Burney v. Aldridge

• Decision Date: 19 September 2017
• Docket Number: Case No. CIV 14-374-RAW-KEW
• Parties: PATRICIA BURNEY, Petitioner, v. DEBBIE ALDRIDGE, Warden, Respondent.
• Court: U.S. District Court — Eastern District of Oklahoma

PATRICIA BURNEY, Petitioner, v. DEBBIE ALDRIDGE, Warden, Respondent.

Case No. CIV 14-374-RAW-KEW

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

September 19, 2017

OPINION AND ORDER

This matter is before the Court on Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is a pro se prisoner in the custody of the Oklahoma Department of Corrections who currently is incarcerated at Mabel Bassett Correctional Center in McLoud, Oklahoma. She is attacking her conviction in Wagoner County District Court Case No. CF-2011-88B for First Degree Murder. She sets forth the following grounds for relief:

I. The uncorroborated testimony of accomplices Michelle Burney and Michael Richardson was insufficient to convict Petitioner of First Degree Malice Aforethought Murder.

II. The State failed to disclose exculpatory impeachment evidence for the State's key witness and failed to correct the witness's false testimony.

III. Petitioner's rights to due process and a fair trial were violated by the admission of improper character evidence.

IV. The admission of gruesome photographs deprived Petitioner of her right to a fair trial and due process of law.

V. The trial court abused its discretion by failing to issue defense counsel's proposed instruction on witness credibility.

VI. The accumulation of errors deprived Petitioner of a fair trial.

The respondent concedes that Petitioner has exhausted her state court remedies for the purpose of federal habeas corpus review. The following records have been submitted to the Court for consideration in this matter:

A. Petitioner's direct appeal brief.

B. The State's brief in Petitioner's direct appeal.

C. Opinion affirming Petitioner's judgment and sentence. Burney v. State, No. F-2012-409 (Okla. Crim. App. Mar. 31, 2014).

D. Findings of Wagoner County District Court in response to questions from the Oklahoma Court of Criminal Appeals.

E. State court record.

In addition, Petitioner filed a reply to the Respondent's response to the petition.

Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus relief is proper only when the state court adjudication of a claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) 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).

Facts

The Oklahoma Court of Criminal Appeals ("OCCA") set forth the facts of this case in Petitioner's direct appeal:

Burney was married to Arthur Burney, and lived in a rural area near Coweta, Oklahoma, in a triple-wide manufactured home. Their daughter, Michelle, was fourteen years old at the time of the crime. Burney began an affair with Jeff Wilke in 2010. Although Arthur was alive, Burney told Wilke that Arthur had died earlier that year. After Arthur took a bad fall in September 2010 Burney and Michelle began to say they wished Arthur was dead. Over the next few months, they attempted unsuccessfully to poison Arthur and began offering to pay if someone would kill him. Through a website, Michelle met seventeen-year-old Michael Richardson, who lived in Oklahoma City. On February 15, 2011, Burney and Michelle met Richardson near his Oklahoma City school. Richardson gave Michelle three morphine pills, to be used to murder Arthur. The women returned to Coweta. Although Arthur took the pills, the murder attempt was unsuccessful. On February 17, 2011, Michelle called Richardson and offered him $6,000, plus marijuana and sexual intercourse with her, if he and two friends, Zach Hardin and Wesley Slemp, would kill Arthur.

Burney drove to Oklahoma City on February 1 8, 2011 , with Michelle in a black rented Chevy Aveo. They picked Richardson up, and got more pills from Slemp and Hardin. The Burneys and Richardson returned to the Burneys' trailer house near Coweta that afternoon. Burney gave Richardson a .22 rifle, and he and Michelle went out on the property to practice shooting. Shortly before 5:00 p.m. Burney texted Michelle "Hes here" [sic]. Michelle locked Richardson in the barn tack room to wait for Arthur. She returned briefly with Richardson's cell phone, telling Richardson that if he did not kill Arthur, Arthur would kill him, and Michelle would kill Arthur; she locked him in the tack room and left. When Arthur entered the barn, unlocked the tack room, and opened the door, Richardson shot him in the face. Arthur fell down and died on the tack room floor. The cause of death was a small caliber gunshot wound to the head.

Richardson communicated with Michelle by phone. He returned to the lockedand deserted house, slid the rifle under the trailer skirting, and met the Burneys at the end of the driveway. He told them Arthur was dead. Burney drove the teenagers to a mall and had dinner with Wilke; at about 7:30 p.m. Burney and the teenagers returned to her house. Burney went to the barn, found Arthur, and called 911 shortly after 8:00 p.m. Horton, a Wagoner County Sheriff's Deputy, responded. Burney had moved Arthur's body, at the direction of the 911 operator, when she attempted to revive him. There was a great deal of blood on and near Arthur, but no injury was immediately apparent. The gunshot wound to Arthur's head was discovered during the autopsy. At 9:00 p.m. on February 18, while emergency responders were still with Arthur, Burney texted Wilke, "I love you." She also called him about 1:00 a.m. on February 19th.

Burney was told on February 19 that Arthur's death was a homicide. In a voluntary interview with police, she said she told Arthur the morning of the 18th that she and Michelle were picking up Richardson in Oklahoma City and she would take the kids to the mall in Tulsa. Burney said that she and the teenagers returned to the house at about 5:00 p.m. She said Richardson stayed in the car while she talked to Arthur, saying they would be home at 8:00 p.m. Arthur planned to meet a friend, Alvin Leonard. Burney said she took the teenagers to the mall, met Wilke for dinner, picked up the kids, and got home shortly before 8:00 p.m. After Burney called Leonard she found Arthur face down in the barn, surrounded by blood. Burney told officers that Arthur knew she had affairs and tolerated it as long as he didn't know the details.

Stormi Proctor, a friend of Michelle's, talked to law enforcement officers on February 22, 2011. As a result of that conversation, officers searched the Burney property and found the .22 rifle. The bullet in Arthur's head was too fragmented for a ballistics test to confirm it as the murder weapon, but Richardson admitted that he used it to shoot Arthur. Richardson's fingerprint was found on the rifle. His DNA, and that of Michelle, were not excluded as contributors from a sample on the rifle, but Burney's DNA was excluded from the sample. Richardson eventually confessed to the crime and implicated Burney and Michelle. Michelle also confessed following her arrest, and both teenagers testified against Burney. Richardson stated he had no deal in exchange for his testimony. In return for Michelle's testimony, she was prosecuted as a juvenile, and the State agreed not to seek the death penalty against Burney.

Burney v. State, No. F-2012-409, slip op. at 1-4 (Okla. Crim. App. Mar. 31, 2014).

The OCCA's factual findings are entitled to a presumption of correctness, unless Petitioner produces clear and convincing evidence to rebut the presumption. 28 U.S.C. § 2254(e)(1).

Ground I: Accomplice Testimony

Petitioner alleges in Ground I that her conviction was based on the uncorroborated testimony of her accomplices, Michelle Burney and Michael Richardson. She does not claim the evidence was insufficient to prove that Mr. Burney was murdered. Instead, she asserts the testimony of Michelle and Richardson that Richardson committed the murder at Petitioner's direction was not sufficiently corroborated. Petitioner further claims there was no independent evidence tending to connect her to Mr. Burney's murder.

Respondent alleges Michelle's and Richardson's testimony was corroborated by the testimony of the other witnesses and Petitioner's own admissions. Respondent further asserts that at most, Petitioner is claiming a violation of state law, which cannot be reviewed in a federal habeas action. See Dennis v. Poppel, 222 F.3d 1245, 1257 (10th Cir. 2000) ("We are bound to accept the Oklahoma court's construction of its state statutes . . . ." ), cert. denied, 534 U.S. 887 (2001).

In a detailed Opinion, the Oklahoma Court of Criminal rejected this claim on direct appeal:

Burney claims in Proposition I that the uncorroborated testimony of Michelle and Richardson was insufficient to support her conviction. Accomplice testimony must be corroborated by independent evidence tending to connect the defendant with the commission of the offense. Okla. Stat. tit. 22, § 742;Pink v. State, 104 P.3d 584, 590 (Okla. Crim. App. 2004). Accomplice testimony cannot be used in conjunction with the independent evidence to connect the defendant to the crime; the evidence may be consistent with the main story as long as it connects the defendant to the crime independently of any accomplice testimony. Glossip v. State, 157 P.3d 143, 152 (Okla. Crim. App. 2007); Pink, 104 P.3d at 590. An accomplice's testimony need not be corroborated in all material respects, as long as some independent evidence as to a material fact links the defendant to the crime. Glossip, 157 P.3d at 152; Cummings v. State, 968 P.2d 821, 830 (1998); Bowie v. State, 816 P. 2d 1143, 1145-46 (Okla. Crim. App. 1991). Accomplice testimony may be corroborated by circumstantial evidence. Glossip, 157 P.3d at 152-53. The trial court properly instructed jurors that Michelle and Richardson were accomplices as a matter of law. Not only did uncontroverted

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