Fowler v. Ward, No. 98-6391

• Decision Date: 06 January 2000
• Docket Number: No. 98-6391
• Citation: 200 F.3d 1302
• Parties: (10th Cir. 2000) MARK ANDREW FOWLER, Petitioner - Appellant, v. RON WARD, Warden, Oklahoma State Penitentiary, Respondent - Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1302

200 F.3d 1302 (10th Cir. 2000)

MARK ANDREW FOWLER, Petitioner - Appellant, v. RON WARD, Warden, Oklahoma State Penitentiary, Respondent - Appellee.

No. 98-6391

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 6, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. D.C. No. 95-CV-750-T

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Patrick J. Ehlers, Jr., Assistant Federal Public Defender, Death Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for Petitioner - Appellant.

Sandra D. Howard, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, on the brief), Attorney General, Oklahoma City, Oklahoma, for the Respondent - Appellee.

Before BRORBY, EBEL, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Background

In the early morning hours of July 3, 1985, three employees of the Wynn's IGA in Edmond, Oklahoma, were murdered in the process of a robbery planned and executed by Petitioner-Appellant, Mark Andrew Fowler ("Mr. Fowler") and co-defendant Billy Ray Fox ("Mr. Fox"). Mr. Fowler and Mr. Fox were arrested on July 4, 1985. Both admitted to being involved in the robbery, but they each accused the other of committing the murders. Following a jointly held jury trial in the Oklahoma County District Court, both were convicted of three counts of first degree felony murder, and were thereafter sentenced to death. The Oklahoma Court of Criminal Appeals ("OCCA") affirmed both Mr. Fowler's murder convictions and death sentence. See Fowler v. State, 779 P.2d 580 (Okla. Crim. App. 1989). Mr. Fowler's applications for post-conviction relief were denied by the Oklahoma Criminal Court of Appeals in 1994 and 1995. See Fowler v. State, 873 P.2d 1053 (Okla. Crim. App. 1994); Fowler v. State, 896 P.2d 566 (Okla Crim. App. 1995). Mr. Fowler filed a petition for habeas corpus in the United States District Court for the Western District of Oklahoma pursuant to 28 U.S.C. 2254, on June 16, 1995. The district court denied his petition for habeas corpus relief on September 9, 1998. On October 19, 1998, the district court granted a certificate of probable cause for all issues in this appeal. See 28 U.S.C. 2253 (pre-AEDPA); Foster v. Ward, 182 F.3d 1177, 1183 (10th Cir. 1999).

Mr. Fowler asserts the following grounds for relief: (1) the trial court failed to give a proper limiting instruction after admitting his co-defendant's redacted confession in violation of his Sixth Amendment right of confrontation and Fourteenth Amendment right to due process; (2) the trial court improperly denied a request for an instruction on second degree felony murder in violation of the Sixth, Eighth, and Fourteenth Amendments; (3) Mr. Fowler's trial counsel was constitutionally ineffective in violation of his Sixth Amendment rights; (4) the trial prosecutor made unconstitutionally improper comments and argument violating the Sixth, Eighth and Fourteenth Amendments; (5) Mr. Fowler was improperly denied an evidentiary hearing; (6) Mr Fowler's death sentence was rendered unreliable by the use of unconstitutional aggravating factors.

Discussion

The Antiterrorism and Effective Death Penalty Act ("AEDPA") does not apply to this appeal, given that Mr. Fowler filed his habeas petition on June 16, 1995, prior to the law's enactment. See Lindh v. Murphy, 521 U.S. 320, 322-323 (1997). Therefore, we refer to pre-AEDPA law for guidance as to the appropriate standards of review. Our review is limited and petitioner is only entitled to relief if state court error "'deprived [petitioner] of fundamental rights guaranteed by the Constitution of the United States.'" Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (quoting Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998)). We review legal issues de novo, "'affording deference to the state court's construction of state law.'" Id. We review the federal district court's factual findings for clear error, while presuming that the state court's findings of fact are correct unless they are not fairly supported by the record. Id.

I. Failure to Give Appropriate Limiting Instruction

Mr. Fowler asserts that the trial court violated his Sixth Amendment right to confrontation under Bruton v. United States, 391 U.S. 123 (1968), as clarified by Richardson v. Marsh, 481 U.S. 200 (1987). The court admitted a redacted confession against co-defendant Mr. Fox, and failed in the absence of any request to give an appropriate limiting instruction. We review claims under the Confrontation Clause de novo. See Hatch v. Oklahoma, 58 F.3d 1447, 1467 (10th Cir. 1995).

Richardson allows a court, despite the Confrontation Clause, to admit the confession of a non-testifying co-defendant. The confession must be (i) redacted to eliminate any reference to the non-confessing defendant, and (ii) accompanied by an appropriate limiting instruction that the confession is to be considered only against the confessor. See Richardson, 481 U.S. at 211. This is clearly a two-pronged requirement; a redaction, no matter how perfect, nevertheless requires an appropriate limiting instruction immediately following the admission of the confession. See United States v. Green, 115 F.3d 1479, 1485 (10th Cir. 1997) ("In Richardson v. Marsh, the Supreme Court held that the confrontation clause of the Sixth Amendment was not violated by the admission of a non-testifying co-defendant's confession, assuming a limiting instruction, 'when the confession is redacted....'"); see also United States v. Chatman, 994 F.2d 1510, 1513 (10th Cir. 1993); United States v. Markopoulos, 848 F.2d 1036, 1038-39 (10th Cir. 1988). Here, the redacted confession of Mr. Fowler's co-defendant was introduced, without a limiting instruction. This was error, as the Oklahoma Court of Criminal Appeals properly concluded. See Fowler v. State, 779 P.2d 580, 587 (Okla. Crim. App. 1989). While it is true that a general instruction was provided at the end of the trial, charging the jury to give separate consideration to the case of each defendant, this is not sufficient to satisfy Richardson. The Richardson limiting instruction must be given immediately following the introduction of the co-defendant's confession to safeguard against inappropriate use of the confession against the non-confessing co-defendant. Immediately following the admission of Mr. Fox's confession, the trial court should have instructed the jury that "[A confession] [an admission] may not be considered by you against any defendant other than the person who made the [confession] [admission]." OUJI-CR 817 (1st ed. 1981).

Despite this error, Mr. Fowler is entitled to habeas relief only if the above trial error is not harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (adopting the harmless-error standard from Kotteakos v United States, 328 U.S. 750 (1946)); see Crespin v. New Mexico, 144 F.3d 641, 649 (10th Cir. 1998). In the context of habeas review, an error is harmless unless it had "substantial and injurious effect or influence in determining the jury's verdict." See Crease v. McKune, 189 F.3d 1188, 1192 (10th Cir. 1999) (quoting Brecht 507 U.S. at 637). To warrant relief, Mr. Fowler must have suffered actual prejudice. Id. If we are in grave doubt as to the harmlessness of an error, the habeas petitioner must prevail. See O'Neal v. McAninch, 513 U.S. 432, 436 (1995). 'Grave doubt' exists when, in light of the entire record, the matter is so evenly balanced that the court feels itself in virtual equipoise regarding the error's harmlessness. Id. at 435. While the record must be reviewed in light of the error's effect, it is important to bear in mind that the appellate court may not usurp the jury's role as the arbiter of guilt or innocence. Kotteakos, 328 U.S. at 764. The factors that we consider include the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error. See United States v. Nyman, 649 F.2d 208, 212 (4th Cir. 1980).

The essence of Mr. Fowler's argument is that the trial court's failure to give an appropriate limiting instruction was not harmless because other independent evidence was weak and circumstantial, and the prosecution relied on Mr. Fox's confession to implicate Mr. Fowler. Mr. Fowler argues that this error substantially contributed both to the jury verdict of guilty and sentence of death. We disagree.

The failure to give an appropriate limiting instruction did not substantially and injuriously contribute to the jury's conclusions in either the guilt or punishment stages of Mr. Fowler's trial. The confession, introduced through the testimony of Mr. Fox's roommate, established only that Mr. Fox had killed the victims, and "that [Mr. Fox] had hit one over the head with a gun." Tr. at 1123. The confession did not specify how Mr. Fox had committed the murders. Moreover, on cross-examination, Mr. Fox's roommate admitted openly that Mr. Fox did not say anything about shooting or stabbing any of the victims. Tr. at 1134. There was no reference to Mr. Fowler. His name and existence had been properly redacted. We likewise reject the concomitant argument of improper joinder due to the failure of the court to give an appropriate limiting instruction. As Mr. Fowler concedes, whether to join co-defendants for trial is discretionary, and reviewed for an abuse of that discretion. We find no such abuse here.

Mr. Fowler argues that the prosecutor's comments during closing arguments, discussing Mr. Fox's confession and evidence pointing to Mr. Fowler's involvement in the homicides, rendered the erroneous failure to give appropriate Richardson limiting instructions not harmless. As we discuss further in our treatment of Mr. Fowler's prosecutorial misconduct claim, we are not persuaded.

There was strong independent evidence that pointed to Mr. Fowler's involvement in the murders. The record reflects that...