Fox v. Ward

• Decision Date: 06 January 2000
• Docket Number: 98-6359,Nos. 98-6343,s. 98-6343
• Citation: 200 F.3d 1286
• Parties: (10th Cir. 2000) BILLY RAY FOX, Petitioner - Appellant, v. RON WARD, Warden, Oklahoma State Penitentiary, Respondent - Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1286

200 F.3d 1286 (10th Cir. 2000)

BILLY RAY FOX, Petitioner - Appellant, v. RON WARD, Warden, Oklahoma State Penitentiary, Respondent - Appellee.

Nos. 98-6343, 98-6359

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. CIV-95-705-T

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Don J. Gutteridge, Jr., 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 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 during a robbery planned and executed by Petitioner-Appellant, Billy Ray Fox ("Mr. Fox") and co-defendant Mark Andrew Fowler ("Mr. Fowler"). They were arrested on July 4, 1985. Both admitted to involvement in the robbery, but 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. Okla Stat. Ann. tit. 21 701.7(B). Both were thereafter sentenced to death. The Oklahoma Court of Criminal Appeals ("OCCA") affirmed both Mr. Fox's murder convictions and death sentence. See Fox v. State, 779 P.2d 562 (Okla. Crim. App. 1989). Mr. Fox's application for post-conviction relief was denied by the OCCA in 1994. See Fox v. Oklahoma, 880 P.2d 383 (Okla. Crim. App. 1994). On June 16, 1995, Mr. Fox filed a petition for habeas corpus in the federal district court for the Western District of Oklahoma pursuant to 28 U.S.C. 2254, asserting fifteen grounds for relief from his state convictions and sentences. On July 6, 1998, the district court denied Mr. Fox's habeas petition but 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).

Petitioner asserts the following twelve grounds for relief: (1) the trial court refused to sever Mr. Fox and Mr. Fowler's trial, resulting in the violation of Mr. Fox's right to due process; (2) petitioner's trial counsel was constitutionally ineffective in violation of the Sixth Amendment; (3) the trial court admitted misleading testimony of three state expert witnesses, violating due process; (4) the trial court admitted Mr. Fox's pretrial statements to the police in violation of the Fifth and Fourteenth Amendments; (5) the "especially heinous, atrocious, or cruel" aggravating circumstance was applied in Mr. Fox's case in violation of the Eighth and Fourteenth Amendments; (6) during his closing argument, the prosecutor violated Mr. Fox's constitutional rights by instructing the jury to ignore mitigating evidence, in violation of the Eighth Amendment; (7) the trial court erroneously failed to instruct the jury that it had the option of returning a life sentence even if the aggravating factors outweighed the mitigating factors; (8) the trial court erroneously restricted Mr. Fox's cross-examination of one of the government's expert witnesses, resulting in a violation of the Sixth Amendment right of confrontation; (9) the trial court and the Oklahoma Court of Criminal Appeals applied and interpreted the "avoid arrest or prosecution" aggravating circumstance in an unconstitutionally vague and overbroad manner in violation of the Eighth Amendment; (10) the "continuing threat" aggravating circumstance as applied in Mr. Fox's case violates the Eighth Amendment; (11) the trial court failed to instruct the jury that mitigating factors need not be found unanimously, thus violating the Eighth Amendment; (12) the state and federal district courts denied Mr. Fox an evidentiary hearing on his claim that the jury was permitted to consider misleading evidence, and his ineffective assistance of counsel claim, violating his constitutional right to due process. Our jurisdiction arises under 28 U.S.C. 1291, and we affirm.

Discussion

The Antiterrorism and Effective Death Penalty Act ("AEDPA") does not apply to this appeal, because Mr. Fox filed his habeas petition on June 16, 1995, before 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 insofar as we can grant relief only if state court error "deprived [petitioner] of fundamental rights guaranteed by the Constitution of the United States." See 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 findings of fact made by the state court are correct unless they are not fairly supported by the record. See id.; 28 U.S.C. 2254 (pre-amendment).

I. Erroneous Failure to Sever

Mr. Fox asserts that the trial court erroneously joined his trial with co-defendant Mr. Fowler's, resulting in unconstitutionally unfair proceedings. As this court articulated in Cummings v. Evans, 161 F.3d 610 (10th Cir. 1998), "whether the trial court erred in denying severance is generally a question of state law that is not cognizable on federal habeas appeal. . .a criminal defendant has no constitutional right to severance unless there is a strong showing of prejudice caused by the joint trial." Id. at 619; see also, Arbuckle v. Dorsey, 198 F.3d 477 (10th Cir. 1999). Mr. Fox argues, citing Zafiro v. United States, 506 U.S. 534 (1993), that two specific trial rights were compromised by the trial court's denial of severance. He first claims that his constitutional right of Confrontation was violated by virtue of the limitation on his cross-examination of a witness regarding his co-defendant's redacted confession. Secondly, Mr. Fox argues that it amounts to constitutional error that he was required to share peremptory strikes with his co-defendant. Mr. Fox concludes that as a result of these errors, the jury was left with the misimpression that he actually committed the murders rather than his co-defendant, Mr. Fowler.

a. Bruton violation

Mr. Fox contends that he was deprived of his rights guaranteed by the Confrontation Clause when the trial court refused to permit Mr. Fox's attorney to elicit additional portions of Mr. Fowler's confession. The statement, admitted through the testimony of the interviewing detective, essentially established that co-defendant Fowler was present at the Wynn's IGA on the night of the murder, watching for people entering and leaving. Mr. Fox's counsel sought to establish that Mr. Fowler was in the storeroom at the time of the murders. However, the trial judge sustained Mr. Fowler's objection to this cross-examination on the grounds that it would open the door for the prosecutor to elicit the full admission of Mr. Fowler, which included the statement that he saw Mr. Fox committing the murders in the back storeroom. Mr. Fox asserts on appeal that this limitation on cross-examination constitutes a Bruton violation.

Mr. Fox misconstrues Bruton. Mr. Fox is neither explicitly nor implicitly implicated by the admitted portion of Mr. Fowler's confession - the hallmark of a Bruton violation. See Richardson v. Marsh, 481 U.S. 200, 201-02 (1987) ("In Bruton v. United States, 391 U.S. 123 (1968), we held that a defendant is deprived of his rights under the Confrontation Clause when his nontestifying co-defendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the co-defendant."). Thus, Bruton is not implicated by the trial court's restriction on Mr. Fox's cross-examination of the detective. On the contrary, as we discuss below, the trial court's restriction of Mr. Fox's cross-examination was integral to the court's compliance with the mandates of Bruton. Moreover, to permit Mr. Fox to elicit the additional portions of the Fowler admission while omitting Mr. Fowler's statement that he witnessed Mr. Fox killing the victims would have been tantamount to permitting a deliberate act of deception, totally recasting the nature of the admission. A trial court may not sit idly on the sidelines and permit counsel to deliberately distort the evidence or mislead the jury. Admission of a redacted version of a defendant's post-arrest statement is impermissible if it unfairly distorts the original, or excludes substantially exculpatory information. See United States v. Mussaleen, 35 F.3d 692, 696 (2d Cir. 1994); United States v. Zamudio, 141 F.3d 1186 (10th Cir. 1998); United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982)

Mr. Fox's objection is more properly characterized as a challenge to an evidentiary ruling by the trial court. This court held in Sellers v. Ward, 135 F.3d 1333 (10th Cir. 1998), that "[h]abeas relief is not available on this ground unless the petitioner can show his whole trial was rendered fundamentally unfair by the limitation of the cross-examination." 135 F.3d at 1342. Mr. Fox has not satisfied this standard. Mr. Fox was not prejudiced in any way by the trial court's limitation on his cross-examination of the detective. Moreover, there was ample evidence before the jury, based on testimony of the state's forensic experts, that Mr. Fowler was in the storeroom at the time of the murders. Whatever "exculpatory" benefit Mr. Fox sought to elicit from Mr. Fowler's admission was provided by this forensic evidence. Additionally, it bears noting that neither Mr. Fowler's admission nor the forensic evidence exculpated Mr. Fox, but rather merely inculpated...