that found on the ski mask and
that a footprint left at the bank matched the shoes he was wearing when police arrested him.
On top of all this, Williams testified that he had robbed First Fidelity in May. He said he had jumped off the second-floor balcony when fleeing, just as one of the June 22 robbers had done. Nevertheless, Williams maintained that he did not rob First Fidelity on June 22.
Both gunmen shot people during the robbery--although it was not entirely clear who shot Amber Rogers. The state's theory was that Williams was the gunman in black and that Jordan was the gunman in white. Eyewitnesses said that the gunman in black shot Smith from behind while the gunman in white commanded Rogers to unload the till. The gunman in black then went behind the teller area, where he and the other gunman both shot Poole; the gunman in black first shot Poole because Poole could not immediately open the time-delayed safes. As the gunmen fled the bank, one turned around and delivered the fatal shot to Rogers as she crouched on the floor. A bank employee identified the gunman in white as the killer. Yet in the wall behind Rogers's teller station, investigators found a slug of the same caliber as the revolver used by the robber in black. Still images from the bank's security cameras showed both gunmen in various positions, but they did not clearly depict how and when Rogers had been shot.
The state argued that it did not matter whether Williams was the actual triggerman. The felony-murder charge certainly did not depend on it, and Williams could be guilty of malice-murder too, so long as he aided and abetted Jordan. The trial court instructed the jury to this end. Ultimately, using separate verdict forms, the jury found Williams guilty of both felony murder and malice murder.
At the penalty phase of trial, the state argued that Williams deserved the death penalty because of three aggravating circumstances: (1) the murder involved a great risk of death to more than one person; (2) the murder was committed to avoid arrest or prosecution; and (3) Williams posed a continuing threat to society. The state presented evidence of the life-threatening nature of Smith's and Poole's injuries and impact statements from Amber Rogers's family. Otherwise, the state relied on the evidence it presented at trial.
The defense conceded the presence of the first aggravating circumstance but argued the state had failed to prove the other two. The defense also presented evidence of several mitigating circumstances, arguing that Williams: (1) did not have a prior criminal record; (2) was likely to be rehabilitated; (3) was just 21 at the time of the murder; (4) was under the influence of an emotional disturbance or intoxicants or both; and (5) had a difficult upbringing and home life. Social historian, Dr. Wanda Draper, and Williams's mother recounted Williams's turbulent family history for the jury.
In the end, the jury found that the murder involved a great risk of death to more than one person and that Williams was a continuing threat to society. The jury further found that the mitigating factors did not outweigh the aggravating factors and voted to impose the death penalty.
The OCCA affirmed the convictions and sentence on direct appeal, see Williams, 2008 OK CR 19, 188 P.3d 208, and later denied post-conviction relief, see Williams v. State (First Application for Post-Conviction Relief), No. PCD-2006-1012, slip. op. (Okla. Crim. App. Jan. 13, 2009) (unpublished). In response to Williams's habeas petition, the federal district court denied his claims
without an evidentiary hearing. But the district court did issue a certificate of appealability for two claims: (1) ineffective assistance of counsel (mostly during the guilt phase of trial) and (2) ineffective assistance of counsel at sentencing. This court then expanded the certificate of appealability to include two more claims: (1) sufficiency of the evidence to support Williams's malice-murder conviction and (2) cumulative error. These four claims are now before us on appeal.
A. Standard of Review
" In general, if a convicted state criminal defendant can show a federal habeas court that his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of habeas corpus that requires a new trial, a new sentence, or release." Trevino v. Thaler, 133 S.Ct. 1911, 1917, 185 L.Ed.2d 1044 (2013). 28 U.S.C. § 2254 governs our review of habeas petition and focuses on how the state court resolved the claim. Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir. 2011).
For claims that the state court adjudicated on the merits, we will only grant habeas relief if a petitioner establishes that the state court decision was " contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or " was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2).
We review de novo claims that the state court did not adjudicate on the merits. Hooks v. Workman, 689 F.3d 1148, 1163-64 (10th Cir. 2012). A habeas petitioner must first exhaust his claims in state court before a federal court may review them. § 2254(b)(1)(A).
B. Sufficiency of the Evidence
We begin with Williams's claim that the evidence was insufficient to support his conviction for first-degree malice murder. Even if Williams were to prevail, he would still be guilty of first-degree felony murder based on the jury's separate verdicts. Why not then disregard this claim altogether and let Williams's first-degree murder conviction stand on felony-murder grounds? There are at least two reasons why addressing the sufficiency claim is the better course.
First, the OCCA construed Williams's verdict as one of malice murder. Williams, 188 P.3d at 225. This is Oklahoma's practice in cases involving separate convictions of malice and felony murder because it avoids the need to vacate the underlying felony conviction (otherwise a source of double-jeopardy concerns). See Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 521 (Okla. Crim. App. 1999). Thus, upholding Williams's first-degree-murder conviction based solely on felony murder would disturb the OCCA's preferred construction. It would also require dismissal of the underlying robbery conviction. See Harris v. Oklahoma, 433 U.S. 682, 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam) (" When, as here, conviction of a greater crime . . . cannot be had without conviction of the lesser crime . . . the Double Jeopardy Clause bars prosecution for the lesser crime, after conviction of the greater one." ).
Second, if Williams's first-degree-murder conviction rested on felony murder alone, we would need to address a separate question: whether Williams is even eligible for the death penalty. See Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding that a jury, not a judge, must find facts necessary for imposition of the death penalty); Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676,
95 L.Ed.2d 127 (1987) (clarifying that the death penalty may be imposed on a felony murder defendant who was not the actual killer and who had no specific intent to kill, if evidence shows " major participation in the felony committed, combined with reckless indifference to human life." ) Although Williams would like us to reach this question, there is no need to do so if the evidence supporting his malice-murder conviction was sufficient. For the reasons discussed below, we conclude that it was.
In Jackson v. Virginia, the Supreme Court held that a conviction based on insufficient evidence violates the Due Process Clause of the Fourteenth Amendment. 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Weighing this constitutional guarantee against the jury's exclusive role as fact-finder, Jackson extended the familiar sufficiency-of-the-evidence standard to the habeas realm: " the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (emphasis original).
In applying Jackson, we look to state law to determine the essential elements of the crime at issue. Id. at 324 n.16. Here, Oklahoma's first-degree murder statute provides that:
A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
Okla. Stat. tit. 21, § 701.7(A). Additionally, Oklahoma law punishes as a principal any person who aids and abets the commission of a crime. Okla. Stat. Ann. tit. 21, § 172 (" All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals." ). On this point, the state court instructed the jury that a principal " is one who directly and actively commits the act(s) constituting the offense or knowingly and with criminal intent aids and abets in the commission of the offense or whether present or not, advises and encourages the commission of the offense." (Pleadings vol. VI at 1056). The state trial court also instructed the jury that:
One who does not actively commit the offense, but who aids, promotes, or encourages the commission of a crime by another person, either by act or counsel or both, is deemed to be a principal to the crime if he knowingly did what he did either with criminal intent or with knowledge of the other person's intent. To aid or abet another in the commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting, or aiding in the commission of that criminal offense.
(Pleadings vol. VI at 1057).
Williams argues that even if the evidence was sufficient to prove his involvement in the robbery and his intentional shooting of Smith and Poole, no evidence proved that he caused the death of Amber Rogers. The state does not argue otherwise. Nor did the OCCA believe that the state's evidence pointed to Williams as the actual killer. Williams, 188 P.3d at 226. Accordingly, like the OCCA, we address whether the evidence was sufficient to support Williams's conviction under an aiding and abetting theory.
A conviction for aiding and abetting can rest on a wide range of underlying conduct, including " acts, words or gestures encouraging the commission of the offense, either before or at the time of the offense." Wingfield v. Massie, 122 F.3d 1329, 1332
(10th Cir. 1997) (quoting VanWoundenberg v. State, 1986 OK CR 81, 720 P.2d 328, 333 (Okla. Crim. App. 1986)) (internal quotation marks omitted). Some mental state beyond " mere assent" or " acquiescence" is also required, Wingfield, 122 F.3d at 1332, but in the malice-murder context, the OCCA has required even more. To convict an aider and abettor as a principal in a first-degree-malice-murder prosecution, the state must prove: " (1) that the defendant [that is, the aider and abettor] personally intended the death of the victim; and (2) that the defendant aided and abetted with full knowledge of the perpetrator's intent." Id. (citing Johnson v. State, 1996 OK CR 36, 928 P.2d 309, 315 (Okla. Crim. App. 1996)).
At least, this was the law. On Williams's direct appeal, the OCCA suggested in a footnote that Johnson's two-pronged intent requirement might be outdated:
According to Appellant's brief, we must determine whether the evidence was sufficient to show that either Williams shot and intended to kill Amber Rogers, or Williams aided and abetted the Rogers' killer with a personal intent to kill or he aided and abetted with full knowledge of the intent of the killer. See Johnson v. State, 1996 OK CR 36, ¶ 20 928 P.2d 309, 315. We overrule the language in Johnson which indicates this is the proper test and we continue to abide by the general aiding and abetting language. See Banks v. State, 2002 OK CR 9, ¶ 13, 43 P.3d 390, 397 ( " Aiding and abetting in a crime requires the State to show that the accused procured the crime to be done, or aided, assisted, abetted, advised or encouraged the commission of the crime." ) We note that Appellant would even lose this proposition under the Johnson test, because his involvement was such that he personally had the intent to kill or knew that his codefendant had the intent to kill, when Amber Rogers was shot.
Williams, 188 P.3d at 225 n.18.
We are unsure what to make of footnote 18. On one hand, the OCCA appears to have rejected the two-pronged intent requirement from Johnson. On the other hand, as we discuss below, the OCCA still seems to consider Williams's case under Johnson in evaluating the sufficiency of the evidence.
Further muddling matters is the OCCA's treatment of Banks. The OCCA cited Banks to state its adherence to " the general aiding and abetting language" as the " proper test" for malice murder under an aiding and abetting theory. Williams, 188 P.3d at 225 n.18 (citing Banks, 43 P.3d at 397 ( " Aiding and abetting in a crime requires the State to show that the accused procured the crime to be done, or aided, assisted, abetted, advised or encouraged the commission of the crime." )). Yet, the OCCA in Banks also stated nearly identical language to that from Johnson :
To convict Banks of malice aforethought murder, the jury had to find that he caused the unlawful death of a human with malice aforethought, or aided and abetted another in the commission of the murder with the personal intent to kill, and with knowledge of the perpetrator's intent to kill.
See Banks, 43 P.3d at 397 (emphasis added).
We are uncertain why the OCCA overruled Johnson without any mention of this similar language from Banks. We also note that, as far as we can tell, the only meaningful difference between the Johnson and Banks standards is that Johnson states that the aider and abettor must intend the death " of the victim," 928 P.2d at 315, and Banks does not, 43 P.3d at 397.
Further adding to our confusion is the OCCA's statement that it will abide by its " general aiding and abetting language." Williams, 188 P.3d at 225 n.18. This language--found in the very next sentence of Banks --features no mens rea requirement at all, but simply provides that the aider and abettor must advise, encourage, assist--or, rather unhelpfully, aid and abet. Banks, 43 P.3d at 397. This suggests to us that an Oklahoma conviction for aiding and abetting malice murder may no longer require intent of any kind.
That would cause serious problems. We generally disfavor offenses that require no mens rea. See Staples v. United States, 511 U.S. 600, 606, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). One of the " basics" about aiding and abetting is the intent requirement--" a person aids and abets a crime when (in addition to taking the requisite act) he intends to facilitate that offense's commission." Rosemond v. United States, 134 S.Ct. 1240, 1248, 188 L.Ed.2d 248 (2014). Oklahoma's provision for aiding and abetting, which apparently requires nothing more than " advising or encouraging," seems to miss the mark.
Williams asserts that, whatever the OCCA did, it did not give him the benefit of Johnson. According to him, footnote 18 shows that the OCCA failed to consider whether the evidence was sufficient to prove the crime. He maintains that no rational jury could have found him guilty of the essential elements of aiding and abetting malice murder as those elements are set forth in Johnson --namely, that he " intended" Rogers's death. See Johnson, 928 P.2d at 315. Additionally, he argues that the OCCA's overruling of Johnson violated due-process limitations on the retroactive application of new rules of law. See Rogers v. Tennessee, 532 U.S. 451, 459, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001).
The state responds that Williams cannot raise the Rogers argument because he failed to exhaust it in state court. Of course, Williams had no way of knowing that the OCCA would purportedly overrule Johnson on direct appeal. He did seek rehearing on that basis, which the OCCA denied. Still, according to the state, Williams did not fairly present his claim because a petition for rehearing is discretionary. See Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (holding that presentation of claims to a State's highest court on discretionary review does not satisfy exhaustion requirements of 28 U.S.C. § 2254.)
We assume (without deciding) that the state is right and that Williams should have raised his " ex post facto" argument by way of post-conviction application. Because footnote 18 intertwines with Williams's properly exhausted Jackson claim, however, we will consider Williams's arguments on the merits. See 28 U.S.C. § 2254(b)(2) (" An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." ) In the end, despite the OCCA's confusion in, and our concern about, footnote 18, we do not believe Williams is entitled to habeas relief because of it.
While the OCCA may have overruled Johnson, it also indicated that Williams's sufficiency claim failed under that very standard. See Williams, 188 P.3d at 225 n.18 (" Appellant would even lose this proposition under the Johnson test." ) True, as Williams points out, the OCCA then proceeded to misstate Johnson in the very next breath--claiming it requires evidence of intent to kill or knowledge of the perpetrator's intent, instead of evidence that " the aider and abetter personally intended the death of the victim and aided
and abetted with full knowledge of the intent of the perpetrator." Johnson, 928 P.2d at 315 (emphasis added). Even so, in the body of its opinion, the OCCA was faithful to Johnson. It considered whether the evidence was sufficient to prove Williams's intent to kill, and it discussed Williams's knowledge of Jordan's intent. Williams, 188 P.3d at 226. Although the OCCA overruled Johnson, it still evaluated Williams's arguments under what Johnson previously required. See id. at 226. Regardless, and no matter what footnote 18 says or means, we believe the OCCA weighed the evidence against the essential elements of the crime.
In one respect, however, the OCCA did not adopt Williams's view of the elements. As Johnson stated, a person aids and abets malice murder if he intends the death " of the victim." 928 P.2d at 315. Given this, Williams argues the evidence in his case needed to show--but did not show--that he intended the death of Amber Rogers, not just anyone. The OCCA disagreed. In its view, it was enough that there was sufficient evidence of Williams's general intent to kill and his knowledge of Jordan's similar general intent. Williams, 188 P.3d at 226.
Addressing Williams's Jackson claim, we decline the invitation to consider whether the OCCA should have required proof of intent to kill Rogers because, in our view, this is fundamentally a matter of state law. See Anderson-Bey v. Zavaras, 641 F.3d 445, 448-52 (10th Cir. 2011) (rejecting Jackson claim that amounted to a challenge to the state court's interpretation of an " uncertain" statutory term.) This is not to say that courts may simply ignore elements previously (and unequivocally) deemed essential in resolving a sufficiency-of-the-evidence claim. However, before Williams's case, the OCCA had not yet addressed the requirements of aiding and abetting malice murder under truly analogous circumstances--that is, where two gunmen shot different people during the same criminal enterprise, but only one of the shooting victims died. Other cases addressing aiding and abetting in the malice-murder context involved the death of the targeted victim. See, e.g. Young v. State, 2000 OK CR 17, 12 P.3d 20, 29-30, 40 (Okla. Crim. App. 2000); Torres v. State, 1998 OK CR 40, 962 P.2d 3, 8, 16-17 (Okla. Crim. App. 1998).
It would make sense in those cases that the question would be phrased as whether the aider and abettor intended the death " of the victim" -- i.e. the targeted person who died. Here, however, the OCCA determined that, where there are multiple targets and only one death, the gunman whose target survives may be convicted of first-degree malice murder if he knows his cohort intended to kill, and the cohort's gunshot turns out to be fatal. Although it would have been reasonable to reach a different conclusion, the OCCA did not--and its interpretation is authoritative. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ( " [I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." ).
Nor are we persuaded that the OCCA's resolution of Williams's Jackson claim offended the due process guarantee of fair warning. The Supreme Court has " repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (per curiam) (emphasis added). This makes sense in light of the discussion above; it is not unusual that courts need to clarify and interpret prior opinions as new circumstances and fact patterns come up against the law--particularly against common law doctrines (such as intent). See
Rogers, 532 U.S. at 461. So long as any interpretation (or alteration) is not " unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue," there are no due process concerns. Id. at 462 (citation omitted). Whatever measure of evolution the OCCA took in extending its aiding and abetting law to Williams's malice-murder conviction, we can hardly say it was unexpected or indefensible.
Having addressed footnote 18 and Williams's due-process arguments on that score, we turn now to the sufficiency of the evidence. As discussed, the OCCA weighed the evidence against the requirements set forth in Johnson, with the exception of the particular requirement that Williams needed to intend the death of Amber Rogers. We approve that weighing. The question now is whether the evidence met the constitutional threshold--or, more precisely, because we address the question on habeas--whether the OCCA's determination that the evidence was sufficient to support the jury's verdict was itself reasonable. Hooks, 689 F.3d at 1167.
Once the jury concluded that Williams robbed First Fidelity, the evidence was susceptible to limited interpretations. See Torres v. Mullin, 317 F.3d 1145, 1155 (10th Cir. 2003) (deciding that a rational juror could conclude that the defendant had the requisite intent to kill, despite evidence that was susceptible to interpretation). As the state argued, the jury could have concluded that Williams and Jordan jointly planned to rob the bank and to kill whoever stood in their way. Alternatively, the jury might have concluded that the plan was just to rob the bank and that Williams never intended for anyone to die. But we cannot consider that option, because the jury found that Williams shot with intent to kill when it convicted him of two counts of that crime.
Another possibility is that Williams intended to kill but that Jordan did not. But the evidence belies this theory because Jordan shot Rogers at close range in the middle of her torso while she was crouching on the ground. This leaves just one possible interpretation that might lead to acquittal: that Williams intended to kill without knowing that Jordan intended to do the same. This is an unflattering defense to say the least. Apparently, ...