Opinion
No. CIV-19-598-F
03-31-2020
TONY PRECILIAND OVERTON, Petitioner, v. SCOTT CROW, Interim Director, Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1 ("Petition"). Petitioner is challenging his convictions for Murder in the First Degree, First Degree Burglary After Former Conviction of Two or More Felonies ("AFCF"), and Robbery with a Dangerous Weapon AFCF in the District Court of Oklahoma County, Case No. CF-2013-1097. Respondent has responded to the Petition and filed the relevant state court records. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Petition be denied.
I. Background
In 2015, Petitioner was tried before a jury on Murder in the First Degree, First Degree Burglary AFCF, and Robbery with a Dangerous Weapon AFCF. See State of Okla. v. Overton, Oklahoma County District Court, Case No. CF-2013-1097. The jury found him guilty on all counts. Id. On December 17, 2015, the trial court sentenced Petitioner in accordance with the jury's recommendation to life imprisonment as to his conviction for Murder in the First Degree and twenty years imprisonment each for First Degree Burglary AFCF and Robbery with a Dangerous Weapon AFCF. Id. The trial court ordered that all sentences run consecutively. Id.
See http://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2013 1097.
This case arose from an incident that occurred on August 29, 2012, at approximately 4:00 p.m. On that date, Cari Novak and Ricky Wallice were at their home at 1809 S.W. 19th Street, Oklahoma City, Oklahoma. Tr. Vol. II 26-27. Also living at the home were Ms. Novak's children, R.P. who was six years old at the time and C.P. who was four. Tr. Vol. II 27. R.P. was the only child at the residence during the incident underlying this case. Tr. Vol. II 31. Ms. Novak testified that she got home from work at approximately 3:30 p.m. and Mr. Wallice and R.P. were home. Id. at 30-32. After she made R.P. a snack, he went into the bedroom to watch cartoons and she sat down with Mr. Wallice on the couch. Id. at 32. Someone knocked on the front door and Mr. Wallice went to answer. Id. at 33. Ms. Novak saw Mr. Wallice crack open the screen door and ask, "Can I help you?" and she noticed him move his hand down to his side where he usually kept a knife on his hip. Id. She next heard him ask, "Who are you looking for?" Id. The individuals at the door then pushed their way into the house and started hitting Mr. Wallice. Id. at 33, 40.
One individual was a white male and the other was a black male. Id. at 33-34. Ms. Novak identified Petitioner as the white male and testified that he entered first. Id. at 34, 40-41. She was screaming, begging them to stop while also trying to prevent R.P. from leaving the bedroom. Id. at 41. She finally told R.P. to hide in the bedroom closet and not come out. Id. at 43. Petitioner and the second individual noticed an aluminum bat and wooden bat behind the front door and began beating Mr. Wallice with them. Id. at 37-38, 41-42; State's Ex. 8.
Ms. Novak attempted to use her cell phone to call 911. Id. at 42. However, Petitioner looked up and noticed what she was doing, took the phone out of her hand, broke it in half, and threw the pieces on the floor. Id. at 42; State's Exs. 13, 16. At that time, Petitioner noticed another cell phone, which belonged to Mr. Wallice, on the couch and broke it in half as well. Tr. Vol. II 77.
At some point while they were beating Mr. Wallice, Petitioner said, "You beat the wrong bitch out of some money." Id. at 43-44. Once Mr. Wallice was on the floor and stopped moving, Ms. Novak went into the bedroom where her little boy was and sat with her back against the door. Id. at 43. After a few moments of silence, she thought they left and cracked open the door. Id. at 44. The black individual saw her and told her to stay in the bedroom and not to come out until they were gone. Id. One of them told her that if she told or called anyone, they would come back and burn down her house with her in it. Id. at 44-45.
After Ms. Novak closed the door again, Petitioner pushed it open and asked, "Where's the dope?" Id. at 44. Ms. Novak told him that she did not know what he was talking about and did not have any drugs. Id. She could hear the black individual continue to rummage through things in the rest of the house. Id. They took Ms. Novak's keys, including her key to her car and house, a laptop bag, digital camera, tools, and knickknacks. Id. at 45-46. Ms. Novak testified that prior to August 29, 2012, she had never seen either individual before. Id. at 45, 46, 53, 61.
After Petitioner and the second individual left, Ms. Novak got her son out of the closet and left the bedroom. Id. at 46. Mr. Wallice had managed to get on the couch. Id. She observed the top of his head was cracked open and bleeding, and he was awake but "kind of mumbling." Id. at 47. She told him that she had to go outside to get help. Id. at 46-47. She started screaming for help when she got outside and a neighbor helped her call 911. Id. at 47; State's Ex. 2.
Mr. Wallice was transported to the University of Oklahoma Health Sciences Center. Tr. Vol. II 52-53; Court's Ex. 1. Mr. Wallice presented with multiple rib fractures and a depressed skull fracture and CT scans revealed severe hemorrhaging within the lungs, brain, and body cavity. Court's Ex. 1. A portion of Mr. Wallice's skull was removed to relieve pressure within his cranium from the swelling, however, traumatic brain injury resulted. Id. Mr. Wallice was in a coma for three days and passed away on September 1, 2012. Tr. Vol. II 52; Court's Ex. 1.
Elbert Pindea, a neighbor of Ms. Novak, testified he saw two men leaving Ms. Novak's house on August 29, 2012, before she came out of the house crying. Tr. Vol. III 6-7. Mr. Pindea said that the men were traveling on small bicycles. Id.
Ms. Novak described Petitioner and the second individual to a sketch artist, who rendered a sketch of each individual based on her descriptions. Id. at 54-55; State's Exs. 19, 20. She also gave several descriptions of Petitioner's physical characteristics, including that his age was approximately 45 to early 50s, 6'1" in height, 190 pounds, medium build, blond hair with some gray, short but long on top, receding hair line and thinning, facial hair-stubble with some gray, fair complexion, white t-shirt, light colored blue jeans, and black bicycle gloves. Tr. Vol. II 56; State's Ex. 19. Throughout the investigation, each description Ms. Novak gave of Petitioner was similar, though not exactly the same. Tr. Vol. II 72-73.
On January 17, 2013, a detective with the Oklahoma City Police Department showed Ms. Novak a series of six photographs of white males, including Petitioner. Id. at 61-62; Tr. Vol. III 11, 41-43; Defendant's Ex. 2. Ms. Novak did not pick out Petitioner, nor anyone else, from the photographs as the white man who had beaten Mr. Wallice. Tr. Vol. II 61-62; Tr. Vol. III 42-43. At some point, a news reporter was waiting for Ms. Novak at her home one evening when she got home from work. Tr. Vol. II 63. The reporter wanted to ask Ms. Novak about the news that Petitioner had been taken into custody. Id. The reporter showed a photograph of Petitioner to Ms. Novak and told Ms. Novak that Petitioner was in custody for Mr. Wallice's death. Id. at 63, 80. Ms. Novak testified that when she saw the photograph she knew immediately Petitioner was the white male at her home on August 29, 2012. Id. at 63-64. She also explained that he looked different in the photograph the reporter showed to her than he did in the photograph line-up the police had previously shown her. Id. at 64.
During Petitioner's trial, Sergeant Dave Evans of the Oklahoma City Police Department testified regarding collecting and testing various pieces of evidence from the crime scene where Mr. Wallice was assaulted. Tr. Vol. II 106, 110-14, 117-33. Sgt. Evans testified that he collected pieces of broken cell phones, a cell phone battery, a wooden bat, and an aluminum bat. Id. at 110-14, 117-21; State's Exs. 4, 11, 16, 24, 29, 34, 35, 36, 37. The aluminum bat appeared to have blood on it. Id. at 114, 119.
Yvonne Hill, a latent fingerprint examiner for the Oklahoma City Police Department, testified that she was able to test two fingerprints found on the pieces of broken cell phone taken from the scene. Id. at 160, 163-65, 166. She submitted those fingerprints to the Automated Fingerprint Identification System ("AFIS"). Id. at 163-66. AFIS results indicated the fingerprints from the cell phone pieces matched Petitioner. Id. at 166-67; Tr. Vol. III 39-40; State's Exs. 36, 37. In July 2013, Ms. Hill fingerprinted Petitioner and confirmed his fingerprints matched those on the cell phone pieces. Tr. Vol. II 168-69. Specifically, on one piece of broken cell phone, a match was made to Petitioner's right middle finger and on another, a match was made to Petitioner's left middle finger and left index finger. Id. at 169-72; State's Ex. 46.
Detective Kenny Lanman and his partner, Tonya Eastridge, were the lead detectives on this case. Tr. Vol. III 11-14, 83. On February 7, 2013, Detective Lanman interviewed Petitioner at Oklahoma City Police Department headquarters. Id. at 49-51; State's Ex. 47. During the interview, Petitioner denied any knowledge of the events underlying this case. State's Ex. 47. Detective Lanman asked Petitioner how his fingerprints came to be on the cell phone at the crime scene. State's Ex. 47. Petitioner responded, "Maybe I touched her phone." Id. At that point, Detective Lanman had not identified Ms. Novak, nor indicated the gender of the cell phone owner. Id.; Tr. Vol. III at 63-64, 128. Detective Lanman asked Petitioner if he ever rode bicycles and he responded that he was unable to ride them because he had bad knees. Tr. Vol. III 73, 78; State's Ex. 47. Additionally, although Detective Lanman had not mentioned the location of the underlying incident, Petitioner stated that he had not been south of the Oklahoma River since 1989. State's Ex. 47.
During the interview, Petitioner mentioned his own cell phone stating that it was either at the residence of a friend named Ernie or at the home of his girlfriend, Kayla Johnson, where Petitioner occasionally lived. Tr. Vol. III 58; State's Ex. 47. When officers arrived at Ms. Johnson's home to search for Petitioner's cell phone, they discovered a black male was present who also lived at the residence. Tr. Vol. III 59-60. His name was Tony Garner and the officers arrested him based on outstanding warrants for his arrest on unrelated criminal charges. Id. at 59. Detective Lanman testified that he later received DNA comparisons showing the chances that the DNA obtained from the wooden bat came from an African American male were one in 529. Id. at 60, 64-65.
Detective Lanman explained that with a crime such as the one at issue herein, the first thing law enforcement must do is rule out a family member, friend, and/or someone with whom the victim lives. Tr. Vol. III 18-19. Detective Lanman wanted Petitioner's cell phone in order to rule out any collusion between Ms. Novak and Petitioner and so that he could check cell site location information from the cell phone records. Tr. Vol. III 59.
Detective Lanman's testimony regarding DNA evidence will be discussed at length in addressing the specific claims Petitioner raises herein.
On March 27, 2014, Detective Lanman conducted a second interview of Petitioner. Tr. Vol. III 66-67; State's Ex. 48. During this interview, Petitioner stated that he recognized Ms. Novak's cell phone telepathically. Tr. Vol. III 70-71; State's Ex. 48. Petitioner said that he had previously sold Ms. Novak marijuana on about ten occasions. Tr. Vol. III 72; State's Ex. 48. Contrary to his previous statements, Petitioner stated that he did ride bicycles when he had one but that his was stolen. Tr. Vol. III 73; State's Ex. 48. Petitioner also said that if he had committed this murder and broken Ms. Novak's cell phone, he would have taken it with him when he left and thrown it in the river on his way back home. State's Ex. 48. He also demonstrated with hand motions how the cell phone was broken in half. Tr. Vol. III 73-74; State's Ex. 48.
In the second interview, Petitioner repeatedly stated that he was high during the first interview. Tr. Vol. III 71; State's Ex. 48. Detective Lanman testified that he had previously worked as an Impact Officer dealing with people who are high frequently and that he did not see any signs during the first interview that Petitioner was high. Tr. Vol. III 71.
Petitioner also stated during the second interview that Ms. Novak and he were friendly but they did not have an intimate relationship. Tr. Vol. III 74-75, 130; State's Ex. 48. However, on March 15, 2014, Petitioner spoke to his brother on the telephone while he was in jail and stated that he had been having sexual relations with Ms. Novak and that he frequently used her cell phone. Tr. Vol. III 75-76; State's Ex. 49. Detective Lanman explained this telephone call took place after Petitioner was arraigned and had received the paperwork related to the charges against him, including Ms. Novak's identity, but prior to the second police interview. Tr. Vol. III 76.
An audio recording of the jail telephone call between Petitioner and his brother was played for the jury. Tr. Vol. III 75-76; State's Ex. 49. Due to the explicit language used by Petitioner and his brother during this call, its admission in unredacted form is the subject of grounds for relief raised herein. Therefore, the jail telephone call is discussed in more detail below.
Although Detective Lanman was unable to obtain Petitioner's cell phone, he did obtain Petitioner's cell phone number. Tr. Vol. III 76-77. On April 3, 2014, Detective Lanman obtained court orders to pull historical phone records of both Petitioner and Ms. Novak's cell phone numbers. Tr. Vol. III 77-78. He was able to obtain one year of records for Ms. Novak's telephone that showed every number she had called and that had called her, along with all numbers with which she had exchanged SMS and text messages. Id. at 79. Detective Lanman was only able to obtain the same records for the previous 180 days for Petitioner due to the type of cell phone he possessed. Id. at 80. Detective Lanman testified that Petitioner's cell phone number did not show up in Ms. Novak's records. Id. at 80-81.
Also during the second interview, Petitioner claimed that he had been in Pauls Valley, Oklahoma on August 29, 2012, the day Mr. Wallice was assaulted. Tr. Vol. III 81; State's Ex. 48. Petitioner told Detective Lanman that he had contact with the Pauls Valley Police Department while he was there and was almost arrested. Id. Detective Lanman contacted the Pauls Valley Police Department who told him that any time they come into contact with an individual, the officer runs the individual's name through an information database to ensure there are no outstanding warrants for that person. Tr. Vol. III 81. The Pauls Valley Police Department did not have any record of running Petitioner's name though their information database. Id. at 81-82.
Petitioner elected to testify at his trial. Tr. Vol. III 109. He testified that in 2012, he knew Ms. Novak as an acquaintance. Id. at 111. He claimed that his cousin introduced her to Petitioner as someone who would like to purchase marijuana. Id. at 112. Petitioner testified that he sold Ms. Novak marijuana on several occasions, the last time being the end of August 2012. Id. at 112-13. He claimed that during the last transaction near the end of August 2012, he used her cell phone. Id. at 113. He stated that he does not know where he was on August 29, 2012, but he was not at Ms. Novak's because he did not know where she lived. Id. at 114, 118-19.
With regard to his conflicting statements about his ability to ride bicycles, Petitioner claims that in the first interview, he was speaking in the present tense because he was having problems with his knees at that time. Id. at 117-18, 126-28. He testified that he never slept with Ms. Novak and that the only reason he said otherwise during the jail telephone call was because he was angry. Id. at 118, 130-31. He further testified that he told Detective Lanman that he was in Pauls Valley, Oklahoma on August 29, 2012, because he had a memory slip regarding the dates he was actually in Pauls Valley. Id. at 118-19, 131.
Following his convictions, Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals ("OCCA") raising each of the grounds he raises herein. Doc. No. 16-1. As discussed in more detail below, although the State conceded and the OCCA agreed that several errors took place during Petitioner's trial, the OCCA affirmed Petitioner's convictions finding that given the strength of the State's evidence against him, said errors were harmless. Doc. No. 16-5. However, two appellate judges filed a dissenting opinion finding that Petitioner's convictions should have ben reversed and the case remanded for a new trial based on cumulative error. Doc. No. 16-5 at 16.
Petitioner filed an application for post-conviction relief with the state district court raising cumulative error and ineffective assistance of appellate counsel based on appellate counsel's failure to raise cumulative error on direct appeal. Doc. No. 16-8. The state district court denied Petitioner's application and the OCCA affirmed. Doc. Nos. 16-10, 16-12.
Petitioner filed the instant action seeking habeas relief and asserting eight grounds for relief. See generally Petition. First, Plaintiff contends he was denied his Sixth and Fourteenth Amendment rights to an impartial jury due to the trial court's failure to grant his request to excuse a juror for cause. Id. at 4-6. Second, he argues that his Sixth and Fourteenth Amendment rights were also violated due to the State's exercise of peremptory challenges based on race. Id. at 6-8. Third, Petitioner contends his rights under the Confrontation Clause were violated when Detective Lanman testified regarding the DNA analysis and results, rather than the scientist who performed the same. Id. at 8-11. In a related ground, Petitioner asserts Detective Lanman's DNA testimony exceeded the scope of permissible opinion testimony. Id. at 11-13. Fifth, Petitioner argues the trial court erred in admitting various evidence he contends was misleading, irrelevant, and/or highly prejudicial. Id. at 13-16. Sixth, Petitioner asserts prosecutorial error occurred in multiple instances throughout his trial. Id. at 16-20. In his final grounds for relief, Petitioner contends he was denied effective assistance of trial and appellate counsel. Id. at 20-25.
II. Standard of Review of Constitutional Claims
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court cannot grant habeas relief with respect to a state prisoner's constitutional claim that was adjudicated on the merits in state court proceedings unless the state court decision (1) 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) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. §2254(d). The AEDPA directs courts to "ensure a level of 'deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way." Williams v. Taylor, 529 U.S. 362, 386 (2000) (quoting H.R. Conf. Rep. No. 104-518, p. 111 (1996)).
Under this standard, a writ of habeas corpus will issue only if "a state court's application of federal law . . . is so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (quotations omitted). Under this deferential standard, even a showing of "clear error will not suffice." White v. Woodall, 572 U.S. 415, 419 (2014) (quotations omitted).
"[W]hether a state court's decision was unreasonable must be assessed in light of the record the [state appellate] court had before it." Holland v. Jackson, 542 U.S. 649, 652 (2004) (citations omitted). Consequently, federal habeas "review is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181 (2011). In reviewing a state appellate court's decision, the state court's findings of fact are presumed correct and entitled to deference. 28 U.S.C. § 2254(e)(1).
III. For-Cause Challenge to Juror (Ground One)
In Ground One, Petitioner asserts he was denied his Sixth and Fourteenth Amendment rights to an impartial jury due to the trial court's failure to grant his request to excuse for cause prospective juror, J.M. Petition at 4-6. J.M. did not ultimately sit on the jury but was removed by Petitioner through the exercise of one of his peremptory challenges. Tr. Vol. I 181-82. Respondent asserts Petitioner is not entitled to relief on either ground because he has failed to show the OCCA's denial of relief is contrary to or an unreasonable application of Supreme Court law. Doc. No. 16 at 14-17.
During voir dire, the trial judge asked the jury, "[H]ave any of you personally or a close friend or family member ever been the victim of a crime?" Tr. Vol. I 52. J.M. was among the jurors who raised her hand in response to this question. Id. at 52-53. When asked about her specific experience, she stated, "My father was a victim of a home invasion in 1989, and I was a victim of I guess it would be a purse snatching - strong armed robbery in 1992." Id. at 53. She explained that her father was pistol whipped and that he was with one of his neighbors who was raped. Id. at 53, 71. The trial judge asked, "Is there anything about those experiences in your life that would keep you from being a fair juror?" Id. at 53-54. J.M. responded, "Yes." Id. at 54.
J.M. also indicated that she previously worked at the police department and probation for the County of San Diego and "I may feel bias towards law enforcement." Id. at 128, 173. She explained that based on her experience, she believes that to get to the point of trial, there has to be a lot of concrete evidence, therefore, she might not be entirely objective. Id. at 174-75. She also said that if she were accused of a crime, she would not want someone who gave her voir dire responses on her jury. Id. at 177-78.
At the conclusion of voir dire, defense counsel requested the court remove J.M. for cause based on her attempts to indicate she was biased, her previous career experience with law enforcement, her status as a crime victim, and her father having been the victim of a crime similar to that being tried before the court. Id. at 178. The trial court denied Petitioner's request. Id. Petitioner utilized one of his peremptory challenges to remove J.M. from the jury. Id. at 181. Petitioner also indicated that had he not been forced to use a peremptory challenge to remove J.M., he would have used said challenge on juror, G.M. Id. at 182.
On direct appeal, Petitioner challenged the trial court's failure to remove J.M. for cause. The OCCA ruled that the trial court erred by denying Petitioner's request, but concluded he did not suffer prejudice because he had not been forced to keep an unacceptable juror. Doc. No. 16-5 at 2-3. Specifically, the court explained:
Proposition One challenges the trial court's denial of a defense challenge for cause to remove a prospective juror. Appellant preserved this error be removing the juror with a peremptory strike, requesting an additional peremptory when his challenges were exhausted, and identifying a juror unacceptable to him that he would have removed. Eizember v. State, [] 164 P.3d 208, 220 [(Okla. Crim. App. 2007)]. . . . . Reasonable doubts of a prospective juror's impartiality must be resolved in favor of the accused, in both the trial court and on appellate review. Hawkins v. State, [] 717 P.2d 1156, 1158 [(Okla. Crim. App. 1986)]. From the identified juror's responses, we conclude that the trial court abused its discretion and should have disqualified the juror for actual bias. [Okla. Stat. tit. 22], § 659(2). However, Appellant has not shown that this error forced him, over objection, to keep an unacceptable juror, and thus he suffered no prejudice from this error. Rojem v. State, [] 130 P.3d 287, 296
[(Okla. Crim. App. 2006)]; Hawkins, [] 717 P.2d [at] 1158. Proposition One is denied.Doc. No. 16-5 at 2-3.
The Supreme Court has long recognized that peremptory challenges are not of constitutional dimension. Ross v. Oklahoma, 487 U.S. 81, 88 (1988). In Ross, the Supreme Court explained that peremptory challenges are a means to achieve the end of a constitutionally guaranteed right to a trial before an impartial jury. Id. The Court concluded that "the loss of a peremptory challenge [does not] constitute[] a violation of the constitutional right to an impartial jury." Id. at 88. Instead, "[a]ny claim that the jury was not impartial . . . must focus . . . on the jurors who ultimately sat." Id. at 86. "So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Id. at 88 (citing Hopt v. Utah, 120 U.S. 430, 436 (1887)).
It is a long settled principle of Oklahoma law that a defendant who disagrees with the trial court's ruling on a for-cause challenge must, in order to preserve the claim that the ruling deprived him of a fair trial, exercise a peremptory challenge to remove the juror. Even then, the error is grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him. Ferrell v. State, 475 P.2d 825, 828 (Okla. Crim. App. 1970); Stott v. State, 538 P.2d 1061, 1064-65 (Okla. Crim. App.1975).Ross, 487 U.S. at 89.
The Tenth Circuit has reached similar conclusions following Ross. Specifically, the Tenth Circuit has explained:
[T]here is no violation of either the Sixth or Fourteenth amendments when a trial court has erroneously denied a for-cause challenge and the juror is subsequently struck through the use of a peremptory challenge.
. . . .
United States v. McIntyre, 997 F.2d 687, 698 n.7 (10th Cir. 1995).
Because the erroneous denial of a for-cause challenge does not rise to the level of a constitutional violation, we apply the harmless error analysis set forth in Kotteakos v. United States, 328 U.S. 750 [] (1946). "A non-constitutional error is harmless unless it had a 'substantial influence' on the outcome or leaves one in 'grave doubt' as to whether it had such effect." United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (citing Kotteakos, 328 U.S. at 765[]). In the instant case the defendant does not allege that the use of peremptory challenges on this juror resulted in an impartial jury or disadvantaged him in any way. Accordingly, we find that even if the for-cause challenge was improperly denied, any error resulting therefrom was harmless.
In the present case, Petitioner asserts in conclusory fashion that the jury actually impaneled for his trial was not impartial. Petition at 6. He relies on the proposition that where the defense has been forced to use peremptory strikes to remove jurors who should have been stricken for cause, the Constitution is violated if a juror who actually sat was biased or if the defense was deprived of an entitlement under state law. Petition at 6. Applying this principle to the present case, Petitioner asserts that one of the empaneled jurors, G.M., was "unacceptable" and that Petitioner would have used an additional peremptory challenge to exclude G.M. from the panel. Id.; Tr. Vol. I 182. However, beyond describing G.M. as "unacceptable," Petitioner does not offer any argument or evidence to support his contention that G.M. was impartial and/or bias in some way.
Construing the Petition broadly, Petitioner may have intended to rely on Rojem, in which the court held that an appellant was "denied a statutory right granted under Oklahoma law when the trial court refused to dismiss three jurors for cause, resulting in prejudice when he was forced, over objection, to keep an unacceptable juror." Rojem, 130 P.3d at 296. The OCCA noted that an "unacceptable" juror need not be so biased as to support his removal for cause, though he must be more than merely undesirable to the defense. Id. at 295 n.10. However, the Supreme Court concluded in Ross that the Constitution is implicated only where a seated juror exhibited actual bias. Ross, 487 U.S. at 88.
Petitioner's assertion that the Constitution is violated where an impartial but "unacceptable" juror is empaneled is at odds with federal law as expressed both in Ross and in the Tenth Circuit's application of Supreme Court authority to petitions filed by Oklahoma inmates. See Sallahdin v. Gibson, 275 F.3d 1211 (10th Cir. 2002) (denying relief where petitioner claimed he was forced to use peremptory challenge to remove biased juror, but failed to show the jurors who sat were not fair and impartial); Wright v. Jones, 359 F. App'x 49, 53 (10th Cir. 2010) (same). Furthermore, even if Rojem applied here, it would not offer Petitioner relief. The OCCA clearly found Petitioner had failed to establish that G.M. met even a reduced definition of unacceptability. Doc. No. 16-5 at 3. Petitioner has not rebutted the OCCA's presumptively correct finding of fact. Having carefully reviewed the record, the undersigned concludes the OCCA's denial of relief was neither contrary to nor an unreasonable application of clearly established Supreme Court authority. IV. Batson Challenge
In Petitioner's second ground for relief, he claims that the State used six of its nine peremptory challenges to exclude potential jurors on the basis of race, in violation of Petitioner's equal protection rights as determined by the United States in Batson v. Kentucky, 476 U.S. 79 (1986). Petition at 6-8; Tr. Vol. I 178-84. "The Constitution forbids a prosecutor from exercising a peremptory challenge to a prospective juror on account of the juror's race." Black v. Workman, 682 F.3d 880, 894 (10th Cir. 2012).
1. Challenges to Six Jurors
Following the exercise of each party's peremptory strikes, Petitioner raised a Batson challenge to the State's choices.
MR. FOSTER: We would also request - - The State has excluded
almost entirely all black jurors from this panel - for the State to give us their race neutral reasons for the exclusion of the black jurors that were excluded, which include Ms. Gaddis, Ms. Henderson, Mr. Jackson, Mr. Butler, No. 20, Ms. Kyles, and No. 19, Ms. Jackson.
THE COURT: Okay. Let's start with Ms. Gaddis.
MR. JENNINGS: Your Honor, the race neutral reason was she has a son in prison for drugs. I believe she has the same last name as a defendant I once prosecuted named Gaddis. She indicated she was from the Midwest city area. The main reason, the children in prison.
THE COURT: All right. I believe that's an acceptable reason.
Ms. Henderson?
MR. JENNINGS: One moment. She also indicated she had a problem with gory photos and punishment, Your Honor, Ms. Gaddis.
And who was the next one?
THE COURT: I find that's an acceptable reason.
Ms. Henderson?
MR. JENNINGS: Goes back to when the court was questioning her during voir dire about things she had going on in her life. I noted, at several points throughout the Court's voir dire as well as that of the State and the defendant, she was rolling her eyes and not paying attention. She didn't seem like she wanted to be here. This is serious work.
THE COURT: I believe that's race neutral.
Mr. Butler?
MR. JENNINGS: Your Honor, simply put, I could not understand a single word he said during voir dire. He was rolling his eyes. I don't know if that's a medical condition. I just could not understand a single word he said throughout voir dire.
THE COURT: Well, I was watching him this afternoon, too, and there seemed to be several occasions when he was dropping off to sleep up there. Objection will be overruled as to Mr. Butler.Tr. Vol. I 182-84.
Mr. Jackson?
MR. JENNINGS: Your Honor, it was the way he rated law enforcement. The lowest of anyone across the panel was five. In addition to that, Mr. Butler (sic) indicated that he had several - - at least two family members who were drug addicts and a father who was incarcerated 20 years ago for drugs.
THE COURT: Okay. The objection as to Mr. Jackson is overruled.
Ms. Jackson?
MR. JENNINGS: A mother and uncle in jail, the uncle for attempted murder.
THE COURT: Objection is overruled as to Ms. Jackson.
2. Fourteenth Amendment Analysis
"Under Batson, state courts use a three-step process for determining whether a constitutional violation has occurred." Jackson v. Utah, 782 F. App'x 690, 697 (10th Cir. 2019).
First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.Id. (quoting Foster v. Chatman, ___ U.S. ___, 136 S. Ct. 1737, 1747 (2016)); accord Flowers v. Mississippi, ___ U.S. ___, 139 S. Ct. 2228, 2241 (2019).
With respect to each of the challenged strikes, with the exception of Ms. Kyles, the trial court directed the State to explain its rationale for the peremptory strike, and the prosecutor offered an explanation. Tr. Vol. I 182-84. Accordingly, the undersigned assumes the trial court found a prima facie case at step one of the Batson inquiry and proceeded to step two: whether the prosecutor offered a race-neutral explanation for each peremptory strike. Saiz v. Ortiz, 392 F.3d 1166, 1178-79 (10th Cir. 2004).
In an apparent oversight, the trial court never asked the State for a race-neutral reason supporting its striking of Ms. Kyles and thus, the State never proffered one. Tr. Vol. I 182-84. Petitioner did not raise an objection to this oversight during trial. Id.
Because the trial court's decision is in essence an assessment of the prosecutor's credibility, it is a factual determination afforded great deference. Batson, 476 U.S. at 98 n. 21. As noted in Hernandez v. New York, 500 U.S. 352 (1991),
[T]he decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge.Id. at 365. In the habeas context, this deference is not only acknowledged but magnified by the provisions of the AEDPA. As a question of fact, both 28 U.S.C. § 2254(e)(1) and 28 U.S.C. § 2254(d)(2) are implicated. Thus, in order to prevail before this Court, Petitioner "must demonstrate that a state court's finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence, and that the corresponding factual determination was 'objectively unreasonable' in light of the record before the court." Miller-El v. Cockrell, 537 U.S. 322, 348 (2003) (citation omitted). See also Franklin v. Patton, No. CIV-12-0865-F, 2015 WL 158923, at *21 (W.D. Okla. Jan. 8, 2015) (explaining that a petitioner is only entitled to habeas relief on a Batson claim "if the OCCA's determination was 'an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(2).'" (quoting Black, 682 F.3d at 896)).
Petitioner implies the State's proffered reasons for exercising the six peremptory challenges were not actually race-neutral, but merely a pretext for discriminatory strikes. He argues as follows:
Each [of the stricken jurors] was either employed, or retired. Each of the jurors answered every question that was asked of them, stated they could follow the law, consider all punishment options, could hold the State to its burden of proof beyond a reasonable doubt, could presume [Petitioner] innocent, and could be fair to both sides. Similar situated jurors were retained and concerns articulated by the State were never pursued to provide more information to the State upon which to base a
decision.Petition at 7-8.
3. Jurors C.G., H.J., and T.J.
During voir dire, C.G. indicated that her son was or had been incarcerated for drug related charges. Tr. Vol. I 42, 46. The prosecutor also indicated that he had previously prosecuted a defendant with the same last name. Id. at 183. Similarly, juror H.J. explained that his father had been previously incarcerated. Id. at 42-43, 44-45. Additionally, during voir dire the prosecutor asked each juror to rate law enforcement in general on a scale of one to 10, one being the worst officers and 10 being the best. Id. at 121, 124. H.J. rated law enforcement at a five, which was among the lowest ratings among the jurors. Id. at 122-24. T.J indicated that her mother had a criminal history related to check fraud and her uncle had a criminal history related to attempted murder. Id. at 42, 47.
In his Response, Respondent states that T.J's mother and uncle were incarcerated for check fraud and attempted murder, respectively. Doc. No. 16 at 20-21. The record, however, is not so explicit. The trial court asked the jury, "Have any of you personally or a close friend or family member ever been arrested or charged with a crime or accused of a crime?" Tr. Vol. I 42. T.J. responded, "My mom and my uncle. . . . . My uncle, attempted murder, and my mom, check fraud." Id. at 47. T.J. never indicated the precise criminal history of either her uncle or her mom related to these charges and certainly never explained whether they were ultimately incarcerated.
The prosecutor cited each of these responses in explaining why he used his peremptory strikes on these potential jurors. The undersigned finds these reasons are facially valid and do not violate equal protection as a matter of law because no discriminatory intent is inherent in the prosecutor's explanation and said explanations are supported by the record. See United States v. Johnson, 941 F.2d 1102, 1109 (10th Cir. 1991) (holding that a prosecutor's proffered reason for striking a black juror based upon her brother's previous criminal conviction possibly causing the juror to be bias against the government's case to be facially valid).
Petitioner argues that "similarly situated jurors [to those peremptorily stricken by the prosecution] were retained." Petition at 8. Petitioner does not expand on this argument to explain which jurors were similarly situated to stricken minority jurors. However, on direct appeal, Petitioner argued, "The State did not [] strike juror [J.N.], who had a nephew in jail; juror [H.R.], whose son had been arrested; or juror [R.V-D.], who had been charged herself, and given a deferred sentence for what she described as 'possession with intent.'" Doc. No. 16-1 at 27 (emphasis in original). Petitioner noted that R.V-D.'s "actual charge was Distribution of CDS (hydrocodone) and Possession of Proceeds, where she sold drugs to an undercover police officer. (OSCN Oklahoma County case number CF-11-2995)." Id. at 27 n.18. As Petitioner further argued, "Evidence that a prosecutor's reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination." Id. at 27 (citing Foster, 136 S.Ct. at 1754).
Respondent correctly notes the record does not indicate the race of the three jurors upon which Petitioner relied in making his similarly situated argument. Response at 22. Presuming the jurors are Caucasian, Respondent argues their situations were distinguishable from those of the stricken jurors. Id. H.R. indicated that, two years prior to Petitioner's trial, his son was charged in municipal court with minor in possession and was sentenced to community service. Tr. Vol. I 43-44. R.V-D. explained that she had been "charged with possession and intent, I think" five years before and was sentenced to probation. Id. at 49. J.N. indicated that he had "a nephew who's in jail" but did not indicate the basis for his incarceration. Id. at 44. Upon being asked whether J.N. thought his nephew was being treated fairly, he stated only, "I don't know. Just, you know, he's - - I don't know what to say about him." Id.
It is important to note the Tenth Circuit recently reiterated that "Batson and its progeny . . . do not explicitly provide that, if a racial minority juror and a non-minority juror voice a similar response during voir dire and the prosecutor excludes only the minority juror, that this is conclusive proof of the prosecutor's discriminatory motive." Grant v. Royal, 886 F.3d 874, 950-51 (10th Cir. 2018). Instead, "such evidence is probative of discriminatory intent and, indeed, may be persuasive evidence thereof." Id. at 951. Here, the undersigned finds the circumstances described by the presumably non-minority jurors are sufficiently distinguishable from those of the stricken jurors as to conclude that the OCCA's ruling is not contrary to the clearly established federal law of Batson and its progeny. Further, it also was not a decision "based on an unreasonable determination of the facts in light of the evidence." 28 U.S.C. § 2254(d)(2). There is no evidence that would clearly and convincingly rebut the presumption of correctness that attaches to the OCCA's factual findings regarding whether the prosecutor acted with purposeful discrimination in excluding C.G., H.J., and T.J. from the jury.
4. Jurors D.H. and J.B.
Petitioner also challenges the prosecution's peremptory challenges to D.H. and J.B. It is well established that "[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.'" Black, 682 F.3d at 894 (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)). With regard to D.H., the prosecutor stated that she had a lot going on in her life, also she was rolling her eyes during voir dire and not paying attention. Tr. Vol. I 183. As to J.B., the prosecutor explained that he could not understand "a single word [J.B.] said" and expressed curiosity regarding whether this was caused by a medical condition. Id. at 184.
The state court trial judge also stated that he had noticed J.B. falling asleep during the afternoon portion of voir dire. Id.
The reasons cited by the State are facially valid, reflect no discriminatory intent, and support the trial court's specific findings to that effect. See United States v. Johnson, 4 F.3d 904, 913 (10th Cir. 1993) (recognizing the propriety of striking a juror who was inattentive during voir dire); see also Snyder v. Louisiana, 552 U.S. 472, 477 (2008) emphasizing the importance of the trial judge's observations of a juror who was excused based on that juror's demeanor, explaining, "We have recognized that these determinations of credibility and demeanor lie peculiarly within a trial judge's province, and we have stated that in the absence of exceptional circumstances, we would defer to [the trial court]." (quotations and citations omitted)). Petitioner has failed to show the trial court's findings during the Batson challenge were unreasonable or to rebut those findings by clear and convincing evidence. Rice v. Collins, 546 U.S. 333, 338-39 (2006); Black, 682 F.3d at 896.
5. Juror P.K.
As previously noted, although Petitioner's counsel raised a Batson challenge to the use of the State's peremptory strike against P.K., due to an apparent oversight by both parties and the trial court, this challenge was never substantively addressed and the State never offered a race-neutral reason to support its peremptory strike. Tr. Vol. I 182-84. Petitioner did not raise an objection to this oversight and therefore, the OCCA reviewed this issue on appeal "for plain error, requiring that [Petitioner] show a plain or obvious error that affected the outcome of the trial." Doc. No. 16-5 at 3. The OCCA concluded that Petitioner had failed to show that the inadvertent error in failing to provide a race-neutral reason for the strike of P.K. affected the outcome of the proceeding and denied appellate relief. Id. at 4.
As a result of Petitioner's failure to object, this Court must apply a harmless error analysis to this claim for habeas relief. In Davis v. Ayala, ___ U.S. ___, 135 S.Ct. 2187 (2015), the trial court allowed the prosecution to explain the rationale for numerous peremptory strikes in a conference with the trial judge without defense counsel present. Id. at 2194. Defense counsel did not object to this procedure with regard to five of the seven peremptory challenged jurors. Id. The petitioner was ultimately convicted on multiple charges. Id. at 2195. In subsequently seeking federal habeas relief, the petitioner argued that "his federal constitutional rights were violated when the trial court heard the prosecution's justifications for its strikes outside the presence of the defense . . . . ." Id. at 2197. The Supreme Court concluded that it was unnecessary to decide that question because presuming, without deciding, his constitutional rights were violated, "[i]n the absence of 'the rare type of error' that requires automatic reversal, relief is appropriate only if the prosecution cannot demonstrate harmlessness." Id. (quoting Glebe v. Frost, 574 U.S. 21, 23 (2014) ("Only the rare type of error—in general, one that infect[s] the entire trial process and necessarily render[s] [it] fundamentally unfair—requires automatic reversal." (quotations omitted))).
As the Tenth Circuit has recently noted, "The standard of review with respect to harmless error deserves special attention." Malone v. Carpenter, 911 F.3d 1022, 1029 (10th Cir. 2018).
On direct appeal, reversal is required for constitutional error unless the error was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24 [] (1967). But a higher threshold must be satisfied for a state prisoner to obtain postconviction relief in federal court. The test is whether the error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted). A petitioner prevails under Brecht if the court is left with "grave doubt" about whether the error was harmless. O'Neal v. McAninch, 513 U.S. 432, 434-35 [] (1995).
Brecht, however, predated AEDPA. Under § 2254(d)(1) a federal court can grant relief only if the state court's application of Supreme Court law was unreasonable. This implies that review of a state court's Chapman harmlessness analysis is for unreasonableness. So which standard prevails—Brecht or § 2254(d)(1)? The Supreme Court has answered the question by saying that both apply. Even after the enactment of AEDPA, Brecht must be satisfied for a state prisoner to obtain federal habeas relief, regardless of "whether or not the state
appellate court recognized the error and reviewed it for harmlessness under the [Chapman standard]." Fry v. Pliler, 551 U.S. 112, 121-22 [] (2007). Given the "frequent recognition that AEDPA limited rather than expanded the availability of habeas relief," the Court thought it "implausible that, without saying so, AEDPA replaced the Brecht standard of 'actual prejudice' with the more liberal AEDPA/Chapman standard which requires only that the state court's harmless-beyond-a-reasonable-doubt determination be unreasonable." Id. at 119-20 [] (citations and further internal quotation marks omitted). The Court added that because the AEDPA standard for granting relief is easier to satisfy than the Brecht standard (thinking this comparison so obvious as to require no further explanation), "the latter obviously subsumes the former." Id. at 120.
As the Court later explained, however, this does not exclude the application of AEDPA in the harmless-error context. In Davis v. Ayala, — U.S. —, 135 S.Ct. 2187, 2198 [] (2015), the Court reviewed a decision by the California Supreme Court that a constitutional error was harmless beyond a reasonable doubt under Chapman. Although the petitioner needed to "meet the Brecht standard" for the Court to grant habeas relief, that "[did] not mean . . . that [the] state court's harmlessness determination ha[d] no significance under Brecht." Id. Rather, because the California "decision undoubtedly constitute[d] an adjudication of [the] constitutional claim 'on the merits,' . . . the highly deferential AEDPA standard applie[d] [and the Court could] not overturn the California Supreme Court's decision unless that court applied Chapman in an objectively unreasonable manner." Id. (further internal quotation marks omitted). The Court thus clarified that Brecht did not "abrogate[ ] the limitation on federal habeas relief that [AEDPA] plainly sets out." Id. Accordingly, although a federal court reviewing a state conviction need not "formally apply both Brecht and AEDPA," AEDPA still "sets forth a precondition to the grant of habeas relief." Id. (brackets and internal quotation marks omitted). In other words, as we understand the Court, satisfaction of the AEDPA/Chapman standard is a necessary condition for relief (that is, failure to satisfy the standard requires denial of relief), but satisfaction of the standard is not a sufficient condition for relief
because Brecht must also be satisfied. See Jensen v. Clements, 800 F.3d 892, 901-02 (7th Cir. 2015) (describing standard of review when state court holds that error was harmless).Malone, 911 F.3d at 1029-30. While the undersigned agrees with the Tenth Circuit's implication that the applicable standard is less than straightforward, in the present case the undersigned finds Petitioner cannot meet either the AEDPA/Chapman standard or the Brecht standard with regard to the State's peremptory challenge to P.K.
During voir dire, P.K. indicated that her son was incarcerated for drug possession. Tr. Vol. I. 47-48. The juror further explained that she was not sure whether he was treated fairly in the criminal process. Id. at 48. She also stated that she did not know whether that experience would keep her from being a fair juror. Id. P.K. also explained that her home had been burglarized twice when she was not home and no-one was arrested. Id. at 55. She also stated that her nephew had been killed in a home invasion in Oklahoma City in 2007 and the perpetrator was never arrested. Id. at 55, 70-71.
In light of the striking similarity between the bases for the State's peremptory challenges against jurors C.G., H.J., and T.J., supra, and P.K.'s above responses, it is entirely reasonable the State would have relied on these responses as the basis for its peremptory challenge and the trial court would have accepted the same. It defies logic that with regard to the first three jurors, the trial court would have accepted as race neutral reasons a juror's familial criminal history and/or having been the victim of crimes similar to that being tried, either directly or again through family, but not accepted the same reasoning regarding P.K. Additionally, P.K. specifically stated that she was not sure whether her son was treated fairly during his criminal proceedings and conceded that she was not sure whether the experience would prevent her from being fair in her role as a juror. Tr. Vol. I 48. Thus, applying the AEDPA/Chapman standard, the undersigned finds the OCCA's determination that the trial court's failure to require a race neutral reason for the peremptory challenge to P.K. did not affect the outcome of the proceeding was reasonable. Similarly, applying the Brecht standard, the undersigned finds the trial court's error did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. Accordingly, Petitioner's request for habeas relief should be denied.
V. Confrontation Clause (Ground III)
Petitioner contends that allowing Detective Lanman to testify with regard to the DNA evidence in this case violated his rights under the Confrontation Clause. Petition at 8-10. Senior Forensic Analyst Elaine M. Taylor performed DNA analysis on the collected evidence and compared the same to not only Petitioner but also Tony Garner. Tr. Vol. III 45; O.R. Vol II 252, 256. The State indicated in the witness list it provided to Petitioner's counsel prior to trial that Ms. Taylor would "testify as to her training and experience in DNA analysis and to her investigation of this case consistently with previously provided reports." O.R. Vol. II 252. However, Ms. Taylor did not testify during Petitioner's trial. Instead, Detective Lanman testified regarding Ms. Taylor's DNA analysis and said testimony was not limited to restating Ms. Taylor's reports. He offered his own analysis of her results, oftentimes making misleading statements regarding the same.
Petitioner raised this issue on direct appeal and the State conceded the evidence and testimony was plainly admitted in error. Doc. No. 16-5 at 4. The OCCA agreed with the State but found the error was harmless based on the weight of additional, properly admitted evidence. Id. at 4-5.
From Appellant's admissions and trial testimony, evidence of Appellant's fingerprints on a broken cell phone at the crime scene as described by a witness, testimony identifying Appellant as one of the two perpetrators, and other direct and circumstantial evidence, we conclude that the constitutional error here was harmless beyond a reasonable doubt, and requires no relief. Proposition Three is denied.Id. at 5.
At trial, Detective Lanman testified that he received his first report from Ms. Taylor on January 22, 2013. Tr. Vol. III 45. He stated that once "our scientists" collect DNA, they run it through a system called CODIS to determine if there is a match to DNA on file. Id. at 46. Detective Lanman described the report as "almost like a grid chart" with "multiple numbers that go in each . . . grid" and "if you see numbers that go all the way across with no asterisks, then you're in pretty good shape." Id. He explained that the DNA sample taken from the aluminum bat was degraded so the report he received regarding the same had "those asterisks like I was describing." Id. at 47. However, he went on to say that there were still "quite a few" numbers in the grid. Id. He also indicated that Ms. Taylor had a better DNA sample from the wooden bat that would allow for her to provide "a comparison and statistical analysis" to a known sample. Id.
In February 2013, Detective Lanman received another report from Ms. Taylor that compared buccal swabs of Petitioner and Mr. Garner's DNA to the DNA samples taken from the baseball bats. Id. at 64. Detective Lanman stated that Ms. Taylor had indicated that only the DNA sample obtained from the wooden bat was suitable for analysis and comparison to a known sample. Id. He further testified that the report Ms. Taylor provided to him "confirm[ed] that the DNA belonged to Tony Garner on the [wooden] baseball bat." Id. However, he subsequently explained that DNA results do not typically show a match to a specific person. Id. at 65.
A. . . . . When the DNA results come back, they very seldom come back exact to one specific person. They usually come down to a gender. Then they come down to a race.Id.
You know, we receive DNA reports all the time that will say, your chances of this being, say, in this example, Tony Overton or Tony Garner would be one in 7,000,483,000 and the numbers just keep going. This particular number was really, really good, which was one in 529 among the African American population.
Q. However, was that enough for you to file a criminal case against Tony Garner?
A. It's still not enough but very significant in how low the number is. I've never seen 529. I've never seen anything that low so that was pretty - pretty interesting.
With regard to the aluminum bat, Detective Lanman stated that the report indicated the sample was degraded, however, he strongly implied that the sample was a match to Petitioner. Id. at 66.
Q. Now I believe earlier we were talking about the aluminum bat also, correct?
A. That's correct.
Q. And there was significant drop-out in many of those boxes?
A. Yes.
Q. However, in the boxes that were present, did those numbers match with those of Tony Overton?
A. Yes. Every - every - you know, like I explained earlier, there's
- it's like a grid and you have these little lines and you have these numbers on it and you have what it is, the control at the very top. And as you go across, you see numbers and sometimes a series of numbers in those little boxes where you have an asterisk. Again, to explain that, if you have an asterisk, that means something is missing and it's not a match just in that particular area. All the ones where we had numbers are a match to Tony Overton.Id. at 65-66. Petitioner argues Detective Lanman's testimony regarding Ms. Taylor's DNA analysis violated the Confrontation Clause. Petition at 8-11. He further argues that this violation was not harmless because the jury was not "presented with an accurate portrayal of what testing was done and what it means within the realm of sound scientific practices and opinions" and instead "was presented with a misleading, inaccurate, and oversimplified version of the test results." Id. at 10.
Q. But now, Detective Lanman, again, just to be fair, I want this jury to be left with this impression. According to Elaine Taylor, the scientist in this case, the amount of drop-out was not enough on the aluminum bat for her to put a statistical comparison to it?
A. I completely agree, yes, and that's her stance.
In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the United States Supreme Court explained the Confrontation Clause guarantees a defendant's right to cross-examine witnesses that offer testimony against him.
The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v.
Texas, 380 U.S. 400, 403 [] (1965), provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford, after reviewing the Clause's historical underpinnings, we held that it guarantees a defendant's right to confront those "who 'bear testimony'" against him. 541 U.S., at 51 []. A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id.[] at 54 [].Id. at 309.
In Melendez-Diaz, the prosecution, in lieu of live in-court testimony, introduced certificates of analysis to show that a substance recovered from the defendant was cocaine and to show how much cocaine the defendant possessed. Id. at 308. The Supreme Court held that, given its decision in Crawford, the certificates of analysis could not be admitted without violating the defendant's Confrontation Clause rights absent a showing that the analysts who prepared them were unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine the analysts. Id. at 311.
Based on the decision in Melendez-Diaz, the undersigned agrees with the State's concession and the OCCA that the admission of Detective Lanman's testimony regarding Ms. Taylor's DNA analysis and statistical comparisons was an error.
When a federal court considers a Confrontation Clause violation in a
habeas proceeding, the relevant harmless error analysis is "whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error," [Delaware v. Van Arsdall, 475 U.S.] at 684 [], "had substantial and injurious effect or influence in determining the jury's verdict," Brecht v. Abrahamson, 507 U.S. 619, 623, 637-38 [] (1993) (quotation omitted). This court's harmless error review is de novo. See Tuttle v. Utah, 57 F.3d 879, 884 (10th Cir.1995).Jones v. Gibson, 206 F.3d 946, 957 (10th Cir. 2013).
In reviewing for harmless error, this court examines "the entire record to determine the error's possible effect on the jury." Crespin v. New Mexico, 144 F.3d 641, 649 (10th Cir.), cert. denied, 525 U.S. 950[] (1998). Whether an error is harmless depends on (1) the importance of the witness's testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of the actual cross-examination; and (5) the overall strength of the State's case. See Van Arsdall, 475 U.S. at 684.
The State concedes that Detective Lanman's testimony with regard to the DNA evidence was not cumulative to any other testimony at trial, nor was it corroborated. Doc. No. 16 at 31. Thus, these areas of inquiry suggest that the error was not harmless.
The undersigned finds Detective Lanman's DNA testimony was important and this area of inquiry presents a closer call as to whether it suggests the error was harmless. Detective Lanman's testimony was, as Petitioner describes, "extremely simplified, incomplete and misleading" and appeared to include his own opinions, rather than science-based factual results. For example, Detective Lanman's statement that the degraded DNA sample on the aluminum bat matched Petitioner was clearly not scientifically based in light of the fact that the actual report indicated the DNA sample was too degraded for Ms. Taylor to complete a statistical analysis. Tr. Vol. III 66. Similarly, his testimony that the DNA sample on the wooden bat "belonged to Tony Garner" was personal opinion rather than science-based as the actual result showed that the DNA sample from the wooden bat had a one in 529 chance of belonging to an African American individual. Tr. Vol. III 65-66.
Indeed, when confronted with Ms. Taylor's expert conclusion, Detective Lanman offered a relatively weak rejoinder that he understood that to be Ms. Taylor's "stance." Tr. Vol. III 67. Characterizing an expert's finding and conclusion as a "stance" seems especially problematic in this instance when Detective Lanman is the only witness presenting that expert's findings and conclusions.
The undersigned notes, however, that while Detective Lanman's testimony is unquestionably problematic and ill advised, the proper statistical analysis and results were included therein. Further, the overall strength of the State's case against Petitioner strongly suggests the error was harmless. The undersigned previously set forth herein the evidence presented at trial, including but not limited to Petitioner's fingerprints on the broken cell phone pieces, Petitioner's own incriminating and inconsistent statements to Detective Lanman regarding the presence of his fingerprints on the phone pieces, the eye witness identification of Petitioner, and Mr. Garner's presence at Petitioner's occasional residence. See, supra.
The OCCA clearly applied the correct standard for determining whether the violation was "harmless," basing its decision on the weight of the remaining evidence presented at trial. Having engaged in a de novo review of the OCCA's determination regarding the constitutional error and the evidence as a whole, the undersigned is satisfied that the admission of DNA analysis evidence through Detective Lanman rather than Ms. Taylor did not have a substantial injurious effect or influence on the jury's verdict. Accordingly, Petitioner's request for habeas relief should be denied.
VI. Improper Use of Opinion Testimony (Ground Four)
Petitioner contends Detective Lanman's testimony regarding the results of Ms. Taylor's DNA testing and analysis exceeded the scope of permissible opinion testimony thereby violating Petitioner's due process rights. The nature and impropriety of Detective Lanman's DNA testimony is set forth above. Additionally, Petitioner also argues testimony from Oklahoma City Police Officer Matthew Stephenson regarding his opinion that Ms. Novak was being truthful and/or sincere in her reaction to the assault on Mr. Wallice was inadmissible. Petition at 12-13. Petitioner contends that said testimony improperly opined on the credibility of a witness and therefore, breached the province of the jury whose duty it is to determine witness credibility. Id.
Petitioner raised each of these issues on direct appeal to the OCCA. The OCCA denied Petitioner's request for relief finding that admission of Detective Lanman's testimony constituted harmless error and that Officer Stephenson's testimony was properly admitted. Doc. No. 16-5 at 5. Specifically, the OCCA held as follows:
Proposition Four argues that the improper police testimony on DNA and opinion testimony on the credibility of a surviving eyewitness to the crime violated the [Oklahoma] Evidence Code and denied Appellant a fair trial. Absent a timely objection, our review in both instances is limited to plain error, as defined above. The State concedes that its detective witness was not qualified to testify about the methodology and results of DNA comparisons. Such testimony plainly violated the Evidence Code, see [Okla. Stat. tit. 12], § 2702 (permitting expert and opinion testimony from witness "qualified as an expert . . . by knowledge, skill, experience, training, or education"), but in light of proper evidence independently supporting the verdicts, this statutory error did not seriously affect the fairness, integrity, or public reputation of the trial. The remainder of the challenged testimony briefly described a responding officer's encounter with, and first impressions of, the surviving witness. This was not plainly admitted in error and could not have significantly affected the outcome at trial. Proposition Four requires no relief.Id.
To the extent Petitioner alleges an error of state law with regard to the admission of the referenced testimony from Detective Lanman and Officer Stephenson, it is not cognizable in this federal habeas corpus proceeding. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (emphasizing it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions). Petitioner is only entitled to relief on such a claim if he can demonstrate that his trial was rendered fundamentally unfair by the admission of the challenged testimony. See Donnelly v. DeChristoforo, 416 U.S. 637, 642-48 (1974); Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (holding that habeas corpus relief cannot be provided on the basis of state court evidentiary rulings "'unless they rendered the trial so fundamentally unfair that a denial of constitutional rights results'" (quoting Mayes v. Gibson, 210 F.3d 1284, 1293 (10th Cir. 2000)). Petitioner may obtain habeas relief for an improper state evidentiary ruling only "if the alleged error was so grossly prejudicial [that it] fatally infected the trial and denied the fundamental fairness that is the essence of due process." Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir. 2002) (alteration in original; quotations omitted).
1. Detective Lanman's DNA Testimony
As established, Detective Lanman's testimony regarding DNA evidence was admitted in error. The OCCA determined this error was harmless based upon the strength of the State's properly admitted evidence against Petitioner. See, supra. Petitioner does not present any clearly established federal law to demonstrate the OCCA's determination is unreasonable, nor has he demonstrated the "error" had a substantial and injurious effect or influence on the jury's verdict warranting relief. Based on the same reasoning set forth above, Petitioner's ground for relief is denied.
2. Officer Stephenson's Testimony
During Petitioner's trial, Officer Stephenson explained that he was the first officer on the scene following the assault on Mr. Wallice. Tr. Vol. II 89-90. He described Ms. Novak's emotional state upon encountering her.
Q. Okay. You said you met with Ms. Novak. How did she seem to be behaving?Id. at 90.
A. She was pretty hysterical. She was still crying. She was very upset. Before my arrival - like we're so far away at that time, we were about - we were quite a bit of officers short. By the time I got there, the EMSA had already left. The fire had already left. So it was just her and the neighbors. She kept wanting to go to the hospital. I had to try to calm her down. Like I said, she was still crying. She had her little boy with her.
As stated above, federal habeas corpus relief, generally, does not lie to review state law questions about the admissibility of evidence. McGuire, 502 U.S. at 67-68. The question is whether "considered in light of the entire record, its admission resulted in a fundamentally unfair trial." Knighton v. Mullin, 293 F.3d 1165, 1171 (10th Cir. 2002) (citation omitted). Federal courts may only interfere with state evidentiary rulings when the rulings in question are "so unduly prejudicial that it renders the trial fundamentally unfair . . . ." Lott v. Trammell, 705 F.3d 1167, 1190 (10th Cir. 2013) (quotations omitted).
The OCCA found Officer Stephenson's testimony was merely a description of his first encounter with the surviving witness and thus, not admitted in error. Doc. No. 16-5 at 5. A review of Officer Stephenson's testimony clearly supports the OCCA's conclusion. Tr. Vol. II 90; see United States v. Almarez, No. CIV 04-230 BB/LFG, 2004 WL 7337888, at *14 (D.N.M. June 22, 2004) (noting that a witness' direct observations do not constitute improper testimony). Officer Stephenson's testimony did not tell the jury what result to reach or whether Ms. Novak was a credible witness. Nor, considering the entire record, did Officer Stephenson's testimony render his trial fundamentally unfair. Accordingly, Petitioner's request for habeas relief based upon the admission of Officer Stephenson's testimony should be denied. See, cf., Howell v. Workman, No. CIV-07-1008-D, 2011 WL 5143069, at *11 (W.D. Okla. Oct. 28, 2011) (denying habeas relief where the petitioner challenged admission of officer's testimony regarding his observations of the petitioner's ability to communicate, finding that "Chief Taylor's testimony was based on his interactions with Petitioner. Chief Taylor did not express an expert opinion on whether or not Petitioner was mentally retarded. The substance of his testimony was that he did not 'observe anything that made [him] question [Petitioner's] level of mental functioning' . . . . As this is proper lay opinion, no relief is warranted . . . ." (citation omitted; alterations and emphasis in original)).
VII. Challenges to Admission of Evidence (Ground Five)
Petitioner contends the trial court erred in admitting DNA evidence related to the aluminum bat, his taped interviews with Detective Lanman, and the audio of his jail telephone call with his brother. Petition at 13-16. As previously discussed, a federal habeas court has no authority to review a state court's interpretation or application of its own state laws. See McGuire, 502 U.S. at 67-68 (emphasizing that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions). Instead, when conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Id. Accordingly, to the extent Petitioner's challenge to the trial court's evidentiary rulings requires review of state law, the claim is not cognizable in this federal habeas corpus proceeding and should be denied on that basis.
Petitioner does reference due process in the heading of this portion of his Petition, thereby implicating a challenge to the trial court's evidentiary ruling grounded in the Fourteenth Amendment. Petition at 13. Again, habeas relief is available for a challenge to state court evidentiary rulings only if the rulings "rendered the trial so fundamentally unfair that a denial of constitutional rights results." Duckett, 306 F.3d at 999; see also Spears v. Mullin, 343 F.3d 1215, 1225-26 (10th Cir. 2003); Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999). Notably, the fundamental fairness analysis on habeas review is approached "with 'considerable self-restraint.'" Smallwood, 191 F.3d at 1275 (quoting Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir. 1998)).
In his direct appeal, Petitioner raised the same evidentiary challenges he presents in this ground for relief. Doc. No. 16-1 at 42-47. The OCCA denied Petitioner's appeal on these grounds, stating:
In Proposition Five, Appellant again argues that the admission of certain evidence and testimony was reversible error. Absent a timely objection our review is limited to plain error. We have already concluded that the erroneously admitted DNA evidence was harmless. The relevance of the remaining challenged evidence was not substantially outweighed by unfair prejudice or other countervailing factors, and Appellant has shown no plain or obvious error in admitting it at trial. [Okla. Stat. tit. 12], [§]§ 2401-2403. Proposition Five is denied.Doc. No. 16-5 at 6.
1. Analysis of DNA Sample on Aluminum Bat
Petitioner argues that any relevance of evidence related to the DNA sample taken from the aluminum bat was outweighed by its prejudicial effect in light of the fact that Ms. Taylor determined the sample was too degraded for a statistical comparison. Petition at 13-14. Similar to the OCCA, the undersigned has already determined that admission of evidence related to the DNA sample on the aluminum bat did not render Petitioner's trial fundamentally unfair. See, supra. Thus, Petitioner's request for relief based on this evidence should be denied.
2. Petitioner's Taped Interviews
During Petitioner's trial, the State introduced videos of two police interview between Detective Lanman and Petitioner. Tr. Vol. III 51-53, 56, 67-70; State's Ex. 47, 48. Petitioner first asserts a general argument that the videos contained "[p]rejudicial[,] inflammatory[,] and irrelevant comments" throughout. Petition at 14. In order to establish entitlement to habeas relief, a petitioner must establish that admission of the challenged testimony rendered his trial fundamentally unfair. Duckett, 306 F.3d at 999. Petitioner's vague and undeveloped argument that the two interview videos contained prejudicial statements does not meet this burden. See, cf,, Villareal v. Patton, 608 F. App'x 591, 595 (10th Cir. 2015) (finding the petitioner failed to meet his burden for habeas relief where he failed to develop or present any argument that the OCCA's denial of his appeal was unreasonable); United States v. Rodriguez-Aguirre, 108 F.3d 1228, 1237 n.8 (10th Cir. 1997) (noting it is not a court's responsibility to "'sift through' the record to find support for the claimant's arguments").
Petitioner does specify three statements arising from the videos that he contends the trial court erred in admitting at trial. First, Detective Lanman testified that in the second interview, Petitioner stated that "if he wanted to kill someone or get rid of someone, that they would just dump them in the river." Tr. Vol. III 101. Petitioner notes that the second taped interview does not contain such a statement and instead, Petitioner stated only that he would have thrown the cell phone he allegedly broke during Mr. Wallice's assault in the river. Petition at 14. Petitioner contends that Detective Lanman's testimony asserts facts not in evidence and is highly prejudicial.
In the second taped interview, Petitioner indicated that if he had broken Ms. Novak's cell phone, as he demonstrated the breaking motion with his hands, he would have taken her phone with him when he left the crime scene and thrown it into the river that he had to cross on his way home. State's Ex. 48. Petitioner specifically stated, "What goes in the river don't come out." Id. The undersigned finds that to the extent Detective Lanman may have misstated Petitioner's actual statements, the difference was not so prejudicial as to render his trial fundamentally unfair. Duckett, 306 F.3d at 999.
Second, Petitioner argues the trial court erred in admitting the portion of the first taped interview indicating he was affiliated with a gang. Petition at 14-15. In his first interview, Petitioner indicated that he was a member of the GBC Mexican gang and that he would not go south of the river because of a rival gang. State's Ex. 47. Prior to playing the video for the jury, defense counsel objected to this portion of the interview, arguing Petitioner's gang affiliation was not relevant. Tr. Vol. II 116-17. The State argued it was relevant because "[i]n terms of Petitioner's overall credibility, we believe it's relevant because somebody who's a GBC is going to go south of the river." Id. The trial court overruled defense counsel's objection and allowed this portion of the video to be played for the jury. Id. at 117.
Third, Petitioner also requests habeas relief based upon the admission of his statement near the end of the first interview tape when he "emotionally tells Det. Lanman that because of his gang patch, he will have to kill someone so that he will not be killed - and that the killing will be on Det. Lanman for putting the wrong man in prison." Petition at 15; State's Ex. 48. Although defense counsel did not object to the admission of this portion of the video, Petitioner argues the statement was irrelevant and prejudicial. Petition at 15.
As noted, the OCCA found that the relevance of either statement "was not substantially outweighed by unfair prejudice or other countervailing factors." Doc. No. 16-5 at 6. Respondent argues the evidence of Petitioner's gang affiliation was relevant to his claim that he would not go to the area where the crime was committed. Doc. No. 16 at 48. Respondent also contends Petitioner's statement that if he was sent to prison he would have to kill someone in self-defense due to his gang affiliation is relevant to his claim that he had nothing to do with Mr. Wallice's murder. Id. at 48-49. While the latter statement's relevance is less clear, examining the entire proceedings, the undersigned finds admission of these statements did not render Petitioner's trial fundamentally unfair. See Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) ("Inquiry into fundamental fairness requires examination of the entire proceedings, including the strength of the evidence against the petitioner . . . ."). Accordingly, this ground for relief should be denied.
The undersigned notes that because defense counsel objected to the admission of evidence related to Petitioner's gang affiliation, the OCCA should have reviewed Petitioner's claim based on this admission for abuse of discretion, rather than clear error. Regardless, in order to be entitled to habeas relief, Petitioner must show admission of the evidence rendered his trial fundamentally unfair. Duckett, 306 F.3d at 999.
3. Jail Call
During one of the telephone calls in which Petitioner participated while in jail awaiting trial, Petitioner told his brother that the police had stated they had DNA evidence against him. State's Ex. 49. Petitioner said, in reference to Ms. Novak, "[T]he bitch the fucking phone that uh my fingerprints was on, I was fucking her! . . . . Yeah, I used her phone all the time. . . . I ain't ever been to her house but yeah." Id. When Petitioner and his brother pondered that his alleged sexual relations with Ms. Novak could have been how law enforcement obtained Petitioner's DNA, Petitioner said they would have had to get his semen "out of her stomach the last time" and answered affirmatively when his brother asked if she swallowed. Id. The audio of this telephone call was played for the jury during Petitioner's trial. Tr. Vol. III 75-76.
Petitioner argues that rather than using the telephone call for impeachment purposes, especially since it was introduced prior to Petitioner's testimony, the State used the telephone call "to inflame the passions of the jury and [] referred to [it] on multiple occasions, not to argue the impeachment value, but referenced to show that [Petitioner] was a bad moral character, and that his statement was 'offensive.'" Petition at 15. Petitioner raised this issue on direct appeal and as previously noted, the OCCA rejected the same, finding that the relevance of the telephone call "was not substantially outweighed by unfair prejudice or other countervailing factors." Doc. No. 16-5 at 6.
The undersigned notes the OCCA reviewed this issue under the standard of plain error but because defense counsel objected to the admission of the telephone call, the OCCA should have reviewed Petitioner's claim for abuse of discretion. Regardless, in order to be entitled to habeas relief, Petitioner must show admission of the evidence rendered his trial fundamentally unfair. Duckett, 306 F.3d at 999.
Respondent argues the telephone audio was relevant to impeachment prior to Petitioner's testimony because Petitioner told Detective Lanman during his first interview, which had already been presented to the jury, that he did not know Ms. Novak. Doc. No. 16 at 49. Additionally, he stated during his second interview, which had also been presented to the jury, that he knew Ms. Novak but did not have a sexual relationship with her. Id.
The State also used the phone call during cross-examination of Petitioner to force him to acknowledge his inconsistent statements from the first police interview to the phone call to the second police interview and to his trial testimony. Tr. Vol. III at 130. The State also relied on the call during closing and rebuttal for similar purposes. Tr. Vol. IV 16-17. In light of Petitioner's inconsistent statements, the undersigned cannot conclude that admission of the telephone call recording rendered Petitioner's trial fundamentally unfair.
Petitioner specifically complains the State could have presented the inconsistent statement in the telephone call without presenting the vulgar portion of the audio. Petition at 15. Petitioner's argument seems somewhat more compelling considering the State's repeated reference to the vulgar nature of the telephone audio. Tr. Vol. III 130; Tr. Vol. IV 17, 38, 42. Regardless, considering the proceedings as a whole, the undersigned finds no violation of due process. See Le, supra. Therefore, Petitioner's request for habeas relief related to admission of his jail telephone call should be denied.
VIII. Prosecutorial Misconduct
Petitioner contends various instances of prosecutorial misconduct deprived him of a fair trial. Petition at 16-20. "In cases where the state court adjudicated a prosecutorial misconduct claim on the merits, [the court] appl[ies the] AEDPA's deferential standard of review." Le, 311 F.3d at 1013. As Petitioner notes, generally, prosecutorial misconduct warrants habeas relief only it "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (quoting Donnelly, 416 U.S. at 643, 645). "Alternatively, if the alleged prosecutorial misconduct denied the petitioner a specific constitutional right (rather than the general due process right to a fair trial), a valid habeas corpus claim may be established without proof that the entire trial was rendered fundamentally unfair." Le, 311 F.3d at 1013 (citing Paxton v. Ward, 199 F.3d 1197, 1217 (10th Cir. 1999)).
Petitioner raised each of his prosecutorial misconduct claims in his direct appeal. Doc. No. 16-1 at 47-55. After noting appellate relief on these claims would only be granted where the alleged misconduct effectively deprived the defendant of a fair proceeding, the OCCA concluded that a review of Petitioner's instances of alleged misconduct did not warrant such relief. Doc. No. 16-5 at 6.
1. Prosecution's Use of DNA Evidence on Aluminum Bat
Petitioner's first instance of alleged prosecutorial misconduct is based upon the State's introduction of DNA evidence collected from the aluminum bat. Petition at 16-17. The undersigned has previously determined herein that admission of evidence related to the DNA sample from the aluminum bat did not render Petitioner's trial fundamentally unfair. See, supra. Thus, Petitioner's request for relief based on this evidence should be denied.
2. Reasonable Doubt
Petitioner asserts the prosecution's statements during closing arguments repeatedly asking the jury "what is reasonable" to believe based on the evidence presented confused the standard of proof for the jury. Petition at 17. The Tenth Circuit has indicated that a defendant's specific constitutional right to presumption of innocence may be violated if a prosecutor attempts to define and/or improperly defines "beyond a reasonable doubt." Thornburg v. Mullin, 422 F.3d 1113, 1130 (10th Cir. 2005); Twobabies v. Patton, No. CIV-14-241-R, 2015 WL 9814364, at *16 (W.D. Okla. July 31, 2015).
During defense counsel's closing statement, he repeatedly called Ms. Novak's veracity into question, insinuated she was involved in Mr. Wallice's assault and had motivation to lie, and described Petitioner as honest and forthcoming. Tr. Vol. IV 23-25. In rebuttal, the prosecution repeatedly asked what was more reasonable to believe in relation to the credibility of witnesses, primarily Ms. Novak and Petitioner, and was offered in direct response to defense counsel's closing argument. Tr. Vol. IV 29-32, 34-42. Considering the prosecutor's statements in context, the undersigned finds they did not confuse the jury about the State's burden of proof, nor did they improperly define the same. Thornburg, 422 F.3d at 1130.
3. Personal Opinion of Petitioner's Guilt
While questioning Ms. Novak, the State asked several questions that presumed Petitioner's guilt. Tr. Vol. II 51-52, 57, 62. For example, the State asked Ms. Novak about an incident at her house that occurred "before [Mr. Wallice] was beaten to death by Tony Overton." Tr. Vol. II 51. Petitioner argues these questions denied him the presumption of innocence. Petition at 17-18. Presuming, without deciding, these questions constituted prosecutorial misconduct, the undersigned finds that, considering the record as a whole and the strength of the State's case, these limited questions did not render Petitioner's trial fundamentally unfair. Le, 311 F.3d at 1013.
4. Vouching for Witnesses
Petitioner also asserts the State participated in misconduct during closing arguments by vouching for the truthfulness of Ms. Novak, Detective Lanman, and the police investigation, and stating that Petitioner lied to the jury. Tr. Vol. IV 6, 30, 31, 34, 38-39, 41. In general, a prosecutor should not express an opinion on the credibility or guilt of a witness. The Tenth Circuit has found that impermissible vouching occurs when "the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness' credibility, either through explicit personal assurances of the witness' veracity or by implicitly indicating that information not presented to the jury supports the witness' testimony." Hanson v. Sherrod, 797 F.3d 810, 837-38 (10th Cir. 2015) (quoting United States v. Harlow, 444 F.3d 1255, 1262 (10th Cir. 2006) (citation and quotations omitted)).
Petitioner also complains that during his testimony, the State asked Petitioner whether Ms. Novak was lying. Petition at 18. The undersigned notes, however, that the State did not ask Petitioner whether Ms. Novak was lying but asked him whether he would agree that for the jury to acquit him, they would have to think she was "an out-and-out liar." Tr. Vol. III 125-26.
In United States v. Jones, 468 F.3d 704 (10th Cir. 2006), the Tenth Circuit held that "presenting evidence of [the witness's] obligation or motivation to testify truthfully is unobjectionable." Id. at 707. "[I]t is not improper for a prosecutor to direct the jury's attention to evidence that tends to enhance or diminish a witness's credibility." Thornburg, 422 F.3d at 1132. "[W]hat would be impermissible, is to give [a prosecutor's] own opinion on [a witness's] credibility or to suggest that he knew something more about [a witness's] credibility than could be deduced from the evidence at trial." Hanson, 797 F.3d at 838.
Reviewing the challenged statements, it is clear the State did not make a personal assurance that Ms. Novak was credible or that Petitioner was guilty, nor did the State infer that it knew information not presented to the jury. Instead, the State, primarily in response to defense counsel's closing argument, noted in rebuttal the lack of motivation for Ms. Novak to lie and, based on the evidence presented, the implausibility of defense counsel's theory of the case that relied on the jury determining Ms. Novak was not credible and the police investigation not thorough. Tr. Vol. IV 30-31, 34, 41.
Moreover, with regard to Petitioner, the State permissibly referenced the multiple examples of inconsistent statements and his admissions that he had previously lied to law enforcement officers. Tr. Vol. IV 38-39; see Thornburg, 422 F.3d at 1131 ("A prosecutor may comment on and draw reasonable inferences from evidence presented at trial."); Bush v. Allbaugh, No. CIV-17-803-F, 2017 WL 6329858, at *12 (W.D. Okla. Oct. 24, 2017) ("[I]t was proper for the prosecutor to remark on the testimony of the witnesses and to draw reasonable inferences from that testimony.")
Petitioner does not establish that the prosecutor made any specific statement that would suggest that he knew something more about any witness' credibility. Based on the record, the prosecution did no more than discuss the credibility of various witnesses, relying on deductions from the trial evidence that had been presented to the jury. These statements were permissible and therefore, did not render Petitioner's trial fundamentally unfair.
5. Gratuitous Attacks on Petitioner's Character
Petitioner contends the State improperly used his jail telephone call and a derogatory comment he made in one interview regarding Ms. Novak's physical appearance as a basis to disparage his character and inflame the jury. Petition at 18; Tr. Vol. III 75, 130; Tr. Vol. IV 17, 38, 41-42. The State described the call as unsavory, offensive, vile, and foul, and questioned Petitioner as to whether he enjoyed himself during the call, and repeatedly referenced the fact that in the call he said Ms. Novak swallowed. Tr. Vol. III 130; Tr. Vol. IV 17, 38, 41-42. Presuming, without deciding, the State's superfluous statements and/or characterizations constituted prosecutorial misconduct, the undersigned finds that, considering the record as a whole and the strength of the State's case, such statements did not render Petitioner's trial fundamentally unfair. Le, 311 F.3d at 1013.
6. Sympathy for the Victims
In his final assertion of prosecutorial misconduct, Petitioner argues the State improperly appealed to the jury for sympathy for Ms. Novak and her son in order to obtain a guilty verdict. Petition at 19-20. During closing, the State addressed the sentence Petitioner should receive if the jury returned a guilty verdict.
. . . . Ask yourself this question: What is it about this crime that deserves the minimum sentence? Is it the beating Ricky Wallice to death, turning this man into this (indicating)? Is it affecting R.P. for the rest of his life such that he makes improvised Nerf weapons . . . to try to protect his mother and his sister, constantly asking if the bad guys are put away. Is that what deserves the minimum in this case, ladies and gentleman?Tr. Vol. IV 42-43. The State then played Ms. Novak's 911 call again and stated, "He did this . . . along with Tony Garner. Finish this. Give Cari Novak justice. Give her son R.P. justice. Give Tony Overton justice. Let's find him guilty and send him to prison for life without parole on the murder, life on the burglary, and life on the robbery." Tr. Vol. IV 43.
The Tenth Circuit has explicitly stated it "does not condone prosecutorial remarks encouraging the jury to allow sympathy to influence its decision." Moore v. Gibson, 195 F.3d 1152, 1172 (10th Cir. 1999) (citing Duvall v. Reynolds, 139 F.3d 768, 795 (10th Cir. 1998)). "The jury should make decisions based on the strength of the evidence, and not on raw emotion, though we recognize that some emotional influence is inevitable." Wilson v. Sirmons, 536 F.3d 1064, 1120 (10th Cir. 2008).
Respondent argues the prosecutor's comments were primarily direct comments on the evidence. Doc. No. 16 at 66-67. Indeed, evidence had been introduced related to R.P.'s ongoing fear, improvising Nerf weapons to protect his family, and asking about the "bad guys." Tr. Vol. II 49-50. Moreover, the State's evidence makes it probable that the presence of a child during Mr. Wallice's murder "produced sympathy before the prosecution made any closing remarks." Moore, 195 F.3d at 1172 (citing Duvall, 139 F.3d at 795).
Further, the trial court instructed the jury to consider the evidence and testimony received at trial and not to allow sympathy to enter into its deliberations. O.R. Vol II 290, Jury Instruction No. 24 ("You should not let sympathy, sentiment or prejudice enter into your deliberations, but should discharge your duties as jurors impartially, conscientiously, and faithfully under your oaths and return such verdict as the evidence warrants when measured by these instructions."). The Court presumes, without more, that the jury followed these instructions, helping to mitigate the effect of any possible improper prosecutorial statements. Wilson, 536 F.3d at 1120; Moore, 195 F.3d at 1172. In light of the evidence and the instructions, the undersigned concludes the prosecution's statements did not deny Petitioner a fair trial.
IX. Ineffective Assistance of Trial Counsel (Ground Seven)
In his seventh ground for relief, Petitioner asserts three bases to argue that he received ineffective assistance of trial counsel. First, he asserts trial counsel was ineffective based on his failure to object to Detective Lanman's DNA testimony as well as evidence and testimony related to the DNA sample from the aluminum bat. Petition at 21-23. Second, he complains trial counsel failed to object to the admission of Petitioner's jail telephone call and/or object to the admission of an unredacted version of the same. Id. at 22-23. Finally, Petitioner asserts trial counsel was ineffective by failing to object to certain examples of prosecutorial misconduct discussed herein. Id. Petitioner raised each of these bases in his direct appeal and the OCCA denied relief, stating:
In Proposition Seven, Appellant argues he was denied the effective assistance of counsel by counsel's unreasonable failure to object to the DNA and other testimony improperly admitted at trial, as well as the prosecutorial misconduct alleged in Proposition Six. Reviewing this claim according to the two-pronged deficient performance and prejudice standard of Strickland v. Washington, 466 U.S. 668 [] (1984), we find no relief is warranted.Doc. No. 16-5 at 6-7.
To be entitled to habeas corpus relief on a claim of ineffective assistance of counsel, Petitioner must demonstrate the OCCA's adjudication of his claim was an unreasonable application of Strickland. Under Strickland, a defendant must show that his counsel's performance was deficient and establish the deficient performance was prejudicial. Strickland, 466 U.S. at 687; Osborn v. Shillinger, 997 F.2d 1324, 1328 (10th Cir. 1993).
A defendant can establish the first prong by showing that counsel performed below the level expected from a reasonably competent attorney in criminal cases. Strickland, 466 U.S. at 687-88. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Id. at 689. In making this determination, a court must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. Moreover, review of counsel's performance must be highly deferential. "[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689.
To establish the second prong, a defendant must show that this deficient performance prejudiced the defense, to the extent "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694; Sallahdin, 275 F.3d at 1235; Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). If Petitioner is unable to show either "deficient performance" or "sufficient prejudice," his claim of ineffective assistance fails. Strickland, 466 U.S. at 700. Thus, it is not always necessary to address both Strickland prongs.
The undersigned has addressed each of the underlying alleged errors upon which Petitioner relies in raising his ineffective assistance of counsel claims. To the extent errors occurred, the undersigned concluded that under Brecht, those errors were harmless when considering the record as a whole, including the strength of the State's case. See supra. In light of that finding, the Court should conclude that counsel's failure to object to the same did not result in undue prejudice. Because the standard under Brecht and Strickland require the same showing of prejudice, no additional analysis is necessary. See Byrd v. Workman, 645 F.3d 1159, 1167 n.9 (10th Cir. 2011) ("Strickland prejudice and Brecht harmless error are essentially the same standard, and . . . a second prejudice analysis under [Strickland] is therefore unnecessary when considering ineffective-assistance-of-counsel claims.") (citing Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009) ("The prejudice prong of the ineffective assistance analysis subsumes the Brecht harmless-error review."); Smith v. Dixon, 14 F.3d 956, 974, 976 (4th Cir. 1994) (en banc) (concluding that the prejudice inquiry under Strickland is essentially the same as the harmless-error inquiry under Brecht.)).
X. Ineffective Assistance of Appellate Counsel
In his final ground for relief, Petitioner asserts his appellate counsel rendered ineffective assistance based upon his failure to raise cumulative error. On direct appeal, Petitioner's counsel raised each of the grounds for relief raised herein but did not raise cumulative error. See generally Doc. No. 16-1. With the OCCA's majority opinion affirming Petitioner's conviction, Judge Hodge, joined by Judge Smith, filed a dissenting opinion. Id. at 16. Judge Hodge stated the following:
. . . . Appellant's trial was fraught with error. The most prominent of these are (1) the trial court's failure to remove prospective juror Munson (Proposition I); (2) the admission of DNA evidence through Detective Lanham's testimony in violation of the Confrontation Clause (Proposition III); (3) the admission of improper police "expert" testimony that exceeded the bounds of permissible opinion testimony (Proposition IV); and (4) the prejudicial admission of Detective Lanhan's highly misleading quote of Appellant's statement (Proposition V). While these errors when viewed in isolation may not necessitate relief, I find their combined effect deprived Appellant of a fair trial and thus warrant relief. See Cuesta-Rodriguez v. State, [] 241 P.3d 214, 246 [(Okla. Crim. App. 2010)] (when there have been prejudicial irregularities during the course of a trial, relief is warranted if the cumulative effect of all the errors denied Appellant a fair trial); Pavatt v. State, [] 159 P.3d 272, 296 [(Okla. Crim. App. 2007)] (same). While a finding of cumulative error is undoubtedly rare, there comes a point in which no more error can be swept under the harmless error rug. This is such a case. Overton's convictions should be reversed and the matter remanded for new trial.Id.
The dissenting opinion repeatedly refers to Detective Lanman as Detective Lanham.
As previously explained, in order to raise a viable ineffective assistance claim, Petitioner must satisfy the familiar two-part test established in Strickland. Application of Strickland to an ineffective assistance of appellate counsel claim requires the Court to "look to the merits of the omitted issue." Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (quotations omitted).
[I]n analyzing an appellate ineffectiveness claim based upon the failure to raise an issue on appeal, we look to the merits of the omitted issue, generally in relation to the other arguments counsel did pursue. If the omitted issue is so plainly meritorious that it would have been unreasonable to winnow it out even from an otherwise strong appeal, its omission may directly establish deficient performance; if the omitted issue has merit but is not so compelling, the case for deficient performance is more complicated, requiring an assessment of the issue relative to the rest of the appeal, and deferential consideration must be given to any professional judgment involved in its omission; of course, if the issue is meritless, its omission will not constitute deficient performance.Id. (citations and quotations omitted); accord Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir. 2004). Unless there is a reasonable probability that the omitted claim would have resulted in Petitioner obtaining relief on appeal, there is no ineffective assistance of appellate counsel under the Sixth Amendment. Neill v. Gibson, 278 F.3d 1044, 1057 n.5 (10th Cir. 2001).
In his application for post-conviction relief, Petitioner raised the same ineffective assistance of appellate counsel claim that he raises herein. Doc. No. 16-8 at 6-10. The state district court noted that on appeal "[a]ll members of the court concluded error occurred with respect to the following: (1) the trial court's failure to remove a prospective juror for cause (Proposition I); and (2) the admission of a detective's testimony regarding DNA comparisons (Propositions III, IV, and V)." Id. at 3. The court further explained that in order "[t]o be entitled to relief, the Petitioner must show the combined effect of those two errors denied him his right to a fair trial." Id. Noting the critical issue at trial was identity, the court reviewed the evidence presented identifying Petitioner as one of the two perpetrators who invaded Ms. Novak's home and murdered Mr. Wallice. Id. The court concluded that in light of the weight of said evidence, "Petitioner has not shown the aggregate effect of the two errors identified above affected the outcome of his trial or deprived him his right to a fair trial. . . . Because the Petitioner has not shown a cumulative error claim would have succeeded had it been raised on direct appeal, he fails to establish prejudice from appellate counsel's omission of the issue." Id. at 3-4. Petitioner appealed this denial to the OCCA, which also denied relief stating, "Petitioner has not established that his appellate counsel's conduct was objectively unreasonable or that the outcome of his appeal would have been different." Doc. No. 16-12 at 2.
The court noted, "While the detective's testimony about DNA comparisons was inadmissible for a number of reasons, it still constituted only one item of evidence erroneously admitted to the jury." Id. at 3 n.2.
Because the Oklahoma courts have already addressed Petitioner's claim of ineffective assistance of appellate counsel, the AEDPA confines the Court's review to the question of whether those decisions were contrary to or involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d)(1); see also Turrentine v. Mullin, 390 F.3d 1181, 1202 (10th Cir. 2004). Petitioner has not established a reasonable probability that his appeal would have likely resulted in a different outcome but for counsel's performance. Neill, 278 F.3d at 1057. Thus, the undersigned concludes the OCCA's ruling on this claim was not an unreasonable application of federal law.
RECOMMENDATION
Based on the foregoing findings, it is recommended the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED. Petitioner is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by April 20th , 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 31st day of March, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE