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Kafer v. Martin

United States District Court, E.D. Oklahoma

March 14, 2018

MICHAEL FRANK KAFER, Petitioner,
v.
JIMMY MARTIN, 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.[1] Petitioner, a state prisoner in the custody of the Oklahoma Department of Corrections, is challenging his conviction in Okmulgee County District Court Case No. CF-2011-012 for Assault with a Dangerous Weapon (Count 1) and Second Degree (Felony) Murder (Count 2). He raises the following grounds for relief:

I. The trial court erred by refusing to instruct the jury on negligent homicide, misdemeanor manslaughter, and second degree manslaughter.
II. The trial court erred in failing to instruct on self-defense.
III. Failure to give a limiting instruction on the use of impeachment evidence was not harmless beyond a reasonable doubt.
IV. The trial court failed to instruct on excusable homicide.
V. The trial court erred in admitting photographs of the decedent at the crime scene when there was no issue regarding her death.
VI. The cumulative effect of the errors raised resulted in reversible error and a fundamentally unfair trial.

         Respondent concedes in the response to the petition that Petitioner has exhausted his state court remedies for the purpose of federal habeas corpus review. Petitioner has not filed a reply to the response.

         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. Petitioner's appellate reply brief.
D. Summary Opinion affirming Petitioner's judgment and sentence. Kafer v. State, No. F-2012-535 (Okla. Crim. App. Sept. 25, 2013).
E. Petitioner's petition for rehearing in the Oklahoma Court of Criminal Appeals.
F. Order Denying Petition for Rehearing.
G. Transcripts
H. State court record.

         Facts

         Petitioner was convicted of the murder of his sister-in-law, Mary Beth “Penny” Kafer, which occurred on January 16, 2011. The record shows that on that date Petitioner's brother, James Kafer, and Penny drove to the farmhouse of James and Petitioner's mother in Okmulgee County. James and Penny went to the farmhouse to meet their son John Kafer and John's wife, Sheena. James, Penny, John, and Sheena entered the farmhouse to retrieve a couch for James and Penny's daughter, Jane Ann. (Tr. III, 148-49, 200-01).

         While James, Penny, John, and Sheena were in the house, James saw Petitioner drive his blue Ford flatbed farm truck to the house. James went outside on the porch. Petitioner parked and exited his truck and asked James what he was doing. James replied that he was getting a couch for Jane Ann. The two brothers continued to talk, and James walked across the porch and onto the grass to hear what Petitioner was saying. (Tr. III, 204, 206-08).

         Petitioner asked James where Petitioner's nailer was, and James asked Petitioner about the location of a chainsaw. The verbal exchange continued as James approached Petitioner. Petitioner had his hands up, and it appeared to James that Petitioner was going to hit him. James slapped Petitioner's right cheek with his left hand, and the two continued arguing. (Tr. III, 208-09).

         Penny, Sheena, and John had remained in the house, but when Petitioner and James started arguing, Penny asked John to go outside and break them up. James declined until his mother asked again. John then went outside where Petitioner and James were pushing each other and arguing. John stood between them, and stopped the physical confrontation, but the arguing continued. (Tr. III, 159-60).

         Petitioner testified that James was screaming to fight him, but Petitioner refused. Petitioner got in his truck and slowly began to back it down the driveway. James began walking in the driveway, while John and Penny stood on the side of the road by the gate.

         Petitioner was backing his truck in the direction of his own house, which was east of the farmhouse. James picked up a rock weighing about half a pound from the road and flung it up in the air in the direction of the truck. The rock hit the driver's-side mirror or the mirror brace on the truck, and Petitioner stopped. James and Petitioner, who were approximately ten to fifteen yards apart, then resumed “mouthing” at each other. (Tr. III, 114, 161-65, 212-15).

         Petitioner started revving his engine, blowing dust everywhere. He then punched the accelerator and began driving forward down the road, straight at James. Penny left John's side at the gate and ran after James, yelling “Jimmy, Jimmy, Jimmy.” With the truck coming straight at him, James faked a step to the left and then jumped hard to the right, narrowly missing being struck head-on. As the truck went past James, the driver's side mirror hit him on his left arm, and he fell to the ground. (Tr. III, 165-69, 193, 220-21).

         At the same time, John watched as his mother, Penny, was struck by Petitioner's truck. Penny's body wrapped around the front of the truck, and her head and arms went down on the hood. Her body was thrown five to six feet, as she rolled underneath the truck. Her body cleared the truck bed just as the truck stopped. (Tr. III, 168-69).

         James got up from the ground and saw Penny lying on the ground behind the truck with one shoe off. Penny's right cheek was in the dirt, and when James turned her over, he saw blood in her mouth. James attempted to perform CPR, and Penny gurgled as he blew into her mouth. He pressed on her chest, ...


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