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Tony Glen Mark v. Edward L. Evans Attorney General of The State of Oklahoma, 129 F.3d 130, 10th Cir. (1997)
Tony Glen Mark v. Edward L. Evans Attorney General of The State of Oklahoma, 129 F.3d 130, 10th Cir. (1997)
3d 130
97 CJ C.A.R. 2646
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a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
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
After examining the brief of petitioner and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
Petitioner, appearing pro se, seeks review of the district court's order dismissing
his petition for habeas relief under 28 U.S.C. 2254. He raises four issues: (1)
whether his convictions violated the Double Jeopardy Clause; (2) whether the
admission of a statement given by a nontestifying codefendant violated the
Confrontation Clause and infringed upon his right to a fair trial; (3) whether he
was denied due process when the jury observed him in the courtroom wearing
handcuffs at the close of the trial's sentencing phase; and (4) whether admission
into evidence of two prior felony convictions violated Oklahoma state law and
Based upon our review of the record as a whole, we conclude that the petitioner
has made a substantial showing of a denial of a federal right on the first two
issues listed above, and has failed to make the requisite showing on the
remaining issues. Accordingly, we grant a certificate of probable cause and
proceed to the merits of petitioner's appeal on only the issues relating to double
jeopardy and admission of the codefendant's statement.2
FACTUAL BACKGROUND
7
Approximately two hours later, Mr. Turner returned home. Upon his arrival,
petitioner grabbed him, fired a shot toward him, hit and kicked him, took his
wallet, and told him that he would kill him unless he opened the safe. Petitioner
fled when Mr. Turner's son and another individual arrived. He was
apprehended the next morning.
After a jury trial, petitioner was convicted on eight separate counts: conspiracy,
second-degree burglary, kidnaping, robbery with a firearm (two counts), assault
with a dangerous weapon, shooting with intent to kill, and larceny from a house.
He received consecutive sentences on each count. On direct appeal, the
Oklahoma Court of Criminal Appeals reversed the convictions for assault with
a dangerous weapon and larceny from a house on double jeopardy grounds, but
affirmed the remaining convictions and sentences.
10
Petitioner then sought habeas relief. The matter was referred to a magistrate
judge, pursuant to 28 U.S.C. 636(b)(1)(B), who recommended that the
petition be denied. Upon consideration of the magistrate judge's thorough
report and recommendation and the petitioner's objections, the district court
denied the petition.
DISCUSSION
11
12
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statement given by Wallace, who did not testify at their joint trial, violated his
right to confront witnesses against him and deprived him of a fair trial. A
defendant's right of confrontation includes the right not to have the
incriminating hearsay statement of a nontestifying codefendant admitted in
evidence against him. See Bruton v. United States, 391 U.S. 123, 137 (1968). In
Schneble v. Florida, 405 U.S. 427, 432 (1972), however, the Supreme Court
held that "unless there is a reasonable possibility that the improperly admitted
evidence contributed to the conviction, reversal is not required." The admission
of a nontestifying codefendant's confession may be harmless error if the
properly admitted evidence is so overwhelming and the prejudicial effect of the
codefendant's statement is so insignificant that an average jury "would not have
found the State's case significantly less persuasive had the testimony as to
[codefendant's] admission been excluded." Id. at 432. See also Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (holding that a habeas petitioner
challenging a trial error is entitled to relief only if the error had a "substantial
and injurious effect or influence in determining the jury's verdict") (quotation
omitted).
15
We have reviewed the entire record and are satisfied that Wallace's inculpatory
statement did not contribute significantly to the jury verdict. Evidence properly
admitted at trial, including petitioner's own voluntary statement, provided
overwhelming evidence of guilt. We agree with the magistrate judge that the
admission of Wallace's statement did not violate petitioner's right to a fair trial.
16
Accordingly, the judgment of the United States District Court for the Western
District of Oklahoma is AFFIRMED. The mandate shall issue forthwith.
**
The Honorable J. Thomas Marten, District Judge, United States District Court
for the District of Kansas, sitting by designation
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
Because petitioner filed his habeas petition in 1995, before enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No.
104-132, 110 Stat.1214, AEDPA's certificate of appealability requirements do
not apply to this appeal. See United States v. Kunzman, --- F.3d ----, No. 961310, 1997 WL 602507, at * 1 n. 2 (10th Cir. Oct. 1, 1997). Instead, the preAEDPA certificate of probable cause requirements apply here. Regardless of
Petitioner's arguments on the remaining issues fall far short of the standard for
a grant of certificate of probable cause. He correctly states the general rule that
the jury should not be permitted to see a criminal defendant in physical
restraints. See Estelle v. Williams, 425 U.S. 501, 503-05 (1976) (explaining
that a defendant in a criminal case is presumed innocent and, therefore, should
be accorded the indicia of innocence in a jury trial); Illinois v. Allen, 397 U.S.
337, 344 (1970) (noting that the sight of handcuffs may have a significant effect
on the jury's feelings about the defendant); United States v. Zuber, 118 F.3d
101, 103 (2d Cir.1997) (noting that courts have held that the rationale applies
with "equal force in the context of jury sentencing"). However, "courts will find
harmless error where it is determined that the use of restraints was unlikely to
have influenced members of the jury." See id
The jury observed petitioner in handcuffs only after it had agreed upon and
submitted the sentencing verdict forms to the court. Because there were
extraneous markings on the forms, the court ordered the jury to retire again.
The jury returned to the courtroom with the same verdicts, absent the markings.
The jury's verdict was not affected by the sight of petitioner in handcuffs and, as
a consequence, any resulting error was harmless.
Similarly without merit is petitioner's claim that the State's presentation of
prima facie evidence of three former convictions for enhancement purposes
deprived him of the right to a fair trial. Petitioner claims that, under Oklahoma
law, two of these three convictions must be counted as one because they arose
out of one transaction and occurrence. He offered no evidence or argument on
these convictions in the trial court and no evidence in habeas proceedings.
Accordingly, he failed to meet his burden of showing the invalidity or
inapplicability of the convictions. See Mansfield v. Champion, 992 F.2d 1098,
1105, 1106 (10th Cir.1993) (holding constitutional the Oklahoma procedure
providing that a certified copy of judgment and sentence constitutes prima facie
evidence of prior conviction and shifting the burden to defendant to produce
evidence showing the invalidity of the conviction).