Grissom v. Carpenter

Decision Date31 August 2018
Docket NumberNo. 16-6271,16-6271
Citation902 F.3d 1265
Parties Wendell Arden GRISSOM, Petitioner - Appellant, v. Mike CARPENTER, Interim Warden, Oklahoma State Penitentiary, Respondent - Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Thomas D. Hird, Assistant Federal Public Defender (Patti Palmer Ghezzi, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender for the Western District of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellant.

Jennifer L. Crabb, Assistant Attorney General (Mike Hunter, Attorney General, with her on the brief), Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellees.

Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Wendell Grissom, with the assistance of a man he had just met, randomly selected a rural Oklahoma home to burglarize. Upon realizing that the home was occupied by two women and two minor children, Grissom shot his way into the home, then killed one woman and seriously injured the other. After the injured woman was able to escape in Grissom's own vehicle, Grissom and his accomplice fled on a stolen all-terrain vehicle. Grissom and his accomplice were arrested shortly thereafter.

Grissom was tried and convicted in Oklahoma state court of first degree murder, shooting with intent to kill, possession of a firearm after former conviction of a felony, and larceny of a motor vehicle after two or more previous felony convictions. The jury fixed Grissom's punishment at death for the first degree murder conviction, and sentenced him to lengthy prison sentences for the other convictions.

After exhausting his state court remedies through a direct appeal and a single application for state post-conviction relief, Grissom filed a federal petition for writ of habeas corpus pursuant 28 U.S.C. § 2254. The district court denied Grissom's petition, but granted him a certificate of appealability (COA) with respect to one issue. We subsequently granted Grissom a COA with respect to two additional issues.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we now affirm the district court's denial of federal habeas relief.

I

The underlying facts of Grissom's crime

The Oklahoma Court of Criminal Appeals (OCCA) summarized the relevant underlying facts of Grissom's case in addressing his direct appeal:

On November 2, 2005, Appellant left Arkansas and headed west on Interstate 40, driving his white Chevrolet truck. Just across the Oklahoma state line, he picked up a homeless hitchhiker, Jessie Johns. As they continued west, the two men drank whiskey and got acquainted. They also discussed plans to commit some robberies or burglaries to raise money. Later that evening, Appellant checked into a hotel in Oklahoma City, paying $266.00 for a weekly rental. Appellant shared his room that evening with Jessie Johns, who slept on the floor.
The following morning, Jessie Johns watched as Appellant showed him how to load a .44 caliber black powder pistol, one of two firearms in Appellant's possession at the time. The other was a two-shot .22 caliber derringer. The two men drank more alcohol that morning as they again headed west in Appellant's truck on Interstate 40. They stopped around 10:45 a.m. at the Love's Country Store on Exit 108, where security cameras recorded each man buying a pair of brown cotton gloves. They then drove into rural Blaine County, looking for a house to burglarize.
Appellant ultimately parked his truck in the driveway of the residence of Matt and Dreu Kopf, near Hitchcock, in rural Blaine County. He told Jessie Johns to wait until the shooting was over and then come in and help him burglarize the house. Appellant approached a sliding door at the rear of the residence and knocked. Dreu Kopf was inside her home that morning with her best friend, Amber Matthews, and her two young children, eighteen month-old Rylie and infant Gracie Jo. Rylie was in her crib in the bedroom and Ms. Kopf was holding Gracie. Ms. Matthews answered the sliding glass door as Ms. Kopf turned in her glider chair to speak with Appellant. He asked Ms. Kopf if her husband was home. She replied that her husband was at work. Appellant told her he would come back later. Ms. Matthews closed the door, but seconds later Appellant reappeared. Ms. Kopf handed the baby to Ms. Matthews and approached the door again. Appellant shot a pistol round into the large glass pane and shattered it. He then stepped into the residence and fired a second shot at Ms. Kopf, striking her in the hand.
Amber Matthews ran with the baby into Rylie's bedroom. Ms. Kopf fought with the intruder and pushed him across the room onto a couch. While Ms. Kopf was on top of Appellant fighting him, she begged him to take what he wanted and leave. He just laughed at her as he pulled the black powder pistol from his waist and put it to her head. She grabbed at the weapon as he fired it, but a bullet tore through her hand and struck the side of her head, fracturing her skull. Appellant then stuck the big pistol in her hip and fired again. The force of this shot threw Ms. Kopf onto the floor.
Appellant got up and headed toward the bedroom where the children and Ms. Matthews were. Ms. Kopf then heard Ms. Matthews beg for her life, and the report from Appellant's pistol. Ms. Kopf escaped from the house to her garage and activated the overhead door. Realizing that she was leaving a blood trail for her killer to follow, she knew she could not hide. She saw the white truck in her driveway pointed toward the road for a getaway, and ran toward it.
Jessie Johns had left the truck and approached the residence after hearing several shots. He saw Ms. Kopf run from the house. He stepped through the shattered door and found Appellant standing over a wounded

Amber Matthews. He watched as Appellant fired another shot into Ms. Matthews with the .44. Johns then told Appellant that someone had run from the house. Appellant ran toward the truck, tried to get inside, and fired his .44 pistol again at Ms. Kopf as she pulled away. Not far from her house, Dreu Kopf flagged down a trio of truckers hauling rock and told them that her friend and children were dead and she had been shot. One of the truck drivers, himself a retired police officer, got into the truck with Ms. Kopf. He reported the shooting by phone to the Kingfisher County Sheriff's Office and drove Ms. Kopf to the hospital in nearby Watonga.

Realizing their plans were foiled, Appellant and Johns attempted their escape from the crime scene on a red four-wheeler ATV they found in the Kopf's garage. A postal delivery man saw two men on the red four-wheeler leaving the Kopf residence with a black dog chasing them. The rock haulers, who had encountered Dreu Kopf only a few minutes earlier, saw two men speed past them on a red four-wheeler. The men on the four-wheeler ran out of gas after a short distance, but managed to hitch a ride with a passing farmer, who assumed they were laborers. He gave them a ride to the Hillstop Cafe, just over the Kingfisher County line on Highway 33.

The two women who were running the Hillstop Cafe that day became frightened when they noticed a pair of men looking in the windows of the store from outside and looking inside cars parked at the Hillstop. The two men then came in the store. Each bought an individual

can of beer. One of the men, later identified as Jessie Johns, walked across the highway, ducked into some trees, and sat there drinking his beer. The other man headed across a wheat field on foot. Johns later walked back across the street and purchased a second can of beer. After he left the store the second time, one of the clerks called the Kingfisher County Sheriff's Office and reported two suspicious men hanging around the store. The clerks also asked the only customer in the store, a local man waiting on his lunch, to stay with them until the two strangers were gone.
Recognizing the possible connection to the report of a shooting at the nearby Kopf residence about thirty minutes earlier, Kingfisher County Sheriffs officers now raced toward the Hillstop Cafe. Not far away, emergency personnel and various officers of the Watonga Police Department, the Blaine County 4/11/2011 Sheriffs Office, and the Oklahoma Highway Patrol descended on the Kopf residence after the initial report of a shooting. Officers approached the home cautiously, but managed to enter and find the Kopf children alive. Amber Matthews was unconscious and mortally wounded

. She died during a medical evacuation flight to an Oklahoma City hospital.

Back at the Hillstop Cafe, a Kingfisher County deputy sheriff approached Jessie Johns, who was now walking down the road, and detained him for investigation. The deputy questioned Johns briefly, searched him for weapons, and drove him back to the Hillstop Cafe. Meanwhile, law enforcement officers continued to gather information about the crimes at the Kopf residence and the suspicious persons reported at the Hillstop. About forty-five minutes after being detained, police arrested Jessie Johns for involvement in the four-wheeler theft and other crimes at the Kopf residence.

Investigators eventually located Appellant hiding in a rock pile near the Hillstop Cafe. They recovered a blood-stained .22 pistol and a pair of brown cotton gloves from his person. They ultimately recovered Appellant's .44 pistol and a second pair of brown cotton gloves discarded near the crime scene.

Grissom v. State, 253 P.3d 969, 973–75 (Okla. Crim. App. 2011) ( Grissom I ) (paragraph numbers and footnotes omitted).

Grissom's state trial proceedings

On November 10, 2005, Grissom was charged in Blaine County District Court with four criminal counts: (1) first degree murder, in violation of Okla. Stat. tit. 21, § 701.7(A) and (B) ; (2) shooting with intent to kill, in violation of Okla. Stat. tit. 21, § 652(A) ; (3) grand larceny, in violation of Okla. Stat. tit. 21, § 1705 ; and (4)...

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7 cases
  • Simpson v. Carpenter
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 27, 2018
    ...counsel was not required to request an instruction that was not reasonably supported by the evidence. See Grissom v. Carpenter , 902 F.3d 1265, 1291–92 (10th Cir. 2018). Nor is it likely that the trial court would have given such an instruction, even if trial counsel had requested it. Cf. D......
  • Harris v. Sharp
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 28, 2019
    ...was based on a reasonable determination of facts and Supreme Court precedent.27 We addressed an analogous issue in Grissom v. Carpenter , 902 F.3d 1265 (10th Cir. 2018). In Grissom , the petitioner claimed that his trial attorneys had been ineffective by failing to investigate and present e......
  • Davis v. Sharp
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 27, 2019
    ...routinely evaluates capital defendants. See, e.g. , Smith v. Sharp , 935 F.3d 1064, 1079 n.7 (10th Cir. 2019) ; Grissom v. Carpenter , 902 F.3d 1265, 1274–76 (10th Cir. 2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 2030, 204 L.Ed.2d 230 (2019). Hall spent several hours with Davis and also......
  • Malone v. Carpenter
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 20, 2018
    ...evidence of intent is extraordinary. The way Defendant executed the murder is itself powerful evidence. In Grissom v. Carpenter , 902 F.3d 1265, 1290–91 (10th Cir.2018), we said that a second-degree murder instruction would have been inappropriate at the trial of a similar crime; we explain......
  • Request a trial to view additional results
1 books & journal articles
  • Sentencing
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...of second-degree murder because evidence strongly demonstrated premeditation required for f‌irst-degree murder); Grissom v. Carpenter, 902 F.3d 1265, 1292 (10th Cir. 2018) (court need not instruct jury on lesser-included offense of second-degree murder because evidence would not have reason......

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