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 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
II. The trial court erred in failing to instruct on
III. Failure to give a limiting instruction on the use of
impeachment evidence was not harmless beyond a reasonable
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
VI. The cumulative effect of the errors raised resulted in
reversible error and a fundamentally unfair trial.
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
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.
H. State court record.
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).
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).
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.
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).
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.
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,
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).
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).
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,