SAM A. CROW, Senior District Judge.
Petitioner is serving a sentence in Kansas for the first-degree murder of Glenda Smith and criminal possession of a firearm. Petitioner shot Smith in the chest at close range with Smith's gun in the early morning hours of March 7, 1999. Prior to shooting Smith, petitioner had struck her in the head with a hammer. The main jury issues during the two trials of this case concerned petitioner's intent and premeditation.
This case is now before the court upon petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The issues in the habeas corpus petition concern the prejudicial impact of comments made by petitioner during his videotaped interview by the police. Many of the comments concerned petitioner's long drug history and there was a brief reference to prior prison time in addition to other remarks which might cast petitioner in a bad light. It is undisputed that the jury watched a version of the videotape interview that included prejudicial statements. Petitioner contends that the admission of the alleged improperly redacted videotape was contrary to the trial court's in limine order and contrary to his trial counsel's understanding of what had been agreed would be shown to the jury.
A writ of habeas corpus may not be granted on behalf of a person in custody upon a state court conviction unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or, "was based on an unreasonable determination of the facts in light of the evidence" presented at trial. 28 U.S.C. § 2254(d)(1)&(2). State court factual findings, including credibility findings, are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
The Supreme Court has stated that a state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in our cases" or if the state court "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent."
The court may not issue a writ of habeas corpus "so long as `fairminded jurists could disagree' on the correctness of the state court's decision."
Respondents have raised the issue of exhaustion of state remedies as to some of the questions presented by petitioner. The court has the discretion to deny a claim on the merits even absent exhaustion, 28 U.S.C. § 2254(b)(2);
Petitioner was first tried on the charges in this case in 1999. He was convicted, but had the convictions overturned. He was then retried and convicted again. This action concerns what happened during the retrial. After he was convicted upon retrial, petitioner appealed and had his sentence overturned, although his convictions were affirmed. Petitioner was resentenced to a term of life imprisonment with the possibility of parole after 25 years. Petitioner asked for relief from the sentence pursuant to K.S.A. 60-1507. The litigation of that motion advanced to the Kansas Supreme Court and back to the district court and the Kansas Court of Appeals before relief was finally denied.
In petitioner's counsel's opening statement at the start of the second trial, counsel said that petitioner and Smith did drugs all day long during the day before Smith's death. He referred to petitioner and Smith as "drug addicts" and "dope fiends." Vol. II of trial transcript at pp. 17 and 18. He mentioned that Smith had left to deliver drugs in the early morning hours before she was killed. He also mentioned that petitioner "had to sell and give up everything he had in order for Smith to get her drugs, in order for him to get his drugs" and that petitioner was "tired of it."
The evidence at the second trial showed that petitioner and Smith had known each other for years and lived together in Smith's home for approximately six months prior to Smith's death. Petitioner and Smith were heavy drug addicts. Petitioner had used heroin and cocaine multiple times on the day before the crime. Smith had injected cocaine throughout the day and around midnight that night. Their drug addiction caused money issues. Neither person was working at that time, although Smith had worked for many years for Learjet and had saved money. Petitioner had lost his house and many of his possessions. Smith was upset that petitioner was not bringing in income and she suspected that he was selling her things.
She nagged him about this. Petitioner told the police that he "just snapped." Doc. No. 2-2, p. 61. When asked to explain his actions or to describe Smith's nagging, petitioner stated the following during his videotaped police interview:
Doc. No. 2-2 at p. 61.
In response to nagging from Smith while they were both in bed, petitioner grabbed a hammer that was next to the bed and struck Smith's head, causing a gash. Petitioner told the police:
Smith jumped up and grabbed her gun after she was struck by the hammer. The gun was a revolver with a cylinder. A trigger had to be pulled with some force for the gun to fire. Smith and petitioner struggled for control of the gun. As they did so, the gun clicked several times but did not fire. Eventually, the weapon fired once into Smith's chest while she was pinned to the floor by petitioner. Petitioner told the police:
Believing that Smith was dead, petitioner attempted to take an overdose of drugs. He awoke from a drug-induced seizure, however, and called 911 (around 5:19 a.m.) reporting that "he had shot his girlfriend." Petitioner remarked to the police that he expected to be in jail for the rest of his life.
The recorded interview with the police contained comments indicating that petitioner had used drugs since at least the age of 16; that he had used pot, crack and powder cocaine, heroin, and ritalin; that he had sold "weed and crack"; that he had been in prison before; that he had stolen things to raise money; that he pinched drugs and money from people he supplied drugs to; that he once wanted to slap Smith upside the head; and that he once sold a gun for money and drugs. Petitioner contends that these comments and others like them were intended to be redacted but that the redactions were not made before the videotape and transcripts were communicated to the jury. His trial counsel made an objection after the videotape was played and asked for a curative instruction. But, the request for a curative instruction was later withdrawn and one was not given.
Petitioner testified during the second trial that he was enraged by Smith's complaints to him and that because of this anger he hit her with the hammer. He testified that Smith jumped up after being struck by the hammer and grabbed her gun. Petitioner testified that he jumped up too and wrestled Smith for control of the gun. During the scuffle the gun "clicked" three or four times but did not fire. Petitioner testified that he told Smith during the struggle that he could kill her only in an effort to get her attention. According to petitioner's testimony, he never meant to convey that he intended to kill Smith.
When the gun did fire, Smith was on the floor and petitioner was straddled over her on one knee with his hands on the gun and her hands on his hands. He did not claim that she made him pull the trigger.
There was evidence from a firearms expert that the weapon may have misfired. Smith was a petite 46-year-old woman. She was some years older than petitioner, and many inches shorter and many pounds lighter than petitioner. At the time of the crime, petitioner was approximately 5 feet 8 inches and weighed 140 pounds.
There was no reference in closing arguments to petitioner's drug use or drug activity beyond the immediate time period before Smith's death. Nor was there any reference to petitioner having a prison record.
Petitioner makes the following arguments for relief: 1) that he was denied his constitutional right to effective appellate counsel because appellate counsel did not raise the issue of the improperly redacted videotape and transcript of petitioner's police statement (or trial counsel's ineffectiveness vis-à-vis that issue) on direct appeal; 2) that petitioner was denied his right to a fair trial because of the admission of the improperly redacted videotape and transcript; 3) that petitioner's right to a fair trial was denied by prosecutorial misconduct, i.e., the purposeful introduction of the improperly redacted materials; 4) there was insufficient evidence to support petitioner's guilt of premeditated murder; and 5) cumulative error.
A successful claim of ineffective assistance of counsel requires a showing that counsel's performance was deficient and that the deficient performance prejudiced the defense.
In this case, the effectiveness of petitioner's appellate counsel is challenged on the grounds that he failed to raise the issue of ineffective assistance of trial counsel and on the grounds that he failed to include the videotaped statement and accompanying transcript in the appellate record so that errors relating to the videotape, including trial counsel's effectiveness, could be determined on direct appeal. Doc. No. 1, p. 5. Petitioner contends that his trial counsel was ineffective because he failed to review the improperly redacted videotape prior to it being played to the jury, failed to make a timely objection, and failed to ask for an admonition to the jury.
In addressing petitioner's contentions, the court shall focus upon the issue of prejudice, that is, whether petitioner has demonstrated that there is a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. This is an issue which lies under the questions of trial counsel's and appellate counsel's effectiveness.
Petitioner contends that the evidence that petitioner had used drugs from an early age, that he had sold drugs, that he had been in prison, that he had used a variety of drugs, that he had stolen things, and that he had wanted to slap Smith upside the head, was so harmful to petitioner's credibility that, if the videotape had been properly redacted, there would have been a reasonable probability of a different verdict.
The Kansas Court of Appeals rejected this argument on the appeal after the remand of petitioner's 60-1507 motion. The court noted that the Kansas Supreme Court found that the evidence of premeditation was "overwhelming" and that this evidence would have been presented regardless of what should have been redacted from the videotape.
The Kansas Court of Appeals also stated that petitioner's testimony to the jury was not substantially contrary to the videotaped comments which petitioner insists should have been redacted.
The court also notes that the segments of the videotape which were intended to be redacted were not mentioned during the closing arguments of the trial. Further, the court is not convinced that a jury would consider a history drug use, drug selling or prison time to be probative of truthfulness, unless the question concerned the ability to perceive events. Petitioner repeatedly claims in his arguments that this evidence was harmful to petitioner's credibility, but this is not logically the case. See e.g.,
In short, the court finds that petitioner has not demonstrated the prejudicial impact necessary to prevail upon the arguments he has asserted regarding his appellate and trial counsel's performance. The court further determines that the state court's decisions relevant to these arguments are not contrary to established Supreme Court law.
Petitioner's next argument is that his constitutional right to a fair trial was denied because of the admission of the improperly redacted videotape. The Due Process Clause of the Fourteenth Amendment is violated when "evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair."
After considering the trial transcript, the court believes the alleged erroneous admission of the videotape evidence did not deny petitioner a fundamentally fair trial or substantially and injuriously influence the jury's verdict. Our reasons are similar to those given for rejecting petitioner's ineffective assistance arguments. Further, although the fact situations vary from the facts in this case, the court finds some support for this holding in the following cases:
Petitioner's next claim is that habeas relief is warranted on the basis of the prosecutor's alleged purposeful presentation of the improperly redacted videotape. Where prosecutorial misconduct does not implicate a specific constitutional right, the reversal of a state conviction upon habeas review depends on whether the alleged misconduct "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"
The fourth argument petitioner has advanced for habeas relief asserts that there was insufficient evidence of premeditation and that petitioner was actually innocent. In his reply brief, petitioner states that his actual innocence claim is part and parcel of the sufficiency of the evidence challenge. Doc. No. 20 at p. 2. Therefore, the court shall only consider whether the evidence of premeditation was sufficient. Petitioner claims that the evidence regarding premeditation "was not overwhelming and the general facts over the fight, struggle, and misfiring of the gun were not in dispute." Doc. No. 1, p. 11.
In addressing a sufficiency of the evidence claim upon a habeas challenge, the court should view the evidence in a light most favorable to the State and grant habeas relief only if "`no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'"
In this matter, as discussed previously, the Kansas Supreme Court reviewed the factors that a jury could have considered to support a finding of premeditation. In light of this evidence and respecting the jury's right to assess credibility in considering the conflicts among petitioner's statements, the court believes that a rational trier of fact could have found proof of premeditation and the other elements necessary for petitioner's convictions.
Finally, petitioner has asserted the combination of errors during his second trial requires habeas relief. His analysis, however, is simply a repeat of his claims of prejudice from the admission of the videotape. The court has already discussed this issue. The court has considered the materials in the videotape, the absence of an admonition, the evidence the jury would have heard with the intended redactions and the evidence the jury heard because redactions were not made. For the reasons previously stated, the court does not find that any errors leading to the admission of the videotape probably affected the outcome of the trial or caused the trial to be fundamentally unfair.
For the above-stated reasons, the petition for writ of habeas corpus shall be denied.
In addition the court shall deny the issuance of a certificate of appealability. Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C., instructs that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Pursuant to 28 U.S.C. § 2253, the court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right," and the court "indicates which specific issue or issues satisfy [that] showing." A petitioner can satisfy that standard by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings.
The court concludes that a certificate of appealability should not issue in this case. Nothing suggests that the court's rulings resulting in the dismissal of this action are debatable or incorrect. The record is devoid of any authority suggesting that the Tenth Circuit Court of Appeals would resolve the issues in this case differently. Accordingly, a certificate of appealability shall be denied.
