Shackelford v. Champion
| Decision Date | 29 November 1993 |
| Parties | 98 CJ C.A.R. 4469 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before TACHA and McKAY, Circuit Judges, and BROWN, ** Senior District Judge.
After examining the briefs and appellate record, this panel has determined unanimously to grant the appellant's request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Petitioner-appellant Dennis Alan Shackelford seeks review of the denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. He also seeks a certificate of appealability as required under 28 U.S.C. § 2253(c)(1). 1
Mr. Shackelford was convicted of first degree murder in the shooting death of Thomas "Tyke" Kelly. Petitioner maintained that Mr. Kelly attacked petitioner and that the killing was unintentional and in defense of petitioner and his wife. The background facts do not appear to be in dispute.
Briefly, Mr. and Mrs. Shackelford went to Thomas Kelly's trailer home to discuss a debt allegedly owed Mrs. Shackelford for damage Mr. Kelly had caused to her car earlier in the week. Mr. Shackelford had a gun in his back pocket. As they approached the trailer, Mrs. Shackelford knocked on the door, Mr. Kelly appeared, and he and Mrs. Shackelford had a discussion. Mr. Kelly then stated he would continue the conversation only if Mrs. Shackelford came in the trailer alone. Mr. Shackelford asked her not to, but told Mr. Kelly he wanted things to remain peaceful.
At that point, according to Mr. Shackelford, Mr. Kelly grabbed him by the throat and attempted to throw him over the porch railing. Mr. Shackelford instinctively grabbed the gun and shot Mr. Kelly, who fell backward. Unsure if he had actually hit Mr. Kelly, Mr. Shackelford moved to position himself between Mrs. Shackelford and Mr. Kelly. Mr. Kelly raised up as though attempting to stand back up, and Mr. Shackelford fired another shot.
The evidence at trial showed that Mr. Kelly died of three gunshot wounds, two to the chest and one to the back of the shoulder. The only eyewitness (other than Mr. Shackelford) was Mrs. Shackelford, who had died in a car accident prior to the trial.
Mr. Shackelford testified in his own behalf. The state presented the testimony of witnesses in the vicinity, who testified as to what they heard before and after the shots were fired. None heard any scuffle or argument between the parties prior to the firing of the shots. In addition, the witnesses testified that the shots happened within seconds of the knock on Mr. Kelly's door.
On direct appeal and before the federal district court, Mr. Shackelford raised the following issues:
(1) the trial court erred in (i) allowing jurors to take notes and to ask questions of witnesses during his trial, (ii) admitting into evidence a videotape of an out-of-court experiment conducted by the Oklahoma State Bureau of Investigation, (iii) submitting certain instructions to the jury and failing to submit certain others and (iv) restricting his cross-examination of state witness, Gary Eischeid; (2) prosecutorial misconduct deprived him of a fair trial; and (3) the evidence presented at trial was insufficient to support his conviction.
Magistrate Judge's Report and Recommendation, at 1-2.
On appeal to this court, petitioner raises only the following issues: (1) the state trial court erred in allowing the jury to ask questions of witnesses, thereby depriving petitioner of a fair and impartial jury; (2) petitioner was denied his due process rights to a fair trial because of prosecutorial misconduct; (3) certain jury instructions violated petitioner's Fourteenth Amendment due process rights, and (4) petitioner was denied his Sixth and Fourteenth amendment rights to confront adverse witnesses by the state trial court's refusal to allow cross-examination of a certain witness.
The magistrate judge determined that the claims raised in ground one were issues of state law related to the manner in which the trial court conducts a criminal trial. He further noted that "Petitioner appears to acknowledge that, as a matter of state law, the [state trial court] has discretion to permit the jury both to take notes and to ask questions of witnesses" (citations omitted), and that petitioner "clearly advocates a change in that law." Report and Recommendation, at 4-5.
As to permitting the jurors to ask questions of witnesses, Mr. Shackelford ignores the fact that Oklahoma practice allows for this. See Cohee v. State, 942 P.2d 211, 214 (Okla.Crim.App.1997) (); Freeman v. State, 876 P.2d 283, 288-89 (Okla.Crim.App.1994). Moreover, he does not claim that any particular questions asked were prejudicial or fundamentally unfair. His theory that the procedure may cause jurors to be frustrated or resentful if individual questions were not asked, or that one or two jurors might dominate the questioning, is pure speculation. The trial court was careful to allow only written questions, which were then screened in chambers before either being asked or disallowed. Counsel for Mr. Shackelford conceded it was a matter of the court's discretion whether or not to allow juror questioning. We find no constitutional infirmity which would warrant habeas corpus relief.
Mr. Shackelford next complains of prosecutorial misconduct on several occasions:
A. Opening statement
Mr. Shackelford alleges the prosecutor erred in his opening statement by implying that Mrs. Shackelford's testimony would have been substantially different from (and inconsistent with) that of Mr. Shackelford. Specifically, he contends that the prosecutor's remark that "Jerrie Shackelford who was also at the doorway of that trailer park is not here and will not be here to give you her version of what happened in the doorway of that trailer," amounts to misleading the jury as to "what [Mrs.] Shackelford's testimony would have been had she lived to testify." Appellant's Br. at 29.
We fail to see how the statement in any way indicates what her testimony might have been. The jury was advised that Mrs. Shackelford's death was in no way related to her husband's trial. Even if the remark, which does not implicate a specific constitutional right, was improper, it does not rise to the level of unfairness as to make the conviction a denial of due process. See Moore v. Reynolds, No. 97-6065, 1998 WL 387452 at * 27 (10th Cir. July 13, 1998) () (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). Because the prosecutor's remark did not infringe on any specific constitutional right, the claim of prosecutorial misconduct is reviewed in a habeas setting only for fundamental unfairness. See Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir.1990) (citing Coleman v. Saffle, 869 F.2d 1377, 1395 (10th Cir.1989)). We conclude there was none.
B. Improper witness questioning
Mr. Shackelford claims the prosecutor's cross-examination of defense witness George Burns, a former Oklahoma City police officer, was improper because the witness was asked if he had been suspended from the police department after having been arrested. Petitioner's objection to the question was sustained, and no further questions on the subject were asked.
Mr. Shackelford also complains that the prosecutor's cross-examination of him regarding karate lessons, a punching bag and weight equipment improperly implied that petitioner could have fended off Mr. Kelly's attack without using the gun. The magistrate judge determined that the record reflected that petitioner's trial counsel then established that petitioner had taken karate lessons for a short period and had not practiced it in many years. It was also established that the purpose of the punching bag and weight equipment was overall fitness.
Mr. Shackelford also argues that he was improperly questioned regarding martial arts tatoos, which he asserts portrayed him as "a violent tattooed thug." He concedes, however, that trial counsel's objection to this question was sustained, and he does not dispute the magistrate judge's finding that the record shows that the jury was immediately admonished to disregard the question.
The prosecutor further allegedly violated the ruling on an earlier motion in limine by asking questions about Mr. Shackelford's emotional problems and threats of suicide. The trial court overruled the objection with respect to the prior suicide threats, but sustained the objection to questions about other emotional problems. Again petitioner has failed to demonstrate any errors rising to the level of constitutional violations.
C. Misconduct in closing arguments
Here, Mr. Shackelford claims the prosecutor misstated Oklahoma law in stating that a lesser included instruction on manslaughter is automatic when self-defense is raised as a defense to first degree murder. He also claims the prosecutor erroneously encouraged the jury to sympathize with the victim and improperly "made a naked appeal to societal alarm by suggesting...
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