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Thomas v. Crow

United States District Court, N.D. Oklahoma

September 17, 2019

SCOTT CROW, Interim Director, [1]Respondent.



         Before the Court is Andre Darnell Thomas' 28 U.S.C. § 2254 habeas corpus petition (Doc. 1). Thomas challenges his first-degree murder conviction in Tulsa County District Court, No. CF-2013-2712. For the reasons below, the Court will deny the petition.

         I. Background

         This case stems from a fatal shooting at the River Glen Apartments in south Tulsa. (Doc. 8-2 at 1-2).[2] On the evening of May 24, 2013, Thomas and several young men went out to a nightclub. (Id.; see also Doc. 9-6 at 81-82). The group included Cortellieus Lee, Rolando Stevenson, and victim Ronald Harris. (Id.). According to Lee, Thomas stated he was “fixing to kill” Harris. (Doc. 9-6 at 86). Lee purportedly urged Thomas to just fight Harris, but Thomas replied “No.” (Id.). After the nightclub closed, the group congregated in the River Glen Apartments' courtyard. (Doc. 8-2 at 1; see also Doc. 9-6 at 90, 93). Stevenson, who also testified at trial, noticed Thomas pulling people to the side and whispering about something. (Doc. 9-6 at 28). Later that night, Stevenson purportedly witnessed Thomas shoot Harris in the back of the head. (Id. at 30-33). Lee also testified he heard the gunshot, saw “fire” from a gun in Thomas' hand, and observed Thomas running away. (Id. at 95-96). Stevenson and Lee initially refused to cooperate with police, but they later named Thomas as the gunman. (Doc. 8-2 at 1). Thomas was arrested and interviewed, but he denied any involvement in Harris' death. (Id. at 2).

         The State charged Thomas with first-degree murder (Count 1). (Doc. 9-10 at 21). His jury trial commenced on June 9, 2014. (Doc. 9-4). The State theorized that Thomas shot Harris in retaliation for some earlier disagreement, but the precise motive was never clear. (Doc. 8-2 at 2). After a four-day trial, the jury convicted Thomas of the murder charge and recommended a sentence of life imprisonment without the possibility of parole. (Doc. 9-7 at 206). The state court sentenced him accordingly. (Doc. 9-9 at 4).

         Thomas perfected a direct appeal to the Oklahoma Court of Criminal Appeals (OCCA). By a summary opinion entered August 19, 2015, the OCCA affirmed the conviction and sentence. (Doc. 8-2). Thomas filed the instant § 2254 petition (Doc. 1) on May 25, 2016. He identifies three grounds of error, which are taken from his OCCA brief:

(Ground 1): Various instances of prosecutorial misconduct undermined Thomas' due process rights.
(Ground 2): The state court erred by admitting a gruesome photo of the deceased victim.
(Ground 3): Thomas' post-arrest statements to law enforcement were involuntary.

(Doc. 1 at 4, 7, 8; see also Doc. 8-1 at 2-3).

         Respondent filed an answer (Doc. 8), along with relevant portions of the state court record (Doc. 9), on August 1, 2016. Respondent concedes, and the Court finds, that the Petition is timely and Thomas exhausted his state remedies. See 28 U.S.C. §§ 2244(d)(1); 2254(b)(1)(A). However, Respondent argues the claims fail on the merits. The matter is fully briefed and ready for review.

         II. Discussion

         The Antiterrorism and Effective Death Penalty Act (AEDPA) governs this Court's review of petitioner's habeas claims. See 28 U.S.C. § 2254. Relief is only available under the AEDPA where the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Further, because the OCCA already adjudicated petitioner's claims, this Court may not grant habeas relief unless he demonstrates that the OCCA's ruling: (1) “resulted in a decision that was contrary to . . . clearly established Federal law as determined by Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1);[3] (2) “resulted in a decision that . . . involved an unreasonable application of clearly established Federal law, ” id.; or (3) “resulted in a decision that was based on an unreasonable determination of the facts” in light of the record presented to the state court, id. at § 2254(d)(2).

         “To determine whether a particular decision is ‘contrary to' then-established law, a federal court must consider whether the decision ‘applies a rule that contradicts [such] law' and how the decision ‘confronts [the] set of facts' that were before the state court.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (alterations in original) (quotations omitted). When the state court's decision “identifies the correct governing legal principle in existence at the time, a federal court must assess whether the decision ‘unreasonably applies that principle to the facts of the prisoner's case.” Id. (quotations omitted). Significantly, an “unreasonable application of” clearly established federal law under § 2254(d)(1) “must be objectively unreasonable, not merely wrong.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quotations omitted). “[E]ven clear error will not suffice.” Id. Likewise, under § 2254(d)(2), “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). The Court must presume the correctness of the OCCA's factual findings unless petitioner rebuts that presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

         Essentially, the standards set forth in § 2254 are designed to be “difficult to meet, ” Harrington v. Richter, 562 U.S. 86, 102 (2011), and require federal habeas courts to give state court decisions the “benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). A state prisoner ultimately “must show that the state court's ruling ... was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

         A. Prosecutorial Misconduct (Ground 1)

         Thomas first contends the prosecutor's remarks during voir dire, redirect-examination, and closing argument deprived him of a fair trial. (Doc. 1 at 4; see also Doc. 8-1 at 2-3). The prosecutor stated that motive is not an element of the crime; analogized motive to a missing puzzle piece; inquired about whether defense counsel sought DNA testing; garnered sympathy for an eyewitness; and described a defense verdict as an injustice. (Doc. 8-1 at 3). The OCCA concluded “none of the prosecutor's comments … denied [Thomas] a fair trial.” (Doc. 8-2 at 9).

         Prosecutorial misconduct implicates the Due Process Clause of the Fourteenth Amendment. However, “inappropriate prosecutorial comments, standing alone, ” are not sufficient to vacate “a criminal conviction obtained in an otherwise fair proceeding.'” Matthews v. Workman, 577 F.3d 1175, 1186 (10th Cir. 2009) (quoting United States v. Young, 470 U.S. 1, 11 (1985)). “The errant remarks must have so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Cuesta-Rodriguez v. Carpenter, 916 F.3d 885 (10th Cir. 2019) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). To determine whether the challenged remarks deprived the petitioner of a fair trial, courts must consider “all the surrounding circumstances, including the strength of the state's case” and any cautionary instructions to the jury. Hamilton v. Mullin, 436 F.3d 1181, 1187 (10th Cir. 2006). Applying this standard, the Court will analyze each challenged remark below.

         1. Comments During Voir Dire

         During voir dire, the prosecutor explained to a juror: “the elements of the crime of Murder … don't include motive, ” and motive is “not something the State of Oklahoma has to prove beyond a reasonable doubt.” (Doc. 9-5 at 76). The juror responded: “I think motive probably has some play in it. But … if you prove to me it was [murder], my verdict will be guilty regardless of what the reason is.” (Id. at 76-78). The prosecutor went on to ask the next prospective juror about the motive issue; the juror initially responded that the State should have to prove motive. (Id. at 78). However, the juror then agreed to “follow his oath” if the State proved its case without establishing a motive. (Id. at 79). Later, when speaking with two other jurors, the prosecutor compared motive to a missing piece in a jigsaw puzzle. (Id. at 92, 120). He asked: “Now when we're putting together the puzzle, … if you don't have a couple pieces in that puzzle [i.e., motive], sometimes if there's enough pieces, are you able to see what happened?” (Id. at 92). One juror agreed he could, “depending on the gravity of those missing pieces.” (Id. at 93). Another juror stated she “should have all the pieces, ” but conceded she could convict a defendant if the State proves each element of the crime. (Id. at 121-122).

         Thomas argues the questions about motive violated Okla. Dist. Ct. R. 6, which prohibits hypothetical stake-out questions about how jurors would decide the law or facts. He also argues the jigsaw puzzle analogy diluted the reasonable doubt standard. The OCCA disagreed, finding: “Rule 6 is not violated when counsel merely points out that as a matter of law, certain factors generally require a certain result.” (Doc. 8-2 at 7). The OCCA further found the prosecutor did not prohibit jurors from considering motive, but “merely made sure the[y] … understand that a conviction could be had without any particular motive being identified.” (Id.). As to the puzzle analogy, the OCCA found it did not conflict with the various reminders and instructions regarding the State's burden of proof. (Id.).

         This ruling is consistent with the record and federal law. “Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.” Gardner v. Galectka, 568 F.3d 862, 890 (10th Cir. 2009) (quotations omitted). “Potential jurors, however, are not expected to be totally ignorant of the facts surrounding the case.” Goss v. Nelson, 439 F.3d 621, 627, 634 (10th Cir. 2006). Constitutional standards are met if the jury “can lay aside any preconceived opinions regarding the outcome of the case and render a verdict based on the evidence presented in court.” Id. The verdict here is clearly based on the evidence, notwithstanding any voir dire questions about motive. Two eyewitnesses saw Thomas shoot the victim, and one testified Thomas promised to kill the victim earlier that night. (Doc. 9-6 at 31-32; 86; 96). There is also no indication that the prosecutor's remarks caused any juror to overcome their doubts based on apparent the lack of motive. The state court explained the burden of proof multiple times, and the jury received detailed instructions on the standard of proof. (Doc. 9-10 at 152). Therefore, the prosecutor's comments during voir dire did not render the trial fundamentally unfair.

         2. Questions Regarding Evidence

         Thomas also alleges the prosecutor attempted to shift the burden of proof during trial. After defense counsel confirmed a police witness did not test DNA evidence on cigarette butts near the victim's body, the prosecutor asked the detective: “Who can request these items to be tested?” (Doc. 9-7 at 52, 68). The detective indicated any party can request DNA testing, including “the attorneys representing the defendant.” (Id. at 69). The state court struck the comment and explained:

Strike it and tell the jury to disregard the comments, the answer and the question. The reason I tell you that is because, as I've told you already … the burden of proof is on the State of Oklahoma. … The burden of proof never shifts to the Defense, and it never places upon the Defense any burden to investigate or take upon themselves the obligation to demonstrate proof in this case.

(Id.). Based on this admonition, the OCCA found no constitutional defects. (Doc. 8-2 at 8). The OCCA noted that “comments on the defendant's equal access to physical evidence are permissible, ” and “in any event, the … admonition cured even the remotest potential for error.” (Id.).

         Having reviewed the transcripts, the Court agrees. Like Oklahoma, federal law generally allows prosecutors to comment on the “defendant's failure to call certain witnesses or present certain testimony.” Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir. 2001); see also United States v. Simpson, 7 F.3d 186, 190 (10th Cir. 1993). The exchange was also fairly innocuous compared to the evidence of guilt, and the admonition regarding the burden of proof was very thorough. Consequently, the question regarding DNA evidence did not render the trial unfair.

         3. Comments During Closing Argument

         Next, Thomas challenges various comments by the prosecutor during closing argument. The challenged comments are listed, in context, as follows:

(i) Defense counsel remarked that “every time she opens the newspaper there's a murder.” The prosecutor responded: “victims have equal rights, too … There's a lot of people out there just like [the victim]… that doesn't mean that we let the murders go.” (Doc. 9-7 at 154).
(ii) Defense counsel argued Lee, an eyewitness, lied about being afraid to testify, asking:
“If you're scared, why do you keep offering up this information?” The prosecutor then suggested Lee was “terrified” and likely developed ...

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