Opinion
Case No. CIV-02-624-F
November 12, 2003
ORDER
This matter is before the court on the respondent's objections to the Report and Recommendation issued by United States Magistrate Judge Valerie K. Couch, in which she recommended that Benjamin Harris's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be granted as to petitioner's due process claim that he was denied a fundamentally fair trial because of the admission into evidence of two demonstrative video tapes. One of the tapes was offered by the State as a demonstration, with live models, illustrating some of the State's contentions. The other was offered as a computer-generated animation illustrating, among other things, the path of a bullet through the torso of the victim of the shooting.
Judge Couch recommended that a conditional writ issue requiring petitioner's release unless, within ninety days of any order adopting the Report and Recommendation, the State of Oklahoma grants petitioner a new trial on his conviction of first degree murder.
In her Report and Recommendation, Judge Couch further recommended that habeas relief be denied as to petitioner's claim that he was not provided the same resources as the State of Oklahoma to produce demonstrative videos as that claim is procedurally barred.
The respondent timely filed an objection to the Report and Recommendation. In the objection, respondent asserts that Judge Couch's Report and Recommendation is in error because an incorrect standard of review was applied and because the admission of the videotaped and computer-animated demonstrative evidence in the state court trial did not deprive petitioner of a fundamentally fair trial. Although Judge Couch recommended that relief be denied as to petitioner's claim that he was not provided the same resources as the State with which to produce a reenactment or an animation, petitioner has not objected to any aspect of the Report and Recommendation. See petitioner's "Nonobjection," filed April 21, 2003 (docket entry no. 19).
The court, after careful consideration of the submissions of the parties and the voluminous record from the state trial court, has concluded that the Report and Recommendation is correct to the extent that it recommends denial of habeas relief and erroneous to the extent that it recommends that habeas relief be granted. The court's denial of habeas relief is based, in some respects, upon the guidance of cases which were not available to Judge Couch when she rendered her Report and Recommendation.
A. Standard of review of Magistrate Judge's Report and Recommendation.
Respondent has objected to the Report and Recommendation, contending that the Magistrate Judge applied the incorrect standard of review and that the admission of the video and the animation did not deprive the petitioner of a fundamentally fair trial. Consequently, the court is required, as a matter of statutory and constitutional law, to undertake de novo review of those portions of the Report and Recommendation to which objection has been made. See, 28 U.S.C. § 636 (b)(1)(C); Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).
This factual narrative draws heavily upon Judge Couch's factual narrative, which begins at p. 2 of her Report and Recommendation. Including the transcript of the motions hearing which was held in January, 1999, the transcript from the District Court of Washita County is more than 1,700 pages long. The undersigned has read the entire transcript. Although, as will be seen, the court considers some matters to be relevant which were not mentioned in the Report and Recommendation, the factual narrative which begins at p. 2 of the Report and Recommendation is accurate as to the matters which are described therein.
In the early morning of April 22, 1995, petitioner shot A. J. Pearce four times, killing him. It was undisputed that Mr. Pearce was shot as he sat in the passenger side of a Bronco II sport utility vehicle in rural Washita County, Oklahoma. Although petitioner was, at trial, unable to say whether Mr. Pearce had tried to stab him (tr. 1094), his contention was that he felt something "brush by his leg" (tr. 1093) and that he shot Mr. Pearce in self-defense. Petitioner also asserted, at least with respect to the second, third and fourth shots, that his acts were affected by acute stress disorder. Tr. 1434.
Petitioner and Mr. Pearce were friends and had been roommates in Cordell, Oklahoma. On the evening of April 21, 1995, they were driving around together in the Bronco II, which was owned by petitioner's uncle, Ed Klein. At the time of the shooting, Mr. Klein was a police officer for the City of Cordell. He had been married to Tara Klein, a marriage which ended in divorce in 1994. Tr. 1199.
As petitioner and Mr. Pearce drove around, they drank vodka and Sunny Delight while they looked for a prom party to attend. A knife and a gun were in the Bronco II on the night of the shootings. Mr. Klein testified that he kept the gun in a holster under the driver's seat and the knife in a sheath in the back of the vehicle. Petitioner testified that Mr. Pearce was aware of the presence of the knife in the vehicle because, at one point in the evening, petitioner stopped the vehicle to show the knife to Mr. Pearce.
Petitioner testified that, later in the evening, he and Mr. Pearce drove to Clinton, Oklahoma to purchase gas and cigarettes. As they returned to Cordell, they reached the intersection of Highway 183 and Crider Road. At this point, petitioner volunteered to Mr. Pearce that he did not think it was a good idea for Mr. Pearce to get interested in Tara Redding (formerly Tara Klein), the former wife of officer Ed Klein. Tr. 1019. Petitioner testified that if he had thought Mr. Pearce was awake, he would not have brought the subject up. Tr. 1065. Petitioner maintained that he was attacked as he (thinking that Mr. Pearce was asleep) told Mr. Pearce that it was really not a good idea for him to be trying to go out with Tara. Tr. 1071-72. Petitioner testified that he felt and saw a knife "go by." According to petitioner, Mr. Pearce was holding the knife in his right hand. Tr. 1020-21. Petitioner recalled that Mr. Pearce's left hand was on petitioner's shoulder. Id. Petitioner has no recollection of what happened from then until he made a call to an emergency dispatcher. Tr. 1073.
The dispatcher testified that when she answered petitioner's call, petitioner said "1 just shot somebody." She then remembered him saying that he "tried to be stabbed" or "was stabbed" and asking that she send his uncle, Ed Klein, to the scene. Tr. 520.
Mr. Klein was the first officer to arrive at the scene. He was followed immediately by Sheriff Larry Burrows. Upon arrival, Mr. Klein observed Mr. Pearce sitting in the passenger's side of the vehicle, his seat in a fully reclined position. The passenger door was open and Mr. Pearce's right arm was dangling outside the Bronco. Mr. Klein immediately took Mr. Pearce to the hospital in the Bronco, where he was pronounced dead. Mr. Pearce had been shot once in the left side of his torso and three times in the left side of his neck. The issues as to Mr. Pearce's position (and the position of the gun) when petitioner fired the torso shot were hotly contested at trial. Petitioner's first statement to police after the shooting was to Sheriff Burrows at the scene. Petitioner said: "Larry, I shot A. J. Why did he try to stab me?" Tr. 577, 1024.
Petitioner's jeans were cut in the area of his right thigh where he claimed Mr. Pearce had attempted to stab him. Petitioner had an abrasion just above his right knee. There were no signs that petitioner suffered any injuries causing him to bleed. Tr. 667.
The knife and gun were later located by police at the crime scene outside the vehicle. The bullet from the shot to Mr. Pearce's torso was retrieved from the backrest of the passenger's seat. The angle at which the bullet entered the backrest after passing through Mr. Pearce's torso could not be determined from the physical evidence.
At trial, petitioner admitted that he shot Pearce intentionally, though in self-defense. Tr. 1027-28.
C. Proceedings in the trial court.
1. The State's theory of the case.
In the March, 1999 trial which is at issue here, the State theorized that Mr. Pearce was asleep at the time of the shooting and that petitioner shot Mr. Pearce from outside of the vehicle — a theory which, as Judge Couch noted, "virtually eliminates a claim of self-defense." Report and Recommendation, at 21-22. (Petitioner's reconstructionist, Ronald Singer, acknowledged that the three shots to the neck were fired while Mr. Pearce was in a reclined position, with his head leaning toward the right (passenger's) side of the vehicle. Tr. 1240.)
The State presented four expert witnesses whose testimony is particularly relevant here, the first of whom was Dr. Ronald F. Distefano, a forensic pathologist with the office of the chief medical examiner for the State of Oklahoma. Tr. 674.
Dr. Distefano testified about the unburned gun powder particles he found, which created small marks referred to as "stippling" or "powder tattooing." On the basis of the physical evidence, Dr. Distefano estimated that the handgun must have been within approximately two feet from the body in order to leave those marks. Dr. Distefano testified that the radius within which the marks were clustered around the entrance wound indicated that the gun was likely within the range of "some few inches to say a foot or a foot and a half." Tr. 682.
Dr. Distefano opined, on the basis of the presence and location of the particles of unburned powder which were associated with the three entrance wounds on the decedent's head, that the muzzle of the gun "was also quite close to the skin when these three shots were fired." Tr. 686.
Dr. Distefano's analysis led him to the opinion that, with respect to two of the three gun shot wounds to Mr. Pearce's head, the muzzle of the gun was within a few inches of the head.
Dr. Distefano's examination also provided testimony that was critical to most of the theories of most of the experts on both sides. He testified that the path of the bullet for the gunshot to Mr. Pearce's torso was "left to right, somewhat front-to-back, and slightly downward." Tr. 702. This physical fact, viewed in combination with the point of impact of the bullet in the lower right door post area of the Bronco, created an axis running from the muzzle of the gun through Mr. Pearce's body and to the door post area which was one of the most significant and unyielding physical facts disclosed by the evidence. The location of the lower (final bullet impact) end of the axis was known. The alignment of the gun with the entry and exit wounds and the point of the bullet's final impact was an established physical fact. The fact that the entry and exit wounds, and the point of the bullet's final impact, were in alignment was not disputed. The location of the gun when the torso shot was fired was, as has been noted, hotly disputed.
The State also called James R. Looney, a firearms and tool mark examiner. At the time of trial, he was employed by the Arkansas State Crime Laboratory. Tr. 819. At the time of the shooting, he was employed by the Oklahoma State Bureau of Investigation. Tr. 820.
Mr. Looney opined that the distance from the muzzle of the gun to the left side of Mr. Pearce's chest at the time that shot was inflicted was more than three inches but less than 18 inches. Tr. 825. Mr. Looney also told the jury, with respect to the neck shots, that the proximity of the entry wounds to each other precluded a determination as to whether all three shots were inflicted from a position close to the neck, but it was possible that all three shots were made at very close range. Tr. 825-26.
J. Douglas Perkins, a criminalist supervisor with the Oklahoma State Bureau of Investigation, provided testimony which was highly significant with respect to the evidentiary foundation for the video reenactment and the computer animation.
Mr. Perkins is an experienced blood spatter analyst. He began his substantive testimony by explaining some of the basics of blood spatter analysis. The blood stains which result from a high velocity impact (100 feet per second or faster, as would be the case with a bullet) are produced by "very tiny droplets, almost mist-like." They are commonly deposited on clothing. Tr. 845. This "high velocity impact spatter" produces "back spatter" — blood is ejected from the skin back toward the gun. Tr. 846.
Where the projectile is a .38 caliber bullet, the back spatter could be expected to travel up to 42 inches back toward the gun in a conical pattern. Anything within that conical field could have high velocity misting deposited on it in the form of tiny droplets. Tr. 846.
Thus, the back spatter phenomenon may cause high velocity misting on the shooter's clothing. Tr. 848. The amount of back spatter will vary depending on the location of the shot. Tr. 848-49. If the victim is shot through clothing, then the clothing is a barrier to high velocity misting. If the shot is to bare skin, then high velocity misting can form. Tr. 849. (That Mr. Pearce was shirtless when petitioner shot him was not disputed at trial.)
The pooling of blood at the surface of the skin resulting from the proximity of the three neck shots to each other would make the shots to the neck more productive of back spatter. Tr. 849-50.
Mr. Perkins testified that petitioner's t-shirt contained two medium velocity impact spatter blood stains, but no high velocity impact spatter. Tr. 853. The absence of high velocity impact spatter on petitioner's t-shirt indicated to Mr. Perkins that if misting did occur, it was not deposited on the shirt even though misting can travel up to 42 inches "in a still environment." Tr. 854-55.
Following the testimony of Dr. Distefano and Messrs. Looney and Perkins (among others), the State called Tom Bevel. The videos which are at issue in this case were introduced during the testimony of Mr. Bevel. Mr. Bevel was a forensic consultant who was employed by the Oklahoma City Police Department for 27 years. Tr. 896. His services were engaged to assist the Washita County Sheriff's Department and the OSBI in examining and interpreting the crime scene evidence. Tr. 904. Mr. Bevel summarized his conclusions as follows:
That at the time the shots were fired, at that instant, that the deceased would have been sitting in the passenger's seat with it scooted as far back as you could, and then with the backrest reclined in the furthest position that it can be. That his head would have had to have been very, very close to the right side panel at the, again, the time this occurred and the placement of those shots are in agreement with that body still being in that position when the side shot — and I'm not saying that, that's the order. I do not know what the order of the shots are. But whether the side shot is first, second, third, or fourth, that, that general body position is in agreement for all four shots at the time that they occur.
Tr. 6/925. Bevel further opined that Pearce was not in an aggressive position at the instant he was hit by any one of the four shots. Id. See also Tr. 5/916.
Mr. Bevel testified that he formed his opinion based on a review of the autopsy report, photographs, an Oklahoma State Bureau of Investigation (OSBI) agent's report, petitioner's jeans, the gun, the knife, and a report of the OSBI's firearms examiner. In addition, he examined the inside of the Bronco. Tr. 5/905-06.
Mr. Bevel confirmed the State's basic premise that three critical points, the entrance wound, the exit wound and the location of the bullet strike, would align themselves basically in a straight line. "And if you alter one of them, then you have to alter the others." The State's counsel then established that Mr. Bevel had produced a video which would demonstrate that point. Tr. 914.
As to the assertion that the decedent was acting aggressively toward Petitioner at the time the shots were fired, Mr. Bevel testified as follows:
As you change my orientation, you also have to change the orientation of the gun. What we have is three points. For example, we have the strike to the seat or the strike to the side of the vehicle where the bullet exists. Then we have the exit where the bullet is exiting on the right side of the body. Then we also have the entry to the left. And within those three points, we have to have the muzzle of the weapon in agreement with that alignment. They are in agreement with the reclined position. But as 1 start moving my body, then they become in disagreement with that possibility.
Tr. 915.
Of course, the question of Mr. Pearce's posture at the time petitioner shot him is intertwined with the question of whether, as asserted by petitioner, Mr. Pearce was taking aggressive action against petitioner, causing petitioner to defend himself with the gun. On this issue, Mr. Bevel concluded that "[a]t the instant the bullets were fired, if he [Mr. Pearce] was in an attacking mode or position to where his body is altering, the bullets strikes would be in a different location than where they are." Tr. 916. At this point in Mr. Bevel's testimony, the State introduced the two videos that are at issue here. Just before Mr. Bevel took the stand, petitioner's counsel requested a limiting instruction as follows:
Now, I thought that if the Court's going to allow this, which I presume the Court's going to allow it even though 1 object, the Court might give a limited Instruction that the defense is not putting forth a theory on this, certainly is not our theory. But I think to do it, just to do it, is going to be excessively prejudicial, Your Honor, because we do not have to put forth any theory of defense. And this is too specific.
Tr. 894.
As to the defendant's argument that the videotapes improperly anticipated the defendant's defense, the trial judge stated:
Well, the Defendant's statement came into evidence, that he tried to get stabbed or however that was phrased. It opened the door to a self-defense theory. And the State has a right to present whatever evidence they see fit to counter that self-defense statement that the Defendant made. Now, as far as a specific theory of it, again, that's really their choice. And I'm going to wait and will entertain a motion later for a possible limiting Instruction. But I don't think it's proper to give such an Instruction now.
Tr. 895.
The trial judge then reaffirmed his previous (January, 1999) ruling on the admissibility of the videos. Tr. 895.
Before turning to the evidence and arguments relating to the reenactment video and the animation video, the defendant's theory of the case must be understood.
2. The defendant's theory of the case.
The trial proceedings which are scrutinized here unfolded in March, 1999. This was petitioner's second trial on the murder charges. The first trial resulted in a conviction and a life sentence, but the conviction and sentence were reversed on appeal, because, as explained by the Oklahoma Court of Criminal Appeals in the appeal which followed the second trial, some jurors in the first trial had conducted their own experiments in an attempt to understand how the alleged crime was physically committed. See Harris v. State, 13 P.2d 489, 492, n. 1 (Okla. 2000) cert. denied, 532 U.S. 1025 (2001). Thus, although the defendant was at liberty to modify his trial strategy, or, indeed, to put on no defense at all, the State had the benefit of, and was not obliged to ignore, the lessons which were to be learned from the defendant's strategy and tactics at the first trial. Consequently, when the State produced the videos, it did so with the benefit of the lessons learned from the first trial, so the use of the videos at the second trial should be considered in light of the assumptions reasonably indulged by the State on the basis of its experience in the first trial.
At trial, petitioner's counsel argued repeatedly, and unsuccessfully, that the State was not entitled, in producing the videos, to anticipate what petitioner's defense might be. See transcript of January 19, 1999 motions hearing at 44-52. See also, tr. 894, 925 and 927, and Motion in Limine and Objections to Tow Certain Video Tapes Proposed as Evidence by The State, filed in the trial court (Washita County) on January 12, 1999. and attached as Exhibit A to Response to This Court's Order Dated July 8, 2003 (docket entry no. 21). That contention is not at issue in these proceedings, nor is the court aware of any basis upon which that contention could have been raised in this case.
Petitioner's defense was essentially two-pronged — self defense and "acute stress disorder." The gist of petitioner's assertion of self-defense was that when Mr. Pearce responded with the knife to petitioner's remark about the advisability of Tara Klein, petitioner instantly concluded that his life was in danger, thus precipitating at least the first shot. The assertion of self-defense then dovetails with the assertion of acute stress disorder, which was offered principally as an explanation for the second, third and fourth shots. Tr. 1433-35.
As has been noted, petitioner first articulated his claim of self-defense in his voluntary exclamation at the scene of the shooting. Tr. 577 ("Why did he try to stab me?"). Thus, although the record does not disclose the extent to which the State might have anticipated, on the basis of the first trial, petitioner's acute stress disorder defense, it is clear that the claim of self-defense was in the case (whether petitioner chose to assert it or not at the second trial), long before the second (or, for that matter, the first) trial. This was ultimately borne out by petitioner's assertions and concessions in opening statement (tr. 986-87).
3. Evidence and arguments relating to the reenactment video and the video animation.
The videos were played for the jury during Mr. Bevel's testimony. The video reenactment (State's Ex. 32) was offered to show "the various possibilities using a vehicle of the same make, model and year as the Bronco in question." Tr. 916. Mr. Bevel then explained the animation (tr. 918), following which the reenactment video (State's Ex. 32) was played. Tr. 919.
The reenactment video was produced with human models. There are no superimposed captions or other illustrative aids in this video. The scenes in the reenactment video may be described as follows:
Scene One: This scene depicts the measurement of the distance from the right side of the passenger seat back to the lower rear area of the passenger door.
Scene Two: This scene depicts the measurement of the distance from the gun to the torso. The driver is not in the driver's seat. The shooter is shown reaching in from the side of the vehicle to shoot. The viewpoint is from the right side of the vehicle, viewing across the vehicle toward the left side of the vehicle. Scene Three: This is a close up scene showing the passenger's lower right torso in close proximity to the intersection of the vertical (back) and horizontal (seat) components of the passenger's seat.
The OCCA opinion does not describe this as a separate scene. Harris v. State, 13 P.2d 489, 496 (Okla. 2000) cert. denied, 532 U.S. 1025 (2001).
Scene Four: This is the same as scene two, viewed from just off the center line, looking rearward. The shooter is shown to be reaching in from the left side of the vehicle.
OCCA scene three. 13 P.3d at 496.
Scene Five: This is an illustration of the bullet trajectory, from the gun to the passenger's neck. The viewpoint is on the centerline, looking rearward. The shooter is shown to be reaching in from the left window. The gun is positioned approximately on the centerline of the vehicle.
OCCA scene four. Id.
Scene Six: This is a illustration of the position of the gun and the driver, with the driver sitting in the seat, shooting with the gun in his right hand, turning his upper body to shoot. (Defendant's theory.) The viewpoint is from the right side. The bullet entry point is shown to be in mid-torso, on the left side of the passenger, at point blank range.
OCCA scene five. Id.
Scene Seven: This scene is identical to scene six, except that the view is from the right front of the vehicle, looking toward the vehicle centerline.
OCCA scene six. Id.
Scene Eight: This scene is a close up of a point blank gunshot to the left neck of the passenger, viewed from directly in front of the passenger. The field of view then widens to show the shooter sitting in the left seat, wielding the gun with an outstretched right arm. (Defendant's theory.)
OCCA scene seven. Id.
Scene Nine: This scene is a depiction of a measurement from the gun to the middle region of the left side of the passenger's torso. The view is from the right side of the vehicle. The view then moves down to show the location of the exit wound in the lower right area of the passenger's torso. The view then moves up and in, to show the passenger's neck.
OCCA scene eight. Id.
Scene Ten: This is a slow motion depiction of a thrust with a knife. The knife is in the passenger's left hand; the thrust is toward the driver's right thigh. (Defendant's theory.)
OCCA scene nine. Id.
Scene Eleven: This is substantially identical to scene ten, except that the view is from the right side of the vehicle. The exit wounds in the lower right area of the passenger's torso are also illustrated.
Scene Twelve: This scene is an illustration, from the right side of the vehicle, of the driver reaching forward and down for a gun, then turning in the seat to shoot the passenger at point blank range with the gun in his right hand.
OCCA scene ten. Id.
Scene Thirteen: This is an illustration, also from the right side of the vehicle, of the passenger attacking the driver with the butt end of a knife, as the driver reaches forward and down, as if reaching for a gun under the seat. (This illustrates the State's contention that an attacking passenger could have been expected to have inflicted grievous injuries on the driver as he prepared to defend himself by reaching for the gun under the front area of the driver's seat, as testified to by Mr. Bevel at tr. 922 and argued by the State at tr. 1650.)
OCCA "last scene." Id.
Some portions of these scenes are then briefly repeated, although it does not appear that the repetitious portion was played. Tr. 922. This tape is 3 minutes 8 seconds long. It includes no sound.
The computer animation video was played (and narrated by Mr. Bevel) immediately after the reenactment video was played. Tr. 922-23. The computer animation video presents the following scenes:
This video also includes some scenes with human models.
Scene One: This scene shows a generic green sport utility vehicle. This scene transitions to scene two.
Scene Two This computer-generated animation shows the driver, in the driver's seat shooting the passenger, seated in the passenger seat. The gun is in the driver's right hand. Nothing is shown to be in the passenger's hands. The passenger's head is leaning to the right side of the seat. The passenger's torso is tilted toward the right (passenger) side of the vehicle.
Scene Three: This is a depiction, with a human model in the passenger's position, of the distance from the gun to the passenger, in the scenario illustrated in the second scene. The shooter's right hand (with gun) is visible. The shooter is positioned outside of the vehicle (on the driver's side).
Scene Four: This computer-generated animation illustrates the path of a bullet, if fired as shown in scene two. Nothing is in the passenger's hands. The viewpoint rotates to the passenger's side of the vehicle, to illustrate the proximity of the exit wound for the torso shot (referred to at trial by some witnesses as the side shot) to the lower right passenger-side seat back. Scene Five: This scene is an illustration of scene four, but with a human model. Captions for the torso shot entry wound and exit wound are superimposed. There is a caption ("bullet") in the area where the bullet from the torso shot was found.
Scene Six: This computer-generated scene is substantially identical to scene five. This scene includes superimposed captions for the entrance wound (left side of the passenger) and the exit wound (right side of the passenger).
Scene Seven: This computer generated scene depicts the same scenario as scene two, but with a red line illustrating "bullet path" and a blue line indicating "modified bullet path." (Consistent with defendant's theory, this scene goes on to depict the passenger wielding a knife in his left hand, with a thrust of the knife toward the driver's right thigh.) The viewpoint is from the passenger's side, forward of the seats. The viewpoint then shifts to a directly rearward view, with the viewpoint situated on the centerline between the two seats, with illustration of a "bullet path" (red) from the passenger's upper left to lower right torso (diagonally) and a "modified bullet path" (blue) horizontally across the lower portion of the passenger's torso.
Scene Eight: This scene is the same as scene seven except that the passenger is depicted as rising up from his semi-reclined position to thrust the knife toward the driver's right thigh. This scene includes the same rotation of viewpoint as in scene seven. (This scene illustrates the rotation of the passenger's body while he wields the knife, a subject which received much attention from both sides at trial, due to fact that if, as might reasonably be inferred, a passenger attacking the driver would tend to turn toward the driver, the path of travel of the torso shot through the passenger's torso is somewhat problematic for the defendant.)
Scene Nine: This computer-generated scene is the same as scene seven, except that the passenger is wielding the knife in his right hand, with the driver shown to be shooting the passenger with the gun in the driver's right hand. (The bullet path is illustrated in red, from the passenger's upper left to lower right torso.) The passenger's knife-wielding right hand crosses over to thrust at the driver's right leg. The "bullet path" (red) is shown as progressing from the passenger's upper left to lower right torso. The "modified bullet path" (blue) is shown to be progressing from the passenger's left thigh across his groin and to his right side (lower right torso), with an exit location near the exit location shown for the red "bullet path." This scene includes the same rotation of viewpoint (from passenger's side, forward of seats to centerline, between seats) as in scene seven.
This entire video lasts 1 minute 29 seconds. It includes no sound.
Petitioner's main argument against the videos was to the effect that the State should not be permitted to craft an exhibit with a view to the defendant's theory at the first trial. January 14, 1999, tr. 44. At the January, 1999 motion hearing, the trial judge set the stage for the admission of the videos at the March trial as follows:
But then petitioner proceeded to argue to exclude the tape on the basis of the evidence from the first trial. Id.
Now I just watched it and you're right, there's no audio on it. And being somewhat familiar with it because of the prior trial 1 can anticipate what an expert is going to be testifying over that. But as that goes certainly, you know, you may wish to object as we go through that. But it appeared to me from everything 1 saw it addresses the issues that Mr. Harris spoke about in the confessions which will be admitted in the State's case in chief.
January 19, 1999 tr. at 53.
The trial judge also made clear the petitioner's right to counter the videotape evidence: "[Y]ou can go to the board and draw or you can bring a graph or you can show a video. I don't see it as any difference. It's demonstrative evidence." Id. at 54.
As has been noted, the videos were introduced during the testimony of Mr. Bevel. The reenactment video (State's exhibit 32) was offered as a reenactment that was videoed "of the various possibilities using a vehicle that was the same make, model and year as the Bronco in question." Tr. 916.
Mr. Bevel explained the digital animation also. He explained the illustrative purpose of the digital animation as follows:
Yes, sir, one of the problems that you have in the first video that we spoke about, obviously as a live person, I'm not able to run dowel rods through my body so that you can see a connecting pass [sic — path?]. So you have to use your imagination to a certain degree. With the animation, of course, we're using mannequins, and you're able to run a line from Point A at entry to the exit for that particular entry, and you're able to see the flight path of the bullet through the body and then as it continues on and enters and strikes the vehicle.
Tr. 918.
The reenactment video was played for the jury at this point. Tr. 919. Mr. Bevel proceeded to explain the scenes in the reenactment video ("second view," "third view," etc.) for the jury. Tr. 919-922. This passage in Mr. Bevel's testimony consisted of his commentary for the jury as to how the video illustrated the various possibilities which could be inferred from the known physical facts. Tr. 919-22.
After the conclusion of Mr. Bevel's direct testimony with respect to the reenactment video, the computer animation video was introduced. Tr. 922-23. Mr. Bevel's commentary on the computer animation video was more brief than was his commentary on the reenactment video. Tr. 922-24.
On cross-examination, Mr. Bevel made it clear that he did not think that the slashing and the shooting could have occurred at the same time. Tr. 944. This was reemphasized by petitioner' scounsel, as a result of which Mr. Bevel reiterated that the thrust with the knife could not have occurred simultaneously with the shots. He elaborated as follows:
And despite what was shown on the video here, right? Shooting at the same time as the knife thrust?
Well, it shows different scenarios. That was an attempt to show that it could not have occurred at the same time.
Okay. All right. And you have no idea how long it was between any alleged knife thrust and the shooting?
No, sir.
Tr. 947.
Mr. Bevel reiterated that the shooting "does not happen at the time of the knifing, if there is a knifing." Tr. 954.
The cross-examination returned again to the issue of the timing of the action with the knife vis-a-vis the shooting, as depicted on the video. This exchange proceeded as follows:
Q. What you've done here is shown selected theories; is that correct?
A. We have considered some various possibilities. To say that they are selected, we have shown various scenarios.
Q. And there are other scenarios possible, are there not?
A. There are always other possibilities, yes, sir.
Q. And we have talked about some of them here today?
A. Yes, sir, for example, the arms being some other location.
Q. And we have talked about it being a little longer between the stab of the knife and shooting the gun!
A. Well, in fact, I'm in agreement with you on that point.
Tr. 947-55 (emphasis added).
Petitioner's expert reconstructionist, Mr. Singer, also weighed in on the videos. Mr. Singer testified that he had viewed "the video simulation and the video animation that the State has presented in this case." Singer then commented on the video simulation and video animation as follows:
Q. Okay. And in your opinion and based on the evidence in this case, do those video simulations, or the video simulation and animation, accurately depict what really happened in this case?
A. If we accept the fact that it is going to be very difficult to determine exactly what happened in this case, 1 think that there are some flaws in the State's video that make it less than useful in trying to come to that conclusion.
Q. Were there any specific things that you found that were not particularly accurate in the video?
A. Yes, sir, I did.
Q. And what were those?
A. Well, first of all, you have — the viewer has no way of knowing how the dots that were positioned on the subject in the video, Mr. Bevel, how those dots were positioned and whether they were based on measurements that the pathologist made, whether they were based on the diagram. There is no indication that the measurements are accurate in any way, shape, or form. The video itself has no indication that they were accurate. And then to go back, we would have to find out exactly what was used in order to determine whether or not they even approach being accurate.
The second thing is, in my opinion, because there are so many variables in this, there is a window of range in which at least the side shot was fired. And I'd think that, you know, again, to fairly depict the shooting, you would have to at least indicate in there that there was this window of possibilities or probabilities. I think, in general, the video is speculative. It simply does not offer any proof of what it's trying to show.
Tr. 1223-24.
Mr. Singer also explained the potential for inaccuracy which is present when measurements made on a dead body are incorporated into a video depiction.
With respect to the video scenario which depicted a shooting from outside the vehicle, Singer testified that this was not a reasonable theory and was not consistent with the evidence in the case. Tr. 1223-25
Having seen the videos and having provided his critique of the videos (but working within the physical facts with which he was presented), Mr. Singer acknowledged that he did not dispute Mr. Bevel's opinion that the victim was shot three times in the neck while he was in a reclined position, with his head leaning toward the right (or passenger's) side of the vehicle. Tr. 1240. Mr. Singer also acknowledged the accuracy of the State's contention that, when the three neck shots were fired, the seat was back as far as it would go. It was "low enough down so that the holes in his head lined up with the holes in the car." Tr. 1240. This was, of course, clearly illustrated by the videos on the basis of the physical evidence from the Bronco and from Mr. Pearce's body.
On redirect examination, Mr. Singer returned to the matter of the temporal relationship between the asserted knife attack and the asserted acts of self-defense. He testified that if there had been a "slashing with the knife," there would have to be a reaction time between that event and the acts of self-defense. Tr. 1312.
As might be expected, the videos were referred to in closing arguments, although commentary about the videos was certainly not a dominant feature of closing arguments. In closing, the videos were referred to three times by the State (tr. 1554, 1649 and 1661), and four times on behalf of petitioner (tr. 1578, 1603, 1604 and 1607).
The effectiveness of the State's closing argument was doubtless enhanced by the videos, as might be inferred from the following passage:
If he shot A. J. from the driver's seat, you know good and well he's closer than three-and-a-half feet at the time he shot him. Why are the Defendant's clothes completely free from high-impact mist? Are we to believe that the victim attacked the Defendant with a knife in such close quarters that he feared for his life, sufficient to justify taking another human being's life, but then the blood sprayed back and didn't even get on his clothes?
Tr. 1659-60. In closing on behalf of petitioner, his counsel pointedly criticized the videos. Tr. 1603,04,07. In so doing, petitioner's counsel also suggested to the jurors that they watch the video. Counsel argued that:
[T]hey suffer from the same problems as Bevel's testimony. They assume he's sleeping a lot, assume the angles of the shot, which you can't really assume, striations on the Bronco from the bullets. They don't consider that high-speed driving scatters bullets. They don't consider the quick stop, and a man when he gets in, with the jeans on his thigh, he pulls them up. Watch that video. He pulls those jeans up.
Tr. 1607 (emphasis added).
Although petitioner's counsel invited the jurors to watch the reenactment video, after the closing arguments were completed, petitioner objected to sending the videos to the jury. The objection was articulated as follows:
I object to the sending of the videotape enactments for the reason that even Mr. Bevel stated these were only the State's theories. And I think the Judge gave a limiting Instruction that these were not endorsed by the State. They are demonstrative evidence, and they do not necessarily reflect anything in reality. And also you can't take the cross-examination back there. All you can take back there are tapes. And I think it would be an unfair advantage just to have the tapes back there, and it's representing the State's point of view.
4. Evidentiary foundations for the video reenactment and the video animation.
It goes without saying that the evidentiary foundation for the video reenactment and the video animation could be derived only from physical evidence and reasonable inferences therefrom. Nevertheless, the State's opening statement provides a beginning point for assessment of that evidentiary foundation. In opening statement, the State told the jury that:
Mr. Bevel will tell you that the only way that trajectories of those bullets line up with the holes in the Bronco is if A. J. Pearce were lying reclined with his seat all the way back. He'll tell you that if A. J. Pearce is in any other position, the side shot does not — the side shot entrance, exit, and entrance into the seat does not line up. He'll tell you that if there is any other angle from any other position of the body, that the bullet holes do not line up with the hole in the seat.
Tr. 398. The State also told the jury, correctly, that Mr. Bevel would testify that it was unlikely that Mr. Pearce was in any kind of aggressive posture at the time he was killed. Tr. 399.
The combination of the entry wound, the exit wound and the lodging of the bullet in the right seat established an axis on which Mr. Pearce's body was, without serious dispute, situated when the torso shot was fired. At one end of the axis was the muzzle of the gun; at the other end was the hole in the seat. Mr. Pearce's body was between the two. The alignment of the entry wound, the exit wound and the hole established the axis which extended from the muzzle of the gun through the body to the site of the bullet strike. Not known with precision was the distance from the gun to the body. Not known with certainty was the position of the shooter. However, physical evidence which was noteworthy both for its presence (entry and exit wounds, the position of the seat, Mr. Pearce's position in the seat, locations of the bullet impact points on the right side of the interior of the Bronco), and its absence (high velocity back spatter on petitioner's shirt from Mr. Pearce's neck and bare torso), taken together with the particulars of petitioner's self-defense theory (and the problems and limitations inherent in that theory, constrained, as it was, by the physical facts), provided significant record support for the scenes portrayed in the video.
The State's criminalist acknowledged that the angle of entry into the seat is not known with precision and, consequently, that allowance must be made for some degree of variation in the rotational position of the body at the time of the torso shot. Tr. 938.
5. The trial court's limiting instruction.
After the conclusion of Mr. Bevel's direct testimony, petitioner's counsel requested a limiting instruction. Petitioner's counsel asked, in substance, that the limiting instruction tell the jury that the matters depicted by the video were "the State's impression at this point" and the State's explanations of the meaning of the defendant's statements to law enforcement personnel on the night of the incident.
The Assistant District Attorney explained the alternative depictions on the videotape as follows:
Judge, the proposed Instruction by the Defendant's counsel disclaims any statements made by the Defendant. The Defendant on the 22nd of April, back in 1995, made the statement to Deputy McGrath that he felt something brush beside his leg. And the State has, to the best of its ability, shown from brushing down beside his leg, much as described by the Defendant; and then has also shown brushing across his leg with a left hand, which was a theory — which once was the theory of de jure [sic — du jour?], of the Defendant; now we have also shown a slashing movement with the right hand. We did not say any of those were the way it happened because we don't think it was the way it happened. We think he was sound asleep. But those are very consistent with the Defendant's own words on the 22nd of April in 1995.
Tr. 296.
The defendant's counsel responded to the Assistant District Attorney's explanation by arguing that it was not consistent with the defendant's theory to depict the "brushing" of the knife on the blue jeans as being simultaneous with the shooting." Tr. 926-27.
Petitioner's counsel made it clear that a focal point of his concern was his client's Fifth Amendment rights:
Judge, we're dealing here with a Fifth Amendment Right at this point. I don't think we need to get into what theory, if any, we're going to do. That's the whole point of this: We have not. Now, I think it's fine if they want to explore how this self-defense might have happened. But it can't be what we said happened. That's all I'm trying to say with this statement, what they said happened. And 1 think it's so critical at this point, the Fifth Amendment Right of my client, that it not be given over as our theory here.
Tr. 927.
The trial court then proposed a modification to what was apparently the defendant's proposed limiting instruction, which would result in a limiting instruction stating as follows: "The specific scene shown in the video of the State, in which there purports to be specific self-defense moves, have not been advanced by the Defendant."
Petitioner's counsel immediately agreed to this limiting instruction. The State objected to the limiting instruction, as modified by the judge. Petitioner's counsel repeated his agreement with the limiting instruction. Tr. 928-29.
The court gave the limiting instruction in the form agreed to by petitioner and objected to by the State:
Jurors, if you'll please listen to a cautionary Instruction at this time: The specific scenes shown in the videos of the State in which there purports to be specific self-defense moves have not been advanced by the Defendant.
Tr. 929.
Petitioner then proceeded to cross-examine Mr. Bevel. Tr. 929.
D. Standard of review of the state court adjudications in State v. Harris.
1. AEDPA deference is required under Early v. Packer and its 10th Circuit progeny.
Petitioner's direct appeal was resolved by the Oklahoma Court of Criminal Appeals in a published decision in Harris v. State. 13 P.2d 489 (Okla. 2000), cert. denied, 532 U.S. 1025 (2001). The court must, before reaching petitioner's constitutional claims, determine whether the state court adjudication is due deference under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA states, as relevant here, that:
(d) 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 —
(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 proceedings.28 U.S.C. § 2254(d). Judge Couch concluded that AEDPA deference is not due and, accordingly, that petitioner's federal habeas corpus claims are to be reviewed de novo. Report and Recommendation at 16-18. With the benefit of decisions which have been handed down subsequent to the issuance of Judge Couch's Report and Recommendation, the court disagrees.
The issue at hand is whether the adjudication of petitioner's habeas claims with respect to admission of the videotapes was an adjudication "on the merits in the state court proceedings." 28 U.S.C. § 2254(d). A comprehensive discussion of Tenth Circuit cases construing § 2254(d) is not necessary. However, to put the matter in context, a survey of some of the more noteworthy Tenth Circuit AEDPA cases is appropriate.
Petitioner stated in his petition, filed in this court on May 9, 2002, that the issue as to the admission of the videos was raised on direct appeal to the Oklahoma Court of Criminal Appeals. Petition, at 7. The petition does not state whether the issue was raised on direct appeal as a matter of federal constitutional law. However, in its response, filed June 3, 2002, the respondent does not deny that the issue was at least raised by the petitioner in the Oklahoma Court of Criminal Appeals, nor does the respondent assert that this court should not reach the issue due to any failure by petitioner to raise the issue in the state court as a matter of federal constitutional law. The opinion of the Oklahoma Court of Criminal Appeals in Harris v. State. 13 P.2d 489 (Okla. 2000), cert. denied, 532 U.S. 1025 (2001) contains no indication as to whether petitioner asserted the videotape issue as a matter of federal constitutional law. It is obvious, however, that the matter was reached by the Oklahoma Court of Criminal Appeals and the court is confident that any procedural default would have been pointed out by respondent in its response to the petition. Accordingly, the court sees no need to inquire further into the possibility of a procedural default.
The court's analysis of Tenth Circuit cases dealing with issues as to AEDPA deference both before and after Early v. Packer. 537 U.S. 3 (2002) leads the court to conclude that the divergent strands of Tenth Circuit authority which existed before the Supreme Court's decision in Early v. Packer have now converged into one rule, at least on this issue, which can be ascertained from the Circuit Court's post-Early v. Packer cases.
As good a beginning point as any is the Circuit Court's decision inAycox v. Lytle. 196 F.3d 1174 (10th Cir. 1999). In Aycox. the claims the petitioner sought to litigate in the federal habeas case were summarily turned aside, without discussion, by the New Mexico State courts. Id. at 1177. The Court of Appeals nevertheless concluded that AEDPA deference was due, because the deference which was due, the court said, was "deference to the state court's result, even if its reasoning is not expressly stated." Id. Consequently, the court expressly embraced AEDPA deference and expressly rejected de novo review. Id. at 1178. In Ellis v. Mullin, 326 F.3d 1122 (10th Cir. 2002), cert. denied, 2003 WL 21903258 (October 20, 2003), the court reached a different result. In Ellis, the State clearly had considered petitioner's claim, and clearly had explained the reasoning for its decision, albeit as a matter of state law, not federal constitutional law. On these facts, the court, without discussing the Supreme Court's decision in Early v. Packer (handed down 40 days earlier) concluded that de novo review was required, id. at 1128, citing Le v. Mullin, 311 F.3d 1002 (10th Cir. 2002), cert. denied, ___ U.S.___, 124 S.Ct. 80 (2003) and Romano v. Gibson, 239 F.3d 1156 (10th Cir. 2001), cert. denied, 534 U.S. 1046 (2001).
The Court of Appeals did note that an explanation of the New Mexico court's reasoning would nevertheless have been welcome because it might "diminish the risk that we might conclude the action unreasonable at law or under the facts at hand." Id. at 1178, n. 3. The court nevertheless resolved to accord AEDPA deference to the New Mexico adjudication: "However, when presented with a summary disposition, as we are here, we will do our best under the standard of review mandated by AEDPA." Id.
Judge Brorby dissented in Ellis v. Mullin. In his dissent, Judge Brorby pointed out at considerable length the inconsistent strands of Tenth Circuit authority with respect to AEDPA deference. Id. at 1130-31. Nevertheless, reaching the merits on a de novo basis, the Court of Appeals reversed the denial of the writ. Id. at 1130.
Early v. Packer. 537 U.S. 3 (2002) was handed down in November, 2002, and had a noticeable, if not entirely consistent, impact upon Tenth Circuit AEDPA jurisprudence beginning with Cook v. McKune, 323 F.3d 825 (10th Cir. 2003).
Strictly speaking, Early v. Packer did not involve an issue of AEDPA deference in the sense being discussed here. Indeed, in Packer v. Hill. 291 F.3d 569 (9th Cir. 2002), the Ninth Circuit purported to apply § 2254, id. at 578, n. 7, while noting that the California court had failed to cite "any federal law, much less Supreme Court precedents." Id. at 578. The Supreme Court, reviewing the Ninth Circuit's decision, noted that the Ninth Circuit had correctly determined that § 2254(d) was applicable, id. at 364, and addressed the question of whether the Ninth Circuit had correctly determined the state court adjudication to be "contrary to" clearly established Supreme Court precedent within the meaning of § 2254(d)(1) — answering that question in the negative:
[T]he Ninth Circuit observed that the state court "failed to cite . . . any federal law, much less the controlling Supreme Court precedents." 291 F.3d, at 578. If this meant to suggest that such citation was required, it was in error. A state-court decision is "contrary to" our clearly established precedents if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Avoiding these pitfalls does not require citation of our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them. The Ninth Circuit's disapproval of the Court of Appeal's failure to cite this Court's cases is especially puzzling since the state court cited instead decisions from the California Supreme Court that impose even greater restrictions for the avoidance of potentially coercive jury instructions.Id. at 365 (italics in original; underscore added).
As relevant here, the conclusion to be reached from Early v. Packer is that since a state court's failure to cite federal precedent does not preclude a determination, applying § 2254(d)(1), that the state court decision was not "contrary to" federal law as determined by the Supreme Court, the state court's failure to cite federal precedent, a fortiori, does not preclude the applicability of § 2254 (i.e., § 2254 "deference") in the first instance. In Cook v. McKune, 323 F.3d 825 (10th Cir. 2003), our Court of Appeals clearly understood Early v. Packer to have this meaning. Id. at 830-31.
In Cook v. McKune, on the issue of whether the state court's adjudication was an adjudication "on the merits" for purposes of § 2254(d), the court noted the divergent strands of Tenth Circuit precedent and specifically took note of Judge Brorby's discussion of "the tension between these lines of cases in his dissent" in Ellis v. Mullin, 323 F.3d at 831. The Court of Appeals then concluded that: "Whatever discord exists between our decisions was resolved by Early v. Packer [citation omitted], in which the Supreme Court said that failure to discuss or even to be aware of federal precedent does not in itself render a state court's decision contrary to federal law. The Supreme Court thus applied the AEDPA standard to a claim which the state court disposed of without citing controlling Supreme Court precedent." Id. at 831. The court went on to conclude that the AEDPA standard applied. Id.
Thus, the Court of Appeals, in Cook v. McKune, noticed two significant aspects of the Supreme Court's decision in Early v. Packer, First, and less important for purposes immediately at hand, the Court of Appeals read Early v. Packer for the proposition that failure to discuss or even to be aware of federal precedent does not render a state court's decision contrary to federal law. Secondly, and more to the point here, the Tenth Circuit read Early v. Packer as significant for its application of "the AEDPA standard to a claim which the state court disposed of without citing controlling Supreme Court precedent." Cook v. McKune at 831.
Twenty-four days after its decision in Cook v. McKune, the Tenth Circuit handed down its decision in Darks v. Mullin, 327 F.3d 1001 (10th Cir. 2003), cert. denied, 2003 WL 21960365 (Oct. 20, 2003). In Darks, the court, without citing Early v. Packer or Cook v. McKune, but relying onLe v. Mullin, Ellis v. Mullin and Romano v. Gibson, concluded that no AEDPA deference was due because the Oklahoma Court of Criminal Appeals resolved Mr. Darks' habeas issue "on state law grounds only." Id. at 1012. The court proceeded with de novo review, id., with no analysis as to whether the Oklahoma Court of Criminal Appeals had addressed Mr. Darks' habeas issue to the extent the Supreme Court had determined to be sufficient in Early v. Packer, In Upchurch v. Bruce, 333 F.3d 1158 (10th Cir. 2003), petition for cert. filed, October 13, 2003 (No. 03-602), the Court of Appeals, although citing Early v. Packer on another point (namely, that failure to cite to Supreme Court law does not automatically result in a decision that is "contrary to" established federal law under AEDPA), id. at 1164, cited the 1999 decision in Aycox v. Lytle for the proposition that even a cryptic state court decision constitutes a decision on the merits for AEDPA purposes, triggering deference to the state court's result even if the state court's reasoning is not expressly stated. Id. at 1165, n. 5. The court in Upchurch thus reached the result it would have reached if it had followed Cook v. McKune.
In Wansing v. Hargett, 341 F.3d 1207 (10th Cir. 2003), petition for cert. filed, October 3, 2003 (No. 03-6855), the Court of Appeals, citingEarly v. Packer, noted that the decision of the Oklahoma Court of Criminal Appeals might constitute "an implicit judgment on the federal issue, id. at 1212, and, on that basis, assumed that AEDPA deference was due.
As has been noted, Judge Couch did not have the benefit of Early v. Packer's Tenth Circuit progeny when she issued her Report and Recommendation. Consequently, relying predominantly on Ellis v. Mullin, Judge Couch concluded that de novo review was required for lack of "reference to United States Supreme Court precedent." Report and Recommendation at 15. As discussed above, it appears that Ellis has been overtaken by subsequent developments in Tenth Circuit case law applyingEarly v. Packer ( e.g., Cook v. McKune). It is clear now that the extended treatment of the issue of the admission of the videos by the Oklahoma Court of Criminal Appeals means that petitioner's claims relating to the videos were "adjudicated on the merits" within the meaning of § 2254(d), notwithstanding the absence of citation to United States Supreme Court precedent. For that reason, the court concludes that AEDPA deference is due and, consequently, that the writ may be granted only if the OCCA's adjudication of petitioner's claim either (i) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or (ii) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. The OCCA's failure (if it can be called that) to cite Supreme Court cases is of no moment "so long as neither the reasoning nor the result of the state-court decision contradicts them."Early v. Packer at 365.
2. In any event, the OCCA applied a substantive standard at least as favorable to the petitioner as the federal constitutional standard.
In Early v. Packer, the Supreme Court found the Ninth Circuit's decision "especially puzzling" because the state court had applied a line of California cases which were more restrictive (e.g., more favorable to the petitioner) than the prevailing precedent from the United States Supreme Court would have been. Early v. Packer. at 365 (comparing People v. Gainer. 566 P.2d 997 (1977) with Alien v. United States. 164 U.S. 492 (1896)). It follows both from this passage and from the holding in Early v. Packer that the niceties of analysis of a state court adjudication for purposes of determining the applicability of AEDPA deference are essentially irrelevant if it is apparent from the state court's decision that the state court applied a standard at least as favorable to the petitioner as that available under United States Supreme Court precedent. Thus, regardless of whether Cook v. McKune or Darks v. Mullin is more indicative of our circuit's current reading of § 2254(d), virtually any conceivable issue as to the availability of AEDPA deference is pretermitted if the state court applied a standard as generous, or more so, than the prevailing federal constitutional standard as articulated by the United States Supreme Court. It is "an absolute prerequisite" to a claim for habeas relief "that the asserted constitutional right on which it rests derive in clear fashion from Supreme Court precedent."Carter v. Ward, 2003 WL 22391261 (10th Cir. October 21, 2003). The court accordingly examines, in turn, the standard applied by the OCCA to petitioner's assertion of error in the admission of the videos and the federal constitutional standard governing state court evidentiary rulings in criminal cases. If the standard adopted by the OCCA at least "mirrors" the applicable federal constitutional standard, Upchurch at 1164, n. 4, there is no reading of the controlling cases which would permit de novo review.
"Federal habeas review is not available to correct state law evidentiary errors; rather it is limited to violations of constitutional rights." Spears v. Mullin, 343 F.3d 1215, 1225 (10th Cir. 2003), quoting from Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999).
a. The standard applied by the OCCA.
In Harris v. State, the issue of the admission of the videos received, to put it mildly, extended treatment by the Oklahoma Court of Criminal Appeals. The court's discussion is spread across six pages of the Pacific Reporter. 13 P.2d at 492-97. The Court of Criminal Appeals first engaged in a general discussion of videos as demonstrative aids and then, following the lead of a South Carolina decision which the court clearly considered to provide a useful treatment of the issue, articulated four prerequisites (a three-part foundation requirement plus a limiting instruction) to the admission of "a video or computer crime scene reenactment." 13 P.2d at 495. The court expressed the three foundational prerequisites plus the limiting instruction requirement as follows:
In order for a video or computer crime scene reenactment to be seen by a jury, as an aid to illustrate an experts witness' testimony, the court should require (1) that it be authenticated-the trial court should determine that it is a correct representation of the object portrayed, or that it is a fair and accurate representation of the evidence to which it relates, (2) that it is relevant, and (3) that its probative value is not "substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise." See 12 O.S. 1991, §§ 2401-2403[12-2401-2403], 2901.
The court should give an instruction, contemporaneous with the time the evidence is presented, that the exhibition represents only a re-creation of the proponent's version of the event; that it should in no way be viewed as an actual recreation of the crime, and like all evidence, it may be accepted or rejected in whole or in part.
13 P.2d at 495. The OCCA proceeded, after articulating these requirements, to carefully parse the contents of the videos, id. at 496, following which it assessed the limiting instruction which had been given by the trial judge, concluding that the test the court had articulated had been satisfied. Id. at 496-97.
b. The federal constitutional standard.
So far as may be ascertained from U.S. Supreme Court decisions, the general standard (e.g., the standard applicable in the absence of, for instance, a Fifth Amendment self-incrimination issue or a Fourth Amendment exclusionary rule issue) is one of fundamental fairness, the question being whether the state court's evidentiary ruling deprived the criminal defendant of a fair trial in such a fundamental way as to amount to a denial of due process. Chambers v. Mississippi, 410 U.S. 284 (1973). As explicated by our Court of Appeals, the constitutional test is whether the state court evidentiary ruling rendered the trial "fundamentally unfair." Vigil v. Tansy, 917 F.2d 1277, 1280 (10th Cir. 1990), cert. denied, 498 U.S. 1100 (1991). See also, Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir. 2002), cert. denied, 537 U.S. 1093 (2002). In Duckett v. Mullin, 306 F.3d 982 (10th Cir. 2002). cert. denied, 123 S.Ct. 1911 (2003), the Tenth Circuit applied this fundamental fairness standard to the state court's admission of a video tape which consisted, in part, of a "re-enactment of a portion of the crime." Id. at 999-1000, and n. 8. A reviewing court should not be tempted to view the state court evidentiary ruling in isolation — it must be viewed "within the context of the entire [trial]." Spears at 1226.
It is also important to bear in mind that where, as here, we are not applying "the specific guarantees enumerated in the Bill of Rights,"Estelle v. McGuire, 502 U.S. 62, 73 (1991) (internal quotation and citation omitted) — with the result that the operative standard is no more definitive than fundamental fairness — "the Due Process clause has limited operation." Id. See also, Bullock at 1055. The search is neither for "garden-variety errors, whether of fact or law, that may stain the record of a state criminal trial" Burks v. Dubois, 55 F.3d 712, 715 (1st Cir. 1995) nor for a state court's misapplication of its own evidentiary rules. Bullock at 1055.
c. Comparison of the OCCA's standard and the federal constitutional standard.
The Chambers fundamental fairness standard, applicable in the absence of a more specific constitutional guarantee, has not been embellished by the Supreme Court. Thus the governing constitutional rule has been declared only at a very high level of generality and is to be given only a narrow sweep. Estelle v. McGuire at 73. The court easily concludes that the OCCA's adoption of the three foundational prerequisites plus the requirement of a limiting instruction, as discussed in part D (2)(a), above, takes into account the bedrock principles which would inform any application of the Chambers fundamental fairness standard. Under the test adopted by the OCCA, the video (i) must be rooted in the evidence, (ii) must illustrate a relevant contention, and (iii) must possess probative value which is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence or unfair and harmful surprise. 13 P.2d at 495. If the video clears this hurdle, its introduction into evidence must be tempered by a limiting instruction. Id. Although Judge Couch concluded that the OCCA applied "a less stringent standard," Report and Recommendation, at 18, no case has been cited, and none has been found, which would suggest that the Chambers standard is more demanding than the four-part approach adopted by the OCCA in State v. Harris. The court accordingly concludes that the standard adopted by the OCCA at least "mirrors" the applicable federal constitutional standard, Upchurch at 1164, n. 4. De novo review is neither required nor permitted by any reading of the relevant Supreme Court and Tenth Circuit cases.
E. Application of the substantive standard with AEDPA deference.
Application of the Chambers fundamental fairness standard with AEDPA deference requires, first, an examination of just what AEDPA deference entails. Under the "contrary to" clause of § 2254(d)(1), "a federal habeas court may grant the writ 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." Williams v. Taylor, 529 U.S. 362, 413 (2000). Similarly, under the "unreasonable application" clause, the writ may be granted 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.
Under the "unreasonable application" clause, the state court decision must be "more than incorrect or erroneous." Lockyer v. Andrade, ___ U.S. ___, 123 S.Ct. 1166 at 1174 (2003). Even the application of a clear error standard "fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. at 1175.
In addition to the "contrary to" and "unreasonable application" clauses of § 2254(d)(1), mention must be made at least in passing of the "unreasonable determination of the facts" provision for habeas relief in § 2254(d)(2). No contention has been made that the Oklahoma Court of Criminal Appeals (or, for that matter, the trial judge) misperceived the operative facts. The facts relevant to the OCCA's resolution of the issues before it are fairly, and at considerable length, recounted in that court's opinion. Thus, the central issue here falls within the compass of § 2254(d)(1) — the issue being whether we have here a decision that was "contrary to" Supreme Court constitutional precedent or an unreasonable application of that precedent. Any issues as to the accuracy of the OCCA's account of the facts are fairly subsumed within that court's analysis and application of the principles it found to be controlling. This is true even as to one factual statement by the OCCA which Judge Couch found to be telling. The OCCA found that "Bevel's testimony accurately depicted the scenes on the tapes." Harris, at 495. This finding was correct — Bevel's testimony did accurately depict the scenes on the tape, insofar as he described those scenes at all. If this statement were to be found at the end, rather than the beginning, of the OCCA's analysis, the court would agree with Judge Couch's conclusion that this statement "misconstrues the proper analysis." Report and Recommendation at 24. However, the court's reading of the OCCA's opinion does not suggest to the court that the OCCA, in observing that Mr. Bevel's testimony "accurately depicted" the scenes on the tapes, applied a standard thought by that court to be determinative of the admissibility of those tapes. Thus, this factual matter relates more to the OCCA's articulation and application of the governing standard than it does to any matters which would be relevant under § 2254(d)(2) ("unreasonable determination of the facts"). For that reason, the court is content to address the issues in this case only under § 2254(d)(1).
In adopting the rule which it embraced in Harris v. State, the OCCA did not arrive "at a conclusion opposite to that reached by [the Supreme Court] on a question of law." Williams at 413. There is no Supreme Court decision, expounding constitutional law, which would cast doubt upon the constitutional soundness of the test adopted by the OCCA. Likewise, the OCCA's decision in Harris v. State is not at odds with a decision handed down by the Supreme Court "on a set of materially indistinguishable facts." Id.
In the context of this case, the best fit under § 2254, for analytical purposes, is the "unreasonable application" clause. The "application" which deserves scrutiny is two-fold. The first question is whether the OCCA adopted a legal standard which amounted to an erroneous "application" of Chambers. The court has concluded, as discussed above, that the OCCA did not do that. The second inquiry is whether the standard employed by the OCCA was applied by that court in a constitutionally untenable way.
The matters portrayed on the videotapes which are at issue were relevant, they had evidentiary support, the petitioner had ample opportunity to (and did) contest both the evidentiary underpinnings of the tapes and the inferences to be drawn from the tapes, and the trial judge made plain to the jury, by giving the limiting instruction requested by petitioner, the confines within which the tapes could appropriately be considered.
The two matters which deserve discussion are the questions of evidentiary support and opportunity to contest. As has been noted, the evidentiary support for the videos lay in the evidence as to the locations of the entry and exit wounds, the position of the passenger seat, Mr. Pearce's position in that seat, the locations of the bullet impact points within the Bronco and the absence of high velocity back spatter on petitioner's shirt. Aside from the brief depiction of simultaneous activity with the knife and the gun (which was repeatedly disclaimed by all witnesses who addressed that matter), the videos portrayed no significant actions which were without at least some support in the evidence which preceded the admission of the tapes. Judge Couch, applying de novo review, found the portrayal of the position of the shooter to be impermissible. Report and Recommendation at 21-22. Assuming that the deference required by the "unreasonable application" clause of § 2254(d)(1) requires the court to determine whether the admission of the videos, with their depictions of the shooter's position, deprived petitioner of a fundamentally fair trial, the court disagrees with the conclusion stated in the Report and Recommendation. The record before the court provides at least some evidence upon which there could be based a rational inference that the shooter shot from outside of the car. If petitioner's shirt was too far away from the entry wounds to receive back spatter (i.e., as much as 42 inches away), then it could certainly be inferred that he was standing at the left side of the Bronco, with his arm and hand extending into the Bronco. If this was permissible to infer, it was permissible, as a matter of trial advocacy, to reenact or animate.
Finally, on the issue of "unreasonable application," the court's analysis is influenced by the fact that, as has been discussed, the petitioner had ample opportunity at trial to contest both the evidentiary underpinnings of the videos and the inferences to be drawn from them. Petitioner's highly competent and experienced defense counsel took issue with the videos on both counts. The deficiencies in the videos, if any there were, "were fully identified, examined, criticized, and interpreted at a trial in which [Mr. Harris] was represented by competent counsel."Bullock v. Carver, 297 F.3d 1036, 1054 (10th Cir. 2002), cert. denied, 537 U.S. 1093 (2002).
In Bullock, the Court of Appeals affirmed the denial of habeas relief even while observing that a child therapist who clearly provided significant expert testimony had employed "questionable interview techniques." Bullock at 1055. A reading of Bullock strongly suggests that the testimony which was unsuccessfully challenged in that case under theChambers fundamental fairness standard was at least as damaging (and probably more vexing to challenge or counter) as the evidence at issue in the case at bar.
The asserted deficiencies in the videos which were identified, examined and criticized at trial included the depiction of simultaneous action with the knife and the gun. As has been noted, the absence of simultaneous activity with the knife and the gun was repeatedly established at trial. The Court of Appeals has recognized the curative effect of clarifying testimony in a criminal jury trial. See, e.g. United States v. Sarracino, 340 F.3d 1148, 1168 (10th Cir. 2003) (the witness "assured the jurors that the head had not been severed").
The challenges inherent in the videos amounted to nothing more than the challenges inherent in trying a hotly contested case. Applying AEDPA deference, the court concludes that petitioner has not shown that he is entitled to the writ he seeks.
F. Application of the substantive standard without AEDPA deference.
This is not a case in which the petition must be denied only because of the restraints imposed by § 2254(d). De novo review leads the court to the same conclusion.
Bullock v. Carver was a pre-AEDPA case. 297 F.3d at 1043 ("we apply pre-AEDPA law"). Although it appears that the Court of Appeals, inBullock, had serious misgivings about the admission of the child therapist's testimony, the court, recognizing the narrow scope of habeas review of a state court's evidentiary rulings, concluded that the spirited contest at trial as to the merits of the therapist's testimony kept the trial within the bounds of fundamental fairness. Id. at 1055. Compared to Bullock, the case at bar is an a fortiori case. The court, applying de novo review (that is, searching for "garden-variety errors,"Burks at 715), concurs with the admission of the videos into evidence. The court accordingly concludes that denial of the relief sought by petitioner is required regardless of whether any deferential standard of review is applied.
G. Harmless error.
A state court conviction is not, in any event, to be set aside on habeas review unless error was committed which had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The Brecht standard applies where the petitioner asserts prejudicial error in the admission of evidence. Hooper v. Mullin, 314 F.3d 1162, 1174 (10th Cir. 2002), cert. denied, ___ U.S. ___, 124 S.Ct. 97 (2003).
For the reasons discussed above (see pages 37-41), the court concludes that any error — and the court finds none — in the admission of the videos was harmless. The asserted deficiencies in the videos were thoroughly aired before the jury. They were the subject of arguments pro and con by counsel during closing argument. The record presents no basis for a finding that the jury could have perceived that the videos amounted to independent evidence of any fact in issue, and the court does not presume that the jury would have cut any such supposition from the whole cloth.
Conclusion
Respondent's objections to the Report and Recommendation are SUSTAINED. The Report and Recommendation is ADOPTED IN PART AND REJECTED IN PART. The Report and Recommendation is adopted to the extent that it recommends that habeas relief be denied. Report and Recommendation at 34. The Report and Recommendation is rejected to the extent that it recommends that a conditional writ issue. Id. at 33-34.
The petition for a writ of habeas corpus is DENIED.