Darks v. Mullin, No. 01-6308.

• Decision Date: 11 April 2003
• Docket Number: No. 01-6308.
• Citation: 327 F.3d 1001
• Parties: Tyrone P. DARKS, Petitioner-Appellee, v. Mike MULLIN,<SMALL><SUP>*</SUP></SMALL> Warden, Oklahoma State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

327 F.3d 1001

Tyrone P. DARKS, Petitioner-Appellee, v. Mike MULLIN,^* Warden, Oklahoma State Penitentiary, Respondent-Appellant.

No. 01-6308.

United States Court of Appeals, Tenth Circuit.

April 11, 2003.

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Robert L. Whittaker, Assistant Attorney General, Criminal Division, Oklahoma City, Oklahoma, (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the briefs), for Respondent-Appellant.

K. Leslie Delk, Tucson, Arizona, for Petitioner-Appellee.

Before SEYMOUR, BALDOCK and KELLY, Circuit Judges.

SEYMOUR, Circuit Judge.

Petitioner Tyrone Peter Darks was convicted of the first degree murder of his former wife Sherry Goodlow and sentenced to death in Oklahoma state court. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction and sentence, see Darks v. State, 954 P.2d 152 (Okla.Crim.App.1998), and denied post-conviction relief, see Darks v. State, 954 P.2d 169 (Okla.Crim.App.1998). On federal habeas review, the district court granted Mr. Darks relief from both the conviction and the sentence. The court held that the trial court had violated Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), by failing to instruct on first degree manslaughter as a lesser included offense of capital murder, and had unconstitutionally coerced the death verdict by giving the jury a supplemental instruction. The court also held that cumulative error had unconstitutionally affected the entire proceedings. The State appeals.¹ Exercising jurisdiction pursuant to 28 U.S.C §§ 1291 and 2253, we reverse the grant of habeas relief on both the conviction and sentence.

I.

The following evidence was presented during the guilt phase of Mr. Darks' trial. On August 7, 1994, the day of her death, Ms. Goodlow went to church with Scott, her two-year old son by Mr. Darks. After the service, Ms. Goodlow and Scott, along with a friend and the friend's sister-in-law, went to the grocery store and made purchases at 2:19 p.m. Ms. Goodlow declined her friend's invitation for dinner, saying she wanted to go home.

At 2:52 p.m., Ms. Goodlow made a 911 call from a pay phone, claiming Mr. Darks had run her off the road and taken their son. The dispatcher advised her a police officer would meet her at Mr. Darks' house. At 3:09 p.m., Ms. Goodlow made a second 911 call asking about the officer and was told there had been a delay. At 3:27 p.m., Sergeant Ken Davis arrived at Mr. Darks' house. Ms. Goodlow was not there, and Mr. Darks' mother indicated she had not seen Ms. Goodlow that day.

About that time Jamey Harrison, who lived near Draper Lake, noticed a car, later identified as that of Mr. Darks, drive into his driveway and then back out. Mr. Harrison also saw a small white car stopped at a nearby intersection. When the white car pulled away quickly, Mr. Darks' car followed it. Ten to fifteen minutes later, Mr. Harrison heard what sounded like firecrackers exploding, coming from the direction of Draper Lake.

Mark Folks was working in his home shop in the same area when he heard his dogs barking. Upon investigating, he saw a white Mustang driven by a woman parked in his driveway at the gate. As he began to walk toward the car, the woman backed out and drove away. He could hear her screaming, so he followed her in his pickup. Eventually, he saw tire tracks in the grass leading from the road into the brush. Following the tracks, he discovered the Mustang with its flashers on and the engine running. When he did not see anyone and no one responded to his calls, he returned home and telephoned 911. Returning to the white car a second time, he called out again but received no response. He then went to the home of his neighbor Sherry Heinken to telephone her husband, a police officer. Mr. Folks and Ms. Heinken went back to the car and found Ms. Goodlow, lying across the seat. She had been shot several times.

After receiving a call at 3:55 p.m., police officers proceeded to the crime scene. When the police determined that the deceased woman was Ms. Goodlow, an officer went to the Darks home to check on Scott and to talk to anyone who might know Ms. Goodlow. Mr. Darks was home. He told the officer that Ms. Goodlow had called him at 2:30 p.m. and asked him to pick up their son, which he did about 3:00 p.m. and then returned home. At 4:00 p.m., Ms. Goodlow came to his house asking for money, which he gave her, and she left. He went to the mall with his son at 4:30 p.m. and to his girlfriend's house at 5:30 p.m.

Mr. Darks agreed to go to the police station for further questioning, where he gave approximately the same story and claimed Ms. Goodlow could not have called 911. Mr. Darks denied killing Ms. Goodlow, but stated she had gotten what she deserved and what goes around comes around. Mr. Darks informed police detectives that they could not place him at the scene of the murder and that they had no gun or fingerprints. During the interview, the police arrested Mr. Darks.

After his arrest, and while incarcerated in a cell with Richard Maytubby and others, Mr. Darks said that he had killed his girlfriend. He told Mr. Maytubby that as she was coming from church, he had taken his son from her and put the boy into his car. She had followed him to Draper Lake, where he had shot her twice in the head and three or four times in the back with a .38 caliber gun. The police investigation revealed that Ms. Goodlow, who was still wearing her seatbelt, had been shot four times at close range — twice in the head, once in the back and once in the arm — with a .38 caliber gun through the open window of her car.

Although Mr. Darks' mother testified that Mr. Darks and Ms. Goodlow were on good terms and that Ms. Goodlow would leave Scott with her and Mr. Darks, Ms. Goodlow's father testified that the court had taken away Mr. Darks' visitation rights. It was undisputed that the two had an ongoing hostile relationship. Two days before the murder, Mr. Darks had called Mr. Goodlow and told him Ms. Goodlow should "get her insurance papers up to date because he's going to put a cap in her." Tr. vol. V at 898. Mr. Goodlow explained at trial he believed this meant Mr. Darks was going to kill his daughter. Five minutes after making the call, Mr. Darks drove by the Goodlow home. Ms. Goodlow had expressed fear of Mr. Darks and bad feelings toward him before her death. The jury rejected Mr. Darks' alibi defense, and found him guilty of first degree murder.

During the sentencing stage, the State's evidence elaborated upon the acrimonious love/hate relationship between Ms. Goodlow and Mr. Darks. A store clerk testified about an incident in which Mr. Darks came up behind Ms. Goodlow and grabbed her neck while she was walking in the mall pushing Scott in a baby stroller. Mr. Darks released Ms. Goodlow and then tried to pull Scott from the stroller, while Ms. Goodlow pleaded for him not to take the child. A police officer took Mr. Darks into custody after the store clerk called security. At that time, Mr. Darks maintained that Ms. Goodlow had hit him first and that he wished to press charges.

Sergeant Aven Bull testified he had gone to Ms. Goodlow's house two or three times after Mr. Darks reported she was abusing their son. However, Sergeant Bull had found no evidence of child abuse by Ms. Goodlow. From 1992 on, a series of police reports concerned both Ms. Goodlow and Mr. Darks. Typically, charges were filed against him but not against her. From January to June 1994, police arrested Mr. Darks with increasing frequency. Evidence indicated he had broken the front and back windows on Ms. Goodlow's car, and had spray painted her mother's new car and later called her mother to ask if she had enjoyed removing the paint.

Mr. Darks' mother and sisters testified in mitigation that Ms. Goodlow and Mr. Darks had a stormy relationship, marked by mutual arguments, harassments, jealousies and aggression. Ms. Goodlow had smashed the windshield of Mr. Darks' car, broken off his rearview mirror, poured motor oil and Jell-O over his car, and run into it. Mr. Darks' family members, however, had taken Ms. Goodlow's side in order to prevent the police from arresting her. Additional mitigating evidence indicated that Mr. Darks was educated, could provide assistance to others and encourage their educational pursuits, was a good and loving father, was a loving and supportive brother and son, could share his faith in God and prayer with others, and had a history of aggression only with respect to Ms. Goodlow.

Based on the first and second stage evidence, the jury found as an aggravating factor that Mr. Darks would be a continuing threat to society, but did not find that the murder was committed to avoid lawful arrest or prosecution. Deciding that the continuing threat aggravator outweighed the mitigating evidence, the jury assessed a death sentence.

II.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to this appeal. Under AEDPA, if a claim is adjudicated on the merits in state court, a petitioner is entitled to federal habeas relief only if he can establish that the state court 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 in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). AEDPA also requires federal courts to presume state court factual findings to be correct, and places the burden on the petitioner to rebut that presumption by clear and convincing evidence. Id. § 2254(e)(1). If the state court did not decide a claim on the merits, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error. Hooper v. Mullin, 314 F.3d 1162, 1167 (10th Cir. 2002). We apply these standards to assess whether the district court correctly...