Brinlee v. Crisp

• Decision Date: 01 November 1979
• Docket Number: No. 77-1689,77-1689
• Citation: 608 F.2d 839
• Parties: Garland Rex BRINLEE, Jr., Petitioner-Appellant, v. Richard A. CRISP, Warden, and the State of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 839

608 F.2d 839

Garland Rex BRINLEE, Jr., Petitioner-Appellant, v. Richard A. CRISP, Warden, and the State of Oklahoma,

Respondents-Appellees.

No. 77-1689.

United States Court of Appeals,

Tenth Circuit.

Argued Jan. 23, 1979.

Decided Nov. 1, 1979.

Douglas McKay Kerr, Denver, Colo., for petitioner-appellant.

David W. Lee, Asst. Atty. Gen., Oklahoma City, Okl., (Larry Derryberry, Atty. Gen., of Oklahoma, Oklahoma City, Okl., Kaye Karen Kennedy, Asst. Atty. Gen., Oklahoma City, Okl., with him on the brief), for respondents-appellees.

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Garland Rex Brinlee, Jr., petitioner-appellant, appeals from a judgment denying his petition for a writ of habeas corpus. Appellant was convicted in the Oklahoma courts, following a jury trial, of the murder of Dorotha Fern Bolding. He is serving a life sentence at the Oklahoma State Penitentiary at McAlester. Mrs. Bolding died when a bomb exploded under her pick-up truck in the driveway of her Bristow, Oklahoma, home.

Appellant took a direct appeal from the murder conviction to the Oklahoma Court of Criminal Appeals. During the pendency of that appeal Brinlee escaped from the Oklahoma State Penitentiary and his conviction for that escape was affirmed. Brinlee v. State, 543 P.2d 744 (Okl.Cr.). The Court of Criminal Appeals dismissed appellant Brinlee's direct appeal of the murder conviction on the ground that appellant was a fugitive from justice and beyond the jurisdiction of the court. Brinlee v. State, 513 P.2d 343 (Okl.Cr.). ¹

After he was returned to the penitentiary appellant filed an application for post-conviction relief in the state court. That post-conviction action was likewise dismissed because the issues presented were those which Brinlee had raised in his direct appeal, which had been dismissed, as noted above.

Dismissal of that state post-conviction action was appealed and Brinlee escaped again in 1976 during the pendency of that appeal. Although the State moved to dismiss that post-conviction appeal, the Oklahoma Court of Criminal Appeals retained jurisdiction because of Brinlee's return to custody from that second escape. The court affirmed the state district court's dismissal of the post-conviction case as to ten claims on the theory that defendant's first escape which resulted in a dismissal of his direct appeal of the murder conviction was a waiver of all errors alleged in that appeal; as to the remaining two claims the court affirmed on the basis that the claims lacked merit. Brinlee v. State, 554 P.2d 816 (Okl.Cr.).

Following the exhaustion of state remedies appellant Brinlee filed the instant federal Pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Twelve grounds were asserted in this action, framed by appellant as follows: (1) the Oklahoma trial court committed error in denying a change of venue, forcing the defendant to go to trial in an environment of people with saturated minds of "ill publicity"; (2) petitioner has been denied a fair and impartial trial for the reason that veniremen were improperly excluded after stating objection to the imposition of capital punishment and excluding or disqualifying all people who disagreed with the summation of the district attorney's theory on humanity for cause; (3) the trial judge "race-horsed" the trial, denying defendant the right to be present to face his accusers, witnesses and jurors and denying defense counsel the privilege to properly cross-examine witnesses and jurors; (4) the assistant attorney general discussed other crimes that were moot to the crime at bar; (5) no Miranda rights were read to appellant and the admission of improperly obtained statements deprived him of his Fifth Amendment constitutional rights; (6) the trial judge committed error in making comments on the evidence throughout the trial, showing the weight he believed the jury should give the evidence and invading the province of the jury; (7) the court committed error in permitting evidence of other crimes to be introduced; (8) the court erred in denying defendant's demurrer to the evidence and a variance was shown in the State's evidence; (9) error was committed when the trial court permitted the State to ask hypothetical questions not based on facts before the jury; (10) the trial judge became an advocate for the prosecution and his instructions were in the nature of a closing argument; (11) appellant was denied due process by the dismissal of his original appeal and ineffectiveness of counsel; and (12) the State used false and insufficient evidence to prosecute the appellant.

The federal district court considered the pleadings before him and the record of the State trial proceedings. On this basis, but without an evidentiary hearing, habeas relief was denied and this appeal followed.

It would appear that some of the claims alleged as federal claims may be nothing more than claims of error under state law. Without more, such claims of state procedural or trial errors do not present federal questions cognizable in a federal habeas corpus suit. Bond v. State of Oklahoma, 546 F.2d 1369, 1377 (10th Cir.). However, a state prisoner is entitled to relief in a federal habeas suit if he demonstrates state court errors which deprived him of fundamental rights guaranteed by the Constitution of the United States. See Hickock v. Crouse, 334 F.2d 95, 100 (10th Cir.), Cert. denied, 379 U.S. 982, 85 S.Ct. 689, 13 L.Ed.2d 572; Mathis v. People of State of Colo.,425 F.2d 1165, 1166 (10th Cir.); See Snow v. State of Oklahoma, 489 F.2d 278 (10th Cir.). We will therefore consider appellant's claims to determine whether any of them involve errors of such constitutional magnitude that they are valid federal habeas claims.

I

Pre-trial publicity and venue

Appellant argues that he was denied a fair trial because of excessive pre-trial publicity. The bombing took place in Bristow, Oklahoma, and the trial originally was to At the hearing on the second motion for change of venue reference was made to a large number of newspaper clippings which had been submitted to the state judge at Sapulpa who granted the first change of venue. (II R. 3-4). That material was not located then (Id. at 7), and it is not in our record and appellant's brief makes some complaint of ineffectiveness of trial counsel in that regard. (Opening Brief of Appellant, 13-14). In any event, there was a hearing on the second motion for change of venue on October 27, 1971. The trial judge who heard that motion stated that there was some difference between the counties, that there were "no demonstrations or anything like that . . .," that the people generally took what was read "with a grain of salt . . .," and the court observed that if a jury could not be obtained, then the case would have to be transferred. (II R. 9-10). The motion for the second change of venue was denied. (Id. at 12-13). At that hearing the court did direct that attorneys in the case not appear on any kind of program and not give out publicity, emphasizing the defendant's right to "a fair and impartial trial without it being tried in the newspapers." (Id. at 36).

have been held in nearby Sapulpa, Oklahoma, about 18 miles from Bristow. Appellant's first motion for a change of venue was granted and the trial was moved to Okmulgee, Oklahoma, about 32 miles from Bristow. A second motion to change venue from Okmulgee was denied.

The voir dire of the jury panel at the trial which began November 15, 1971, as well as the granting of the first motion for a change of venue, bear out the claim that there was a substantial amount of publicity surrounding the crime and subsequent events. (I R. 48-53, 113, 116) (Petition for Writ of Habeas Corpus, VI R. 34-37). And a related federal criminal case against appellant was transferred on appellant's motion from the Northern District of Oklahoma to the District of New Mexico, the distance there obtained being about 545 miles from Tulsa to Albuquerque.

In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751; Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 551, 96 S.Ct. 2791, 49 L.Ed.2d 683. In balancing the rights of the defendant with the rights of the press to freely report, the Supreme Court emphasized in Irvin v. Dowd, supra, 366 U.S. at 722-23, 81 S.Ct. at 1642-43:

It is not required, however, 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 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. (Citations omitted).

The Court further cautioned, however, that (Id. at 723, 81 S.Ct. at 1643):

The adoption of such a rule, however, 'cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner's life or liberty without due process of law.' Lisenba v. (People of State of ) California, 314 U.S. 219, 236 (, 62 S.Ct. 280, 290, 86 L.Ed. 166). As stated in Reynolds (Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244), the test is "whether the nature and strength of the opinion formed are such as in law necessarily . . . raise the presumption of partiality. The question thus presented is one of mixed law and...