F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 25 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ALVIE JAMES HALE, also known as
Alvin J. Hale,
Petitioner-Appellant,
v.
No. 99-6083
GARY GIBSON, Warden, Oklahoma
State Penitentiary,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-96-1073-L)
Gloyd L. McCoy, Coyle & McCoy, Oklahoma City, Oklahoma, for Petitioner-
Appellant.
Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with him on the brief), State of Oklahoma, Oklahoma City,
Oklahoma, for Respondent-Appellee.
Before SEYMOUR, Chief Judge, PORFILIO and EBEL, Circuit Judges.
EBEL, Circuit Judge.
Petitioner Alvie James Hale was tried and convicted by jury in the District
Court of Pottawatomie County, Oklahoma on one count of Murder in the First
Degree and one count of Kidnapping for Extortion. The jury recommended death
for the crime of Murder in the First Degree and life imprisonment for the crime of
Kidnapping for Extortion. After unsuccessful direct and post-conviction appeals
in state court, Mr. Hale filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. The district court denied the writ. Mr. Hale appeals, and we
AFFIRM.
BACKGROUND
Hale was charged with the murder and kidnapping of William Jeffrey Perry
(“Perry”) of Tecumseh, Oklahoma. Perry’s parents owned and managed a local
bank. When Perry failed to arrive for work Tuesday morning, October 11, 1983,
his sister, Veronica, went to his home to locate him. She found his automobile in
the driveway, the front door to his home open, his clothes laid out for work, and
Perry missing. The only sign of a struggle was an upset alarm clock. At 10:30
a.m. that day, Perry’s mother received the first of a series of telephone calls
concerning her son from an unidentified man. The second call came at 1:30 p.m.
and was received by Perry’s sister who was asked “Where is the money, where is
$350,000?” During each call, the family asked to speak with Perry and were told
that Perry was at a lake cabin and could not be brought to a phone, but that he
would be released after the caller received $350,000 from the family. The family
could not arrange to have the money until the following day.
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Meanwhile, at approximately 7:00 a.m. on the morning of October 11,
1983, a man identified as Hale came to the bathroom window of the house where
Janet Miller lived. He asked her if he could use a telephone and she told him she
did not have a phone. As the man went back to his white station wagon in her
driveway, a second man dressed only in undershorts yelled for help from an
adjacent field. Hale hurried to the spot where the second man was located, who
was bent over with pain, and pulled him over the fence into the automobile.
The next day, Mrs. Perry received a phone call directing her to go to the
pay phone at a 7-11 store where she would receive further instructions. When
Mrs. Perry reached the 7-11 she received a phone call on the pay phone at the
store that directed her to another 7-11. During this phone call, Mrs. Perry spotted
Hale sitting in a red and white pickup across the street. Mrs. Perry then
proceeded to the second location, where she again received a phone call which
told her where to drop off the ransom money. Mrs. Perry followed the caller’s
instructions and deposited the money at the designated location. While Mrs.
Perry was dropping off the money, she observed Hale’s truck approaching her
location and was able to identify Hale as the driver of the vehicle. After Hale
retrieved the money, F.B.I. agents pursued Hale in a high speed chase through
Oklahoma City. The pursuit ended when Hale’s vehicle finally came to a stop
after he hit a drainage ditch, went airborne, and collided head on with an F.B.I.
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agent’s vehicle. All the money Mrs. Perry had delivered was found in the truck
and Hale was taken into custody at that time.
Hale’s father gave law enforcement officers consent to search his home and
property. During the search, officers found the victim’s body wrapped in a dark
colored trampoline tarp within a metal storage shed, one which fit a trampoline
frame found at Hale’s own home. Perry had been shot a number of times. Also
located at the house was a cream-colored station wagon Hale had used the
morning of October 11th. A blood-stained towel containing a hair identified as
Hale’s was found in the vehicle. In addition, blood was found on the shoulder
harness in the car which was consistent with Perry’s blood. A .38 caliber
revolver was also found in a kitchen cabinet. Two bullets found in Perry’s head
were determined by a ballistics expert to have come from that revolver to the
exclusion of all other weapons.
Hale was found guilty of Murder in the First Degree and Kidnapping for
Extortion. 1 During the second stage of Hale’s trial, the prosecutor sought the
death penalty on the kidnapping as well as the first degree murder charge. The
prosecutor argued three aggravating circumstances for the kidnapping charge 2 and
1
Hale was also convicted in a separate proceeding in federal court of the
charge of Affecting Interstate Commerce by Extortion based upon his action in
this case.
2
The aggravating circumstances for kidnapping included:
(continued...)
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four aggravating circumstances for the murder charge. 3 The jury found two
aggravating circumstances for kidnapping–that it was done for remuneration and
was heinous, atrocious, or cruel–and sentenced Hale to life imprisonment. The
jury found the existence of two aggravators on the murder charge–the murder was
heinous, atrocious, or cruel and the murder was committed to avoid lawful
arrest–and sentenced Hale to death. On March 22, 1984, the trial judge sentenced
Hale in accordance with the jury’s recommendation.
Hale appealed, raising twenty-two propositions of error. The Oklahoma
Court of Criminal Appeals (“OCCA”) affirmed Petitioner’s convictions and
sentences. Hale v. State, 750 P.2d 130 (Okla. Crim. App. 1988) (“Hale I”).
Certiorari review was subsequently denied. Hale v. Oklahoma, 488 U.S. 878, 109
S. Ct. 195, 102 L. Ed. 2d 164 (1988). Hale then pursued post-conviction relief
2
(...continued)
(1) the person committed the Kidnapping for Extortion for
remuneration or the promise of remuneration;
(2) the Kidnapping for Extortion was especially heinous, atrocious,
or cruel;
(3) the existence of a probability that the Defendant would commit
criminal acts of violence that would constitute a continuing threat to society.
3
The aggravating circumstances for murder included:
(1) the person committed the murder for remuneration or the promise
of remuneration;
(2) the murder was especially heinous, atrocious, or cruel;
(3) the murder was committed for the purpose of avoiding or
preventing a lawful arrest or prosecution;
(4) the existence of a probability that the Defendant would commit
criminal acts of violence that would constitute a continuing threat to society.
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which was denied by the District Court of Pottawatomie County following an
evidentiary hearing. Hale appealed to the OCCA raising thirteen grounds for
relief. The OCCA affirmed the trial court’s denial of post-conviction relief,
finding twelve of the allegations waived because they were either raised on direct
appeal or could have been. Hale v. State, 807 P.2d 264 (Okla. Crim. App. 1991)
(“Hale II”). The OCCA denied relief on the final claim. Certiorari review was
again denied. Hale v. Oklahoma, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 231
(1991). On April 28, 1992, Hale filed a second application for post-conviction
relief in the District Court of Pottawatomie County. All relief was denied. On
appeal, the Court of Criminal Appeals again affirmed the denial of post-
conviction relief. Hale v. State, 934 P.2d 1100 (Okla. Crim. App. 1997) (“Hale
III”). Hale then filed a petition for writ of habeas corpus on February 28, 1997 in
the United States District Court for the Western District of Oklahoma, raising
twenty issues. That petition was denied on January 28, 1999 and Hale was
granted a certificate of appealability on all issues.
On appeal, Hale makes the following thirteen claims of constitutional error:
(1) he was (a) denied effective assistance of counsel through a conflict of interest
and (b) denied due process when his counsel’s motion to withdraw from
representation was denied outside of Hale’s presence, (2) he was denied effective
assistance of counsel during the punishment stage of his trial, (3) he was denied
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effective assistance of counsel during voir dire, (4) he was denied effective
assistance of counsel when counsel failed to object to the admission of other
crimes evidence, (5) he was denied effective assistance of counsel during
counsel’s second stage closing remarks, (6) he was denied effective assistance of
counsel during counsel’s first stage closing remarks, (7) he was denied a fair trial
due to an improper instruction to the jury that kidnapping was a death-eligible
offense and denied effective assistance of counsel for his counsel’s failure to
object to the improper jury instruction, (8) he was denied due process because of
the late filing of the Bill of Particulars and denied effective assistance of counsel
when his attorney failed to object to the late filing, (9) his convictions for murder
and kidnapping violated double jeopardy principles, (10) the government
committed a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963), (11) he was denied a fair trial due to the trial court’s failure
to grant a change of venue, (12) there was insufficient evidence to support the
aggravator that Hale committed murder to avoid lawful arrest, and (13) there was
insufficient evidence to support the “heinous, atrocious, or cruel” aggravator.
DISCUSSION
A. Standard of Review
When reviewing the denial of a habeas corpus petition, we are
generally subject to two different frameworks of review, depending
upon whether the state courts addressed the merits of the claim for
relief. If the state courts have not heard the claim on its merits, we
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review the district court’s legal conclusions de novo and its factual
findings, if any, for clear error. If the state courts have addressed the
claim on its merits, we review the state court ruling under the
standard enunciated under 28 U.S.C. § 2254.
Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir. 1999) (footnote and
citation omitted). Because Mr. Hale filed his petition for habeas relief nearly one
year after the effective date of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), AEDPA applies to his petition. See Lindh v. Murphy, 521
U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997).
Under AEDPA’s provisions, a federal court is precluded from granting
habeas relief on any claim adjudicated on the merits by the state court, unless the
state proceeding “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court,” 28 U.S.C. § 2254(d)(1), or “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). “In addition, we presume
the factual findings of the state court are correct unless petitioner can rebut this
presumption by clear and convincing evidence.” Smallwood, 191 F.3d at 1265
(citing 28 U.S.C. § 2254(e)(1)).
The Supreme Court recently construed the review standard set forth in 28
U.S.C. § 2254(d)(1). See Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 146
L. Ed. 2d 389 (2000). In order for Hale to secure a writ under section (d)(1) he
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must satisfy one of the following two conditions: “the state-court adjudication
resulted in a decision that (1) ‘was contrary to . . . clearly established Federal law,
as determined by the Supreme Court of the United States,’ or (2) ‘involved an
unreasonable application of . . . clearly established Federal law as, determined by
the Supreme Court of the United States.’” Williams, __ U.S. __, 120 S. Ct. at
1523 (omissions in original).
The Court determined that a state court decision is “contrary to” clearly
established federal law “if the state court arrives at a conclusion opposite to that
reached by this Court on a question of law or if the state court decides a case
differently than this Court has on a set of materially indistinguishable facts.” Id.
A state court decision is an unreasonable application of federal law “if the state
court identifies the correct governing legal principle from this Court’s decision
but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
When a federal habeas court is making an “unreasonable application” inquiry, the
Court stated that it “should ask whether the state court’s application of clearly
established federal law was objectively unreasonable.” Id. at 1521. The Court
stopped short of defining the term “unreasonable” as it is used in AEDPA, but did
note that while it is “difficult to define,” it is “a common term in the legal world
and, accordingly, federal judges are familiar with its meaning.” Id. at 1522. The
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Court was careful to point out, however, that “an unreasonable application of
federal law is different from an incorrect application of federal law.” Id.
We now turn to our review of Mr. Hale’s claims in light of Williams.
I. Ineffective Assistance of Counsel and Related Claims
A. Motion to Withdraw
Hale first argues that he was denied the effective assistance of counsel
because of a conflict of interest. Hale contends that his trial counsel suffered
under a conflict of interest based on trial counsel’s assertions to the court in a
motion to withdraw. Hale’s trial counsel, Mr. Van Wagner, was appointed by the
trial court to represent Hale on November 30, 1983. Van Wagner testified at the
post-conviction hearing that the first thing he did after being appointed was to file
an Application to Withdraw with the trial judge. The written application stated in
pertinent part:
He [Van Wagner] knows said Defendant whose office was across the
hall from this applicant’s law office in 1982 and portions of 1983,
and this applicant believes that the Defendant attempted to burglarize
his law office in early 1983 along with other offices in the building,
although there was not sufficient evidence to press charges. Because
of this, this applicant has a personal dislike, distrust and animosity
toward the Defendant which will prevent the desirable
communication and trust that is necessary to an attorney-client
relationship.
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After Van Wagner filed this application he had a meeting with the trial judge.
There is no transcript of the meeting between Mr. Van Wagner and the judge;
however, following the meeting, the judge denied the application to withdraw and
the following “court minute” was handwritten at the bottom of the application:
“Above application denied after consideration by the Court. The Court is of the
opinion that the attorney will not permit personalities to effect [sic] his
relationship or representation of defendant.” Hale argues on appeal that the
asserted animosity of Van Wagner towards Hale was a conflict of interest which
the judge failed to inquire into adequately and resolve properly. In addition, Hale
argues that his due process rights were violated because he was not present while
his attorney discussed the application to withdraw with the trial judge.
In Hale’s state direct appeal, he raised only the conflict of interest issue,
and he failed to raise the procedural due process claim. With regard to the
conflict of interest claim, the OCCA stated:
Trial counsel asked to withdraw from representing Hale because he
suspected appellant of attempting to burglarize his offices and
thought that his personal animosity might hinder communications
with Hale. The trial court held a hearing out of Hale’s presence and
declined the application. We find no abuse of the court’s discretion
in requiring counsel to overcome his personal feelings and to
represent Hale. There is no constitutional right to an attorney client
relationship free of animosity. Morris v. Slappy, 461 U.S. 1, 103
S. Ct. 1610, 75 L. Ed. 2d 610 (1983).
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Hale I, 750 P.2d at 135. In his state application for post-conviction relief, Hale,
for the first time, raised his procedural due process claim based on his absence
from the hearing on the motion to withdraw, in addition to his previously raised
conflict of interest claim. The OCCA denied consideration of the issue, stating
that the conflict of interest claim had been addressed on direct appeal and was
therefore barred from review on post-conviction. Hale II, 807 P.2d at 267. It
appears that the procedural due process claim has never been addressed by the
OCCA. Because the state does not raise procedural bar on appeal, we will
consider the procedural due process claim on the merits. See Hooks v. Ward, 184
F.3d 1206, 1223 (10th Cir. 1999).
1. Procedural Due Process Claim
Hale first argues that his constitutional rights were violated when he was
not notified of or permitted to attend the hearing or meeting at which his court-
appointed counsel discussed his motion to withdraw with the trial judge. Because
the OCCA did not address this claim on the merits, we apply pre-AEDPA
standards to this portion of Hale’s claim. See Hooks, 184 F.3d at 1223. The
district court below concluded that Hale’s due process rights were not violated by
his absence from the hearing on the motion to withdraw because it was not a stage
of the proceedings in which his presence was required. The question of whether a
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defendant has a constitutional right to be present at a particular stage of his trial
is a legal question that we review de novo. See United States v. Gomez, 67 F.3d
1515, 1528 (10th Cir. 1995).
The Supreme Court has held that a defendant “has a due process right to be
present in his own person whenever his presence has a relation, reasonably
substantial, to the fullness of his opportunity to defend against the charge.”
Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987)
(internal quotation marks omitted). When a defendant’s presence, however,
would be “useless” or “the benefit but a shadow,” his presence is not
constitutionally required. Id. Due process requires a defendant’s presence only
whenever “a fair and just hearing would be thwarted by his absence.” Id. “Thus,
a defendant is guaranteed the right to be present at any stage of the criminal
proceeding that is critical to its outcome if his presence would contribute to the
fairness of the procedure.” Id. In Stincer, the Supreme Court found no due
process violation occurred as a result of the defendant’s exclusion from a hearing
to determine two young witnesses’ competency to testify. In reaching this
conclusion, the Court stressed the fact that no substantive testimony that the two
girls would give during trial was revealed during the hearing and the defendant
did not make a showing that his presence would have ensured a more reliable
determination of the competence of the two young witnesses to testify against
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him. Id. at 745-46. Therefore, the Court concluded that the defendant’s absence
from the hearing could not have affected his ability to defend himself at trial.
This court considered a similar legal issue as the one presented here in
United States v. Oles, 994 F.2d 1519 (10th Cir. 1993). In Oles, this court held
that the defendant’s absence from a preliminary hearing, in which the court
determined whether court appointed counsel would withdraw in favor of potential
retained counsel, did not violate the defendant’s due process rights. Id. at 1525.
In reaching this holding, we found that because no substantive matters relating to
the charges pending against the defendant were discussed at the hearing and
because the defendant did not establish that his presence would have contributed
to the fairness of the trial, the defendant’s absence did not “impinge on [the
defendants’] opportunity to defend against [the charges], or affect the fairness of
the entire trial.” Id.
Similarly, in Green v. Johnson, 116 F.3d 1115 (5th Cir. 1997), the Fifth
Circuit held that a defendant’s due process rights were not violated when the
defendant was absent during a meeting between the judge and one of his two
attorneys concerning the one attorney’s motion to withdraw. Id. at 1124. In the
meeting, the attorney argued that her relationship with her co-counsel had
deteriorated to the point that they did not communicate about the case directly,
and she felt this situation was hindering her ability to represent the defendant. Id.
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The Fifth Circuit held that the defendant’s exclusion from the meeting did not
thwart the fairness and just treatment of the issue during the meeting or the
fairness of the defendant’s overall representation. Id. Moreover, the court found
that although the defendant had stated that if he was present he could have
provided the court with important information about the conflict, the defendant
failed to provide the court with such information or explain how it would have
affected the ruling. Id.
Like the defendants in Stincer, Oles, and Green, Hale’s absence from the
conference between the trial judge and his counsel did not affect his ability to
defend against the charges he was facing nor did it thwart the fairness of that
conference or his overall representation. There is no allegation that the trial
judge and counsel, Mr. Van Wagner, discussed the substantive charges against
Hale. The conference discussed whether Van Wagner’s asserted subjective
feelings toward Hale would affect his representation. There is no suggestion that
the conference addressed, or attempted to resolve, the truth of the underlying
suspicions that gave rise to Van Wagner’s ill will nor was there an allegation of a
breakdown in communications. As in Green, Hale does not indicate what he
could have done had he been present that would have had an effect on the ruling
by the trial judge or affected the fairness of his trial or the presentation of his
defense. This court finds that Hale’s exclusion from the proceeding did not result
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in an unfair proceeding or trial. Rather, the trial judge, after being presented with
Van Wagner’s petition, specifically found that trial counsel’s relationship and
representation of the defendant would not be affected. Similarly, Van Wagner
testified at the post-conviction hearing that his “vague suspicion” that Hale had
attempted to burglarize his office did not affect his representation of Hale at all.
Hale has presented no evidence to refute the above findings and testimony. We
conclude that the meeting on the motion to withdraw did not impinge on Hale’s
opportunity to defend against the charges against him or affect the fairness of the
entire trial; thus we find no constitutional violation.
2. Conflict of Interest
The second part of Hale’s claim urges this court to find that an actual
conflict of interest existed between Hale and Mr. Van Wagner because Mr. Van
Wagner had a vague suspicion that Hale might have burglarized his offices.
Because the OCCA addressed this claim on the merits, we review under AEDPA
standards.
The Sixth Amendment guarantees the effective assistance of counsel to a
defendant in a criminal trial. See Selsor v. Kaiser, 81 F.3d 1492, 1496-97 (10th
Cir. 1996). “The Sixth Amendment right to effective assistance of counsel
encompasses the correlative right to representation that is free from conflicts of
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interest.” Id. at 1497 (internal quotation marks omitted). This court has
explained that the
[t]ypical conflict of interest case[] giving rise to [a] claim[] of
ineffective assistance of counsel involve[s] multiple representation of
co-defendants at a single trial. However, a defendant’s right to
counsel free from conflicts of interest is not limited to cases
involving joint representation of co-defendants but extends to any
situation in which a defendant’s counsel owes conflicting duties to
that defendant and some other third person.
United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995) (internal citations,
quotation marks, and alterations omitted). Implicit in the latter category of
conflicts noted in Cook is the notion that a conflict may also arise where a
lawyer’s self-interest is adverse to the interest of his client. See Smith v.
Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991) (“In general, a conflict exists when
an attorney is placed in a situation conducive to divided loyalties.”); see also
Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (discussing conflict of interest when
attorney’s self-interest conflicts with duty of loyalty to defendant). Hale argues
that this situation exists in his case because his counsel informed the court that he
disliked and distrusted Hale because he suspected that Hale may have burglarized
his law offices approximately a year earlier. Hale suggests that this animosity
demonstrates that his interests and Van Wagner’s interests were in conflict.
Hale’s interpretation of the law is too broad. Under Hale’s view, any time that
counsel dislikes his or her client, the defendant could claim a conflict of interest.
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This is not the state of the law. A conflict does not arise any time defendant and
his counsel had prior dealings that may have been at odds; rather, the interests of
counsel and defendant must be divergent in the current litigation, such that the
attorney has an interest in the outcome of the particular case at issue that is
adverse to that of the defendant. See United States v. Soto Hernandez, 849 F.2d
1325, 1329 (10th Cir. 1988) (stating that to show conflict of interest, the
defendant must demonstrate that counsel “actively represented conflicting
interests” in the pending case); see also Beets, 65 F.3d at 1273 (condemning as a
conflict the execution of media and literary rights fee arrangements between the
attorney and his client during the pendency of a representation but declining to
award habeas relief because of a lack of a showing of prejudice). 4
In the present case, there is no evidence that Van Wagner had any interest
in the outcome of the current case that would conflict with Hale’s interest. The
fact that Van Wagner had a suspicion that Hale may have burglarized his office at
an earlier time is unrelated to the case for which he was currently representing
Hale. Although Van Wagner would have a conflict of interest if he were
4
As discussed below, the fact that the potential animosity between the
defendant and his counsel did not rise to the level of a conflict of interest does
not preclude defendant from showing that his counsel was ineffective as a result
of the animosity. It simply means that his claim is not evaluated under the
standard for conflicts of interest articulated by the Supreme Court in Culyer v.
Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), and Holloway
v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).
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representing Hale for the robbery of his law office because their interests in that
case would be adverse, representation of Hale in a wholly unrelated case does not
give rise to a conflict of interest. Cf. Church v. Sullivan, 942 F.2d 1501, 1511
n.8 (10th Cir. 1991) (finding conflict of interest where defense counsel may have
to cross-examine a witness who is a former client only when counsel’s previous
representation of the witness is “substantially related to the attorney’s later
representation of [the current client]” (alteration in original omitted)). The fact
that Van Wagner did not like Hale or did not trust him does not rise to the level of
a conflict of interest. Personality conflicts are not conflicts of interest. Morris v.
Slappy, 461 U.S. 1, 13, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983). Thus, we
decline to find a conflict of interest in this situation.
Although there is no conflict of interest, we have recognized that “a
complete breakdown in communication between an attorney and client may give
rise to a presumption of ineffectiveness.” Romero v. Furlong, 215 F.3d 1107,
1111 (10th Cir. 2000) (alterations in original omitted). In this case, however,
there is no evidence that there was a breakdown in communication between Van
Wagner and Hale. The evidence, instead, supports the conclusion that client and
counsel maintained adequate communication. Van Wagner testified at the state
post-conviction hearing that he met with Hale many times prior to the trial and
discussed the case and the strategy they would follow at trial. In addition, Hale
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testified at the post-conviction hearing that he did not have any difficulty
communicating with Van Wagner. Thus, there is no evidence from which we
could presume ineffective assistance based on a total breakdown in
communication.
There being no conflict of interest and no evidence of a total breakdown in
communication, we can vacate Hale’s conviction on Sixth Amendment grounds
only if he can show ineffective assistance of counsel within the meaning of
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). However, given the concession by Hale’s counsel that he carried
animosity towards Hale due to his suspicion that Hale might have previously
burglarized his law office, we believe it is appropriate to scrutinize counsel’s
performance with a somewhat more critical eye. 5 We turn, then, to the specific
allegations of trial conduct that Hale argues constituted ineffective assistance of
counsel.
5
Following the hearing on Van Wagner’s application to withdraw as
counsel, the trial court determined that the personality issues would not affect the
relationship with the defendant or the representation. Although this finding as to
whether counsel should have been removed at the time the motion was made is
one we presume to be correct under AEDPA, it does not preclude a finding that
animosity may have infected the actions and decisions of counsel during trial and
after the court made its finding. The trial court has made no finding to which we
must give a presumption of correctness with regard to whether animosity existed
during trial. The court simply stated that it believed prior to trial that counsel
could overcome the animosity.
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B. Mitigation Evidence
Hale argues his trial counsel, Mr. Van Wagner, was ineffective during the
penalty phase of the trial. Specifically, Hale contends that his attorney failed
adequately to investigate, prepare, and present a second stage defense. Hale
focuses on the lack of any mitigation evidence during the sentencing phase, which
he asserts was readily available had Van Wagner done any amount of
investigation or preparation. According to Hale, there exists a reasonable
probability that had the jury heard the undiscovered mitigation evidence, it would
not have voted for death.
On direct criminal appeal, the OCCA rejected this claim, stating that
counsel’s decision with regard to witness testimony is a matter of trial tactics
which the court would not second guess. See Hale I, 750 P.2d at 142. On Hale’s
first state habeas petition, the lower court held an extensive evidentiary hearing.
Following the hearing, the court denied relief and the OCCA subsequently
rejected the claim a second time, reiterating that what witnesses should be used at
trial are a matter of trial strategy, and further stating that Hale had failed to meet
his burden to show that but for trial counsel’s decisions, the result of the trial
would have been different. The OCCA then pointed out that Hale had raised this
issue on direct appeal, and thus was barred from raising it again on post-
conviction. See Hale II, 807 P.2d at 267.
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Claims of ineffective assistance of counsel are mixed questions of law and
fact. See Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir. 1999) (applying
AEDPA). “To establish ineffective assistance of counsel, a petitioner must prove
that counsel’s performance was constitutionally deficient and that counsel’s
deficient performance prejudiced the defense.” Id. (citing Strickland, 466 U.S. at
687 (alteration in original omitted). With regard to the first prong, to prove
deficient performance Hale “must overcome the presumption that counsel’s
conduct was not constitutionally defective. Judicial scrutiny of counsel’s
performance is highly deferential.” Wallace, 191 F.3d at 1247 (citation omitted).
If constitutionally deficient performance is shown, then Hale must demonstrate
that “there is a ‘reasonable probability’ that the outcome would have been
different had those errors not occurred.” Brecheen v. Reynolds, 41 F.3d 1343,
1365 (10th Cir. 1994). However, when a petitioner is specifically challenging the
imposition of the death sentence during the punishment phase of the trial, the
prejudice prong of Strickland focuses on whether there is “a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that
the balance of aggravating and mitigating circumstances did not warrant death.”
Stafford v. Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994). Courts may address the
performance and prejudice components in any order and need not address both if
- 22 -
a defendant fails to make a sufficient showing of one. See Strickland 466 U.S. at
697.
Hale’s trial counsel did not give an opening statement at the beginning of
the penalty phase and presented no mitigating evidence. Counsel addressed the
jury during the second stage only in his closing argument in which he urged the
jurors to bestow mercy on Hale and give him life in prison. Hale argues on
habeas that his counsel should have introduced the testimony of persons in the
community who knew him both as a youth and as an adult, in his capacity as a
father, businessman, and friend.
“[T]he failure to present available mitigating evidence is not per se
ineffective assistance of counsel.” Brecheen, 41 F.3d at 1368. Instead, it is
necessary to evaluate the reasons for counsel’s failure to present mitigating
evidence and then determine whether that failure, if due to deficient performance
by the attorney, prejudiced the defendant. Here, Hale contends that counsel’s
failure to present mitigating evidence resulted from his failure to investigate
possible sources of such evidence. “[A]n attorney has a duty to conduct a
reasonable investigation, including an investigation of the defendant’s
background, for possible mitigating evidence.” Brecheen, 41 F.3d at 1366.
The duty to investigate derives from counsel’s basic function, which
is to make the adversarial testing process work in the particular case.
Because that testing process generally will not function properly
unless defense counsel has done some investigation into the
- 23 -
prosecution’s case and into various defense strategies, the Supreme
Court has noted that counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary.
Stouffer v. Reynolds, 168 F.3d 1155, 1167 (10th Cir. 1999) (alterations in
original omitted). This duty is strictly observed in capital cases. See Nguyen v.
Reynolds, 131 F.3d 1340, 1347 (10th Cir. 1997). An attorney’s failure to conduct
a reasonable investigation “may fall outside the scope of reasonable professional
assistance, and thereby amount to deficient representation under the first prong
of Strickland.” Brecheen, 41 F.3d at 1366 (quotation marks omitted).
To determine whether Van Wagner’s performance was below the prevailing
standards, we review the evidence presented at the state habeas evidentiary
hearing. During the hearing, Van Wagner testified that he spent a considerable
amount of time reviewing the law and the charges, conferencing with Hale,
examining the FBI reports from the federal prosecution, talking with Hale’s father
and wife, and talking with other witnesses. Although Van Wagner testified that
he spoke with various potential witnesses, he could not recall any person with
whom he actually spoke other than Mr. Hale’s father and wife. Moreover, Hale
testified that he gave Van Wagner a list of friends that Van Wagner could contact
about possibly testifying on Hale’s behalf. Several people Hale named on this list
testified at the hearing that they were never contacted before or during the trial,
though they would have been willing to testify at trial on Hale’s behalf. Although
- 24 -
Van Wagner testified that Hale was adamant that his wife and daughter not testify
during the mitigation stage, this did not preclude him from investigating other
potential witnesses or mitigating evidence. In addition, Van Wagner admitted
that he did not hire an investigator to track down any potential mitigation
witnesses. A defense investigator hired by Hale’s state habeas counsel testified at
the hearing that finding mitigation witnesses in this case was in fact easier than
most death penalty cases because Hale had been a long-time resident of the area
where the crime and trial took place. Thus, there were reasonable lines of
investigation open to Van Wagner which would have revealed readily available
mitigation witnesses; however, Van Wagner failed to pursue any of them.
Given this lack of investigation, Van Wagner’s decision not to put forth any
mitigation evidence at the sentencing phase cannot be justified as strategic. As
this court stated in Breechen, before an attorney can insulate his behavior from
review by claiming that a decision to forego mitigation evidence was strategic,
“an attorney must have chosen not to present mitigating evidence after having
investigated the defendant’s background, and that choice must have been
reasonable under the circumstances.” Brecheen, 41 F.3d at 1369. In this case,
Van Wagner testified that he “thought” one of the reasons he may have decided
not to present any mitigation testimony was because Hale had several prior felony
convictions which he feared would be brought out by the prosecution should he
- 25 -
put on character witnesses. However, none of the these prior felony convictions
involved violent crimes. Moreover, the witnesses that testified on behalf of Hale
at the post-conviction hearing stated that these prior convictions would not have
influenced their opinion of Hale. If Van Wagner had spoken with these
individuals he may have decided that the risks of revealing several prior, non-
violent convictions were outweighed by the benefit to be obtained from the
witnesses’ testimony. In any event, Hale’s criminal record could not justify a
failure to investigate possible mitigating evidence even if it might be a
justification not to introduce such evidence at trial. Because Van Wagner failed
to make any investigation, we believe it was unreasonable for the OCCA to
conclude that Van Wagner’s decision to present no mitigating witnesses was a
strategic decision. We conclude that Van Wagner functioned well below the level
of any competent attorney during the penalty phase in failing to investigate
mitigating evidence.
We must, however, still determine whether Hale has met his burden under
AEDPA of showing that Van Wagner’s deficient performance prejudiced him.
In assessing prejudice in the penalty phase, “we must keep in mind the strength of
the government’s case and the aggravating factors the jury found as well as the
mitigating factors that might have been presented” if Van Wagner’s performance
had not been deficient. Stafford v. Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994).
- 26 -
During the state post-conviction evidentiary hearing, Hale presented the
testimony of four family members and nine friends who all stated they would have
testified at the sentencing phase if asked. Two of these witnesses, however,
included Hale’s wife and daughter. Hale had insisted at trial that his wife and
daughter not be allowed to testify on his behalf, and affirmed this demand when
he testified at the post-conviction hearing. As the client, Hale had the right to
preclude this testimony. See Stafford, 34 F.3d at 1564-65 (recognizing client’s
right to preclude a line of defense). This left the potential testimony of two
family members, Hale’s sister and his uncle, and nine friends. Initially, we point
out that it is unclear whether Hale’s sister would have been able to testify on her
brother’s behalf. At the time of the trial, she was away in Italy and no one had
informed her that her brother was on trial. In addition, four of the people who
testified provided somewhat equivocal statements on behalf of Hale. For
example, one friend stated that he liked Mr. Hale, but he was also friends with the
victim’s family, and stated only that Hale “seemed to care,” or at least “I never
saw anything that would indicate that he didn’t.” Another friend stated in
response to the question “Would you have told the jury to ask them to spare his
life?”: “I don’t know what I would have told them.” Still another friend
responding to the same question testified that he would have simply stated that he
“knew him [Hale] socially to the extent that he and I talked together frequently
- 27 -
about baseball, and we were good friends. I–I didn’t know anything other than
that about him, really.” The remainder of the testimony from other witnesses was
limited to general statements that Hale was a good father and friend, a good
citizen, and had been a good student back in high school.
Against these testimonials from friends and family members, some of which
were equivocal, is the State’s strong case against Hale. The jury found two
aggravators: the murder was “heinous, atrocious, or cruel” and the murder was
committed to avoid lawful arrest. There was ample evidence to prove both of
these aggravators. 6 In addition, there was strong evidence connecting Hale to the
crime. The victim was wrapped in Hale’s trampoline tarp. The body was found
at Hale’s father’s home and the gun used to kill the victim was a gun Hale had
borrowed from his father. Furthermore, there was hair, blood, and fingerprint
evidence connecting Hale to the murder. There was also evidence presented at
trial that Hale had attempted to kidnap a woman just one day prior to the
kidnapping of the victim, and a former cellmate of Hale’s testified that Hale had
told him he knew how to get rid of witnesses. The cellmate further stated that
when Hale learned that the inmate was going to testify against him, the inmate
was beaten up by Hale and others.
6
See infra issues 12 & 13.
- 28 -
Given the strength of the case against Hale, the aggravating factors found
by the jury, and the nature of the crime itself, we do not believe that the later-
identified testimony from family and friends, some of which was equivocal and
none of which was compelling, would have created a reasonable probability that
the jury would have sentenced Hale to life in prison. See Boyd v. Ward, 179 F.3d
904, 918 (10th Cir. 1999) (“Even if we assume the failure to present mitigating
evidence in the form of testimony from childhood acquaintances and family
members is deficient performance,” petitioner failed to establish prejudice in light
of minimal other mitigating evidence and overall strength of state’s case); Smith
v. Gibson, 197 F.3d 454, 463-64 (10th Cir. 1999) (finding testimony from family,
friends, bosses, and former coaches insufficient to show jury would have
sentenced defendant to life in prison in light of “brutal and senseless nature of
this crime and the strength of the State’s evidence supporting the three
aggravating circumstances”). Thus, we conclude the OCCA’s determination that
Hale’s counsel was not ineffective was not an unreasonable application of federal
law.
C. Voir Dire
Hale next argues that his trial counsel rendered ineffective assistance of
counsel during voir dire. Specifically, Hale argues that his trial attorney, Mr. Van
- 29 -
Wagner, was ineffective when he: (1) failed generally to question jurors about a
possible defense strategy; (2) failed to attempt to rehabilitate jurors challenged
for cause by the state based upon their views on the death penalty; and (3) failed
to challenge for cause or use peremptory challenges to exclude several jurors with
preconceived notions of Hale’s guilt.
Hale raised this claim on direct appeal, and the OCCA summarily dismissed
it, finding that defense counsel’s conduct during voir dire was not deficient. Hale
I, 750 P.2d at 139. The court further stated that “challenges to veniremen are a
matter of trial technique which should not be second guessed with the benefit of
hindsight.” Id. As discussed above, to show ineffective assistance of counsel,
Hale must show both constitutionally deficient performance by trial counsel and
prejudice.
1. General Questioning During Voir Dire
Hale argues that Mr. Van Wagner was ineffective because he failed to
educate the jury on any aspect of his second stage strategy. However, Hale has
failed to demonstrate how Mr. Van Wagner’s questioning during voir dire fell
below constitutional standards.
In Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir. 1997), this Court held
that “[a]n attorney’s actions during voir dire are considered to be matters of trial
- 30 -
strategy. A strategic decision cannot be the basis for a claim of ineffective
assistance unless counsel’s decision is shown to be so ill chosen that it permeates
the entire trial with obvious unfairness.” Id. at 1349 (citation omitted). Hale has
failed to demonstrate that Mr. Van Wagner’s failure to question jurors about a
possible defense strategy permeated the trial with unfairness.
The Supreme Court has held that in a capital trial, due process requires a
voir dire examination of a potential juror’s views on the death penalty, see
Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992);
however, it is clear from the transcript of the voir dire proceedings that such an
examination did take place in this case. Furthermore, after examining the
transcript, it is clear that Mr. Van Wagner did ask the jurors questions that
attempted to elicit potential biases which could be either helpful or damaging to
Hale’s case. These questions included whether the jurors held an opinion,
whether they knew anyone in law enforcement that would color their ability to be
impartial, and whether they were members of a church. Moreover, the court
thoroughly questioned the jurors as to their views on the death penalty. Thus,
Hale has failed to show that Mr. Van Wagner’s performance in questioning the
jurors during voir dire was constitutionally deficient or prejudicial.
2. Rehabilitation of Jurors Challenged for Cause
- 31 -
Hale next argues that trial counsel was ineffective because he failed to
attempt to rehabilitate four jurors after the state challenged them for cause and the
court dismissed them based upon their views regarding the death penalty.
The trial court asked the following question of all the jurors: “If selected as
a juror in a case where the law and the evidence warrant could you without doing
violence to your conscious [sic] recommend the death penalty?” The trial judge
then went on to question individually those jurors who responded negatively
about their views on the death penalty. These jurors included Jurors Fischer,
Zinn, Abel, and Myer. In individual questioning, three of these jurors, Fischer,
Zinn, and Meyer, stated unequivocally that they could not inflict the death penalty
in any case. The fourth juror, Abel, stated that she could not apply the death
penalty in this case regardless of the evidence because she knew Hale, his
daughter, and his wife. These responses were repeated upon questioning by the
state.
The Supreme Court in Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83
L. Ed. 2d 841 (1985), articulated the standard for determining whether a
prospective juror must be excluded for cause because of his or her view on capital
punishment as “whether the juror’s views would prevent or substantially impair
the performance of his duties as a juror in accordance with his instructions and
- 32 -
his oath.” Id. at 424 (quotation marks omitted). A juror’s bias need not be proven
with “unmistakable clarity” because
determinations of juror bias cannot be reduced to question-and-
answer sessions which obtain results in the manner of a
catechism. . . . Despite this lack of clarity in the printed record,
however, there will be situations where the trial judge is left with the
definite impression that a prospective juror would be unable to
faithfully and impartially apply the law. . . . [T]his is why deference
must be paid to the trial judge who sees and hears the juror.
Id. at 424-26.
Thus, the state trial judge’s determination is statutorily accorded a
presumption of correctness which can only be rebutted by clear and convincing
evidence. See 28 U.S.C. 2254(e)(1); see also Williams v. Collins, 16 F.3d 626,
633 (5th Cir. 1994). A review of the responses of the four jurors in this case
indicates that the trial court did not improperly excuse them under Wainwright.
All four jurors in question in this case made it clear, by the time both the trial
judge and the prosecutor finished asking questions, that they could not impose the
death penalty in this case regardless of the evidence or the facts presented. Based
on their answers, the trial court could have been “left with the definite impression
that [Fischer, Abel, Meyer, and Zinn] would be unable to faithfully and
impartially apply the law.” See Wainwright, 469 U.S. at 426. Hale has produced
no evidence to rebut the trial court’s finding that the jurors should be removed for
cause, and he has advanced no evidence to suggest that further cross-examination
- 33 -
of these witnesses would have been helpful. Hence, we cannot find that Hale’s
counsel acted unreasonably or unprofessionally in failing to attempt to rehabilitate
the four dismissed jurors. See Williams, 16 F.3d at 633 (holding that counsel was
not ineffective for failing to rehabilitate three jurors excused for cause when their
answers suggested they would not have been able to function properly as jurors in
a capital case); Foster v. Delo, 39 F.3d 873, 878 (8th Cir. 1994) (finding counsel
was not ineffective for failing to rehabilitate two jurors excused for cause when
they answered unequivocally that they could not consider the death penalty
regardless of the law or the evidence); see also Sawyer v. Butler, 848 F.2d 582,
589 (5th Cir. 1988) (denying an ineffective assistance claim and holding that
there was no prejudice from counsel’s failure to rehabilitate prospective jurors
who stated they could not impose the death penalty when defendant failed to
demonstrate rehabilitation was possible), aff’d on reh’g, 881 F.2d 1273 (5th Cir.
1989), aff’d sub nom. Sawyer v. Smith, 497 U.S. 227, 110 S. Ct. 2822, 111
L. Ed. 2d 193 (1990).
3. Failure to Challenge Jurors With Preconceived Notions of Guilt
Hale’s next argument is that his trial counsel was ineffective when he did
not challenge for cause or excuse by peremptory challenge six jurors who had
preconceived notions of Hale’s guilt. As support for this claim, Hale presents the
- 34 -
testimony of Judge Frank McCarthy who testified as an expert witness during the
post-conviction evidentiary hearing. Judge McCarthy opined that
in a case where the defense knows going in that they’re not going to offer
any substantive testimony, and they know that they’ve got a good venue
issue, to allow six jurors to sit on your jury, who say they’ve already got
their minds made up or have opinions about your client’s guilt, is just
inappropriate and it’s ineffectively representing your client. There’s no
reason for you to do that.
As noted above, in order to show counsel was ineffective for failing to
object to the presence of certain persons on the jury, Hale must prove “counsel’s
representation fell below an objective standard of reasonableness.” Kimmelman
v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)
(emphasis added). In addition, Hale must show counsel’s deficient performance
prejudiced the defense. “This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. Defense counsel’s failure to attempt to remove from
the jury a person who has been established on voir dire to be biased constitutes
prejudice under Strickland. See Johnson v. Armontrout, 961 F.2d 748, 755-56
(8th Cir. 1992). To show a juror was biased, a defendant must show that the juror
had such a fixed opinion that he or she could not judge impartially. See Patton v.
Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). Thus, a
juror is not shown to have been impartial simply because he or she had a
preconceived notion as to the guilt or innocence of the accused. See Murphy v.
- 35 -
Florida, 421 U.S. 794, 800, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975). The
Supreme Court stated in Irwin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d
751 (1961):
It is not required . . . that the jurors be totally ignorant of the facts
and issues involved. . . .To hold that the mere existence of any
preconceived notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption of a prospective
juror’s impartiality would be to establish an impossible standard. It
is sufficient if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court.
Id. at 722-23. Thus, to show a juror was biased, Hale must show more than that
the juror had a preconceived notion of guilt; he must show that the juror had such
a fixed opinion that he or she could not judge impartially.
In this case, Hale contends that counsel was deficient when he did not
attempt to remove six jurors whom he claims held opinions as to his guilt, and
that this failure prejudiced him because he was convicted by an impartial jury.
However, these jurors implicitly or explicitly all said that they held only mild or
slight opinions and all six said they could put their opinions aside and judge the
case impartially on the evidence.
One of these jurors, Juror McBee, was a member of the Oklahoma State
Bureau of Investigation Commission (“OSBIC”). The OSBIC had been involved
in the investigation of Hale’s case; however, there was no suggestion in the voir
dire transcript that Juror McBee had actually participated in the investigation. On
- 36 -
the other hand, there was testimony during voir dire that Juror McBee was a
friend of Hale’s counsel, Mr. Van Wagner, and knew the defendant and the
defendant’s family socially. In fact, Juror McBee stated during voir dire that he
had played golf with Hale on multiple occasions. Thus, it was objectively
reasonable for Van Wagner to have left McBee on the jury under the belief that he
would be favorable to the defendant, both because he was a friend of counsel and
because he knew Hale and his family socially.
Another of these jurors, Juror McLaughlin, also stated during voir dire that
he knew Hale. McLaughlin stated that he had done business with Hale and would
see him at Hale’s bakery where they would strike up conversations. Based on this
testimony, it was reasonable trial strategy to have left this person on the jury in
the hope that he would be favorable to Hale, or at the very least be reluctant to
give him the death penalty.
The judge asked the entire jury panel twice whether anyone felt they could
not give both sides a fair and impartial trial and no one responded. Further, Hale
never showed actual bias by any of these seated jurors. Cf. Smith v. Phillips, 455
U.S. 209, 215, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); Irons. v. Lockhart, 741
F.2d 207; 208 (8th Cir. 1984).
This situation is in stark contrast to Johnson v. Armontrout, 961 F.2d 748
(8th Cir. 1992), in which the court found ineffective assistance of counsel when
- 37 -
the defense attorney failed to remove two biased jurors for cause. In Johnson, ten
members of Mr. Johnson’s venire had previously served on a jury who had earlier
convicted another man of taking part in the same robbery. Mr. Johnson had
appeared at the earlier trial handcuffed and under guard. Id. at 751. The court
found actual prejudice because two of those ten jurors stated unequivocally that
they firmly believed that Johnson was guilty of the robbery. Id. The court found
that the failure to remove two biased jurors constituted actual prejudice. Id. at
755-56. In contrast, here there was no unequivocal statement by any juror that
they were firmly convinced Hale was guilty and could not set aside this opinion.
On the record before us, we conclude that Hale has not established a Strickland
violation because his counsel failed to challenge these jurors.
D. Admission of Other Crimes Evidence.
Hale next argues that his trial counsel was ineffective when he failed to
object to the admission of evidence of other crimes allegedly committed by Hale.
The other crimes evidence to which Hale argues counsel should have objected
included Mrs. Brenda Allison’s testimony that Hale, on the day before Jeff Perry
was abducted, drove up to Mrs. Allison’s home, informed her that her husband
had been in an auto accident, and offered to drive her to the hospital. Mrs.
Allison later learned that her husband was never in a car accident. The
Prosecutor argued that this evidence was admitted to show identity, motive, plan,
- 38 -
and intent on the part of Hale. Hale also claims that counsel should have objected
to the admission of the testimony of one of Hale’s former cellmates, Mark
Weaver, who testified that Hale and other inmate beat him after he agreed to
testify against Hale. 7
The Oklahoma Court of Criminal Appeals addressed this claim as part of
Hale’s ineffective assistance of counsel claim on direct appeal. In rejecting the
claim, the court held:
We find that the other crimes evidence which consisted of a possible
attempted kidnapping and an assault on a prison cellmate who gave
testimony on behalf of the State was admissible to show common
scheme and identity. As the evidence was properly admissible, we
find that there was no deficiency in failing to raise an objection to it.
Hale I, 750 P.2d at 140.
Hale’s claim can be resolved by addressing the prejudice prong under
Strickland. Hale has failed to demonstrate that if trial counsel had objected to the
admission of the above testimony, it would have been excluded.
The OCCA has repeatedly allowed the admission of evidence of other
crimes to prove motive, common scheme, identity, plan, knowledge, or absence of
7
Weaver testified that while he was a cellmate of Hale’s, Hale told him he
knew how to get rid of witnesses. After Hale learned that Weaver was going to
testify about this statement, Hale and several other inmates beat up Weaver. On
habeas, Hale does not argue that his attorney should have objected to Weaver’s
testimony that Hale told him he knew how to get rid of witnesses. He only argues
counsel should have objected to the testimony that Hale beat him up when he
learned Weaver was going to testify against him.
- 39 -
mistake or accident. See, e.g., Huskey v. State, 989 P.2d 1, 3 (Okla. Crim. App.
1999); Douglas v. State, 951 P.2d 651, 673 (Okla. Crim. App. 1997). In this case,
there was a question of identity. Hale denied that he was the one who kidnapped
and killed Jeff Perry. He argued that he was simply told to pick up the money.
The evidence by Brenda Allison of an attempted kidnapping just a day prior to the
victim’s abduction helped to establish identity and common scheme. The
testimony by Mark Weaver that Hale beat him up when he discovered that Weaver
was going to testify against him has been found by the OCCA to be admissible as
other crimes evidence “to infer a consciousness of guilt from an attempt to
improperly influence or cause the absence of a material witness at trial.” Powell
v. State, 995 P.2d 510, 527 (Okla. Crim. App. 2000). The OCCA has further
stated that this type of evidence “constitute[s] ‘admissions by conduct designed to
obstruct justice’ and [is] thus admissible to establish motive.” Id. (quoting
Gideon v. State, 721 P.2d 1336, 1338 (Okla. Crim. App. 1986)). Thus, the
testimony of both witnesses was properly admissible as other crimes evidence.
Hale has failed therefore to show that if his attorney had objected, the evidence
would have been excluded.
Hale attempts to show prejudice by asserting that the prosecutor failed to
give notice that he was introducing other crimes evidence as required under
Oklahoma law. See Burks v. State, 594 P.2d 771, 774 (Okla. Crim. App. 1979)
- 40 -
(requiring notice of other crimes evidence ten days prior to trial), overruled in
part on other grounds by Jones v. State, 772 P.2d 922, 925 (Okla. Crim. App.
1989). Hale argues that if counsel had objected to the admission on the basis of
insufficient notice, Oklahoma would have excluded the evidence. Again, we
disagree and therefore find no prejudice.
First, Hale has failed to support this assertion in his brief. Although Hale
had a full evidentiary hearing during post-conviction, he never asked Mr. Van
Wagner, his attorney, whether he received notice; therefore there is no conclusive
evidence that he did not receive notice. In addition, in Malicoat v. State, 992
P.2d 383 (Okla. Crim. App. 2000), the OCCA clarified that failure to provide
Burks notice does not automatically require the exclusion of other crimes
evidence. The court emphasized that the purpose of Burks notice is to ensure that
the defendant is not surprised by the admission of other crimes evidence, and to
allow the defendant time to be heard on the other crimes evidence before it is
presented to the jury. Malicoat, 992 P.2d at 402-03; see also Powell, 995 P.2d at
527 (no abuse of discretion on part of trial court in admitting other crimes
evidence without Burks notice when defendant not surprised); Bryan v. State, 935
P.2d 338, 357 (Okla. Crim. App. 1997).
Hale cannot argue here that he was surprised by the testimony of either
Brenda Allison or Mark Weaver. Brenda Allison testified at the preliminary
- 41 -
hearing, thus providing counsel notice of the testimony she had to offer. In
addition, her name was listed as a witness that would be called at trial. Moreover,
Hale’s trial counsel filed a motion in limine prior to trial attempting to suppress
the evidence of Brenda Allison that was later denied by the trial court prior to
trial. Mark Weaver testified at the preliminary hearing about Hale’s assault on
him. Moreover, Weaver was included on the list of trial witnesses. Therefore,
even if Van Wagner had objected to the evidence at trial, the lack of written
notice would not have kept the evidence out. Moreover, as discussed above,
because the evidence was proper other crimes evidence, it would not have been
excluded. Thus, Hale cannot show prejudice. We therefore find that the OCCA’s
determination that Hale was not denied effective assistance of counsel was not an
unreasonable application of federal law.
E. Second Stage Closing Remarks
Mr. Hale next asserts that he received ineffective assistance of trial counsel
during his counsel’s second stage closing remarks. Specifically, Hale contends
that his attorney’s false statement to the jury that Hale had been abandoned by his
wife and daughter constituted deficient performance that prejudiced his case. The
OCCA concluded that under Strickland, Hale had not been denied his Sixth
Amendment right to effective assistance of counsel. See Hale I, 750 P.2d at 142.
- 42 -
The portion of trial counsel’s closing argument to which Hale objects reads
as follows:
And his wife Susan was here to testify earlier this week. She’s
abandoned him. He has a teenage daughter Jamie. She hasn’t been
here. She won’t be here. I know it’s easy to say that because of his
participation he’s earned it. I’m just asking you for mercy because
you are better.
On this point, Hale fails to overcome the presumption that these statements
"might be considered sound trial strategy." Strickland, 466 U.S. at 689. First, it
is not clear whether the statement that Hale’s wife had abandoned him at the time
of trial was false. Hale’s ex-wife testified during a post-conviction hearing that
she began divorce proceedings approximately six or seven months “after this all
happened.” Second, it is undisputed that Hale had instructed his attorney that he
did not want his wife or child to testify in his favor, in order to spare them any
undue trauma. Therefore, it seems clear that in closing argument counsel was
attempting to put the best spin on the fact that Hale’s wife and daughter had not
testified during the punishment phase, by attempting to garner sympathy. “For
counsel’s decision to rise to the level of constitutional ineffectiveness, the
decision must have been completely unreasonable, not merely wrong, so that it
bears no relationship to a possible defense strategy.” See Hoxsie v. Kerby, 108
F.3d 1239, 1246 (10th Cir. 1997) (alterations and quotation marks omitted).
Here, the attorney’s comments had a reasonable relationship to a defense strategy.
- 43 -
Moreover, even if counsel was deficient in making this statement, Hale has
failed to show any prejudice. There is no “reasonable probability that, but for
counsel’s [abandonment argument], the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Thus, we find that the OCCA’s
determination that counsel was not ineffective was not an unreasonable
application of federal law.
F. First Stage Closing Statement
Hale next argues that during closing argument in the guilt phase of the trial,
his attorney conceded his guilt and thus denied him effective assistance of
counsel. The OCCA rejected this claim, finding no prejudice. Hale I, 750 P.2d at
142. The court further concluded that if counsel had claimed that Hale had not
been involved at all, in the face of overwhelming evidence of Hale’s involvement,
counsel would have lost all credibility with the jury. Id.
The relevant portion of counsel’s argument is as follows:
This is the FBI’s case. And after all they’re the best in the
country. At least that’s what they tell us. And they look pretty
sharp. Couple of the experts even spelled their names for you so you
wouldn’t miss out to know that. They’re slick. The State would
have you accept the FBI’s case without any questions. Don’t delve
into hypotheticals says the State. Don’t bother yourself with
unanswered questions because we have answered everything that you
could want to know. That’s not true. There are a lot of unanswered
questions, and you should ask every reasonable question that comes
to your mind when you are in that jury room. . . .There isn’t any
- 44 -
doubt that Jim Hale was involved in this. No doubt whatsoever.
How much though? To what extent? And was he the only one?
How many voices were on the tapes? Susan Hale, Jim’s wife, was
able to say, “I can only identify my husband as on one of those
tapes.” What did it sound like to you?
We conclude that the OCCA reasonably applied Strickland in resolving this
issue. Although “an attorney who adopts and acts upon a belief that his client
should be convicted ‘fail[s] to function in any meaningful sense as the
Government’s adversary,’” Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir.
1988) (quoting United States v. Cronic, 466 U.S. 648, 666, 104 S. Ct. 2039, 80 L.
Ed. 2d. 657 (1984) (alteration in original)), Hale’s counsel did not act in such a
manner in this case. Instead, he made a reasonable strategic decision to concede
some involvement by Hale, given the overwhelming evidence presented at trial,
and focused on the extent of his involvement and whether others could have been
involved. See Trice v. Ward, 196 F.3d 1151, 1161-62 (10th Cir. 1999) (finding it
was neither unreasonable nor prejudicial to admit some involvement and focus
energy on other arguments, when evidence was overwhelming).
Moreover, given the overwhelming evidence linking Hale to the crime–i.e.,
F.B.I. identification of Hale as the man making at least some of the ransom calls
to Mrs. Perry; hair, gun, and blood evidence linking Hale to the crime; the body
wrapped in a trampoline tarp which fit Hale’s trampoline; and other eyewitness
accounts of Hale’s involvement–Hale cannot show a reasonable probability that
- 45 -
the outcome of the guilt phase of the trial would have been different absent the
concession made by his attorney during closing argument.
G. Improper Jury Instruction
Hale next argues that he is entitled to habeas relief because his jury was
improperly instructed under Oklahoma law that the death penalty could be
imposed for the kidnapping for extortion conviction. Hale presents this claim as
both a constitutional claim and as a separate ineffective assistance of counsel
claim. The OCCA addressed and rejected this claim on direct appeal, finding that
although the instruction on the kidnapping charge incorrectly stated under
Oklahoma law that kidnapping was a death-eligible offense, the error was not due
to any willful misconduct on the part of the attorney or the trial court. Moreover
the court stated that “[s]ince the jury in this case did not assess the death penalty
for the extortion conviction, appellant has not demonstrated prejudice resulting
from the improper instruction.” Hale I, 750 P.2d at 138 (citing Bumper v. North
Carolina, 391 U.S. 543, 545, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968)). The
OCCA further concluded that counsel was not deficient for his failure to object to
the jury instruction. Id. at 142.
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It is not disputed that the second stage jury instruction regarding the
possible punishment for kidnapping was in error, because it stated that Hale could
be given the death penalty on the kidnapping charge. The instruction read:
The Defendant in this case has been found guilty by you, the
jury, of the offense of KIDNAPPING FOR EXTORTION as charged
in count II of the information. It is now your duty to determine the
penalty to be imposed for this offense.
Under the law of the State of Oklahoma, every person found
guilty of KIDNAPPING FOR EXTORTION shall be punished by
death or imprisonment in the penitentiary, not less than ten (10)
years.
In addition to the above instruction, the prosecutor argued during his second stage
closing argument that both counts–murder and kidnapping–carried the death
penalty and urged its imposition on both counts. The prosecutor also stated,
however, that if the jury rejected the death penalty, the jury could give Hale life
or “any range you want.”
Hale first argues that the kidnapping instruction that allowed for the
imposition of a death sentence resulted in constitutional error that cannot be
viewed as harmless. The Supreme Court has stated that the argument that a jury
instruction is incorrect under state law is not a basis for federal habeas relief. See
Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991);
Esquibel v. Rice, 13 F.3d 1430, 1433 (10th Cir. 1994). The appropriate question
on habeas review is “whether the ailing instruction by itself so infected the entire
trial that the resulting conviction violates due process.” McGuire, 502 U.S. at 72.
- 47 -
The instruction must be viewed in the context of the instructions as a whole and
the trial record. Id. For this review, we apply a harmless error analysis. See
California v. Roy, 519 U.S. 2, 5, 117 S. Ct. 337, 136 L. Ed. 2d 266 (1996)
(reviewing jury instruction under harmless error analysis).
Prior to AEDPA, federal courts applied the Brecht v. Abrahamson, 507
U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), harmless error analysis.
Under Brecht, a federal court on habeas review must determine whether the error
had a “substantial and injurious effect or influence in determining the jury’s
verdict.” Id. at 623. AEDPA now provides, however, that habeas relief shall not
be granted from state convictions “unless the adjudication of the claim . . .
involved an unreasonable application of [] clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), sets
forth the clearly established standard that state courts apply for evaluating
instances of constitutional error–whether an error was harmless beyond a
reasonable doubt. Oklahoma Court of Criminal Appeals reviewed this error for
prejudice, citing Bumper v. North Carolina, 391 U.S. 543, 545 (1968). That,
however, is the wrong constitutional standard. Bumper v. North Carolina, id.,
refers only to whether a Witherspoon challenge (Witherspoon v. Illinois, 391 U.S.
510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968)) can be applied to a case where the
- 48 -
jury recommends life imprisonment rather than death. Thus, we find that case
inapposite. The proper harmless error standard, that should have been applied, is
that expressed in Chapman v. California. Thus, we apply the standard of review
set forth in Brecht. See Williams v. Taylor, 120 S. Ct. 1495 (2000).
Here, the jury recommended a life sentence, not death for the kidnapping
conviction. The jury was given a full range of possible sentences and chose a
permissible sentence under Oklahoma law–life in prison. There is no evidence
that the jury was influenced to give a life sentence simply because they were
given the impermissible choice of giving a death sentence.
Moreover, there is no evidence that the jury imposed the death sentence for
the murder conviction because of the erroneous kidnapping instruction. Hale
attempts to show that the jury imposed a death sentence on the murder charge
because of the erroneous kidnapping charge by suggesting that the jury
impermissibly double-counted aggravators. Hale asserts that because the jury
found the “heinous, atrocious, or cruel” aggravator for the kidnapping charge and
also found the “heinous, atrocious, or cruel” aggravator for the murder charge, the
jury was allowed to double-count. Hale misconstrues double counting. Double-
counting occurs when one aggravating circumstance for a crime found by the jury
necessarily subsumes another aggravator found by the jury for the same crime.
See Smith v. Gibson, 197 F.3d 454, 464 (10th Cir. 1999). Here, the jury looked
- 49 -
at a similar aggravator for two separate crimes. There is no evidence that the jury
relied on the aggravating circumstances it found arising from the kidnapping in
assessing the penalty for the murder charge. Moreover, such an assumption
would ignore the jury instructions, which the jury is presumed to follow, see
Shannon v. United States, 512 U.S. 573, 585, 114 S. Ct. 2419, L. Ed. 2d 459
(1994), that provided the jury with separate aggravating circumstances for each
crime. Thus, Hale’s argument that double counting allowed the jury to use the
erroneous kidnapping charge to assess death for the murder charge fails. We
therefore conclude that any constitutional error in the instruction did not have a
substantial and injurious effect on the jury.
Hale further argues that he was denied effective assistance of counsel due
to his counsel’s failure to object to the improper jury instruction on the
kidnapping charge. Even if we were to assume that this constituted deficient
performance, Hale has failed to show prejudice. Hale has not shown that had
counsel objected, there is a reasonable probability that the jury would have
returned a sentence other than life in prison. The jury’s actual sentence did not
reflect an error of law. Cf. Kennedy v. Maggio, 725 F.2d 269 (5th Cir. 1984)
(finding counsel ineffective when it counseled client to plead guilty to rape under
erroneous belief that if defendant went to trial he would be eligible for the death
penalty). Here, the jury was allowed under the law to return a sentence of life
- 50 -
imprisonment. Mere speculation that the jury might have returned a lesser prison
sentence if death had not been a possibility is not sufficient to show prejudice.
Thus, Hale has not established that the OCCA’s determination that counsel was
not ineffective was unreasonable.
H. Amended Bill of Particulars
Hale next argues that his due process rights were violated when the State
waited until the first day of trial to file an amended Bill of Particulars which
added the “avoiding arrest” aggravating circumstance to the three already alleged
in the original Bill of Particulars. 8 Hale also argues that his counsel’s failure to
object to this addition resulted in ineffective assistance of counsel.
1. Due Process
The OCCA rejected this claim, finding that it bordered on the “frivolous.”
See Hale I, 750 P.2d at 139. The court went on to state that at the time the Bill of
Particulars was amended, Hale was “already aware of all of the evidence to be
8
The original Bill of Particulars alleged three aggravating circumstances:
(1) The defendant committed the murder for remuneration or the
promise of remuneration. (2) The murder was especially heinous,
atrocious, and cruel. (3) There exists the probability that the
defendant would commit criminal acts of violence that would
constitute a continuing threat to society.
- 51 -
used by the State to prove [the aggravator];” thus defense counsel was not
surprised. Id.
The Supreme Court has held that the Due Process Clause requires that a
defendant receive adequate notice that he could receive the death penalty.
Lankford v. Idaho, 500 U.S. 110, 127, 111 S. Ct. 1723, 114 L. Ed. 2d 173 (1991).
In addition, “a defendant must have a meaningful opportunity to deny or explain
the State’s evidence used to procure a death sentence.” Duvall v. Reynolds, 139
F.3d 768, 797 (10th Cir. 1998) (citing Gardner v. Florida, 430 U.S. 349, 362, 97
S. Ct. 1197, 51 L. Ed. 2d 393 (1977)).
In this case, Hale argues that the amendment to the Bill of Particulars on
the day of trial, February 27, 1984, deprived him of due process. However, Hale
knew from the prior Bill of Particulars that he was subject to the death penalty on
the basis of three aggravators. In addition, the State had previously submitted its
list of witnesses and did not include any new witnesses when it added the new
aggravator, nor did it add any witnesses in the punishment phase. Hale was aware
of all of the evidence and witnesses that were going to be presented against him at
trial and in the punishment phase prior to the addition of the “avoid arrest”
aggravator. Moreover, Hale’s counsel announced that he was ready on the first
day of trial, and testified at the state post-conviction hearing that he was not
surprised by any evidence presented at trial and was ready when the trial began.
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Thus, Hale was not subjected to “trial by ambush.” See Duvall, 139 F.3d at 797.
Therefore, Hale has not carried his burden of showing that the OCCA’s
determination that there was no error was an unreasonable application of federal
law.
2. Ineffective Assistance of Counsel
Hale further argues that under Oklahoma law, if Hale’s trial counsel had
objected to the addition of the “avoid arrest” aggravator on the morning of the
first day of trial, the court would have excluded it. Because the jury found the
“avoiding arrest” aggravator when it reached its decision to impose the death
penalty, Hale argues that he suffered prejudice from the failure to object and have
the aggravator quashed. The OCCA addressed and rejected this claim, finding
that the trial court properly could have admitted the additional aggravator under
Oklahoma law, and thus trial counsel was not deficient. See Hale I, 750 P.2d at
141.
At the time Hale was tried, Oklahoma had no set time by which the State
had to have filed a Bill of Particulars. See Hunter v. State, 829 P.2d 64, 65
(Okla. Crim. App. 1992). 9 Oklahoma courts, however, required that the Bill of
9
In Hunter, the OCCA announced a new rule of procedure requiring the
State to file the Bill of Particulars prior to or at the time of arraignment. Hunter,
(continued...)
- 53 -
Particulars be filed within a reasonable amount of time so that the defense could
prepare for trial. See id.; Carpenter v. State, 929 P.2d 988, 994-95 (Okla. Crim.
App. 1996). In this case, Hale was not surprised by the fact that the State was
seeking the death penalty when the State introduced a fourth aggravator the day of
trial, because an original Bill of Particulars had already been filed. In addition, as
noted above, Hale was aware of all of the evidence and witnesses that the state
was going to use against him prior to the amendment and had time to prepare a
defense. 10
Because Hale was not surprised by any new evidence or witnesses, or by
the fact that the State was seeking the death penalty, and no new evidence was
introduced at the sentencing phase, the trial court would not have been required to
quash the additional aggravator even if counsel had objected. Hale has failed to
show that he was prejudiced under Strickland. Therefore, we cannot find that the
9
(...continued)
829 P.2d at 65. However, in Thomas v. State, 888 P.2d 522, 527 (Okla. Crim.
App. 1994), the OCCA clarified that Hunter does not apply retroactively to cases
that are on collateral review at the time the rule was laid down. Because the rule
in Hunter was announced after Hale’s direct appeals were completed, the rule
does not apply in his case.
10
The OCCA found that the amendment to the Bill of Particulars was made
prior to the commencement of trial. See Hale I, 750 P.2d at 140. This is a factual
finding that is presumed to be correct, absent clear and convincing evidence to the
contrary. Our review of the record indicates that the amendment was filed prior
to the start of trial and was addressed by the court with the parties prior to the
beginning of any proceedings in the trial.
- 54 -
OCCA’s determination that counsel was not ineffective was an unreasonable
application of federal law.
II. Double Jeopardy and Liberty Interest
Hale next argues that his constitutional rights were violated when the State
of Oklahoma prosecuted him for first-degree murder and kidnapping for purposes
of extortion following his conviction in federal court for extortion under the
Hobbs Act, 18 U.S.C. § 1951. Specifically, Hale argues the state prosecutions
were barred by Okla. Stat. tit. 21, § 25 (repealed 1986), and that Oklahoma’s
failure to enforce that statute amounted to a deprivation of his liberty interest. 11
Appellee contends that Hale failed to exhaust this claim fully with regard to the
murder conviction and thus habeas relief should be denied pursuant to 28 U.S.C.
§ 2254(b)(1).
On direct appeal Hale argued (1) that he could not be tried for the crime of
kidnapping under the Oklahoma Constitution, because he had already been
convicted of extortion in federal court under the Hobbs Act, and (2) that the state
prosecutions for kidnapping and first degree murder violated the Oklahoma
11
Hale does not argue, nor could he, that the federal prosecution and state
prosecutions violated the Double Jeopardy clause of the Fifth Amendment. See
Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959)
(holding that prior state conviction did not bar subsequent federal prosecution
under the Double Jeopardy Clause).
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Double Jeopardy Clause. Thus, Hale did not raise a federal constitutional claim
on direct appeal. In Hale’s second application for post-conviction relief, Hale
did raise a federal constitutional claim; however, the claim raised in the second
application challenged only the kidnapping conviction and did not challenge the
murder conviction. The OCCA did not address this claim on post-conviction
review finding that it had been raised on direct appeal and was therefore barred.
See Hale III, 934 P.2d at 1102. Thus, the issue as it concerns the murder charge
has not been exhausted. 12 See Anderson v. Harless, 459 U.S. 4, 6-7, 103 S. Ct.
276, 74 L. Ed. 2d 3 (1982) (per curiam) (petitioner failed fairly to present federal
habeas claim to state courts where, in state court proceedings, he relied only upon
state law authority to challenge jury instruction).
Nevertheless, the Supreme Court has held that if a petitioner ‘failed
to exhaust state remedies and the court to which the petitioner would
be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred’ the
claims are considered exhausted and procedurally defaulted for
purposes of habeas relief.
12
Hale seems to argue in the reply brief that the Appellee has waived the
exhaustion argument because it did not raise it before the district court. This
argument fails under 28 U.S.C. § 2254(b)(3), which states, “A State shall not be
deemed to have waived the exhaustion requirement or be estopped from reliance
upon the requirement unless the State, through counsel, expressly waives the
requirement.” The record does not reveal that Appellee has ever expressly waived
the exhaustion requirement on this claim; thus it is free to raise this issue on
appeal to this court.
- 56 -
Thomas v. Gibson, No. 99-5030, 2000 WL 986587, at *5 (10th Cir. July 18, 2000)
(quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S. Ct. 2546, 115 L.
Ed. 2d. 640 (1991)). Oklahoma bars collateral review of claims actually raised on
direct appeal or those that could have been raised on direct appeal but were not.
See Brecheen, 41 F.3d at 1349 n.4 (citing Okla. Stat. tit. 22, § 1086).
Accordingly, Hale has defaulted his claim with regard to the murder conviction.
We cannot consider issues raised in a habeas petition “that have been
defaulted in a state court on an independent and adequate procedural ground
unless the petitioner can demonstrate cause and prejudice or a fundamental
miscarriage of justice.” Thomas, 2000 WL 986587, at *6 (alteration omitted).
This court has held that Oklahoma’s procedural bar to most claims not raised on
direct appeal (other than ineffective counsel claims) is independent and adequate.
See Brecheen, 41 F.3d at 1356. Because Hale has not shown cause and prejudice
or that a fundamental miscarriage of justice will occur if we do not address the
claim with regard to the murder conviction, this part of his claim is barred.
Although Hale also failed to raise his federal claim with regard to the
kidnapping conviction on direct appeal, and thus it would seem this part of the
claim is also procedurally barred, Appellee has not raised procedural bar with
respect to this aspect of Hale’s claim. As such, we will consider Hale’s
kidnapping claim on the merits, see Hooks, 184 F.3d at 1223 (proceeding to
- 57 -
merits of claim when state did not raise procedural bar), as did the federal district
court, which denied the claim and found that even if section 25 creates a liberty
interest, Oklahoma would not find that Hale was entitled to have the state charges
dismissed under that statute. Because, as noted above, the Oklahoma courts never
addressed Hale’s claim that Okla. Stat. tit. 21, § 25 created a federally protected
liberty interest preventing the state prosecution of Hale for kidnapping, the claim
was not “adjudicated on the merits in State court proceedings,” as contemplated
by 28 U.S.C. § 2254(d). Thus, we must review the claim under pre-AEDPA
standards. Prior to AEDPA we reviewed questions of law on habeas de novo.
Hooks, 184 F.3d at 1223.
“Whether an interest created by state law rises to the level of a ‘liberty
interest’ protected by the Due Process Clause of the Fourteenth Amendment is a
matter of federal law.” Montero v. Meyer, 13 F.3d 1444, 1447 (10th Cir. 1994).
It is unnecessary for this court to determine whether section 25 creates a liberty
interest cognizable under the United States Constitution, because whether it does
or not, Oklahoma would not find that Hale’s claim falls within the scope of
section 25.
Section 25 states:
Whenever it appears upon the trial that the accused has already been
acquitted or convicted upon any criminal prosecution under the laws
of another state, government or country, founded upon the act or
- 58 -
omission in respect to which he is upon trial, this is a sufficient
defense.
Russell v. State, 654 P.2d 1058, 1061 (Okla. Crim. App. 1982) (quoting Okla.
Stat. tit. 21, 21 O.S. § 25). Hale’s conviction in federal court under the Hobbs
Act constituted a conviction under the laws of another government for purposes
of section 25. See Russell, 654 P.2d at 1061. Under the decisions of Oklahoma
courts addressing the interpretation of this statute, the question then becomes
“whether the federal and subsequent State prosecutions were founded upon the
same offense or ‘acts’ as provided in the statute.” Id. 13 To make this
determination, the Oklahoma courts look to the language of the different statutes
13
Hale argues in his brief that this court has already held that the state and
federal convictions in this case are based on the same acts and thus, under the
“law of the case” doctrine, we are bound. Hale cites to this court’s opinion in
Hale v. United States Department of Justice, 99 F.3d 1025 (10th Cir. 1996). In
that case, this court stated “[i]n 1983 Hale was convicted in the United States
District Court for the Western District of Oklahoma under the Hobbs Act, 18
U.S.C. § 1951, for his action in connection with the kidnapping and murder of
William Jeffrey Perry. Hale was sentenced to twenty years imprisonment. The
following year, Hale was convicted and sentenced to death by the State of
Oklahoma for his role in the same crime.” Id. at 1027-28 (citations omitted).
Hale misconstrues the “law of the case” doctrine. As explained in Jeffries v.
Wood, 114 F.3d 1484 (9th Cir. 1997), the law of the case is a doctrine under
which an appellate court will not reconsider a matter resolved on a prior appeal.
Id. at 1488-89. The rule prevents questions already considered and decided once
in the case from being reargued at every subsequent stage of the case. Id. at
1489. The statement made by this court in Hale was not an issue that was
“resolved” or “considered and decided” by this court. Instead, this court was
simply reciting the history of the case, thus there is no “law of the case” on this
point.
- 59 -
under which the defendant was convicted. If “evidence necessary to prove the
federal charges would not be sufficient to prove the state charges, and vice
versa,” then section 25 has not been violated. Russell, 654 P.2d at 1062-63;
Hubbell v. State, 585 P.2d 369, 374 (Okla. Crim. App. 1978) (same). Thus, if the
evidence used to prove the federal crime is insufficient to prove the state crime
and vice versa, the trial in the federal court would not bar a subsequent
prosecution in state court, even though the underlying facts are the same. Russell,
654 P.2d at 1063.
In the federal prosecution, Hale was charged with violating the Hobbs Act,
18 U.S.C. § 1951. That statute provides that:
(a) Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires so to do,
or commits or threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in violation of this
section shall be fined not more than $10,000 or imprisoned not more
than twenty years, or both.
The Supreme Court has found that there are two essential elements of a Hobbs
Act crime: “interference with commerce, and extortion.” Stirone v. United States,
361 U.S. 212, 218, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960).
Hale was prosecuted in state court in Oklahoma for kidnapping for
extortion, Okla. Stat. tit. 21, § 745. The kidnapping statute reads as follows:
A. Every person who, without lawful authority, forcibly seizes and
confines another, or inveigles or kidnaps another, for the purpose of
- 60 -
extorting any money, property or thing of value or advantage from
the person so seized, confined, inveigled or kidnapped, or from any
other person, or in any manner threatens either by written instrument,
word of mouth, message, telegraph, telephone, by placing an ad in a
newspaper, or by messenger, demands money or other thing of value,
shall be guilty of a felony, and upon conviction shall suffer death or
imprisonment in the penitentiary, not less than ten (10) years.
Oklahoma has stated that this statute requires that a jury find four essential
elements: “(1) an unlawful, (2) forcible seizure and confinement (3) of another
(4) with the intent to extort a valuable thing or advantage from any person.”
Turner v. State, 786 P.2d 1251, 1254 (Okla. Crim. App. 1990).
Upon looking at the elements that need to be proven by the State, it
becomes clear that under each statute the state or federal government must prove
an element not necessary to any other charge. In the Hobbs Act case, the federal
prosecutor had to show that Hale’s actions interfered with commerce. This
evidence was not necessary to prove the state crime of kidnapping. Likewise, in
the kidnapping charge the state prosecutor had to prove forcible seizure and
confinement of another. This was not an element of the Hobbs Act. As the
Oklahoma court stated in Hubbell:
[A]lthough it appears that the same exhibits . . . were introduced in
both federal and state courts, it does not follow that [Hale] was being
tried twice for the same offense. . . . The evidence necessary to
prove the federal offense would be insufficient to prove the state
offense and vice versa. Therefore, the trial in federal court did not
bar a subsequent prosecution in state court.
Hubbell, 585 P.2d at 374.
- 61 -
Therefore, it is clear that Oklahoma did not violate Okla. Stat. tit. 21, § 25
when it prosecuted Hale for kidnapping following the federal prosecution under
the Hobbs Act. Since there was no violation of section 25, there can be no denial
of a liberty interest predicated upon section 25. Thus, we deny relief under this
claim.
III. Brady claim
Hale next argues that he is entitled to habeas relief because the F.B.I. has
continued to suppress evidence in its possession after Hale requested it pursuant
to the Freedom of Information Act (“FOIA”), in violation of Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d. 215 (1963). Appellee counters that this
claim is procedurally barred.
Hale did not raise this Brady claim on direct appeal. On post-conviction
review, the OCCA rejected this claim, finding that it could have been raised on
direct appeal and was not; thus it was barred from being raised on post-
conviction. Hale II, 807 P.2d at 268-69 (citing Okla. Stat. tit. 22, § 1086). “We
may not consider issues raised in a habeas petition ‘that have been defaulted in
state court on an independent and adequate procedural ground, unless the
petitioner can demonstrate cause and prejudice or a fundamental miscarriage of
justice.’” Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000) (quoting
- 62 -
English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Coleman v.
Thompson, 501 U.S. 722, 749-50, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991))).
We have recently recognized that Oklahoma’s bar on raising claims on post-
conviction that could have been raised on direct appeal is an independent and
adequate state bar with regard to Brady claims. See Clayton v. Gibson, 199 F.3d
1162, 1175 (10th Cir. 1999); see also Okla. Stat. tit. 22, § 1086. 14 As we stated in
Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir. 1994), section 1086 “precludes
state collateral review of . . . issues that could have been raised on direct appeal
but were not.” Id. at 1349 n.4. 15 Furthermore, Hale has failed to show cause and
14
“All grounds for relief available to an applicant under this act must be
raised in his original, supplemental or amended application. Any ground finally
adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in
the proceeding that resulted in the conviction or sentence or in any other
proceeding the application has taken to secure relief may not be the basis for a
subsequent application, unless the court finds a ground for relief asserted which
for sufficient reason was not asserted or was inadequately raised in the prior
application.” Okla. Stat. tit. 22, § 1086.
15
The federal district court determined that Oklahoma’s procedural bar was
not independent and adequate with regard to Brady claims. In reaching this
conclusion, the district court looked to two Oklahoma cases in which the Court of
Criminal Appeals did not apply the bar on Brady claims. See Rojem v. State , 925
P.2d 70 (Okla. Crim. App. 1996); Castleberry v. State , 590 P.2d 697 (Okla. Crim.
App. 1979). In Rojem , the court addressed the Brady claim on post-conviction
because new evidence, not previously discoverable, was presented to the court.
See Rojem , 925 P.2d at 73-74. In Castleberry , the court addressed the Brady
claim because it was inadequately raised on direct appeal. See Castleberry , 590
P.2d at 701. Both of these cases fall within the stated exception contained within
§ 1086. See Okla. Stat. tit 22, § 1086 (barring claims not raised on direct appeal
unless the court “finds a ground for relief asserted which for sufficient reason
(continued...)
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prejudice, or that a fundamental miscarriage of justice will occur if we do not
address this claim. Thus, we conclude Hale is barred from raising this claim.
IV. Change of Venue
Hale next argues that he was denied a fair trial when the trial judge failed
to grant defense counsel’s motion for a change of venue. On direct appeal, the
OCCA, in a 2-1 decision, rejected this claim. Relying on the Supreme Court’s
decisions in Irwin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961),
and Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975), the
court found that Hale had failed to show that the pretrial publicity created actual
15
(...continued)
was not asserted or was inadequately raised in the prior application”).
This Court has recognized that a state court finding of procedural default is
adequate “if it is strictly or regularly followed.” Maes v. Thomas , 46 F.3d 979,
986 (10th Cir. 1995) (quotation marks omitted). Adequacy requires “application
of the rule ‘evenhandedly to all similar claims.’” Id. (emphasis added). “The test
. . . is whether the state courts’ actual application of the particular procedural
default rule to all similar claims has been evenhanded in the vast majority of
cases.” Id. (alterations and quotation marks omitted) (emphasis added). The two
cases cited by the district court were not similar to the case in Hale because they
fell within the statutory exception. Moreover, we have repeatedly found that
Oklahoma has applied section 1086 consistently to preclude claims on post-
conviction review which could have been raised on direct appeal. See Brecheen,
41 F.3d at 1356, Steele v. Young, 11 F.3d 1518, 1522 (10th Cir. 1993); see also
Smith v. State, 878 P.2d 375, 377 n.2 (Okla. Crim. App. 1994) (applying section
1086 to preclude Brady claim not raised on direct appeal); Banks v. State, 810
P.2d 1286, 1289 n.2 (Okla. Crim. App. 1991) (same). Thus, we again conclude
that section 1086 is an adequate state bar to Brady claims raised on post-
conviction review that could have been raised on direct appeal.
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or presumed prejudice. See Hale I, 750 P.2d at 134-35. The court noted that each
of the jurors finally seated stated that he or she could set aside any opinion held
and could be impartial. Id. In addition, every juror challenged for cause was
dismissed. Under these circumstances, the court found that the trial court’s
decision to deny the motion for a change of venue was not an abuse of discretion.
Id. at 135. The State argues that this determination was not an unreasonable
application of Supreme Court precedent.
On February 22, 1984, Hale filed a petition for change of venue. On
February, 24, 1984 a hearing was held on Hale’s motion, during which time
Hale’s counsel presented the testimony of two county residents who testified that,
in their opinion, based upon pre-trial publicity and conversations with citizens in
the area, Hale would not be able to receive a fair trial because people had already
decided Hale was guilty. Hale also introduced numerous articles published in the
two newspapers with local circulation. At the conclusion of the hearing, the trial
judge took the motion under advisement until after voir dire.
Prior to Hale’s trial, the news coverage of Perry’s abduction and murder, as
well as the arrest and indictment and federal prosecution, was considerable. The
newspaper accounts revealed details of the murder, kidnapping, ransom demand,
and Hale’s arrest and arraignment on federal charges, and further detailed the cost
to the county associated with escorting Hale to court by federal marshals. The
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articles included pictures of Hale and of the crime scene where Perry’s body was
eventually found. The paper also reported the impact on the community and the
Perry family. One article discussed the fact that Hale had previous dealings with
the bank in which he owed money, and also discussed related civil and criminal
charges against Hale. The newspapers also reported the incident involving
Brenda Allison, who claimed that Hale had told her that her husband was hurt in a
car accident and offered her a ride just a day prior to Perry’s abduction. When
Perry was found guilty on the federal extortion charges, there were more articles
in the newspaper. Several papers also reported the testimony of witnesses in the
federal extortion case.
During voir dire, thirty-seven jurors were called and examined by the trial
judge and the attorneys. Of those thirty-seven, only three stated they had no prior
knowledge of the case. Twelve potential jurors admitted that they had held some
opinion at some point about Hale’s guilt. Six of these twelve were seated on
Hale’s jury. In addition, four potential jurors knew Hale or his family and eight
knew the victim or his family. Furthermore, one of the jurors finally seated had
discussed the case with one of the key witnesses at trial, Ms. Miller, but stated
that she could be impartial. At the conclusion of voir dire, the judge asked the
jurors if anyone seated could not be fair and impartial. No one responded. The
judge then overruled the motion for a change of venue. This ruling, following the
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inquiry by the court as to whether the jurors could be impartial, serves as a
general finding by the court that the panel selected for the trial was impartial.
See Church v. Sullivan, 942 F.2d 1501, 1518 (10th Cir. 1991) (holding that a trial
judge’s denial of a change of venue in connection with his statement that the
court had found twelve impartial jurors and one alternate in two hours, served as
a general finding of impartiality).
“We review the trial court’s decision denying a transfer of venue for an
abuse of discretion. We give great deference to the trial court’s exercise of its
discretion, and its decision is entitled to a presumption of correctness and will not
be overturned unless there is manifest error.” Stafford, 34 F.3d at 1565 (internal
quotation marks and citations omitted); see also Mayes v. Gibson, 210 F.3d 1284,
1291 (10th Cir. 2000) (post-AEDPA). Our review of state court findings is
limited in part because the “state trial judge had the benefit of observing the
general demeanor of the jurors as the basis for his general finding [of
impartiality].” Brecheen, 41 F.3d at 1350. Thus, a habeas petitioner attempting
to show a due process violation because of a state trial judge’s failure to grant a
change of venue motion “must demonstrate either that the trial resulted in actual
prejudice or that it gave rise to a presumption of prejudice because it involved
‘such a probability that prejudice will result that it is deemed inherently lacking in
due process.’” Id. at 1350 (quoting Estes v. Texas, 381 U.S. 532, 542-43, 85 S.
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Ct. 1628, 1633, 14 L. Ed. 2d 543 (1065)); see also Murphy, 421 U.S. at 798-99
(discussing cases in which Supreme Court held due process violations had
occurred after finding either actual prejudice or presumed prejudice).
1. Presumed Prejudice
The defendant bears the burden of establishing that prejudice should be
presumed. See Stafford v. Saffle, 34 F.3d 1557, 1566 (10th Cir. 1994). In order
to demonstrate that prejudice should be presumed, the defendant must “establish
that an irrepressibly hostile attitude pervaded the community.” Id. at 1567.
“Simply showing that all the potential jurors knew about the case and that there
was extensive pretrial publicity will not suffice to demonstrate that an
irrepressibly hostile attitude pervaded the community.” Id. Presumed prejudice is
“rarely invoked and only in extreme circumstances.” Id.
The Supreme Court has presumed prejudice in only a small number of
cases. In those cases where the Court has presumed prejudice, however, “the
influence of the news media, either in the community at large or in the courtroom
itself, pervaded the proceedings,” Murphy, 421 U.S. at 799, and created either a
circus atmosphere in the court room or a lynch mob mentality such that it would
be impossible to receive a fair trial. See Sheppard v. Maxwell, 384 U.S. 333, 86
S. Ct. 1507, 16 L. Ed. 2d 600 (1966) (finding a due process violation from five
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volumes of news clippings, accommodation for the press in the courthouse and
courtroom, publication of potential juror’s names and addresses allowing the
public to contact potential jurors pretrial); Rideau v. Louisiana, 373 U.S. 723, 83
S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (finding due process violation after
defendant’s filmed confession was repeatedly broadcast on the local television
news of the small town); Estes 381 U.S. at 545-51 (presuming prejudice based on
pretrial and trial media coverage that resulted in a disruptive circus atmosphere
that deprived the defendant of the solemnity and sobriety to which a defendant is
entitled).
The facts of this case do not rise to the level of those in Rideau, Sheppard,
or Estes. Although Hale presented evidence of approximately thirty newspaper
articles written about the case, these articles alone are not sufficient to show that
prejudice should be presumed, particularly given the fact that they were written
over a five month period with the largest volume dating from several months
before Hale’s trial. As the Supreme Court stated in Murphy, a jury’s exposure to
a “defendant’s prior convictions or to news accounts of the crime with which he
is charged” cannot alone demonstrate that the defendant was denied due process.
421 U.S. at 799. The evidence does not demonstrate that the pre-trial publicity
had created such a media frenzy or circus atmosphere that Hale could not possibly
have received a fair trial. Thus, Hale has failed to meet his burden of showing
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that an irrepressibly hostile attitude pervaded the community such that prejudice
could be presumed.
2. Actual Prejudice
Hale also seems to suggest that the voir dire proceedings showed actual
prejudice based on responses of actual and potential jurors, almost all of whom
had heard about the case and some of whom had formed opinions based on
pretrial publicity. “We review actual prejudice by examining the totality of the
circumstances.” Stafford, 34 F.3d at 1567. “Due process requires that the
accused receive a fair trial by an impartial jury free from outside influences.”
United States v. Abello-Silva, 948 F.2d 1168, 1177 (10th Cir. 1991) (quoting
Sheppard, 384 U.S. at 362). “The trial court has broad discretion in gauging the
effects of allegedly prejudicial publicity and in taking measures to insure a fair
trial.” Id. (quotation marks omitted). The trial court in this case made a general
finding that the jury was impartial. The Supreme Court has stressed that partiality
does not mean:
that the jurors be totally ignorant of the facts and issues involved. In
these days of swift, widespread and diverse methods of
communication, an important case can be expected to arouse the
interest of the public in the vicinity, and scarcely any of those best
qualified to serve as jurors will not have formed some impression or
opinion as to the merits of the case. This is particularly true in
criminal cases. To hold that the mere existence of any preconceived
notion as to the guilt or innocence of an accused, without more, is
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sufficient to rebut the presumption of a prospective juror’s
impartiality would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court.
Irwin, 366 U.S. at 722-23.
In this case, twelve out of thirty-seven jurors questioned had opinions. Six
out of those twelve were dismissed and six were seated on the jury. These six all
testified that they could put aside their opinions and judge the case on the facts.
Moreover, the trial judge asked twice whether there were any jurors who felt they
could not be impartial. No juror responded. See Yount, 467 U.S. at 1035
(stating that the relevant inquiry is whether the jurors at the defendant’s trial “had
such fixed opinions that they could not judge impartially the guilt of the
defendant”); see also Stafford, 34 F.3d at 1567 (finding petitioner had failed to
show jury was not impartial despite fact that one juror stated that “I will do my
best” when asked whether he could keep the knowledge of one set of murders for
which the defendant had previously been tried and convicted, separate from the
current set of murder charges). Furthermore, after reviewing the voir dire
proceedings, there is no indication from the jurors’ responses that there was an
atmosphere of hostility toward the defendant, nor did the trial court have a
difficult time in seating the jury.
As the OCCA explained, the facts of this case are in contrast to Irwin v.
Dowd, in which the Supreme Court found actual prejudice. In Irwin, over ninety
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percent of the 430 prospective jurors interviewed entertained some opinion as to
guilt, 268 were dismissed for cause, and eight out of the twelve jurors actually
seated stated they believed the defendant was guilty. Irwin, 366 U.S. at 727.
Based on these facts and the obvious hostility towards the defendant revealed
during voir dire, the Court determined the defendant could not have received a
fair trial. The totality of the circumstances of this case do not compare to the
situation presented in Irwin. Here, none of the seated jurors stated unequivocally
that they believed Hale was guilty, nor was there a showing that any of the seated
jurors had such fixed opinions that they could not judge the case impartially.
Moreover, out of 37 jurors called only eight jurors were dismissed for cause.
Thus, the trial court did not encounter the same difficulty in seating a jury that the
court in Irwin confronted. It is also clear from reading the voir dire in this case,
that there was not the vehement hostility present in the jurors’ responses that the
Supreme Court found important in Irwin. Id. at 726-27. Therefore, viewing the
totality of the circumstances present during voir dire, we cannot conclude that the
trial court’s finding that the jury was impartial was in error. Thus, the OCCA’s
determination that the trial court did not abuse its discretion in denying the
motion to change venue was not an unreasonable application of federal law as
interpreted by the Supreme Court.
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V. “Avoid Arrest or Prosecution” Aggravator
Hale argues there was such a lack of evidence to support the aggravator
that the murder was committed to avoid arrest or prosecution that his federal
constitutional rights were violated. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979). Hale did not raise this claim on direct appeal. On
post-conviction review, the OCCA determined that this issue was barred because
it could have been raised on direct appeal, but was not. Hale II, 807 P.2d at
269. 16 Because Hale’s claim of insufficient evidence was not adjudicated on the
merits in state court proceedings, the new standard articulated in § 2254(d) does
not govern our review. See Hooks v. Ward, 184 F.3d 1206, 1223 (10th Cir.
1999).
On a constitutional claim that there was insufficient evidence, we must
determine whether “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Foster v. Ward, 182 F.3d 1177, 1194 (10th
Cir. 1999). To support a finding of the “avoid arrest or prosecution” aggravator,
“the focus is on the defendant’s intent, whether proved by the defendant’s own
Because Appellee has not raised procedural bar on this appeal, we
16
decline to raise the issue sue sponte where Hale has not had an opportunity to
show cause and prejudice. We therefore proceed to the merits of the claim. See
Duvall v. Reynolds, 139 F.3d 768, 796 n.11 (10th Cir. 1998).
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statement or through circumstantial evidence.” Fox v. Ward, 200 F.3d 1286, 1301
(10th Cir. 2000). In addition, Oklahoma courts require the existence of a
predicate crime apart from the murder from which the defendant sought to avoid
arrest or prosecution. McGregor v. State, 885 P.2d 1366, 1385 (Okla. Crim. App.
1994). In the instant case, there was ample evidence from which a rational fact
finder could conclude beyond a reasonable doubt that the aggravating
circumstance was present. First, the Oklahoma Court of Criminal Appeals
concluded that there was evidence that Hale knew or was familiar with the victim
and his family. We agree, and Hale has presented no evidence to dispute this
fact. In addition, there was testimony from a witness at trial that she saw Hale
grab the victim, haul him over a fence, and shove him into his car, with no
attempt by the defendant to conceal his identity. See Fox, 200 F.3d at 1301
(finding sufficient evidence to support avoid arrest aggravator and noting that
defendants failed to conceal their identity to their victims). There was also
testimony that Hale stated to a cellmate that he knew how to get rid of witnesses.
Furthermore, there was clearly a predicate crime–kidnapping for extortion–apart
from the murder itself from which Hale sought to avoid arrest or prosecution.
Based on all of the foregoing circumstantial evidence, we find a rational trier of
fact could find the aggravator was present beyond a reasonable doubt. Hale’s
claim for relief on this ground fails.
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VI.“Heinous, atrocious, or cruel” aggravator
Hale’s final argument is that his death sentence should be set aside because
the evidence was constitutionally insufficient to prove that he was personally
responsible for inflicting the wounds Perry suffered prior to death. The OCCA
reviewed the evidence on direct appeal and found that there was sufficient
evidence to support the aggravator.
The appropriate standard for reviewing this claim is the rational factfinder
standard established in Jackson v. Virginia, 443 U.S. 307 (1979). 17 The
“especially heinous, atrocious, or cruel” aggravator is properly found when the
murder was “preceded by torture or serious physical abuse.” Medlock v. Ward,
200 F.3d 1314, 1321 (10th Cir. 2000) (per curiam). Torture includes “the
infliction of either great physical anguish or extreme mental cruelty,” while
17
Prior to AEDPA, we reviewed sufficiency of the evidence challenges de
novo. See Moore v. Gibson, 195 F.3d 1152, 1176 (10th Cir. 1999). Under
AEDPA, however, our standard of review is not as clear. There is precedent in
the Tenth Circuit that a sufficiency of the evidence challenge is a legal question
and other precedent suggesting it is a question of fact. See Moore, 195 F.3d at
1176-77 (collecting cases on both sides). If we treat the issue as a legal
determination, we look to 28 U.S.C. § 2254(d)(1) and determine whether the state
court decision was contrary to or an unreasonable application of clearly
established federal law. If, on the other hand, it is a factual question, we look to
§ 2254(d)(2) and decide whether the state court decision was an unreasonable
determination of the facts in light of the evidence presented to the state court.
Further, § 2254(e)(1) requires us to afford a presumption of correctness to a state
court’s factual findings. In this case, however, we do not determine which is the
more appropriate analysis because Hale’s claim lacks merit under either standard
of review.
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physical abuse requires evidence of conscious physical suffering. Id.; Clayton v.
Gibson, 199 F.3d 1162, 1177 (10th Cir. 1999).
In this case, there is evidence in the record that Perry received at least five
gunshot wounds, only two or three of which were fatal–two shots to the head, and
possibly one shot to the abdomen. In addition, on the morning Perry was
abducted, Ms. Miller testified that she saw a man, who appeared to be Perry, bent
over holding his side and bleeding in the field crying for help. She then
witnessed Hale run towards Perry, pull him over a fence, and push him into his
car. The testimony of Ms. Miller was later corroborated by the finding of blood
in the location where she saw Perry. This evidence is consistent with conscious
physical suffering.
Hale argues, however, that there was no evidence that he was the one to
inflict the wounds on Perry. First, this assertion flies in the face of the jury
verdict of guilty on the first-degree murder charge. The jury found Hale guilty for
the murder of Perry. There was more than sufficient evidence for the jury to find
that Hale was guilty of Perry’s murder. We therefore find that a rational trier of
fact could have found the “heinous, atrocious, or cruel” aggravator beyond a
reasonable doubt.
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CONCLUSION
For the above-stated reasons, we DENY habeas relief and AFFIRM the
decision of the district court.
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