United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White United States District Judge.
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 former state prisoner, is challenging his
conviction in Carter County District Court Case No.
CF-2012-514B for Second Degree Burglary, After Former
Conviction of Two or More Felonies. Pursuant to the
Court's previous Opinion and Order, Petitioner has
advised that he is seeking relief for his exhausted habeas
claims in the petition: (1) Confrontation Clause violation,
(2) insufficient evidence, and (3) prosecutorial misconduct
during closing arguments (Dkt. 11).
concedes that Petitioner has exhausted his state court
remedies for the purpose of federal habeas corpus review
(Dkt. 16). 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. Fields v. State, No. F-2013-561 (Okla.
Crim. App. June 3, 2014).
E. State court record.
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;
(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).
was charged, in concert with Kristin Hope Allen, with the
November 13, 2012, second degree burglary of Robert
Burkhart's house in Ardmore, Oklahoma (O.R. 1). A
“second page” alleged the burglary was committed
after Petitioner's eight prior felony convictions (O.R.
2-3). Petitioner was convicted by a jury and sentenced to
imprisonment for six years (O.R. 53, 60, 74).
alleges in Ground One of the petition that his rights under
the Confrontation Clause were violated when the trial court
improperly allowed Ardmore Police Officer Larry Payne to
testify on redirect about co-defendant Kristin Allen's
comments about Petitioner. Respondent asserts any
Confrontation Clause violation was harmless.
raised this claim on direct appeal, and the Oklahoma Court of
Criminal Appeals (“OCCA”) found the testimony was
error, but any error was harmless:
We reject Field's claim that he is entitled to relief
because of the trial court's admission of his
non-testifying co-defendant's statement from her police
interview. See Hanson v. State, 206 P.3d 1020, 1025
(Okla. Crim. App. 2009). The statement was the kind of
“testimonial hearsay” that the Crawford
Court held violated the Confrontation Clause. See
Crawford v. Washington, 541 U.S. 36, 68 (2004)
(“testimonial” hearsay included statements made
during police interrogations). Because the prosecution did
not show that the witness was unavailable and that Fields had
a prior opportunity to cross-examine her, the statement was
inadmissible. See Id. (testimonial hearsay is
inadmissible unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the
The error, however, was harmless beyond a reasonable doubt.
See Chapman v. California, 386 U.S. 18, 24 (1967);
see also Marshall v. State, 232 P.3d 467, 476 (Okla.
Crim. App. 2010) (“violations of the Confrontation
Clause are subject to harmless error analysis”). There
was substantial evidence of Fields' guilt without the
statement, and the prejudicial effect of the hearsay
statement was minimal. See Harmon v. State, 248 P.3d
918, 933 (Okla. Crim. App. 2011) (“[w]here the weight
of the properly admitted evidence is overwhelming and the
prejudicial effect of the inadmissible evidence is
insignificant in comparison, the error may be viewed as
harmless.”). Because we are convinced the error did not
contribute to the verdict, error in the admission of the
hearsay statement of the co-defendant was harmless beyond a
reasonable doubt. This claim is denied.
Fields v. State, No. F-2013-561, slip op. at 2-3
(Okla. Crim. App. June 3, 2014) (Dkt. 16-3).
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), and habeas relief is warranted only if the error was
not harmless, Moore v. Marr, 254 F.3d 1235,
1246 (10th Cir. 2001).
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
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
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).
complains of the following trial testimony by Officer Payne,
the State's rebuttal witness:
Q. [Defense Counsel] You haven't uncovered anything in
your investigation to reveal that [Petitioner] was intending
to go ...