REVISED - March 9, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-20721
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Richard William Kutzner,
Petitioner-Appellant,
v.
Gary L. Johnson, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court
For the Southern District of Texas
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February 16, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Richard Kutzner has filed a motion for a certificate of
appealability (COA) in this 28 U.S.C. § 2254 capital habeas
proceeding alleging two constitutional violations. For the reasons
that follow, we deny his motion.
I.
Kutzner was convicted of capital murder and sentenced to death
in Texas state court for the murder of Kathryn Harrison. The facts
relating to Kutzner’s offense and his subsequent conviction are as
follows.
Harrison owned a real estate brokerage firm in Montgomery
County, Texas. On January 22, 1996, Charles Divin, a broker at
Harrison’s firm, discovered Harrison’s body in her office after
returning from lunch. Harrison’s hands had been bound with red
plastic coated electrical wiring and her ankles bound with a
plastic cable tie. She had been strangled by another plastic cable
tie that was secured tightly around her neck. Harrison’s purse had
been emptied and turned upside down and a computer keyboard and a
video cassette recorder were missing from her office.
Kutzner soon became a suspect in the investigation of
Harrison’s murder. Several plastic cable ties, a pair of tin
snips, and red plastic coated electrical wiring were found in a
search of Kutzner’s truck. More plastic cable ties and red plastic
coated electrical wiring were found in Kutzner’s home. The wire
found in Kutzner’s truck, the wire found in his home, and the wire
which had bound Harrison’s wrists all bore the same identification
number. The identification numbers showed that all the wire was of
the same type and had all been manufactured by Rome Cable of Rome,
New York.
Kutzner was arrested and subsequently indicted in the 395th
Judicial District Court of Montgomery County, Texas for the capital
offense of murdering Kathryn Harrison in the course of committing
the offense of robbery. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon
1995). Kutzner plead not guilty. In addition to the items noted
above which had been found in Kutzner’s possession, there was
substantial other evidence to establish Kutzner’s guilt.
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Roy Landry, an associate of Kutzner’s, testified that Kutzner
had dropped off a video cassette recorder at Landry’s home during
the last week of January of 1996. The police recovered the video
cassette recorder from Landry’s home and identified it as the one
missing from Harrison’s office. Landry also testified that Kutzner
had given him a computer keyboard at the same time, but that
Kutzner had retrieved it about a week later with the intention of
giving it to a woman who worked for Mike Covington. Covington
testified that Kutzner brought him a computer keyboard during the
latter part of January or the early part of February but that he
then retrieved it about a week later. Lela Porch, who knew Kutzner
through Covington, testified that Kutzner brought her a computer
keyboard in early February of 1996. The police recovered the
keyboard from Porch’s home and identified it as the one missing
from Harrison’s office.
Landry also testified that Kutzner told him that he should rob
an older woman who worked alone in an office. Landry asked why
Kutzner did not do it himself, and Kutzner replied that the office
was too close to his home. Other testimony established that
Kutzner lived about a mile and a half from Harrison’s office.
Tommy McDonald, an employee of a local electrical products company,
testified that Rome Cable’s products were not common in the
Montgomery County area. Dale Aikens, for whom Kutzner had worked
for a time, testified that Kutzner had commented to him, on three
separate occasions, that there were no serial numbers on plastic
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cable ties and that they would be good to use if one ever wanted to
kill somebody. Finally, Michael Ennis, a forensic scientist with
the Federal Bureau of Investigation, testified that the cable ties
used to bind Harrison’s ankles and to strangle her had been cut
with the tin snips recovered from Kutzner’s truck.
The jury convicted Kutzner of murder. During the punishment
phase of the trial, the state presented evidence that Kutzner had
served several years in prison in California for armed robbery in
the 1960s, that he had been convicted of theft in Texas in 1984,
and that he had been convicted of aggravated robbery four times in
Texas in 1985. Finally, the state presented evidence that Kutzner
had murdered Rita Sharon van Huss in Harris County under very
similar circumstances just two weeks prior to his murdering
Harrison. The jury returned affirmative answers to the statutory
special issues submitted and the trial judge subsequently sentenced
Kutzner to death.
The Texas Court of Criminal Appeals affirmed Kutzner’s
conviction and sentence on direct appeal. Kutzner v. State, 994
S.W.2d 180 (Tex. Crim. App. 1999). Kutzner did not seek a writ of
certiorari from the United States Supreme Court. Kutzner applied
for a writ of habeas corpus in state court on November 5, 1998.
The state habeas court made extensive findings of fact and law and
denied Kutzner’s application. Ex Parte Kutzner, No. 97-08-01086-
CR-(1) (395th Dist. Ct., Montgomery County, Tex. Mar. 4, 1999).
The Texas Court of Criminal Appeals adopted the findings of the
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trial court and also denied Kutzner’s application. Kutzner then
applied for a writ of habeas corpus from the United States District
Court for the Southern District of Texas on January 13, 2000. The
district court denied the application and also denied Kutzner a
COA. Kutzner v. Johnson, No. H-00-127 (S.D. Tex. July 19, 2000).
Kutzner then filed the instant motion for a COA with this court.
II.
Because Kutzner filed his application for a writ of habeas
corpus from the district court on January 13, 2000, his application
is governed by the Antiterrorism and Effective Death Penalty Act
(AEDPA). Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138
L.Ed.2d 481 (1997). To obtain a COA, Kutzner must make, “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When the district court has denied an
application for a writ of habeas corpus on substantive grounds that
means that Kutzner must show that, “reasonable jurists would find
the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 120 S.Ct.
1595, 1604, 146 L.Ed.2d 542 (2000).
In deciding to grant a COA, we view a petitioner’s application
through the deferential scheme created by AEDPA. Barrientes v.
Johnson, 221 F.3d 741, 771 (5th Cir. 2000). 28 U.S.C. § 2254(d)
requires us to defer to a state court’s adjudication of a
petitioner’s claims on the merits unless the state court’s decision
was: (1) “contrary to, or involved an unreasonable application of,
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clearly established Federal law, as determined by the Supreme Court
of the United States,” 28 U.S.C. § 2254(d)(1), 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)(2). A state court’s decision will
be contrary to clearly established federal law when it reaches a
legal conclusion in direct opposition to a prior decision of the
United States Supreme Court or when it reaches a different
conclusion than the United States Supreme Court on a set of
materially indistinguishable facts. Williams v. Taylor, 529 U.S.
362, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000). A state
court’s decision will be based on an unreasonable application of
clearly established federal law when it is objectively
unreasonable. Id. at 1521.
In this case, Kutzner argues that he was denied his right to
the due process of law, as guaranteed by the Fourteenth Amendment,
when the state introduced perjured testimony at his trial. Kutzner
also argues that he was denied his right to the due process of law
when the state engineered an emotional outburst from a witness who
was a close relative of Harrison. The state habeas court
considered and rejected each of these claims; in neither case has
Kutzner met any of the requirements of 28 U.S.C. § 2254(d).
A.
Kutzner argues first that the state knowingly introduced
perjured testimony when it introduced the testimony of Tommy
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McDonald that Rome Cable electrical wiring was not common in the
Montgomery County area. Kutzner bases his contention on an
affidavit by Carl Schmidt, an employee of another local electrical
products company, that at least two wholesalers in Conroe, Texas
stock Rome Cable electrical wiring and that it is also available at
local home improvement stores. Kutzner also relies on a facsimile
communication from Rome Cable that states that the company sells
approximately 41,000 feet of wire in the Houston market monthly.
The state habeas court considered Kutzner’s claim and specifically
found that McDonald did not commit perjury.
For Kutzner to establish that his right to the due process of
law has been violated, he must show (1) the actual falsity of a
witness’s testimony, (2) that the testimony was material, and (3)
that the prosecution knew the witness’s testimony was false.
Giglio v. United States, 405 U.S. 150, 153-4, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972); Fuller v. Johnson, 114 F.3d 491, 496 (5th Cir.
1997); Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). At
most, Kutzner has established that McDonald’s opinion about the
availability of Rome Cable electrical wiring conflicts with or is
inconsistent with the affidavit of Schmidt and the communication
from Rome Cable. Conflicting or inconsistent testimony is
insufficient to establish perjury. Koch, 907 F.2d at 531. In any
event, McDonald’s testimony was hardly unequivocal. He stated on
cross-examination that his opinion about the availability of Rome
Cable products in the Montgomery County area was based on his
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employer not stocking those products; he stated that he did not
know if any other firms might stock them. Furthermore, Kutzner has
made no showing that this testimony was material in light of the
overwhelming evidence of his guilt, or that the prosecution team
knew of the testimony’s falsity. In sum, Kutzner has made no
showing that the state habeas court’s resolution of this issue was
not eminently reasonable.
B.
Kutzner argues next that the state engineered an emotional
outburst from Cynthia Ann Harrison, the daughter-in-law of Kathryn
Harrison, during her testimony. Kutzner argues that the prosecutor
shocked Cynthia Ann Harrison by showing her a picture of her
mother-in-law from the crime scene without any prior warning, that
this caused Cynthia Ann Harrison to become hysterically emotional,
and that the jury was accordingly prejudiced against him. The
state habeas court considered Kutzner’s claim and found that
Cynthia Ann Harrison’s reaction had no effect on the jury’s
verdict.
For Kutzner to establish that his right to the due process of
law has been violated he must show that the actions of the
prosecutor so infected the trial with unfairness as to make the
resulting conviction a denial of due process. Darden v.
Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144
(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94
S.Ct. 1868, 40 L.Ed.2d 431 (1974)); Guidroz v. Lynaugh, 852 F.2d
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832, 834-5 (5th Cir. 1988). The trial record does show that after
being shown the picture of her mother-in-law, Cynthia Ann Harrison
became extremely upset. However, it also shows that the jury was
removed from the courtroom shortly afterwards and remained outside
the courtroom until Cynthia Ann Harrison regained her composure.
The trial record also shows that the judge instructed the jury not
to be influenced by Cynthia Ann Harrison’s reaction to the
photograph. Furthermore, affidavits from various courtroom
personnel submitted to the state habeas court show that while
Cynthia Ann Harrison did begin to cry, she never became hysterical.
These affidavits also show that the jury was unable to hear
anything after it was removed from the courtroom.1 As with the
first issue raised by Kutzner, the state habeas court’s finding
that these events had no effect on the jury was eminently
reasonable.
III.
Kutzner has not made a substantial showing of the denial of a
constitutional right. Therefore, we DENY his motion for a
certificate of appealability.
MOTION DENIED.
1
We do not suggest that Kutzner has established that the
prosecutor deliberately engineered this outburst from Cynthia Ann
Harrison. We simply follow the analysis of the state habeas court
on this issue.
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