IN THE DISTRICT COURT OF WASHINGTON COUNTY
STATE OF OKLAHOMA
Case No. CRF-90-239
STEPHEN LEE ALLEN,
Petitioner,
v.
THE STATE OF OKLAHOMA,
Respondent.
APPLICATION FOR POST CONVICTION RELIEF
Petitioner, Stephen Lee Allen, by and through his attorneys, hereby applies for relief pursuant to the Post-Conviction Procedure Act, 22 O.S. 1991, section 1080 et seg., as amended.
I. BASIS OF PETITIONER'S
CONFINEMENT
II. PRIOR
PROCEEDINGS
III. STATEMENT OF THE
FACTS
GROUNDS FOR
RELIEF
Petitioner was denied his Fourteenth Amendment due process rights to a fair and impartial trial because the actions of the trial judge in questioning witnesses, including most prominently appellant demonstrated both the appearance and the actuality of bias on the part of the court.
Petitioner was deprived of his Sixth and Fourteenth Amendment rights to a fair and impartial trial and to due process of law because he was wrongly denied a change of venue. Moreover, Oklahoma's standard for determining when a change of venue is warranted denies federal due process rights. Petitioner's Fourteenth Amendment due process rights were also violated when the trial court failed to excuse three biased veniremen for cause.
A. Petitioner's due process rights were denied when a change of venue was not granted.
Neither State's "Expert Witness" Tom Bevel nor Alan Eastman were proper rebuttal witnesses at Petitioner's jury trial
Oklahoma City Police Department Captain Tom Bevel and O.S.B.I. Agent Perkins were improperly qualified as expert witnesses in the field of geometric blood spatter analysis
Petitioner was denied his Sixth and Fourteenth Amendment rights to confront witnesses against him and to present evidence in his own defense.
Discovery violations committed by the State denied Petitioner his due process rights under the Fourteenth Amendment.
Discovery violations committed by the State denied Petitioner his due process rights under the Fourteenth Amendment.
I. BASIS OF PETITIONER'S CONFINEMENT
Petitioner, Stephen Lee Allen, is currently in the custody of the Department of Corrections, pursuant to a judgment and sentence by the District Court of Washington County for the offense of murder in the first degree in violation of 21 O.S. 1991, section 701.7 The State sought the death penalty, but the jury sentenced Petitioner to life imprisonment without the possibility of parole.
Mr. Allen was charge by in the District Court of Washington County, Case No. CRF-90-239, with the crime of murder in the first degree, allegedly committed against his wife, Sandra Allen.
Following preliminary hearing, Petitioner was bound over for trial. Prior to trial, Appellant sought various writs from the Oklahoma Court Criminal Appeals seeking a denial of media access to the Preliminary Hearing (See Court of Criminal Appeals Case No. 0-90-824), discovery prior to Preliminary Hearing (See Court of Criminal Appeals Case No. 0-90-825) and Allen v. District Court of Washington County, 803, P.2d 1164 (Okl. Cr. 1990), Writ of Habeas Corpus due to the Magistrate's denial of bail (See Court of Criminal Appeals Case No. H-90-804), and seeking a Change of Venue (See Court of Criminal Appeals Case No. 0-91-526).
From July 15 through August 12, 1991, jury trial was held before the Honorable John G. Lanning, District Judge. Petitioner was convicted as charged, and was sentenced by the jury at the conclusion of the punishment phase of trial to life imprisonment without possibility of parole. Judgment and sentence were imposed accordingly.
Petitioner took a direct appeal to the Oklahoma Court of Criminal Appeals. Mr. Allen's conviction and sentence were affirmed. Allen v. State, 862, P.2d 487 (Okl. Cr. 1993). Rehearing was denied on December 6, 1993.
Mr. Allen sought a writ of certiorari in the United States Supreme Court, alleging that his Fourteenth Amendment due process rights were denied by the failure to grant his motion for change of venue. Petitioner contended also that Oklahoma's standard for determining when a change of venue should be warranted violated due process. The petition for writ of certiorari was denied. Allen v. Oklahoma, __U.S.__, 114 S.Ct. 1657, 128 L.Ed.2d 375 (1994).
The following were established by Appellant during the course of the trial. On June 11th, 1990, some five days prior to the Allen's tenth wedding anniversary, Appellant went to work as usual. Appellant and his wife were planning a brief anniversary celebration in the Ozarks where reservations had already been made.
Following work, Appellant returned home and his wife left shortly thereafter to go to work at Dillards department store. Appellant finished fixing dinner for himself and his youngest son, the two older sons being at his in-laws home in Missouri. After dinner, Appellant and his youngest son mowed the lawn, cleaned up, and went to Dillards department store to see Appellant's wife. Shortly before his arrival, Appellant's wife had received a telephone call from someone pretending to be an old school mate of Appellant and wanting to know where Appellant was. The caller hung up when Appellant's wife indicated to the unknown caller that she knew everyone Appellant went to school with.
Appellant and his son visited other stores in the shopping mall and returned back to Dillards department store and talked to Appellant's wife. Appellant left the department store and went to the church office where he was the treasurer. He retrieved documents he needed and then went to a Sonic drive-in and obtained three drinks, one each for himself, his wife, and their youngest child who was with him. Appellant then drove back to Dillards department store in an attempt to catch his wife getting off work. Not seeing her car, he went home.
Upon pulling into the driveway of his residence Appellant saw the figure of a person at the edge of the patio coming south towards the Mr. Allen. When the car lights hit the figure, the figure turned and ran north. Appellant parked his car, got out, locked the car doors, and set the drinks on the hood of the car and proceeded into the house. Upon entering the kitchen area he found his wife dying in a pool of blood. Appellant turned his wife over and attempted to get some response from her. He then was the signs of a struggle in the living room in front of him and stood for an undetermined period of time surveying the scene.
Appellant then returned to his wife's body, straddled her, and shook her in an attempt to get some response from her. When this failed, Appellant headed to the telephone to call 911. Laying on the counter by the phone was a ball peen hammer used by the children as a toy. Appellant, in frustration, picked up the hammer and struck the counter top with it. Fearing conclusions that might be drawn from blood on the handle of the hammer from his hands, Appellant wiped the handle of the hammer with paper towels and took the hammer and towels to the attic by way of the garage. Appellant returned to the kitchen area and called 911. Mr. Allen remained on the telephone line until a police officer arrived at the residence.
Appellant was questioned briefly at the scene of the crime, at the hospital, the residence of his preacher, and, at the Bartlesville Police Department all between the hours of 10:00 p.m. on June 11th and 6:00 a.m. on June 12, 1990. Appellant turned himself in at the request of the District Attorney's office following the funeral of his wife on Friday, June 15th, 1990.
PETITIONER WAS DENIED HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHTS TO A FAIR AND IMPARTIAL TRIAL BECAUSE THE ACTIONS OF THE TRIAL JUDGE IN QUESTIONING WITNESSES, INCLUDING MOST PROMINENTLY APPELLANT DEMONSTRATED BOTH THE APPEARANCE AND THE ACTUALITY OF BIAS ON THE PART OF THE COURT.
The trial court declined to enter an active role during the presentation of the state's case, and did not question any witnesses called by the prosecution. However, during the defense case, the trial court abandoned its neutrality and launched interrogations of three defenses witnesses, including Petitioner. The skeptical, disbelieving nature of the court's questions made it obvious that he found the testimony of these witnesses suspect or somehow not worthy of the jury's belief. Theses episodes demonstrate that the court was more interested in acting as an additional trier of fact. Worse yet; the slanted nature of the inquiries could only have aided, and were obviously intended to aid, the prosecution's case.
The most egregious example of the trial court's abandonment of neutrality came during its questioning of Petitioner regarding where he found the alleged murder weapon, the hammer, and what he did with it. Petitioner testified that he found the hammer, which was generally used by the children as a toy, on the kitchen counter. Petitioner testified that this hammer was not usually kept in the garage with his other tools but could have been anywhere, since his sons played with it. The best Petitioner could recall, the hammer could have been in the kitchen; he surmised that his wife had taken it away from the children and placed it there. Mr. Allen stated that he grabbed the hammer and hit the counter in frustration at finding his wife near death and being unable to do anything for her. Realizing that he had touched what might have been the murder weapon, Petitioner panicked and took it to the attic.
In its questioning, the trial court expressed skepticism that Petitioner would not know where the hammer was usually kept and could not remember where he last saw it. The court also asked Petitioner whether he was right or left handed. (Tr. 8/1, 5, 6/91 pp. 191-92) The trial court, through its questions, obviously implied to the jury that Petitioner's testimony that the hammer could have already been in the house, and had not been outside the home in the garage, was either a convenient evasion or otherwise unbelievable. No issue of fact was raised by either defense counsel or the prosecution concerning the "usual" location of the hammer. The court's question on whether Petitioner was right or left handed was intended to complement the state's theory that most of the blows were inflicted from behind after Mrs. Allen was on the ground. Logically, those injuries would have been inflicted by a right handed person.
Defense counsel took the first possible opportunity to object to the court's questions, and moved for a mistrial, which was denied. (Tr. 8/1, 5, 6/91, p. 228)
Defense expert Peter Barnett testified that it was virtually impossible glass was embedded in the handle of the hammer. The alleged presence of glass in the handle was critical to the state's theory that the hammer was the murder weapon. The trial court, following redirect examination, questioned Barnett closely about when he received the hammer, how it was shipped, and when he conducted his analysis. The implication from the court's questions was that Barnett would not have found glass in the hammer since it was allegedly already removed by a state's witness before Barnett examined it. The court thus took on the role of prosecutor to assist the state in proving its scenario. The clear implication from the court's questioning was that Barnett's testimony on this point had no value.
Over objection, the court also questioned the medical examiner, Dr. Robert Hemphill, who had been recalled as a defense witness. One of the key pieces of exculpatory evidence at trial was a contact lens found on the victim's body during the autopsy. Defense evidence showed that this contact lens could not have come from the victim or, for that matter, anyone in the Allen household. The court questioned Dr. Hemphill extensively on whether he conducted a thorough search for another contact lens when he found the first one during the autopsy. This left the jury to speculate as to whether the medical examiner missed finding another contact lens in one of the eye's of the victim. The implication from the court's question was that the contact lens found by the medical examiner could have been the victim's, and that the medical examiner was not thorough in determining whether the "mate" to the lens was still present in Ms. Allen's other eye. Based on the court's questioning, Petitioner's counsel filed a motion to exhume the body to determine if a contact lens or lenses were still present with body.
The questioning by the court of three defense witnesses, all with the obvious purpose of expressing disbelief or skepticism in the validity of their testimony or the worth of their conclusions, not only violated Oklahoma law admonishing trial courts to be circumspect in their questioning of witnesses lest the jury get the impression that the court has "taken sides," e.g., Richmond v. State, 456 P.2d 897 (Okl. Cr. 1969); Henderson v. State, 385 P.2d 930 (Okl. Cr. 1963), but deprived Petitioner of his federal due process rights as well. A defendant in a criminal case is entitled to a judge free of both the appearance of bias and actual bias. The court's singling out three (3) defense witnesses for skeptical questioning which undermined the defense case and aided the prosecution evinced both types of bias, in violation of due process. E.g., United States v. Antar, 53 F.3f 568, 576-77 (3rd Cir. 1995) (judge demonstrated lack of impartiality when he stated at sentencing that his goal from the start had been to return to the public money taken by the defendant, and that this goal cold be fulfilled because defendant had been convicted); Wahlberg v. Israel, 766 P.2d 1071, 1077-78 (7th Cir. 1985) (due process violated when, among other improper actions, judge appeared to have decided defendant's guilt at the start of trial). See also, Liteky v. United States, __U.S.__, 114 S.Ct. 1147, 1157 (1994) (events occurring during course of proceedings may demonstrate the judge's bias if they reveal a deep seated favoritism or antagonism to one side or the other).
In this case, the trial court's bias was evident not only in his questioning of defense witnesses, but in his ruling on the admissibility of prejudicial evidence which should have been kept from the jury. (See below)
Accordingly, Mr. Allen should be granted post-conviction relief on this issue.
PETITIONER WAS DEPRIVED OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO A FAIR AND IMPARTIAL TRIAL AND TO DUE PROCESS OF LAW BECAUSE HE WAS WRONGLY DENIED A CHANGE OR VENUE. MOREOVER, OKLAHOMA'S STANDARD FOR DETERMINING WHEN A CHANGE OF VENUE IS WARRANTED DENIES FEDERAL DUE PROCESS RIGHTS. PETITIONER'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS WERE ALSO VIOLATED WHEN THE TRIAL COURT FAILED TO EXCUSE THREE BIASED VENIREMEN FOR CAUSE.
A. Petitioner's due process rights were denied when a change of venue was not granted.
Pervasive publicity, either before or during trial or both can prejudice jurors and violate a defendant's federal due process rights to a fair and impartial jury. Chandler v. Florida, 499 US 560, 574, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981) (any highly publicized criminal trial presents risk of compromising defendant's right to fair trial); Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (jury's verdict should be based on evidence presented in open court, not influence of extraneous publicity). To demonstrate juror partiality, an accused must demonstrate either that publicity actually prejudiced an individual juror, e.g., Murphy v. Florida, 421 U.S. 794, 800-03, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1974), or so pervaded the proceedings that it raises a presumption of inherent prejudice. Sheppard V. Maxwell, supra (prejudice presumed where court allowed reporters free reign of courtroom, and press coverage had been largely accusatory, negative to defendant, and unrelenting); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d. 751 (1961) (in notorious murder case held in small town, where publicity was pervasive and jurors expressed opinions about case, prejudice presumed); Estes v. Texas, 381 U.S. 532, 544, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (prejudice presumed when courtroom proceedings televised despite no showing of identifiable prejudice to defendants); Rideau v. Louisiana, 373 U.S. 723, 726-27, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (prejudice presumed when defendant's confession televised prior to trial); Norris v. Risley, 918 P.2d 828, 831-32 (9th Cir. 1990); United States v. Davis, 60 F.3d 1479, 1485 (10th Cir. 1995) (prejudice presumed when court determined jurors had watched television reports of trial); Woods v. Dugger, 923 F.2d 1454, 1460 (11th Cir. 1991) (prejudice presumed due to hostile atmosphere in small rural community in which defendant's trial for killing prison guard took place). Where there exists a "reasonable likelihood that prejudicial news prior to trial will prevent a fair trial," a change of venue should be granted. Sheppard v. Maxwell, supra 384 U.S. at 363.
Here, Petitioner demonstrated both a presumption of prejudice due to the pervasive, negative publicity which attended the proceedings against him, and actual bias on the part of several jurors who sat on the case.
Petitioner filed a motion for change of venue before trial, supported by three (3) affidavits from county residents, and also urged a change of venue motion after jury selection was completed. Both motions were denied. (O.R. 813; Tr. 7/19, 22/91 pp. 141-43)
Petitioner's motion was supported further by the result of a public opinion poll commissioned by defense counsel. No less than forty-two (42) newspaper articles were attached as exhibits to the motion for change of venue. The articles began the day after Sandra Allen's death and continued into trial. The articles described in detail the crime scene, petitioner's arrest, daily reports on the testimony presented at preliminary hearing, and even detailed coverage of the motions filed by the defense. Many of the articles were negative to Petitioner. Media coverage was intense not only in the Bartlesville paper, but in the Tulsa newspaper and on Tulsa television stations, which reach Bartlesville.
The opinion poll conducted by Dr. Kenneth Bailey revealed the depth of feeling against Petitioner in the community. Of those persons expressing an opinion on the case, over 84% believed it was very likely to somewhat likely that the residents of Washington County had already formed an opinion about the guilt or innocence of Mr. Allen. Among those expressing an opinion on the case, fully 50% believed that Petitioner would more likely receive a fair trial outside Washington County. Several respondents expressed views of the case which were not borne out or supported by any evidence, but were merely the result of community rumor or press reports. For example, several respondents believed that the murder was triggered because Mrs. Allen purchased a television set, and that this purchase angered her husband. Several other individuals stated that Mrs. Allen had prior contact with the battered women's shelter or had appeared at work with bruises on her face. The poll demonstrated that the local press was clearly antagonistic to Mr. Allen1 A reading of all responses to the poll demonstrates that media coverage prior to trial caused Washington County residents to generally prejudge Petitioner's guilt.
The opinion poll responses indicate that the vast majority of persons in the county knew a great deal about the supposed facts of the case. Most of these "facts" involved the hiding of the alleged murder weapon, the brutality of the crime, and supposed inconsistencies in Petitioner's statements to authorities. However, despite the pervasive knowledge on the part of residents regarding the alleged facts, many jurors appeared reluctant on voir dire to be forthcoming on these issues. Events during trial showed, however, that the voracious media coverage made it impossible for Petitioner to receive a fair trial.
Each day's events during trial were covered extensively in the Bartlesville newspaper. The court, over repeated objections and motions for mistrial, allowed representatives of the media into chambers when motions, including motions in limine, were argued. Some of these arguments concerned matters that were ruled inadmissible, but the media, of course, reported them anyway.
For example, during an in camera hearing of a motion in limine, the state disclosed what it proposed to present as rebuttal character evidence. This included instances of Petitioner allegedly being "enraged" at work, "attacking a copy machine"; "jerking" one of his children out of the street and hitting him with a stick in the yard; kicking another child; and "exploding" at a young girl playing with the children. All of this proposed evidence was excluded. However, since the media was present for the in camera hearing, all these matters were dutifully reported. Petitioner repeatedly objected to the attendance of the media during in chambers conferences and moved for a mistrial where appropriate. All such objections and motions were overruled. (Tr. 7/15/91 p. 120; Tr. 8/7, 8, 10/91 p. 59-60; Tr. 8/7, 8, 10/91 pp. 146-150) The court also permitted a Tulsa television station to record the in chambers motion to exhume the body, which was broadcast and reported in the print media.
Although the court had previously ordered the media to film and photograph only in the hallways or through the windows, a press photographer for the Bartlesville paper took a picture of Petitioner and defense counsel demonstrating Mr. Allen's actions when he found his wife. The photograph, which showed not only Petitioner, but each member of the jury as well, appeared in the Bartlesville paper. Later, a court bailiff testified regarding contact she had with the jurors shortly after they retired to deliberate. The bailiff testified that several jurors expressed concerns for their safety and were upset because their pictures had appeared in the paper. (Tr. 8/12/91 pp. 42-44) This clearly indicates that during trial, the jurors were tainted by media accounts and ignored the trial court's admonition not to view, read or listen to press accounts of the trial. The jurors could not have known their pictures appeared in the paper unless they were reading the paper, or allowing others to communicate with them regarding press accounts of the case.
The massive number of stories in both the print and broadcast media on this case, the opinions of the community as reflected in the opinion poll, and the events at trial itself as described above make it clear that prejudice should have been presumed because "'the influence of the news media, either in the community large or in the Courtroom itself, pervaded the proceedings.'" Coates v. State, 773 P.2d 1281, 1286 (Okl. Cr. 1989) (held, that trial court abused discretion in failing to grant a change of venue where public official's trial was attended by massive local news coverage and resulting community awareness of the case and prejudice to the defendant; Petitioner's case presents a far more aggravated situation than that found in Coates).
Since a presumption of prejudice stemming from overwhelming news coverage occurred in Petitioner's case, the denial of the change of venue motion, and the affirmance of direct appeal, violated Petitioner's due process rights under the Sixth and Fourteenth Amendments, consistent with the United States Supreme Court and other federal authority cited above.
Coates also applies a second test, "which focuses on the entire circumstances surrounding Appellant's trial to determine whether the Appellant received a 'fundamentally fair' trial." Id. At 1286. The mere fact that the jurors who ultimately sit on the case claim they can be fair is not determinative. Although none of the jurors examined on voir dire stated they could not be impartial, this is belied by the polling results, the fact that many jurors stated they had discussed the case with other individuals who had opinions, and the fact that jurors obviously allowed themselves to be exposed to media accounts during the trial. In any event, since a presumption of prejudice exists, the second test need not even be utilized. Moreover, as is shown immediately below, the Oklahoma standard for determining when a change of venue is warranted itself violated due process.
B. The standard employed by the Oklahoma Court of Criminal Appeals for evaluating change of venue claims violated due process and the right to a fundamentally fair trial. Moreover, the Court of Criminal Appeals in Petitioner's case failed to adequately review Petitioner's renewed motion for change of venue during trial.
The United States Supreme Court in Griffin v. Illinois,.351 U.S. 12 (1956), found that all defendants were entitled to some form of "equal justice." For example, although a state might not be required to provide an appellate system, once it provides an appellate system, it is required to ensure fair treatment of defendants. An appellate court which maintains mutually inconsistent legal standards which it applies selectively, depending on the case before it, violates every modern notion of fundamental fairness, due process and equal protection guaranteed under the 14th Amendment to the Constitution of the United States of America and Article II, section 9, 20, and 21 of the Oklahoma Constitution.
The Oklahoma statute governing venue in a criminal case, 22 O.S. section 561 (1991), provides in pertinent part that the district court may grant a change of venue:
. . . whenever it appears . . . That the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.
In reviewing trial courts' decisions to grant or deny change of venue motions, our Court of Criminal Appeals continues to apply two mutually inconsistent standards. Fro example, in Breechen v. State, 732 P.2d 889 (Okl. Cr. 1987) the Court rejected a change of venue claim, holding that "It is only when a criminal defendant establishes by clear and convincing evidence that a fair trial is a virtual impossibility that such a motion should be granted." Id. At 893. Breechen purported to follow Thompson v. State, 582 P.2d 829 (Okl. Cr. 1978), in which the Court held that a change of venue was warranted "only where it is show that the inhabitants of the district are so prejudiced that a fair an impartial trial for the defendant in that district would be impossible." Id. at 832.
Conversely, in Scott v. State, 448 P.2d 272, 274 (Okl. Cr. 1968), the Court applied the test whether there was "reasonable possibility of prejudice [arising from] wide spread pre-trial publicity, and [a showing of] its possible effect on the jury panel."
In Mr. Allen's case, it is unclear which standard either the trial court or the Court of Criminal Appeals actually applied. The trial court realistically denied Mr. Allen's motions on this subject without really applying any test. The Court of Criminal Appeals denied Mr. Allen relief on this issue primarily relying on Coates v. State, 773 P.2d 121 (Okl. Cr. 1989), in which, as noted above, two entirely different tests were applied for determining whether a defendant's due process rights had been violated due to pretrial publicity.2
The tests set forth by the Court in Coates, supra, were purportedly derived from Murphy v. Florida, supra. Applying the first Murphy test, the Court held in Mr. Allen's direct appeal that his case had generated "substantial pretrial and trial publicity in Washington County, and indeed, in Northeastern Oklahoma." However, the Court summarily concluded, without analysis, that the substantial publicity had not pervaded the proceedings. Applying the second Murphy test -- under the entire circumstance surrounding the trial, if the defendant received a "fundamentally fair" trial -- the Court summarily concluded that publicity had not unfairly affected the trial.
The Court's reasoning here is flawed for numerous reasons, some of which are stated above. Part of the problem lies in the Court's utter failure to address one of the errors raised in Mr. Allen's brief, i.e., that the Court should have granted the Motion for Change of Venue Mr. Allen made during trial. The Court of Criminal Appeals only ruled on Mr. Allen's pre-trial Motion for Change of Venue. See, Allen v. State, 863 P.2d 487 (Okl. Cr. 1993).3
In Allen, supra, the Court of Criminal Appeals was unmoved by the following proof offered in support of Mr. Allen's pre-trial Motion for Change of Venue:
Three affidavits (the statutory requirement) of residents of Washington County stating that Mr. Allen could not receive a fair trial;
An opinion poll taken by an acknowledged expert in the field showed that 84.2% of all residents of that county had either formed an opinion or believed that others had formed an opinion that Mr. Allen was guilty as charged and that 50% of the county believed that Mr. Allen would more likely receive a fair trial outside of Washington County;
Proof, in the form of opinion testimony from that same expert that jurors often hide their true feeling about a case from the trial court and the attorneys, and;
Proof of the extensive media coverage this case received in Northeastern Oklahoma, which was acknowledged by the Court.
The Court of Criminal Appeals held that the "extensive questioning" of the jurors, and lack of proof that the "media pervaded the proceedings" thwarted this claim.
However, the Court failed to take into account the Motion for Change of Venue -- and the circumstances surrounding it -- made by Mr. Allen during trial. As detailed above, the media was inexplicably allowed access to in chambers motion hearings; reported on "evidence" alluded to in these hearings which was ultimately excluded by the trial court; filmed and broadcast in camera argument on the motion to exhume the body; and photographed the entire jury during an in court demonstration. The jurors were exposed to this publicity and expressed security concerns to a bailiff.
The proof of the media frenzy in this case, all offered during trial, along with proof that in violation of the trial court's order, the media invaded the courtroom to take photographs of the defendant and the jury, and proof that published photographs had affected the jury at the commencement of deliberations, all prove that the media had pervaded these proceedings. Murphy v. Florida, supra; Coates v. State, supra.
As if ignoring the problems associated with the media coverage of Mr. Allen's trial wasn't enough, the Court of Criminal Appeals failed to acknowledge what burden Mr. Allen faced on appeal, i.e., the "reasonable possibility" test of Scott or the "virtual impossibility" test of Breechen. It is clear from the evidence offered in support of Mr. Allen's pre-trial Motion for Change of Venue as well as the proof of the media's "invasion" of the trial itself easily meets the reasonable possibility test. Consequently, it would be easy to say that in Mr. Allen's direct appeal, the Court of Criminal Appeals applied the inconsistent "virtual impossibility" test. However, since the Court's opinion does not rule on the Motion for Change of venue made during trial, or even mention the facts underlying that Motion, it is impossible to state accurately which of the test were applied by that Court.
In any event, relief should be granted to Petitioner on this claim because the totality of the circumstances involved in this case clearly demonstrates that Mr. Allen was denied due process of law and a fundamentally fair trial when the trial court failed to grant either of his motions for change of venue. That the Court of Criminal Appeals consistently applies inconsistent standards of review of this issue is further proof of the almost total and complete failure of the courts in this state to apply Oklahoma's change of venue statue in a manner consistent with its plain language and the 14th Amendment to the Constitution of the United States of America.
Moreover, if the Court of Criminal Appeals did apply the "virtual impossibility" standard of Brechen v. State, supra, as logic would dictate, that standard violates Mr. Allen's 14th Amendment rights to due process of law and a fundamentally fair trial. E.g., Sheppard v. Maxwell, supra; Irvin v. Dowd, supra; Rideau v. Louisiana, supra.
First, the Standard is too high to meet. Our courts have never defined it, and no appellant has met it. See, e.g., Hale v. State, 750 P.2d 130 (Okl. Cr. 1988). Moreover, due process and fundamentally fair trial claims have never had to meet such a high standard of review. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).
Moreover, most states use the "reasonable likelihood" standard as set forth in Scott v. State, supra. See, e.g., Martinez v. Superior Court, 29 Cal. 3d 574, 174 Cal. Rptr. 701 (1981); State v. Cuevas, 288 N.W.2d 525 (Iowa 1990); People v. Gendron, 243 N.E.ed 208 (Ill. 1968).
Clearly, the virtual impossibility" standard violates the 14th Amendment.
C. Petitioner's Fourteenth Amendment due process rights were violated when the trial court failed to excuse certain jurors for cause.
The responses of three jurors during voir dire indicated that they could not follow the law, presume Petitioner not guilty, and could not fairly and impartially judge his case. Juror George acknowledged that the prevailing sentiment in the community -- including that of the press -- was that Mr. Allen was guilty. George sttated unequivocally that it would take evidence for him to change his mind in this regard. (Tr. 7/15/91, pp. 22, 23, 27 ,29) Juror Wilson could not judge testimony from Mr. Allen fairly, because he anticipated a defendant who was "guilty" would lie on the witness stand to save himself. ( Tr. 7/18/91, pp. 38, 39, 55, 56, 57, 58) Juror Vanaken, a community leader of long-standing who incredibly professed to have heard nothing about this highly publicized case, made clear that if Petitioner was convicted, the death penalty would be the only appropriate punishment. (Tr. 7/19/91 pp. 60, 70, 71)
Petitioner challenged each of these prospective jurors for cause, and was denied. Petitioner used three (3) of his nine (9) peremptory challenges to excuse these jurors. Petitioner exhausted his peremptory challenges, and identified five (5) other jurors he would have excused with peremptory challenges had he not had to use some of his challenges on these three objectionable jurors. Due to the responses of these three juror, it was apparent that they could not be fair and impartial, were not qualified to serve, and should have been excused for cause. Irvin v. Dowd, supra. Petitioner's due process rights to a full complement of peremptory challenges, and a fair and impartial jury, were denied when he was forced to exercise peremptory challenges on jurors who should have been excused for cause, and jurors who sat on case but would have been excused had Petitioner not had to waste three peremptory challenges were allowed to sit. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).
For all of the foregoing reasons, post-conviction relief should be granted.
NEITHER STATE'S "EXPERT WITNESS" TOM BEVEL NOR ALAN EASTMAN WERE PROPER REBUTTAL WITNESS AT PETITIONER'S JURY TRIAL.
Oklahoma City Police Department Captain Tom Bevel was allowed to testify in Mr. Allen's trial as an expert witness in the field of geometric blood spatter analysis. He was not a proper rebuttal witness because he testimony was a rehash of the evidence offered by the State in its case in chief.
With respect to witness Eastman, the same evidence had been presented through witness Herring in the State's case in chief.
Consequently, Eastman's testimony was both cumulative and rehash of the testimony previously given by Herring.
The Court of Criminal Appeals has long held that rebuttal testimony should not merely be cumulative or a rehash of prior testimony given during the State's case in chief:
The court should not permit a rehash of a witness's testimony given in chief under the guise of rebuttal. Counsel for the State have no more right to reserve the principal testimony and introduce it under the guise of rebuttal nor to rehash testimony introduced in chief under the guise of rebuttal, than the accused would have to reintroduce his testimony after the State has closed the rebuttal. Plumlee v. State, 361 P.2d 223, 225 (Okl. Cr. 1961).
The State knowing violated this rule. Because the rule is one of long-standing vitality in this State, the violation of this rule violates Petitioner's due process rights. See, generally, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.891 (1956); Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980).
Furthermore, the State knowingly violated the discovery order entered in this case as shown below.
Accordingly, the Petitioner, is entitled to a new trial on these claims.
OKLAHOMA CITY POLICE DEPARTMENT CAPTAIN TOM BEVEL AND O.S.B.I. AGENT PERKINS WERE IMPROPERLY QUALIFIED AS EXPERT WITNESSES IN THE FIELD OF GEOMETRIC BLOOD SPATTER ANALYSIS
Oklahoma City Police Department Captain Tom Bevel should not have been qualified as an expert witness because, in reality, he "puffs" his qualifications, has no technical or scientific training outside of a few police department schools, does not have a degree in any technical or scientific field, has no laboratory experience, and cannot support any claim that he makes as an alleged "expert" in this field with any scientific experiments or laboratory work.
Bevel essentially bases his "expertise" on attending a school run by Professor McDonald on geometric blood spatter analysis, the courses he has taught on the subject in Oklahoma, and the number of times he has testified on the subject.
For similar reasons, O.S.B.I. Agent Perkins should not be qualified as an expert witness in this field. More importantly, he has not and will not be able to support the "expert opinions" he offered during Mr. Allen's trial with any laboratory experiments, either.4
At an evidentiary hearing, the Petitioner will prove the following:
Neither of the so called "expert witnesses" should be qualified in the field of geometric blood spatter analysis;
Neither have a sufficient laboratory to conduct scientific work in this field;
Neither have sufficient laboratory experience in this field;
Neither can support the conclusion they offered at the Petitioner's trial with generally accepted scientific methods or laboratory work;
Neither generally use generally accepted scientific methods in arriving at the conclusions they offer;
Both tend to "shade" their opinions to support prosecutorial theories rather than operate as unbiased scientists, and;
The proper methodology for using blood spatter evidence, and how it differs from the methodology used by these witness.
Use of unqualified expert witnesses violates Oklahoma's Evidence Code, 12 O.S. Sections 2702, et seq. Taylor v. State, 889 P.2d 319 (Okl. Cr. 199 ); Clayton v. State, 892 P.2d 646, 651-53 (Okl. Cr. 1995) (O.S.B.I. blood spatter analyst Kenneth Eade found to be unqualified in the field, but due to overwhelming evidence of guilt, admission of his testimony was harmless error). Moreover, to use what is essentially personal opinion rather than true scientific methodology violates a defendant's rights to due process of law and a fundamentally fair trial as guaranteed by both the U.S. and Oklahoma Constitutions. See, e.g., Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Troedel v. Wainwright, 667 F.Supp. 1456 (S.D. Fla. 1986), aff'd 828 F.2d 1456 (11th Cir. 1987); McCarty v. State, 765 P.2d 1215 (Okl. Cr. 1988).
Accordingly, Mr. Allen is entitled to an evidentiary hearing on this issue. At the conclusion of said hearing, Mr. Allen should be granted a new trial.
PETITIONER WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO CONFRONT WITNESSES AGAINST HIM AND TO PRESENT EVIDENCE IN HIS OWN DEFENSE.
Obviously, whether or not the crime scene investigation was properly conducted in this case, and whether evidence was properly preserved and collected, were pivotal issues at trial. The state's case against Petitioner was entirely circumstantial, and largely rested on ;physical evidence of blood spatter and the like.
Approximately two (2) hours after Petitioner alerted 911, an officer came to the scene with a video camera. The video of the crime scene showed a large number of police detectives, officers, and even the District Attorney himself present in the house before it was processed.
Defense witness Blair Gluba was called to comment on the video tape, and counsel desired that the sound portion of the tape be played to the jury. The trial court denied this request. To demonstrate that the crime scene was not adequately secured, that a proper crime scene investigation was not done, and that the police, before conducting a complete investigation, had already jumped to the conclusion that Mr. Allen was the guilty party, it was critical that the audio portion of the tape be played. On the tape, the Bartlesville police chief can be heard asking a detective whether or not he is in charge of the crime scene. The detective, Eddie Mason, respond that there are too many people walking around the crime scene. This statement would have lent further support to Petitioner's claim that the crime scene investigation was botched and that evidence was compromised. Other statements on the tape demonstrate that the police quickly, and without full investigation, discounted the possibility of a burglary and had already trained their sights on Petitioner as the guilty party. Had the audio portion of the tape been played for the jury, Mr. Gluba could have illustrated the inadequacies of the investigation conducted by the Bartlesville police.
In denying Petitioner the right to play the audio portion of the tape, which contained critical evidence supporting his defense that he offense was not properly investigated and that there was a rush to judgment on the part of the police, Mr. Allen was denied his Sixth and Fourteenth Amendment rights to present relevant evidence in his defense. Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The audio portion of the tape also could have been used to cross-examine state's witnesses for impeachment purposes. Disallowing use of the audio portion of the tape therefore denied Petitioner his Sixth and Fourteenth Amendment rights to confront witnesses against him. E.g., Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 12 L.Ed.2d 923 (1965).
Accordingly, Petitioner should be granted post-conviction relief.
DISCOVERY VIOLATIONS COMMITTED BY THE STATE DENIED PETITIONER HIS DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT.
Petitioner filed motions to cease testing on the hammer, and for the production of the rough notes and worksheets of state expert witnesses, particularly Lynette Lee.
As matters developed at trial, O.S.B.I. agent Perkins testified that he found glass particles embedded in the handle of the hammer. The state theorized that Mr. Allen used the hammer to knock out a window in the house, thus "staging" a fake burglary to cover his tracks and throw suspicion on unknown outside perpetrators. However, Lynette Lee of the O.S.B.I. testified at preliminary hearing that she inspected the hammer for glass particles and found none. The hammer was analyzed by defense witness Peter Barnett, who found no glass. Despite the earlier finding by Lee that no glass was embedded in the hammer, the defense received notice a scant month before trial that Perkins had miraculously "found" glass particles in the handle of the hammer, allegedly before the item was analyzed by the defense. At trial, Lynette Lee backtracked from her preliminary hearing testimony that no glass was found by "explaining" that she only examined the head of the hammer for glass, not the handle. This "finding," and its disclosure to the defense, occurred after the final discovery cut-off date. (O.R. 369) This late coming disclosure -- suspect as it was -- was obviously intended as an unanticipated ambush tactic by the prosecution, and assisted greatly its theory that the hammer had been used to stage a burglary. Petitioner protested this late disclosure, to no avail.
The late disclosure of this evidence violated due process in two different ways. First, it violated the due process dictates of McCarty v. State, 765 P.2d 1215 (Okl. Cr. 1988), which discusses both federal and state due process concerns. McCarty held that the untimely disclosure of crucial physical evidence constitutes trial by ambush and denies an accused a fair trial. See also, Miller v. State, 809 P.2d 1317, 1319-20 (Okl. Cr. 1991) (late disclosure of physical evidence which prevented independent testing, and surprise testimony from forensic chemist regarding finding that was not included in forensic report denied due process and a fair trial). The alleged finding of glass where none had been found before also raises the specter of falsification of evidence or misleading scientific testimony on a material matter, which also constitutes a due process violation. Miller v. Pate, supra; Trodedel v. Wainwright, supra.
Related to this due process violation was the trial court's denial of Petitioner's motion for discovery of the worksheets and rough notes of the state's experts. It was particularly important that Petitioner have access to the notes of Lynette Lee's examination of the hammer for foreign materials, such as glass. Since Lee dramatically altered her preliminary hearing testimony to fit the state's scenario at trial, these notes constituted possible exculpatory evidence which could have been used for impeachment purposes. Kyles v. Whitley, __U.S.__, 115 S.Ct. 1555 (1995); United States v. Bagley, 437 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Additionally, the denying defense counsel access to the notes prevented him from effectively confronting witnesses against him, in violation of the Sixth and Fourteenth Amendments. E.g., Maryland v. Craig, supra; Coy v. Iowa, supra.
Accordingly, Mr. Allen should be granted post-conviction relief.
BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT, PETITIONER'S CONVICTION MUST BE VACATED AND THE CHARGE DISMISSED.
The evidence presented against Petitioner was entirely circumstantial. In Oklahoma, for a conviction to be founded on circumstantial evidence, that evidence must exclude all reasonable hypotheses other than guilt and be inconsistent with any reasonable claim of a defendant's innocence. E.g., Woodruff v. State, 846 P.2d 1124, 1133 (Okl. Cr. 1993); Greer v. State, 763 P.2d 106, 107 (Okl. Cr. 1988); Smith v. State, 695 P.2d 1360, 1362 (Okl. Cr. 1985). If any rational trier of fact could have reached a guilty verdict upon a review of the entire record, then the evidence is sufficient to support the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Conversely, if no rational trier of fact could have found reached a verdict of guilt, a conviction cannot stand and violates the due process. E.g., Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).
Here, the evidence did not exclude all reasonable hypotheses other than guilt, and no rational trier of fact could have found Petitioner guilty. As was demonstrated in Ground Two above, Petitioner was largely convicted as a reflex to pervasive, prejudicial publicity and negative community sentiment.
The following demonstrates that the evidence was constitutionally insufficient to convict.
The state's speculative theory was that Petitioner killed his wife because of marital difficulties and "staged" the crime scene to suggest that a burglar had broken into the house and bludgeoned Sandra Allen. The state drew particular attention to the fact that Petitioner hid the hammer, which was the alleged murder weapon, in the attic.
Arrayed against this circumstantial theory were several significant facts which showed that the circumstantial theorizing of the state was insufficient for a finding of guilt beyond a reasonable doubt, and was entirely consistent, indeed, dispositive of Mr. Allen's innocence.
During the autopsy, Dr. Hemphill found a contact lens on the decedent's body which did not match the prescription for Sandra Allen or Stephen Lee Allen. This clearly points to a perpetrator other than Petitioner. Petitioner not only proved that the prescriptions did not match through expert testimony, but that two contact lenses were removed from the cheeks of Sandra Allen at the hospital before the autopsy was performed and the third contact lens was found. (Tr. 7/30, 8/1/91 pp. 176-181, 185, 188, 206, 207; Tr. 8/2, 6, 7/91 pp. 259; 265, 267 268) This circumstantial evidence was not only inconsistent with guilt, but entirely consistent with innocence.
The state offered supposed "motive" evidence of an affair between Mr. Allen and Deborah Aubrey, but the totality of the evidence showed that this was not motive for murder because the affair had been discontinued some six (6) months before the murder. ( Tr. 7/23, 25, 26/91 pp. 201-205) The prosecution did not even argue that this was the motive for the murder in closing argument. Even conceding the evidence of an extra-marital affair which ended one half year before the killing, the fact of an extra-marital affair by itself does not prove murder and does not foreclose all reasonable hypotheses other than guilt.
Within an hour and a half before her death, Sandra Allen received a suspicious telephone call at work from an individual who claimed to be an old school acquaintance of Petitioner's. When Sandra Allen confronted the caller with the facts that since she went to school with Stephen Allen and knew all of his school acquaintances, the caller hung up. This caller was obviously not Petitioner. This circumstantial evidence points to another perpetrator and is consistent with innocence.
The blood spatter evidence, some of the most significant evidence at trial, was not entirely consistent with guilt, and did not foreclose all reasonable theories of Petitioner's innocence. In fact, the great weight of the evidence on blood spatter pointed unerringly toward Mr. Allen's innocence. Two preeminent experts in the field, Bart Epstein and Terry Laber, testified that they exhaustively analyzed the evidence and performed verifying experiments. Each expert testified that the bloodstains on Petitioner's clothing were entirely consistent with the actions Petitioner described in attempting to render aid to this wife and to revive her. Significantly, there was no brains or other tissue on Petitioner's clothing. These experts testified that it was not possible for Petitioner to have killed his wife as the state suggested and not have tissue on his clothing. Moreover, Petitioner could not have "staged" blood stains on his clothing which were entirely consistent with his version if he indeed was the killer. (Tr. 8/6, 9, 12/91 pp. 40, 41; Tr. 8/7, 8, 10/91 p. 274; Tr. 8/1, 5, 6/91 p. 278) On the other hand, the O.S.B.I. "expert" Douglas Perkins, based his review on looking at only the shoes and shirt Petitioner was wearing, and not his shorts. Perkins did not view the crime scene. Perkins could not explains the absence of tissue on Petitioner's clothing, and how the absence of tissue was in any way consistent with Mr. Allen being the perpetrator. Furthermore, the analysis Perkins performed on Petitioner's shirt was invalid because he did not view the spatter as it would have appeared with a person wearing the shirt. Perkins simply looked at the shirt lying flat. Finally, as was shown above, the testimony and methodology of Perkins and rebuttal witness Tom Bevel is highly suspect and verges on forensic quackery.
The state's theory was that the ball peen hammer Petitioner "hid" in the attic was the murder weapon. The state theorized that this hammer, which belonged to the Allens, was used to inflict the injuries, and that Mr. Allen then "staged" the crime scene to suggest a burglary. However, the evidence did not exclude all reasonable theories that the hammer in fact was not the murder weapon. The most persuasive evidence was that the hammer could not have been the murder weapon. Dr. Robert Hemphill testified that he could not identify the hammer as having caused the injuries, but could not exclude it, either. Dr. Michael Baden, one of the most highly regarded medical examiners in the world, testified that a hammer leaves distinct tool marks in any surface it strikes, and no such marks were present in the injuries sustained by Sandra Allen. Therefore, the hammer could not be the murder weapon. Other defense experts, Peter Barnett and Terry Laber, testified that there was no blood on the surface of the hammer or in crevices in the hammer. Blood would necessarily have been in the crevices had the hammer been used to inflict the injuries. Thus, the overwhelming evidence showed that the hammer was not the murder weapon. The real murder weapon has never been found.
In light of the foregoing, post-conviction relief should be granted, Petitioner's murder conviction must be vacated, and the charge dismissed. Burks v. United States, supra.
REQUEST FOR EVIDENTIARY HEARING
Petitioner requests an evidentiary hearing to support his claims, particularly on any ground for relief involving contested issues of fact. Petitioner believes that this application on its face entitles him to relief. Petitioner reserves the right to amend this application within the time period allowed by Oklahoma law.
Based on the foregoing argument and authority, Petitioner prays that post-conviction relief be granted, that his conviction be set aside with instructions to dismiss the charge of sufficiency of the evidence grounds, or that, in the alternative, his conviction be set aside and a new trial ordered.
Respectfully submitted,
David Autry,
William C. Devinney
Oklahoma City, OK 73106
1 The following are some of the views expressed in the opinion poll, which were attached as Exhibit D to Petitioner's Brief in Support of Petition for Writ of Mandamus, Case No. 0-91-526:
"The paper makes him sound guilty." (Comment No. 29);
"Due to the newspaper, a lot of people feel he can't get a fair trial." (Comment No. 56);
"Everything I've read or heard sounds like they've already pronounced him guilty." (Comment No. 104);
"From what I read the prosecutor convinced me he murdered his wife." (Comment No. 133);
"It Sounds like he's guilty and I think the new is slanted that way , too." (Comment No. 166);
"Between the newspaper and me it looks like he did it." (Comment No. 169)
"I know what I read in the papers. I read in the paper his is pleading not guilty. I think he is guilty -- everything points to it." (Comment No. 180);
"The paper basically said he did it." (Comment No. 191);
"I think that they basically reported the crime and his alibi wasn't very good and he was arrested. I remember there was a great deal published about it. There was a great deal of presumption published in it." (Comment No. 205);
"Well, what I've read is from the local newspapers and reports from experts on the way the blood flies when you ht the body from different angles. I think he's guilty. They wouldn't want me on the jury because I think he's guilty." (Comment No. 237)back
2 Interestingly, Coates did not overrule either Breechen, Thomson or Scott. Of course, as further proof of this State's continuing inconsistent position on change of venue motions, Breechen did not overrule Scott, either. back
3 Thus, since this issue has never been properly and fully decided by an appellate court, no claim of res judicata can forestall this claim. back
4 The allegations made in this proposition are similar to allegations made by F.B.I. chemist Whitehurst against other F.B.I. "experts." These allegations resulted in an U.S. Inspector General's Report detailing the many abuses of the F.B.I. Lab, and hence supporting Whitehurst's claims. The only significant difference between the claims made in this proposition and Whitehurst's claims is that the problems with theses witnesses and, incidentally, with the O.S.B.I. and Oklahoma City Police Department crime labs as a whole -- is much worse. back
lh 2000