Tyler v. NelsonTyler v. Nelson
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
February 4, 1999
TO: ALL RECIPIENTS OF THE OPINION
RE: 97-3323, Tyler v. Nelson
Filed on January 5, 1999
The slip opinion filed in this case contains a citation error on page 7, lines 7-15. The corrected sentences should appear as follows:
Thus, while “we review the legal bases for the district court‘s dismissal of [the] petition de novo, we afford deference to the state court‘s construction of state law.” Id. (citation omitted). We lack authority to correct errors of state law made by state courts. See id.; King v. Champion, 55 F.3d 522, 527 (10th Cir. 1995). We presume that the state court‘s factual findings are correct, and we review the district court‘s factual findings for clear error. See Jackson, 143 F.3d at 1317 (citing
28 U.S.C. § 2254(d) (pre-amendment)); Nguyen v. Reynolds, 131 F.3d 1340, 1359 (10th Cir. 1997), cert. denied, __ U.S. __, 119 S. Ct. 128 (1998).
A copy of the corrected page 7 is attached for your convenience.
Very truly yours,
Patrick Fisher, Clerk of Court
By:
Keith Nelson
Deputy Clerk
encl.
Jean Gillis Phillips (David J. Gottlieb, Director and Professor of Law, The Paul E. Wilson Defender Project, University of Kansas School of Law, Lawrence, Kansas, on the brief), Lawrence, Kansas, for Petitioner-Appellant.
Jared S. Maag, Assistant Attorney General, Criminal Litigation Division, Topeka, Kansas, for Respondents-Appellees.
Before BALDOCK, McKAY, and HENRY, Circuit Judges.
McKAY, Circuit Judge.
On February 2, 1988, Sedgwick County Sheriff‘s officers obtained a search warrant for a residence in Wichita, Kansas, following a controlled buy of cocaine at the residence earlier that day. In preparation for executing the warrant, officers from the Sheriff‘s Department and from the Wichita Police Department convened to discuss the available information concerning the layout and the occupants of the residence. The officers also developed a plan for executing the warrant, pursuant to which eight officers would enter the house and four would remain outside. Each of the eight officers who entered the house was assigned to secure a certain area of the house. For example, Detective James McNutt was assigned to open the screen door and secure the living room, while Detective Terry McNett was instructed to secure the kitchen. Detective McNutt wore his sheriff‘s uniform. Five other officers, including Detective McNett, wore blue jackets with
After entering the house, Detective McNutt ordered one of the occupants to stand against the wall. Detective James Woods ran down the hall and kicked down the door of the southeast bedroom. Detective Sergeant Danny Bardezbain pumped a shotgun to instill fear in the residents. Meanwhile, with his gun drawn, Detective McNett ran into the kitchen where Petitioner shot and killed him. Petitioner also fired at least one shot in the direction of Sergeant Bardezbain. Next, Detective Terry Parham entered the kitchen and shot and wounded Petitioner in both of his legs. Without further incident, officers took Petitioner into custody. He and others found in the residence subsequently were arrested. A second warrant was issued in connection with the homicide. The execution of the original warrant and the second warrant yielded cocaine, drug paraphernalia, and other evidence.
Trial testimony regarding the raid was conflicting. Sonya Wheeler, who sold drugs for Petitioner from the residence, testified that she and Petitioner were
Other witnesses who were in the residence at the time of the raid testified that they did not hear the police officers announce their identity, but they assumed that the intruders were police based on their race and the fact that they had guns. Trial testimony also indicated that some of the occupants who did not hear or understand the officers’ identifying statements thought that the intruders were robbers because they had heard a rumor that the house would be robbed. At trial, Ms. Wheeler testified that she knew the people entering the residence were police officers because she had heard them identify themselves. Ms. Wheeler also testified that she previously had lied to police to protect herself and Petitioner. Prior to testifying at trial, Ms. Wheeler gave five different statements to police.
Petitioner‘s trial testimony differed from Ms. Wheeler‘s in several respects. He testified that he and Ms. Wheeler were in the kitchen when police entered the house, and that he did not know that the intruders were police officers. Instead, he thought the intruders were robbers who had entered the house and had started shooting people. Petitioner specifically indicated that he thought Detective McNett was a robber even though he was one of the officers wearing a blue jacket and ballcap with sheriff‘s badges. He claimed that Detective McNett‘s long hair, beard, jeans, and sneakers contributed to this impression. Thus, Petitioner testified that when Detective McNett entered the kitchen with his gun drawn, he thought Detective McNett was going to kill him.
Petitioner filed a petition for a writ of habeas corpus pursuant to
I.
II.
To determine whether the state trial court‘s refusal to deliver a self-defense instruction violated Petitioner‘s federal constitutional right to due process, we must turn to Kansas self-defense law to assess whether, under state law, Petitioner
The Kansas Supreme Court has indicated that the defendant‘s own testimony may constitute sufficient evidence to entitle him to a self-defense instruction. For example, the court has stated that “[i]t is the duty of the trial court to instruct the jury on self-defense so long as there is any evidence tending to establish self-defense, although the evidence may be slight and may consist solely of the defendant‘s own testimony.” State v. Hill, 744 P.2d 1228, 1236 (Kan. 1987). The court has also emphasized that amount of evidence required is minimal: “‘[I]t is well to remember the test is not how much but is there any‘”
Based on our review of the Kansas cases applying the two-part test, however, we conclude that while a defendant‘s own assertions may be sufficient to support the first prong of the test, i.e. to establish a subjective belief that self-defense was necessary, fulfilling the second prong requires something more. See, e.g., Hill, 744 P.2d at 1236 (“The issue is whether there is any evidence supporting defendant‘s statement that the force she used was necessary to defend herself.“); Childers, 563 P.2d at 1011 (stating that although defendant‘s testimony indicated he may have believed he was in danger, “there was absolutely no evidence to support such a belief“). Unlike the first prong of the test, the second prong calls for an objective determination concerning the reasonableness of the belief that self-defense was required. See Childers, 563 P.2d at 1012 (noting that there must be some evidence to “persuade a reasonable man to believe that he was in imminent danger“). Just as evaluating whether an error is harmless requires this court to assess the effects of the error in light of the record as a whole, see, e.g., United States v. McVeigh, 153 F.3d 1166, 1204 (10th Cir. 1998) (citing Kotteakos v. United States, 328 U.S. 750, 764 (1946)), applying the second prong of the Kansas self-defense test involves evaluating the evidence presented by the defendant in light of the totality of the circumstances and making an assessment
Applying the foregoing standards, we conclude that, although Petitioner has come forth with a modicum of evidence tending to establish his subjective belief that self-defense was necessary, he cannot meet the second prong of the test because the record simply does not show that “a reasonable person would have perceived the necessity of self-defense.” Sims, 936 P.2d at 784. Petitioner‘s testimony that he thought Detective McNett was a robber and that he did not hear the identifying statements made by the officers as they entered the house may be sufficient to meet the first prong of the test. However, Petitioner shot Detective McNett at close range in a lighted room. Although Detective McNett had long hair, he also wore dark blue clothing and had two readily visible sheriff‘s badges on his jacket and his ballcap. Further, although Detective McNett entered the kitchen with his gun drawn, there is no indication in the record that he otherwise threatened or made any aggressive movements toward Petitioner. Petitioner also admitted that he knew his drug operation might be raided by police, and according to Ms. Wheeler‘s testimony, he previously told her that if he was ever confronted by police, he might “take someone out.” Other persons present during the raid,
III.
Petitioner also alleges that his right to a fair trial was violated by the state trial court‘s decision not to remove or conceal the memorial plaque to Detective
We note at the outset that, because Petitioner raises a constitutional challenge to a state court proceeding, the scope of our review is constrained. See Holbrook v. Flynn, 475 U.S. 560, 572 (1986). Like any person accused of a crime, Petitioner was entitled to have his guilt or innocence determined only on
First, we must examine whether hanging the memorial plaque in the courthouse lobby “is the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial.” Holbrook, 475 U.S. at 568-69. We may grant Petitioner relief only if the “scene presented to the jurors . . . was so inherently prejudicial as to pose an unacceptable threat to [Petitioner‘s] right to a fair trial.” Id. at 572.
Applying these standards, we conclude that the memorial plaque is not, like shackling and prison clothes, an “unmistakable indication[] of the need to separate a defendant from the community at large.” Id. at 569. Like the presence of guards at a defendant‘s trial, the plaque “need not be interpreted as a sign that [Petitioner] is particularly dangerous or culpable.” Id. The memorial plaque was small and therefore was not necessarily noticeable. Further, it was not located in
Second, because we conclude that the presence of the plaque was not so inherently prejudicial that it could be justified only by an essential state interest specific to the trial, we must determine whether Petitioner suffered actual prejudice. See id. at 572. Petitioner did not make a showing of any actual prejudicial effect on any juror before the district court, nor does he make such a showing on appeal. “We will not presume prejudice where the record does not support a claim of inherently prejudicial activity or incident.” Lampley, 127 F.3d at 1237. In light of the foregoing, we agree with the district court‘s conclusion that the state trial court‘s refusal to remove or conceal the memorial plaque from the courthouse lobby did not violate Petitioner‘s constitutional right to a fair trial.
IV.
Finally, Petitioner argues that the state trial court violated his right to a fair trial by refusing to poll the jury about whether they had seen an allegedly prejudicial television report regarding his case which was aired one evening during the trial. Trial courts have “a duty to protect the jury from prejudicial events,” United States v. Gonzalez, 797 F.2d 915, 917 (10th Cir. 1986) (citing
The Kansas Supreme Court determined that Petitioner had failed to show that the news broadcast had any effect upon the jury‘s verdict. See Tyler, 840 P.2d at 431. The district court agreed, concluding that Petitioner had not made any showing that the trial was contaminated by the allegedly prejudicial television report or that he was denied due process as a result. See Tyler, 987 F. Supp. at 1439. Similarly, we can find no indication in the record that any of the jurors were influenced by the report, nor can we tell whether the jurors even saw the report. None of the courts involved in this case have received a copy or transcript of the television report, which makes it impossible to determine whether the report was incorrect, inflammatory, or otherwise prejudicial. Additionally, we note that the state trial court repeatedly admonished the jury to avoid reading or listening to any media account of the trial, see id., and we presume that the jury followed the instructions. See United States v. Hatatley, 130 F.3d 1399, 1405 (10th Cir. 1997). “In short, there is no showing that the trial was compromised by
The district court‘s denial of Petitioner‘s habeas corpus petition is
AFFIRMED.