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Reed v. Bryant

United States District Court, E.D. Oklahoma

March 3, 2017

CHAD WILLIAM REED, Petitioner,
v.
JASON BRYANT, Warden, Respondent.

          OPINION AND ORDER

          Ronald A. White United States District Judge.

         This matter is before the Court on Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a pro se inmate currently incarcerated at James Crabtree Correctional Center in Helena, Oklahoma, attacks his conviction in McCurtain County District Court Case No. CF-2006-581 for First Degree Murder. He sets forth the following grounds for relief:

1. The evidence was insufficient to prove the malice aforethought element of first degree murder.
2. The evidence was insufficient to support first degree murder, because the State failed to prove that Petitioner was not acting in self defense.
3. Irrelevant and inconsistent instructions, coupled with the prosecutor's misleading arguments, erroneously conveyed to the jury that Petitioner was not legally entitled to act in self defense, in violation of due process and the Equal Protection Clause.
4. Petitioner was denied his constitutional right to confront witness Wyva Clouse regarding her pending cases and any favorable treatment received by her in exchange for her testimony and witness Judy Rutherford regarding her prior arrest and any favorable treatment received by her in exchange for her testimony, in violation of the Sixth Amendment and Article 2 § 20 of the Oklahoma Constitution.
5. The display of irrelevant and prejudicial photographs was reversible error and violated due process.
6. The trial court erred in denying the motion for a new trial.
7. The cumulative effect of all errors deprived Petitioner of a fair trial.
8. Prosecutorial misconduct in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
9. The State committed Brady violations in violation of due process.
10. Ineffective assistance of trial counsel in violation of the Fifth and Sixth Amendments of the Constitution of the United States.
11. Ineffective assistance of appellate counsel in violation of the Fifth and Sixth Amendments of the Constitution of the United States.
12. Improper jury instructions denied Petitioner due process.
13. Incomplete trial record denied Petitioner due process.

         Respondent concedes that Petitioner has exhausted his state court remedies for the purpose of federal habeas corpus review. The following records have been submitted to the court for consideration in this matter:

A. Petitioner's direct appeal brief.
B. The State's brief in Petitioner's direct appeal.
C. Summary Opinion affirming Petitioner's judgment and sentence. Reed v. State, No. F-2008-449 (Okla. Crim. App. Sept. 21, 2000).
D. Petitioner's application for post-conviction relief.
E. Motion to amend post-conviction application and supplement record.
F. Order denying post-conviction relief.
G. Order affirming denial of post-conviction relief. Reed v. State, No. PC- 2013-698 (Okla. Crim. App. Oct. 17, 2013).
H. State court record.

         Standard of Review

         Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus relief is proper only when the state court adjudication of a claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         Facts

         Petitioner was convicted of the first degree murder of his 71-year-old grandmother Dorothy Hendrix. Ms. Hendrix had congestive heart failure and diabetes. Because walking left her “completely out of breath, ” she generally required the use of a walker or motorized wheelchair. (Tr. 142-44).

         Petitioner and his girlfriend Patricia Hollingsworth lived in the victim's home with Hollingsworth's son, along with Ms. Hendrix's daughter Judy Rutherford. Ms. Hendrix disapproved of Petitioner and Hollingsworth sleeping together while unmarried, so the couple often spent the night at a motel. According to Hollingsworth, on the evening of November 21, 2006, Petitioner picked up Hollingsworth from work, and the two went to the Choctaw Casino and to the Travel Plaza. The couple then drove to the victim's home to pick up some clothing to spend the night at a motel. (Tr. 254, 261, 278-80). They exited the vehicle, and although they intended to be in Ms. Hendrix's house for only a few minutes, Petitioner brought his semi-automatic handgun from the vehicle into the home. (Tr. 256-58).

         When Petitioner and Hollingsworth entered the home, Ms. Hendrix was in the kitchen in her nightclothes, propping open the oven door to cool some Thanksgiving pies. (Tr. 258-59). Hollingsworth talked to Ms. Hendrix for a couple of minutes in the kitchen, then Ms. Hendrix made her way down the hall to her bedroom. (Tr. 280-81). Hollingsworth followed her down the hall, and Ms. Hendrix went into her room to go to bed. Petitioner already was in his room. (Tr. 260-61). Hollingsworth walked toward the kitchen from the back bedroom. (Tr. 265).

         It had irritated Ms. Hendrix for a long time that Petitioner let Hollingsworth's dog get on the bed. (Tr. 282). Hollingsworth heard Ms. Hendrix yell from her room at Petitioner to get the dog off the bed. (Tr. 285). Petitioner went to the door of his grandmother's bedroom and argued about what difference did it make between Hollingsworth's dog or Ms. Hendrix's dogs being on a bed. (Tr. 263-65). When Petitioner said that, Hollingsworth heard Ms. Hendrix say, “I'll blow your fucking head off, ” then Hollingsworth immediately heard a gunshot. (Tr. 266-67).

         Hollingsworth turned and saw Petitioner standing in the hall and looking into Ms. Hendrix's bedroom, holding the smoking gun down by his side. (Tr. 267-68). Petitioner said, “Call 911. I shot my grandma.” (Tr. 268-69, 288). Petitioner joined Hollingsworth in the living room where she was calling 911. He just stood there, then put his gun on the arm of a recliner. (Tr. 269, 271). He did not show any emotion or appear to be in shock. (Tr. 287-89).

         The couple waited outside, in front of the house. (Tr. 291). When officers arrived, Petitioner told them he had shot his grandmother. Sergeant Lorie Chipps secured the residence and checked on the victim, who was still alive. (Tr. 307-09, 315-16). Ms. Hendrix was lying in her bed, her right hand touching her head where she had a severe gunshot wound. Her eyes were open and she was looking around, but gurgling and unable to speak. (Tr. 316). When the paramedics arrived and moved Ms. Hendrix from the bed, police and medical personnel discovered a small handgun lying under her lower back. (Tr. 318-19, 351). She died in a Tyler, Texas, hospital the next morning. (Dkt. 12-9 at 50).

         Sergeant Chipps gave Petitioner his Miranda warnings, after which Petitioner volunteered an account of what happened, because he said he had nothing to hide. He claimed he stopped at his grandmother's room to say he was leaving, and she angrily said, “[G]ood because I'm going to fucking shoot you.” According to Petitioner, Ms. Hendrix leaned down from the bed to get her purse, from which she pulled out her gun wrapped in a white cloth, and attempted to shoot him. When the gun did not fire, she pulled the gun back, turned it, took off the safety, and then pointed it at him again. Petitioner claimed he had no choice but to shoot her in self-defense. (Tr. 323-24).

         At the police station, Petitioner told OSBI Agent Cliff Fielding, contrary to what Hollingsworth observed, that Petitioner's gun already was in Ms. Hendrix's house. Petitioner stated he retrieved it from his bedroom drawer, so it would not be stolen while he was at a motel overnight. Petitioner said that Ms. Hendrix was in bed with a book when she angrily told him she wanted Hollingsworth's dog off the bed and that Petitioner needed to leave the house or she would shoot him. Petitioner also told Fielding that Ms. Hendrix pulled her gun from her purse next to the bed and tried to shoot at him, but the gun did not go off. She then turned the gun, took off the safety, and pointed it at him again. Petitioner stated he pulled his gun from his pants and shot her once in the head. (Tr. 453-56, 460).

         Two days prior to the shooting, Petitioner visited his friend Wyva Clouse. Petitioner told Ms. Clouse he was angry at Hendrix, because she had been taking the Social Security death benefit from Petitioner's father's death. (Tr. 457-58, 464). Petitioner angrily complained to Clouse about his grandmother and told Clouse more than once that he wanted to shoot his grandmother in the head. (Tr. 186-90).

         I. Sufficiency of the Evidence (Grounds 1 and 2)

         Petitioner alleges the evidence was insufficient to prove he acted with the deliberate intent to kill, and the evidence was insufficient to show he did not act in self defense.

         A. Standard of Review

         “Sufficiency of the evidence can be considered to be a mixed question of law and fact.” Case v. Mondagon, 887 F.2d 1388, 1392 (10th Cir. 1989), cert. denied, 494 U.S. 1035 (1990). In federal habeas review of a state court conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).

         The Supreme Court repeatedly has emphasized the deference the reviewing court owes to the trier of fact and “the sharply limited nature of constitutional sufficiency review.” Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, 443 U.S. at 319). “[A] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326. The court must “accept the jury's resolution of the evidence as long as it is within the bounds of reason.” Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993) (citing United States v. Edmondson, 962 F.2d 1535, 1548 (10th Cir. 1992)). “To be sufficient, the evidence supporting the conviction must be substantial; that is, it must do more than raise a mere suspicion of guilt.” Beachum v. Tansy, 903 F.2d 1321, 1332 (10th Cir.), cert. denied, 498 U.S. 904 (1990) (citing United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir. 1987)).

         B. Malice Aforethought

         Petitioner alleges in Ground 1 that the evidence was insufficient to prove malice aforethought. To determine whether there was sufficient evidence presented at trial to sustain petitioner's conviction for murder in the first degree with malice aforethought, the court first must look to Oklahoma law for the elements required for the crime. Jackson, 443 U.S. at 324 n.16; see also Torres v. Mullin, 317 F.3d 1145, 1152 (10th Cir.), cert. denied, 540 U.S. 1035 (2003). The statute for murder with malice aforethought provides:

A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.

         Okla. Stat. tit. 21, § 701.7(A). Under Oklahoma law, “malice aforethought” means “a deliberate intent to kill.” Malone v. State, 168 P.3d 185, 198 (Okla. Crim. App. 2007). Oklahoma law further provides the intent to kill may be formed the instant before the act is carried out. Black v. State, 21 P.3d 1047, 1062 (Okla. Crim. App.), cert. denied, 534 U.S. 1004 (2001) (citing Okla. Stat. tit. 21, § 702).

         On direct appeal the Oklahoma Court of Criminal Appeals denied relief on this claim: “[T]aking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that Reed shot the victim intending to kill her.” Reed v. State, No. F-2008-449, slip op. at 2 (Okla. Crim. App. Sept. 21, 2009) (Dkt. 11-3). The OCCA supplemented this holding with the following footnote:

Dodd v. State, 100 P.3d 1017, 1041-42 (Okla. Crim. App. 2004). Malice means the deliberate intent to take a human life and may be formed in an instant. Coddington v. State, 142 P.3d 437, 455 (Okla. Crim. App. 2006); Black v. State, 21 P.3d 1047, 1062 (Okla. Crim. App. 2001); Ullery v. State, 988 P.2d 332, 347 (Okla. Crim. App. 1999). Malice may be proved by circumstantial evidence. Coddington, 142 P.3d at 455; Black, 21 P.3d at 1063-63. This Court accepts the finder of fact's reasonable inferences and credibility choices which support the verdict. Coddington, 142 P.3d at 455. Sufficient evidence showed Reed intended to kill Hendrix. Reed brought his loaded gun into the house. Hollingsworth testified that she heard Hendrix threaten Reed and immediately heard a gunshot. The shot was fired by Reed, who told her to call 911 because he'd shot Hendrix. Hollingsworth testified that Reed displayed no emotion, did not appear to her to be in shock, and did not go near Hendrix to check on her condition. Clouse testified Reed had recently said he wanted to shoot Hendrix in the head.

Reed, No. F-2008-449, slip op. at 2 n.1.

         The OCCA's standard of “taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that [Petitioner] shot the victim intending to kill her” is the same standard as the federal standard for sufficiency of the evidence under Jackson v. Virginia. Therefore, this Court's inquiry is whether the OCCA's determination that the evidence was sufficient was reasonable under 28 U.S.C. § 2254(d).

         Respondent alleges the OCCA's determination of this claim was supported by the evidence presented at trial. Hollingsworth testified that when she and Petitioner arrived at Ms. Hendrix's house, he put his gun in his pants, although they were going in for only a few minutes. Petitioner's statement that the gun was already at Hendrix's house conflicted with Hollingsworth's testimony. (Tr. 256, 274). Ms. Hendrix and Petitioner had an ongoing dispute about Hollingworth's 120-pound bulldog being on the bed, and when Petitioner walked to Hendrix's bedroom door, he commented about Ms. Hendrix's small dogs being allowed on her bed. (Tr. 266, 286). Petitioner was unemotional when he told Hollingsworth to “[c]all 911, I shot my grandma.” (Tr. 268, 295). He did not check on Hendrix's condition, render aid, or show any emotion. (Tr. 295-96).

         Other evidence supporting the conviction was Ms. Hendrix's saying, “I'll blow your fucking head off, ” followed by an immediate gunshot, and Petitioner's standing at her bedroom door, looking in and holding his gun with smoke coming from it. (Tr. 266, 286). Ms. Hendrix's pistol was found on the bed, under the small of her back. (Tr. 319, 351). Petitioner told police that after Ms. Hendrix said she would shoot him, she reached down from the bed and retrieved her purse. She took out her gun, pulled the trigger to shoot Petitioner, turned the gun and released the safety, and aimed again at him. Petitioner told the police he was forced to shoot her in self-defense. (Tr. 323-24).

         Furthermore, only two days before the shooting, Petitioner told Wyna Clouse he wanted to shoot Ms. Hendrix in the head. When Clouse responded with disbelief, Petitioner repeated the statement. (Tr. 189).

         Petitioner alleges in his amended reply to Respondent's response (Dkt. 29) that because the OCCA held that the intent to kill may be formed in an instant before the act, the jury should have only considered the evidence of what happened immediately prior to the shooting. He argues that this limitation would exclude Clouse's testimony about his statement two days before the shooting. Petitioner, however, has misread the OCCA's opinion which states that intent may be formed in an instant before the crime, not that it necessarily is formed immediately before the crime.

         Petitioner also complains that Patricia Hollingsworth's was “coached” to testify that he took his pistol into the house upon his arrival. He claims that because Hollingsworth also testified that his taking the pistol into the house was not unusual, this evidence cannot establish premeditation. He further claims Hollingworth could not have seen what he was doing at his grandmother's bedroom door, because Hollingsworth had her back to him and had to turn around to see him.

         Petitioner challenges Respondent's argument concerning his dispute with his grandmother over the dogs, and he asserts the incident did not show deliberate intent or malice aforethought. He further claims that if he had wanted to deliberately kill his grandmother, he could have shot her a second time when he saw she was still alive. He argues that if he had wanted his grandmother to die, he would not have told Hollingsworth to call 911, but would have prevented her from calling for help. He did not try to help his grandmother, because he has no medical training about how to treat a gunshot wound to the head, and he did not want to disturb the evidence. Further, his lack of emotion, which was caused by this traumatic incident, caused him to “shut down, ” and his demeanor should not have resulted in an unreasonable inference in violation of Jackson v. Virginia. Finally, Petitioner alleges Wyva Clouse's testimony about his statements two days before the shooting was uncorroborated.

         Based on this evidence, this Court finds that any rational trier of fact could have disbelieved Petitioner's statement that Ms. Hendrix was trying to shoot him, and found beyond a reasonable doubt that Petitioner shot Hendrix with malice aforethought immediately after she made her verbal threat. The Court further finds the OCCA's determination that Petitioner's conviction is supported by sufficient evidence is not contrary to, or an unreasonable application of, clearly established federal law, and the OCCA's decision is not based on an unreasonable determination of the facts. Ground 1 of the petition fails.

         C. Self-Defense

         In Ground 2, Petitioner claims the evidence did not show he did not act in self-defense. In Oklahoma, self-defense is an affirmative defense which admits the elements of the charge, but offers a legal justification for the conduct. McHam v. State, 126 P.3d 662, 667 (Okla. Crim. App. 2005). The use of deadly force is justifiable only if the individual being threatened reasonably believed the use of deadly force was necessary to protect himself from imminent danger of death or great bodily harm. Chapple v. State, 866 P.2d 1213, 1215 (Okla. Crim. App. 1993). The mere belief that an individual is about to suffer death or great personal injury will not justify killing in self-defense, unless the belief is reasonable. Bechtel v. State, 840 P.2d 1, 6 (Okla. Crim. App. 1992). In assessing the reasonableness of such a belief, the jury should assume the viewpoint and circumstances of the defendant at the time of the killing. Bechtel, 840 P.2d at 11. The jury, however, also must take the defendant's viewpoint to be that of a reasonable person in similar circumstances and with the same perceptions. Id. Finally, the jury's self-defense determination is entitled to deference. Hancock, 155 P.3d at 812 (citing Hiler, 796 P.2d at 349).

         Petitioner argued on direct appeal that the State did not prove the shooting was not in self-defense, because the evidence showed that Ms. Hendrix's threatened Petitioner that she was going to “blow your fucking head off, ” and she pointed her pistol at him. Petitioner points to his statement to police that she pointed the gun, pulled it back to release the safety, and pointed it again, forcing him to shoot her in self-defense. (Tr. 323-34). He claims in his amended reply to Respondent's response that the fact that the pistol's safety was in the “off” position supported his version of the incident.

         According to Hollingsworth, however, Petitioner's gunshot came immediately after Hendrix's verbal threat. When the police discovered Hendrix, she was lying flat on her back with the handgun completely under her body, under the small of her back. (Tr. 339). This evidence supports a finding the Petitioner shot immediately, and it conflicts with Petitioner's statement that Hendrix retrieved her purse, took out her gun, aimed, tried to shoot, released the safety, and raised her pistol to aim again.

         The OCCA denied relief on this claim as follows: “[T]aking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that Reed did not shoot Hendrix in self-defense.” Reed, No. F-2008-449, slip op. at 2. The OCCA provided legal authority and rationale in a footnote:

Dodd, 100 P.3d at 1042. A person acts in self-defense when he has a reasonable ground to believe deadly force is necessary to protect himself from imminent danger of death or great bodily harm. Okla. Stat. tit. 21, § 733. OUJI-CR (2d) 8-46; McHam v. State, 126 P.3d 662, 667 (Okla. Crim. App. 2005). The defendant's belief must be reasonable; fear or a defendant's good faith belief will not justify the taking of a life. Hancock v. State, 155 P.3d 796, 813 (Okla. Crim. App. 2007); Camron v. State, 829 P.2d 47, 51 (Okla. Crim. App. 1992). Once a defendant has raised self-defense, the State must prove beyond a reasonable doubt that he was not acting in self-defense. Hancock, 155 P.3d at 813. Testimony suggested premeditation, and that Reed often argued with the victim. Hollingsworth testified that Reed's shot came immediately after Hendrix's threat. This is inconsistent with Reed's claim that Hendrix threatened him, pulled her gun, tried to shoot, took the safety off and aimed again before he shot her. Hendrix's gun was underneath her body, at the small of her back, and testimony indicated it was not moved during medical procedures. After shooting Hendrix, Reed neither expressed emotion nor checked on her welfare. While the evidence was conflicting, the jury could find beyond a reasonable doubt that Reed did not act in self-defense.

Reed, No. F-2008-449, slip op. at 2 n.2.

         Respondent argues that although Hendrix's pistol was close to her, the evidence supports the finding that she was attempting to defend herself against Petitioner's aggression, rather than the reverse. Other than Hendrix's threatening words, there was no evidence apart from Petitioner's self-serving statement to police that she took any action. Furthermore, the gun was under her body, indicating she had no chance to defend herself.

         In Maes v. Thomas, 46 F.3d 979 (10th Cir. 1995), the petitioner argued the evidence was insufficient to support the conclusion that he did not act in self-defense. The Tenth Circuit rejected the claim, noting in part that “[t]he only evidence of self-defense came from the testimony of the petitioner” and that the petitioner “was the only witness to unequivocally place weapons in the hands” of his victims. Id. at 988. The evidence was that Petitioner fired his gun immediately after Ms. Hendrix made her verbal threat, undercutting Petitioner's version of Ms. Hendrix's actions.

         Based on the above discussion, the Court finds the OCCA's decision on the issue of self-defense was neither contrary to, or an unreasonable application of, clearly established federal law, and the OCCA's decision was not based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on this claim.

         II. Jury Instructions (Ground 3)

         Petitioner alleges, as on direct appeal, that the trial court erred in issuing the instructions on the law of self-defense. He specifically claims that the jury instructions OUJI-CR(2d) 8-50 and 8-51, regarding aggressors, was improper, because there was no evidence he was the aggressor. He also claims the prosecutor misstated the law, leading the jury to believe Petitioner was the aggressor.

         Respondent alleges this claim is a matter of state law that does not raise an issue proper for federal habeas relief. “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citing 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21 (1995) (per curium)).

In a habeas corpus proceeding attacking a state court judgment based on an erroneous jury instruction, a petitioner has a great burden. Lujan v. Tansy, 2 F.3d 1031, 1035 (10th Cir. 1993), cert. denied, 510 U.S. 1120 (1994). A state conviction may only be set aside in a habeas proceeding on the basis of erroneous jury instructions when the errors had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial. Shafer v. Stratton, 906 F.2d 506, 508 (10th Cir. 1990), cert. denied, 498 U.S. 961 (1990). “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (footnote omitted). The question in this proceeding is not whether the instruction is “undesirable, erroneous, or even ‘universally condemned, '” but whether the instruction so infected the trial that the resulting conviction violates due process. Id. (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)).

Maes v. Thomas, 46 F.3d 979, 984 (10th Cir.), cert. denied, 514 U.S. 1115 (1995).

         At trial, defense counsel objected to instructions OUJI-CR(2d) 8-50 and 8-51, and the trial court summarily overruled the objections. (Tr. 471-72). The challenged instructions were as follows:

Self-defense is permitted a person solely because of necessity. Self-defense is not available to a person who was the aggressor, provoked another with the intent to cause the altercation or voluntarily entered into mutual combat, no matter how great the danger to personal security became during the altercation unless the right of self-defense is reestablished.

         OUJI-CR 8-50 (Dkt. 11-9 at 7).

A person who was the original aggressor, provoked another with intent to cause the altercation or voluntarily entered into mutual combat, may regain the right to self-defense if that person withdrew or attempted to withdraw from the altercation and communicated his desire to withdraw to the other participant in the altercation. If, thereafter, the other participant continued the altercation, the other participant became the aggressor and the person who was the original aggressor, provoked another ...

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