Tyler v. Nelson
| Decision Date | 30 September 1997 |
| Docket Number | No. 94-3246-DES.,94-3246-DES. |
| Citation | 978 F.Supp. 1435 |
| Parties | St. John TYLER, Petitioner, v. Michael NELSON, et al., Respondents. |
| Court | U.S. District Court — District of Kansas |
Kevin C. Fletcher, U.S. Attorney's Office, Sioux City, IA, for Respondents.
This matter is before the court on a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated following his guilty plea to a charge of conspiracy to sell cocaine and convictions by a jury of sale of cocaine, second-degree murder, aggravated assault of a law enforcement officer, possession of heroin with intent to sell, possession of cocaine with intent to sell, and perjury.
In this habeas corpus action, petitioner contends the trial court erred in refusing to instruct the jury on self-defense and alleges that he was denied a fair trial by the trial court's refusal to remove from the Sedgwick County Courthouse a plaque honoring the law enforcement officer killed by petitioner and by the trial court's refusal to poll the jury concerning a television broadcast prior to the jury's deliberations.
The facts underlying petitioner's conviction are set out in detail in the decision of the Kansas Supreme Court, State of Kansas v. Tyler, 840 P.2d 413, 251 Kan. 616 (Kan.1992), and only those facts necessary to the court's consideration of the three issues raised for habeas corpus review are included in this order.
On February 2, 1988, following a controlled buy of cocaine at a residence in Wichita, Kansas, Sedgwick County Sheriff's officers obtained a search warrant for the residence. Before executing the warrant in the late evening of February 2, the Sheriff's Department and Wichita Police Department officers involved were briefed on the information available about the occupants of the house and its layout. A team of eight officers was to enter the house with four officers remaining outside the residence. The first officer, James McNutt wore his sheriff's uniform and was assigned to open the screen door and secure the living room; five officers, Detectives Woods, McNett, Parham, and Gallegos, and Detective Sergeant Bardezbain each wore a blue jacket with a cloth sheriff's badge on the front and large yellow letters on the back reading "SHERIFF'S NARCOTICS" and a blue ballcap with a cloth sheriff's badge on the front. The remaining two entering officers were in Wichita Police Department uniforms.
As the raid team approached and entered the house, the living room was dark. The officers shouted "sheriff's office," "search warrant" and the like, but according to trial testimony, not all occupants of the house heard and understood these statements. There was testimony of a rumor that the house would be robbed and some occupants testified they initially thought the intruders were robbers.
Shortly after officers entered the residence, Detective Terry McNett was shot and killed by the petitioner in the kitchen of the residence. The kitchen was lighted and McNett was shot in the face at close range. Petitioner also fired at least one shot toward Detective Sergeant Bardezbain and then sought cover behind the refrigerator after being wounded in both legs, apparently by shots fired by Detective Parham. Petitioner was taken into custody without further incident, and he and others found in the residence were arrested. A second search warrant was issued and executed at the residence early on February 3, 1988, and resulted in the recovery of drugs, drug paraphernalia, weapons, and other evidence.
At trial, the prosecution presented evidence that petitioner and Sonya Wheeler, who worked at the residence selling drugs for the petitioner, were in the living room when the raiding officers entered the residence. Wheeler testified that she and petitioner ran into the kitchen and that she was present when petitioner shot Detective McNett. Wheeler also testified that she knew the people entering the residence were law enforcement officers, and she testified that on or about January 16, 1988, petitioner told her that if officers attempted to take him into custody, "he would take someone out." (R., Trial Transcript, pp. 417-18.)
Petitioner testified at trial that he and Wheeler were in the kitchen when the raid party entered the house and that he did not realize the intruders were law enforcement officers. He stated that he shot Detective McNett under the mistaken impression that he was a robber who was going to kill him.
The trial court refused petitioner's request to instruct the jury on self-defense but instructed the jury on first degree murder, second degree murder, and voluntary manslaughter. In addition, the jury instructions stated, in part, "[a] person is not authorized to use force to resist, obstruct or oppose the execution or attempted execution of a search warrant or the making or attempted making of an arrest which said person knows is being made by a law enforcement officer." (R., Jury Instr. 19.) The jury returned a verdict of guilt on all charges except one charge of aggravated assault on Detective Parham. The trial court sentenced petitioner under the Habitual Criminal Act to a controlling term of 111 to 330 years. The Kansas Supreme Court affirmed petitioner's conviction on direct appeal, and this habeas corpus action followed.1
Failure to give jury instruction
Petitioner first alleges the trial court erred in refusing to instruct the jury on self-defense. The Kansas Supreme Court affirmed the decision of the trial court, finding that petitioner had not satisfied the two-prong test to merit an instruction on self-defense required by state law. Kansas v. Tyler, 840 P.2d at 422. The first prong is subjective and requires a showing the defendant sincerely believed it was necessary to kill in self-defense. The second is objective and requires a showing that a reasonable person in the same circumstances would have believed self-defense was necessary. Id., citing State v. Stewart, 243 Kan. 639, 763 P.2d 572 (1988).
It is settled that a habeas corpus petitioner bears a heavy burden in seeking relief from a state court conviction upon alleged error in instructing the jury. Maes v. Thomas, 46 F.3d 979, 984 (10th Cir.1995) (citing Lujan v. Tansy, 2 F.3d 1031, 1035 (10th Cir.1993), cert. denied, 510 U.S. 1120, 114 S.Ct. 1074, 127 L.Ed.2d 392 (1994)). A state conviction may be overturned on this basis only when error rendered the trial so fundamentally unfair that the petitioner was denied a fair trial. Shafer v. Stratton, 906 F.2d 506, 508 (10th Cir.), cert. denied, 498 U.S. 961, 111 S.Ct. 393, 112 L.Ed.2d 402 (1990).
"The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack ... is even greater that the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977). In examining the failure to give a requested instruction, the court must consider that "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Id. at 155, 97 S.Ct. at 1737.
Finally, it is settled in this circuit that "a trial judge is given substantial latitude and discretion in tailoring and formulating the instructions so long as they are correct statements of law and fairly and adequately cover the issues presented," United States v. Haar, 931 F.2d 1368, 1371 (10th Cir.1991) (quoting United States v. Pack, 773 F.2d 261, 267 (10th Cir.1985)) and that a "defendant will not be entitled to an instruction which lacks `a reasonable legal and factual basis.'" Haar, id., (quoting United States v. Bryant, 892 F.2d 1466, 1468 (10th Cir.1989), cert. denied, 496 U.S. 939, 110 S.Ct. 3220, 110 L.Ed.2d 667 (1990)). The court therefore must consider whether the evidence adduced at trial reasonably supported petitioner's request for a jury instruction on self-defense.
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