Fero v. Kerby

Decision Date28 October 1994
Docket NumberNo. 93-2201,93-2201
PartiesO.C. Chick FERO, Petitioner-Appellant, v. Dareld KERBY, Respondent-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Tova Indritz, Federal Public Defender, Albuquerque, NM, for petitioner-appellant.

Gail MacQuesten, Asst. Atty. Gen. (Tom Udall, Atty. Gen., with her on the brief), Santa Fe, NM, for respondent-appellee.

Before HOLLOWAY and McKAY, Circuit Judges, and THEIS, District Judge *.

HOLLOWAY, Circuit Judge.

Petitioner Fero appeals from an order of the United States District Court for the District of New Mexico, dismissing with prejudice his habeas corpus petition brought pursuant to 28 U.S.C. Sec. 2254 against respondent Kerby, Warden of the Central New Mexico Correctional Facility.

I Background

On June 20, 1985, Fero was convicted of first degree murder by a New Mexico state jury. This conviction was affirmed by the New Mexico Supreme Court in February 1987 after a direct appeal. See State v. Fero, 105 N.M. 339, 732 P.2d 866 (1987) (Fero I ). A subsequent motion for a new trial based on newly discovered evidence was denied and that order was affirmed in July 1988. State v. Fero, 107 N.M. 369, 758 P.2d 783 (1988) (Fero II ).

Having presented all of his claims to the state courts, Fero pro se petitioned the district court for federal habeas relief, asserting the same issues raised before the New Mexico Supreme Court: (1) whether the trial court erred in refusing to declare a mistrial, or suppress testimony, when it came to light that the State had lost potentially exculpatory evidence; (2) whether the trial court erred in failing to grant a mistrial for three instances of prosecutorial misconduct; (3) whether petitioner was deprived of his right to an impartial judge where the trial judge's son, a law student, worked as a clerk for the prosecution on petitioner Fero's case, and the trial judge's brother-in-law, an attorney, had filed a civil action against petitioner prior to trial on behalf of the deceased's family; (4) whether the trial court's refusal to instruct the jury on lesser included manslaughter offenses violated petitioner's right to due process and a fair trial; and (5) whether petitioner's rights to due process and a fair trial were violated when the trial court judge informed the jury that petitioner was not facing the death penalty, but refused to instruct them that petitioner was facing life imprisonment if convicted.

In March 1989 the magistrate judge recommended that claims (3)-(5) be summarily dismissed. Subsequently Fero, still acting pro se, filed a response to this recommendation stating that he did not object to summary dismissal of claims (3)-(5). Fero also requested that counsel be appointed to prosecute his remaining claims. On April 10, 1989, the district judge adopted the magistrate's proposed findings and recommended disposition and dismissed grounds (3)-(5).

In April 1989 the magistrate judge appointed the Federal Public Defender's Office to represent Fero. Soon thereafter, Fero's new attorney filed a brief with the magistrate judge addressing all five of Fero's claims, the two remaining claims and the three previously dismissed claims, and requested that the previously dismissed claims be reconsidered.

In May 1993 the magistrate judge denied Fero's motion for reconsideration and recommended that Fero's petition be denied. Fero objected to the magistrate judge's recommendation, and moved the district court to reconsider its dismissal of claims (3)-(5). On July 6, 1993, the district court adopted the magistrate judge's proposed findings and disposition and dismissed Fero's petition with prejudice. 1 On July 28 the district court declined to grant Fero a certificate of probable cause.

Fero appeals the district court's July 6, 1993, order dismissing his petition, raising the five issues set out above. Believing that Fero raises issues that are debatable, we grant his application for a certificate of probable cause, see 28 U.S.C. Sec. 2253; Bowser v. Boggs, 20 F.3d 1060, 1062 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 313, 130 L.Ed.2d 275 (1994). Fero, having presented these issues to the New Mexico Supreme Court, has satisfied 28 U.S.C. Sec. 2254(b)'s exhaustion requirement.

II

The Carpet Evidence Issue

A

While Fero admits shooting the victim, Paul Hansen, he contends that he acted without the necessary deliberation, or mens rea, required for first degree murder. Fero says that during the murder investigation the police removed from beneath Hansen's head a piece of bloody carpet with a bullet hole in it. This piece of carpet, which Fero claims to be critical evidence, was lost by the State prior to trial but was subsequently recovered and provided to the defense after trial. Fero argues that the post-trial examination of this carpet by a defense expert proves that he did not act with the necessary deliberation; therefore, the State's failure to produce this evidence violated his right to due process.

At trial the State introduced the testimony of Dr. Smialeck, Chief Medical Examiner for the State of New Mexico, who performed the autopsy of the victim. The defense assumed that Smialeck was being called merely to establish the corpus delicti of the crime charged. See State R. at 363. Smialeck testified that Hansen had been struck by five 38-caliber bullets. This testimony was introduced without objection. However, when Smialeck sought to testify regarding the firing of the bullets and Fero's position relative to Hansen when Fero shot him, the defense vigorously objected. 2

The defense claimed that the prosecution's failure to provide it with the carpet for examination, despite numerous promises to do so, made it impossible to effectively cross-examine Smialeck. This objection was overruled. Smialeck then testified that the first three shots were fired directly at Hansen, from across Hansen's desk--which separated the assailant and Hansen--with the assailant standing face-to-face toward Hansen. 3 He said the assailant fired the final two shots while standing in a position near Hansen's feet, firing in a downward direction towards the back of Hansen's head, which was face down. See State R. at 352, 366; Tr. T. 13. 4 It was Smialeck's opinion that one of these two final shots was probably instantly fatal because it struck Hansen in the brain stem. This shot, according to Smialeck, entered the back of Hansen's neck, exited the front of Hansen's neck, and left bullet fragments on the carpet located beneath Hansen's head. See State R. at 366; Tr. T. 13. The defense moved for a mistrial. That motion was denied.

Fero was convicted of first degree murder. He appealed to the New Mexico Supreme Court claiming, inter alia, that the trial court erred in not ruling that the State's suppression of the carpet denied him a fair trial. In rejecting this argument, the New Mexico Supreme Court held that Fero had failed to suggest how he would have used the carpet evidence to cross-examine Smialeck; that Smialeck did not rely on the evidence in testifying; and that the determination of whether the evidence was material was left to the trial court's sound discretion. The court affirmed the trial court's rulings as to the carpet evidence, making the following findings which we presume correct, see 28 U.S.C. Sec. 2254(d): 5

Fero was the principal of Tohatchi High School. The Superintendent of Schools for the Gallup-McKinley school system, which included Tohatchi, was Paul Hansen. Both men resided in the Tohatchi Teacherage, whose administration was also Fero's responsibility as principal. This arrangement evidently caused friction between the two men. By all accounts, Fero was extremely conscientious and hard working, a perfectionist. To some he even seemed obsessed with his duties, a man for whom his "job was his life and his life was his job."

After several postponements and cancellations, Hansen scheduled an evaluation of Fero's employment for the morning of February 22, 1985, at Hansen's office in Gallup. Witnesses testified that the day before the evaluation, Fero seemed to be depressed, disturbed, even suicidal. He had drafted a will, boxed his personal belongings and left his life insurance policy prominently on a chair in his office. That night Fero called a close friend and read to her several "goodbye" letters he had written to his parents and his daughter.

On the morning of the evaluation, Fero stopped by his school and told his assistant, Carl Montoya, "I won't be seeing you again." Then he drove into Gallup for his 9:00 a.m. appointment. Carrying his customary files and a portfolio, he appeared calm in casual conversation with witnesses in the central offices, before entering Hansen's office just after 9:00. At approximately 10:00 a.m., five shots rang out. Soon afterward, Fero came out calmly, instructed the secretary to call the police and told two other employees that everything was okay. These two men testified that he appeared "normal."

Proceeding down the hall, Fero entered the office of Hansen's assistant, Bud Hendrickson, and handed him his school keys. He then called Montoya, told him that he had shot Hansen, and referred to some papers he had left for Montoya. Next he went into Hendrickson's inner office and sat down, calmly informing Hendrickson that he had shot Hansen because of his insistence on negative criticism and his refusal to appreciate the positive aspects of Fero's performance as principal. Fero handed Hendrickson his portfolio with the gun in it. He was arrested and gave a statement to the police.

In it, Fero stated that Hansen ridiculed and threatened him, fired him, and then offered a handshake with the words, "This is not personal." Fero started to stand up to leave, he recounted, at which point the gun fell out of his portfolio onto his lap. The next thing he remembered was seeing Hansen lying on the floor, then bending down to touch him. Fero explained how the gun...

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