Whitt v. Farris, 012821 OKNDC, 17-CV-0632-CVE-CDL

Docket Nº17-CV-0632-CVE-CDL
Party NameROBERT ANDREW WHITT, Petitioner, v. JIM FARRIS, Warden, [1] Respondent.
Case DateJanuary 28, 2021
CourtUnited States District Courts, 10th Circuit, Northern District of Oklahoma



JIM FARRIS, Warden, 1 Respondent.

No. 17-CV-0632-CVE-CDL

United States District Court, N.D. Oklahoma

January 28, 2021



This matter comes before the Court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner Robert Andrew Whitt is a prisoner proceeding pro se. He is currently in the custody of the Oklahoma Department of Corrections (ODOC) and confined in the Oklahoma State Penitentiary (OSP), in McAlester, Oklahoma. He challenges his conviction and sentence for first degree malice murder in Tulsa County District Court (No. CF-2013-112). The Oklahoma Criminal Court of Appeals (OCCA) affirmed on December 14, 2016. Dkt. # 6-1. For the reasons discussed below, the petition is denied.

Whitt filed the instant petition for writ of habeas corpus (Dkt. # 1) on November 20, 2017, challenging his conviction and sentence as in violation of federal law on the following grounds: I. Insufficient evidence supported his conviction for first-degree murder;

II. The trial court improperly coerced the jury's verdict;

III. The prosecutor acted improperly;

IV. Whitt received ineffective assistance of counsel;

V. Extraneous evidence was injected into jury deliberations; and

VI. The cumulative effect of all the errors at trial violated Whitt's constitutional rights.

Respondent filed a response (Dkt. # 6) in opposition to the petition, arguing that each claim should be denied on its merits.

Factual Background

The following facts were adduced at trial. On October 11, 2012, Amber Ayers saw, and communicated via text message with, her former boyfriend, Whitt. Ayers testified that the two discussed, among other things, Whitt purchasing Adderall from Ayers.

That evening, Ayers; her boyfriend Mark Coble; Tim Reed, Coble's co-worker; and Reed's girlfriend, Michelle Younger, met at Coble's house at approximately 6:30 p.m. The four sat on Coble's porch and drank beer. Reed testified that he noticed tension between Ayers and Coble. For part of that time, Ayers was inside the house, but her mobile phone was on the porch. Reed testified that alerts and calls came to Ayers's phone. Coble answered one of the calls. Younger's testimony corroborated Reed's observation of tension between Coble and Ayers. After about an hour, Reed and Younger decided to leave. Reed testified that Coble asked Reed to drive him to the Wal-Mart store in Glenpool, Oklahoma. Younger testified that Coble first asked Ayers to drive Coble to the Wal-Mart, but Ayers refused. Coble left with Reed and Younger. They stopped at Reed's house, dropped off Younger, and switched cars.

Ayers testified that she remembered Coble talking to Whitt on her phone. When the call ended, Coble went to the shed and retrieved a pool cue. Ayers asked Coble what he was doing. Coble stated he was going to play pool with some buddies and asked Ayers to give him a ride. She refused. Coble left with Reed and Younger. Reed testified that Coble did not have a gun. Ayers testified Coble did not leave the house with the pool cue; he left it in the kitchen.

Reed drove Coble to the Glenpool Wal-Mart store. Coble directed Reed to drive around the store and stop behind a small blue car carrying three individuals. Both cars proceeded out of the parking lot to a side street behind the store. Coble directed Reed to stop the car. Coble got out to speak to the individuals in the blue car, now parked behind Reed's car. Reed remained in the vehicle. After a few minutes, Reed looked into the rearview mirror and saw Coble and Whitt engaged in a fist fight. Reed saw two other men emerge from the blue car. Reed then exited his vehicle and ran to the back of the blue car, where the other men were standing. They knocked Reed to the ground and began beating him. After a few seconds, Reed heard gunshots. Reed and the two other men stopped fighting at the sound of the gunshots. Reed testified that he moved behind the blue car to distance himself from the shooter. Reed saw Coble running away from the shooter and saw the shooter, who was standing, shoot Coble in the back. Coble fell to the ground. The shooter turned around and aimed the gun at Reed across the top of the blue car. Reed identified Whitt as the shooter. Reed testified that he got in his car and drove it to where Coble was lying. Reed dragged Coble into the passenger seat of the car and drove home. On the way, he called 911. Younger testified that when Reed arrived at home, Coble was not breathing. She attempted to perform CPR on Coble, but it was ineffective; he was already dead.

The two other men in the blue car with Whitt, Dylan Whelpley and Britt Sund, both testified at the trial. Whelpley testified that Whitt asked him to drive him to the Wal-Mart in Glenpool to purchase Adderall for the three of them. Whelpley testified that when they arrived at the Wal-Mart, they followed the other car to a side street behind the store. The cars stopped and Coble exited the passenger side of Reed's car. Whitt stepped out of the vehicle and Coble struck him, knocking him to the ground, and kicked him repeatedly. Whelpley exited the vehicle. Simultaneously, Reed exited his vehicle. Whelpley and Reed met behind the blue car and began to fight. Sund joined. Within approximately 30 seconds, Whelpley heard gunshots. Whelpley testified that he immediately returned to his vehicle. He did not see the gun and did not know who fired the shots. Whitt and Sund returned to the car and the trio left the scene.

Sund testified that Whitt is his cousin. He testified that he, Whitt, and Sund went to the Glenpool Wal-Mart to purchase Adderall. Sund testified that he brought a gun (a hi-point nine millimeter) with him. He gave it to Whitt in the car before they left for Wal-Mart. Whitt placed the gun “behind his belt.” Sund testified that Whelpley also knew about the gun. After the cars had stopped on the side street behind the store, Sund testified that Coble approached the passenger side of the car. Whitt stepped out of the car, and Coble starting hitting him. Sund and Whelpley exited the car and began fighting with Reed at the back of the car. Sund heard his gun hit the ground, then he heard gunshots. At that time Sund believed Whitt had the gun. He then saw Whitt shooting at Coble.

Whitt testified in his own defense. He stated that Amber Ayers contacted him on October 11, 2012. She asked him if he knew anyone that wanted to buy Adderall. Ayers met Whitt at his father's house at 11:30 a.m. or 12:00 p.m. The two talked, smoked pot, and caught up. Whitt recalled that Ayers talked about Coble. She stated she was in love with him and had moved in with him. She also stated that he had been to prison, smoked methamphetamine, and she suspected he sometimes shot up methamphetamine. She told Whitt that Coble “scared her a little bit.” Ayers left after about an hour. Whitt understood that he would call Ayers later that day to make arrangements to purchase the Adderall.

Whitt testified that Britt Sund was interested in purchasing the Adderall. Whitt called Ayers's phone; Coble picked up the call. Whitt and Coble discussed the sale of Adderall. Whitt agreed to drive to Glenpool. Whitt, Sund, and Whelpley left in Whelpley's small blue car. Whelpley was driving. On the way, Coble called Whitt again from Ayers's phone to confirm the meeting. Whitt testified they did not discuss fighting; Whitt testified he did not anticipate that a fight would occur.

When Whitt arrived at the Glenpool Wal-Mart store, he called Ayers's phone to tell Coble they had arrived. They arranged to meet on a side street behind the store. Reed and Coble stopped at a stop sign. Whitt, Whelpley, and Sund stopped behind Reed and Coble. Whitt testified that he saw Coble exit Reed's vehicle. Whitt got out of Whelpley's car as Coble approached. Coble hit Whitt in the mouth with a gun, knocking Whitt to the ground. Coble climbed on top of Whitt, hitting and kicking him. When Coble briefly turned his head, Whitt attempted to wrestle the gun away from Coble. The gun fell to the ground. Both Coble and Whitt attempted to retrieve it. Whitt was able to grab the gun, and it discharged. Whitt testified that the next thing he remembered, he was getting back into the car. Whitt testified that he could not see Coble because he was blinded by the flash of the gun. He did not recall how many shots he fired. Whitt denied receiving a gun from Sund. Whitt testified that he was lying on the ground on his back when he fired at Coble. He did not recall Coble's distance or posture.

Whitt testified as to his thought process during the incident. Whitt testified that he believed that he would never see his mom or dad again. Whitt stated that when Coble had control of the gun he thought “I've got to get it before he shoots me. I've got to get it, because I'm going to die if I don't.” Whitt testified that they left the scene immediately because he was scared and Sund kept telling him to get in the car. On cross-examination, Whitt testified that he was injured in the incident. He had “a busted lip on the inside” and his “head was all swollen.” He testified that on the return drive, he threw the gun over a bridge.

Dr. Eric Pfeifer, a medical examiner who works for the state, conducted an autopsy on Mark Coble's body. Dr. Pfeifer testified that Coble suffered three gunshot wounds: one to the front side of his right thigh, which only grazed him; one that entered the back left hip and lodged in his intestines; and one that entered his back and exited his chest. The third was the fatal shot. There was no evidence of soot or stippling around the wounds. Dr. Pfeifer thus hypothesized that the...

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