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Moxley v. Aldridge

United States District Court, E.D. Oklahoma

October 10, 2017

MARLA MOXLEY, Petitioner,
DEBBIE ALDRIDGE, Warden, Respondent.



         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 prisoner currently incarcerated at Mabel Bassett Correctional Center in McLoud, Oklahoma, attacks her conviction in Pontotoc County District Court Case No. CF-2010-63 for Second Degree Murder. She sets forth the following grounds for relief:

I. Petitioner's right to confront witness was denied when Dr. Pfeifer testified about Dr. Tarau's autopsy report.
II. Petitioner's right to confront witness was violated when Dr. Curtis testified about Dr. Griffin's toxicology report.
III. The trial court erred when it ruled that admission of evidence was harmless error, in violation of the Confrontation Clause.
IV. Petitioner's constitutional right to a fair trial was violated by the admission of evidence of irrelevant and highly prejudicial bad acts and other crimes.
V. Substantial error violated Petitioner's Fourteenth Amendment rights when the State was permitted to introduce bad character evidence of Petitioner and good character evidence of the deceased.
VI. Petitioner was deprived of a fair trial in violation of her Fourteenth Amendment rights when the trial court did not allow the jury to consider the lesser-included offense of manslaughter.
VII. Petitioner was denied her right for jury instructions in accordance with her theory of defense.
VIII. Petitioner's due process was violated when State failed to prove her acts caused the death of the victim.
IX. Petitioner was denied effective counsel when counsel failed to preserve serious errors for appeal.
X. Accumulation of errors guaranteed conviction, depriving Petitioner of her right to due process and requiring reversal.

         Respondent concedes that Petitioner has exhausted her 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. Moxley v. State, No. F-2011-900 (Okla. Crim. App. Jan. 8, 2013).
D. Jury trial and sentencing transcripts. D. State court record.

         Petitioner has not filed a reply to Respondent's response.

         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).


         On February 14, 2010, Officer Michael Jackson of the Ada Police Department responded to a dispatch arising from a 911 call (Tr. 219). The caller, who was Petitioner's neighbor, reported that he thought Petitioner had pulled out her father Samuel Moxley's breathing tube. Id. Officer Jackson entered Samuel Moxley's residence and saw debris on the floor and the house in disarray (Tr. 220-21). He found Samuel Moxley on the bathroom floor (Tr. 221). Mr. Moxley was not breathing, and his tracheostomy tube was in the bathroom sink (Tr. 222, 239).

         Captain Aaron Gray found Petitioner in the laundry room (Tr. 223-24). She appeared to be very intoxicated and told the officers to get out of the house. Id. She stated she had started drinking after she and her father had a fight (Tr. 224). She admitted pulling out her father's tracheostomy tube, but said she did not mean to do it. Id. Mr. Moxley died of asphyxia resulting from the removal of his tracheostomy tube (Tr. 324).

         Ground I: Dr. Pfeifer's Testimony

         Petitioner alleges the introduction by Dr. Eric Pfeifer, the Chief Medical Examiner for the State of Oklahoma, of the contents of Dr. Maurice Taran's autopsy report violated her rights under the Confrontation Clause. She asserts the State did not show that Dr. Taran was unavailable to testify and that she was provided a previous opportunity to cross examine him.[1] The Oklahoma Court of Criminal Appeals (“OCCA”) did not address whether the Confrontation Clause claim was meritorious, instead presuming error and finding it harmless:

. . . Moxley had a right to cross-examine the person who prepared the original autopsy report if anyone testified as to its contents, and Dr. Pfeifer could not testify to the contents of Dr. Tarau's report. Cuesta-Rodriguez v. State, 2416P.3d 214, 228 (Okla. Crim. App. 2010); Marshall v. State, 232 P.3d 467, 475 (Okla. Crim. App. 2010); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009); Crawford v. Washington, 541 U.S. 36, 50-51 (2004). Without objection, Pfeifer was qualified as an expert witness. An expert may testify if his specialized knowledge will assist the trier of fact to determine a fact in issue, as long as his testimony (a) is based on sufficient facts or data, (b) is the product of reliable principles and methods; and (c) the witness applies those principles and methods to the facts of the case. Okla. Stat. tit. 12, § 2702. An expert may rely on inadmissible facts or data in forming opinions, as long as those inadmissible facts or data are not disclosed to the jury. Okla. Stat. tit. 12, § 2703. Expert witness testimony must be confined to the expert's own opinions and the expert must be available for cross-examination. Marshall, 232 P.3d at 475.
Moxley's argument . . . depends on her claim that, rather than testifying as an expert, Pfeifer's testimony was inextricable from Tarau's autopsy report and she should have been allowed to cross-examine Tarau regarding the report. In Cuesta-Rodriguez, we found that an expert witness could not testify as to his own observations made from an autopsy report, where portions of the original autopsy report were admitted into evidence and disclosed to the jury. Cuesta-Rodriguez, 241 P.3d at 229. Moxley's case differs because the contents of the original report were neither admitted into evidence nor disclosed to the jury. For purposes of this case, assuming without deciding that Moxley is correct, we find that any error in admitting Pfeifer's testimony was harmless. After reviewing all the evidence admitted regarding the cause of death and Moxley's involvement, we are satisfied beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Cuesta-Rodriguez, 241 P.3d at 230.

Moxley v. State, No. F-2011-900, slip op. at 3-4 (Okla. Crim. App. Jan. 8, 2013).[2]

         Respondent alleges this ground for relief is an issue of state evidentiary law, and federal habeas review is not available to correct state-law evidentiary errors. See Grant v. Trammell, 727 F.3d 1006, 1013 (10th Cir. 2013) (“Matters of state law are theirs, not ours, to answer.”) (citing 28 U.S.C. § 2254(a); Boyd v. Ward, 179 F.3d 904, 916 (10th Cir. 1999)), cert. denied, __ U.S. __, 134 S.Ct. 2731 528 U.S. 1167 (2014). See also Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999).

         The Supreme Court has held that “in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the ‘substantial and injurious effect' standard” from Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).Fry v. Pliler, 551 U.S. 112, 121 (2007). Confrontation Clause errors are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Federal habeas review must determine “whether, assuming that the damaging potential of cross-examination were fully realized, a reviewing court might nonetheless say that the error had substantial and injurious effect or influence in determining the jury's verdict.” Littlejohn v. Trammell, 704 F.3d 817, 844-45 (10th Cir. 2013) (quoting Jones v. Gibson, 206 F.3d 946, 957 (10th Cir. 2000)). Habeas courts conduct harmless error review de novo, and must consider factors such as the “importance of the witness' testimony to the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution's case.” Id. (quoting Van Arsdall, 475 U.S. at 684).

         Dr. Pfeifer testified that after reviewing the autopsy report and related notations and photographs, his opinion was that Mr. Moxley died of asphyxia, meaning a lack of oxygen resulting from the removal of his tracheostomy tube (Tr. 324-25). Dr. Pfeifer explained the different types of tracheostomy tubes and their function in sealing the airway (Tr. 325-26). He also described the symptoms of asphyxia (Tr. 327-28). He opined that the autopsy was “quite thorough, ” and he looked at the report during his testimony to confirm there was no evidence that Mr. Moxley had a seizure (Tr. 330-32). The autopsy report eliminated lethal trauma, heart attack, pulmonary embolism, hemorrhagic stroke, certain drugs, or toxins (Tr. 334-35).

         As stated by the OCCA, the autopsy report was not admitted into evidence or disclosed to the jury, and Dr. Pfeifer did not recite Dr. Tarau's descriptions or conclusions in the report. Instead, Dr. Pfeifer testified he had reached his own opinion about the cause of Mr. Moxley's death (Tr. 324).

         The OCCA also made additional factual finding about testimony from other witnesses concerning Mr. Moxley's cause of death:

Several witnesses testified that Moxley admitted pulling out the victim's tracheotomy [sic] tube. Jurors saw the videotape of Moxley admitting she pulled out the tube. Two witnesses testified Moxley was aware that the victim could not breathe, and might die, if the tube was removed. Moxley called 911 but did not offer any further help to the victim, although she returned to the house where he was dying. The cause of death was asphyxiation after the tracheotomy tube was removed. The record does not support Moxley's claim that other, intervening factors could have caused the victim's death.

Moxley, slip op. at 8. The OCCA's factual findings are entitled to a presumption of correctness, unless Petitioner produces clear and convincing evidence to rebut the presumption. 28 U.S.C. § 2254(e)(1).

         After careful review of the record, this Court finds that while Dr. Pfeifer's testimony was important to the prosecution's case, the testimony was cumulative to the other evidence before the jury. The prosecution had a strong case against Petitioner, Dr. Pfeifer was cross-examined, and other evidence corroborated Dr. Pfeifer's testimony. The Court further finds Dr. Pfeifer's testimony did not have a substantial and injurious effect or influence on the jury's verdict.

         Applying these principles, the Court finds the determination of this issue by the OCCA was not contrary to, or an unreasonable application of, clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1). The Court further finds the OCCA's decision was not 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)(2). Ground I of the petition fails.

         Ground II: Dr. ...

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