IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
FILED DEC 4 1997
CASE NO. CIV-97-1937 C
STEPHEN LEE ALLEN,
Petitioner,
v.
THE STATE OF OKLAHOMA
Respondent.
PETITION FOR WRIT OF HABEAS CORPUS BY A PRISONER IN STATE CUSTODY
Submitted by:
David Autry
December 4, 1997
INDEX
Authority:
Allen v. District Court of Washington County, 803 P.2d 1164 (Okl. Cr. 1990)
Allen v. State, 862 P.2d 487 (Okl. Cr. 1993)
Allen v. Oklahoma, ___U.S.___, 144 S.Ct. 1657, 128 L.Ed.2d 375 (1994)
MR. ALLEN 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 PETITIONER, DEMONSTRATED BOTH THE APPEARANCE AND THE ACTUALITY OF BIAS ON THE PART OF THE COURT.
Authority:
Aetna Life Insurance Company v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986)
Liteky v. United States, ___U.S.___, 114 S.Ct. 1147, 1157 (1994)
United States v. Antar, 53 F.3d 568, 576-77 (3rd Cir. 1995)
Wahlberg v. Israel, 766 P.2d 1071, 1077-78 (7th Cir. 1985)
28 U.S.C. Section 2254
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.
Authority:
Chandler v. Florida, 499 U.S. 560, 574, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981)
Coates v. State, 773 P.2d 1281, 1286, (Okl. Cr.. 1989)
Estes v. Texas, 381 U.S. 532, 544, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965)
Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)
Murphy v. Florida, 421 U.S. 794, 800-03, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1974)
Norris v. Risley, 918 P.2d 828, 831-32 (9th Cir. 1990)
Rideau v. Louisiana, 373 U.S. 723, 726-27, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)
Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)
United States v. Davis, 60 F.3d 1479, 1485 (10th Cir. 1995)
Woods. v. Dugger, 923 F.2d 1454, 1460 (11th Cir. 1991)
Authority:
Ake v. Oklahoma, 470 U.S. 68,105 S. Ct. 1087, 84 L.Ed.2d 53 (1985)
Allen v. State, 863 P.2d 487 (Okl. Cr. 1993)
Brecheen v. State, 732 P.2d 889 (Okl. Cr. 1987)
Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585 (1956)
Hale v. State, 750 P.2d 130 (Okl. Cr. 1988)
Martinez v. Superior Court, 29 Cal. 3d 574, 174 Cal. Rptr. 701 (1981)
People v. Gendron, 243 N.E.ed 208 (Ill. 1968)
Scott v. State, 448 P.2 272, 274 (Okl. Cr. 1968)
State v. Cuevas, 288 N.W.2d 525 (Iowa 1990)
Thompson v. State, 582 P.2d 829, (Okl. Cr. 1978)
22 O.S. section 561 (1991)
Authority:
Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988)
28 U.S.C. section 2254
NEITHER STATE'S "EXPERT WITNESS" TOM BEVEL NOR ALAN EASTMAN WERE PROPER REBUTTAL WITNESSES AT PETITIONER'S JURY TRIAL.
Authority:
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)
Plumlee v. State, 361 P.2d 223, 225, (Okl. Cr. 1961)
28 U.S.C. Section 2254
PETITIONER WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO CONFRONT WITNESSES AGAINST HIM AND TO PRESENT EVIDENCE IN HIS OWN DEFENSE.
Authority:
Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988)
Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990)
Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 12 L.Ed.2d 923 (1965)
Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)
Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)
Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972)
28 U.S.C. section 2254
DISCOVERY VIOLATIONS COMMITTED BY THE STATE DENIED PETITIONER HIS DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT.
Authority:
Kyles v. Whitley, __U.S.__, 115 S.Ct. 1555 (1995)
McCarty v. State, 765 P.2d 1215 (Okl. Cr. 1988)
Miller v. State, 809 P.2d 1317, 1319-20 (Okl. Cr. 1991)
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 670 (11th Cir. 1987)
United States v. Bagley, 437 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)
28 U.S.C. section 2254
BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT, PETITIONER'S CONVICTION MUST BE VACATED WITH INSTRUCTIONS TO DISMISS.
Authority:
Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)
Greer v. State, 763 P.2d 106, 107 (Okl. Cr. 1988)
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
Woodruff v. State, 846 P.2d 1124, 1133 (Okl. Cr. 1993)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CASE NO. CIV-97-1937 C
STEPHEN LEE ALLEN,
Petitioner,
v.
THE STATE OF OKLAHOMA
Respondent.
PETITION FOR WRIT OF HABEAS CORPUS
Stephen Lee Allen, through counsel, pursuant to 28 U.S.C. section 2254, petitions this Court to grant a writ of habeas corpus. In support of this petition, Mr. Allen presents the following argument and authorities.
During this habeas corpus proceeding, citation to various portions of the record from the State courts will be necessary. Mr. Allen requests that this Court enter an order directing the Oklahoma Court of Criminal Appeals to transmit the complete records and transcripts in Case No. 0-91-526 (petition for writ of prohibition and /or mandamus filed pretrial regarding change of venue issue), Case No. F-92-120 (Direct Appeal) and PC-97-1370 (Post-Conviction) be transmitted to this Court for review. This request includes all pleadings, briefs, exhibits, transcripts, and all other such matter contained in the record of the above two case numbers.
Citation to the trial transcript will be (Tr.)
Citation to the original record of trial proceedings will be (O.R.)
Citation to the Original record of the post conviction proceedings will be (P.C.O.R.)
Mr. Allen was charged by information 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. (O.R. 1)
Before trial, Petitioner 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 (Okla. 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 trials 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 right 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).
Petitioner filed an application for post-conviction relief in the District Court of Washington County on April 24, 1997. (P.C.O.R. 1-37) On September 9, 1997, the District Court denied the application by written order. Notice of intent to appeal to the Oklahoma Court of Criminal Appeals and designation of record were filed with the District Court on September 16, 1997. (P.C.O.R. 51, 52)
Petitioner filed his petition in error and brief in support of his appeal from the District Court's denial of post-conviction relief on October 8, 1997. On November 14, 997 the Oklahoma Court of Criminal Appeals issued an unpublished order affirming the denial of post-conviction relief, holding that all issues raised in the post-conviction proceedings had been determined on the merits of direct appeal, and that the doctrine of res judicata barred their consideration in post-conviction proceedings. Petitioner has exhausted all available state remedies.
The following facts were established by Petitioner during the course of the trial. On June 11th, 1990, some five days prior to the Allens' tenth wedding anniversary, Petitioner went to work as usual. Petitioner and his wife were planning a brief anniversary celebration in the Ozarks where reservations had already been made.
Following work, Petitioner returned home and his wife left shortly thereafter to go tot work at Dillards department store. Petitioner finished making dinner for himself and his youngest son, the older two sons being at his in-laws home in Missouri. After dinner, Petitioner and his youngest son mowed the lawn, cleaned up, and went to Dillards department store to see Petitioner's wife. Shortly before his arrival, Petitioner's wife had received a telephone call from someone pretending to be an old school mate of Appellant and wanting to know where Mr. Allen was. The caller hung up when Petitioner's wife indicated to the unknown caller that she knew everyone Petitioner went to school with.
Mr. Allen and his son visited other stores in the shopping mall and returned back to Dillards department store and talked to Petitioner's wife. Petitioner 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. Petitioner 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, Mr. Allen saw the figure of a person at the edge of the patio coming south towards him. When the car lights hit the figure, the figure turned and ran north. Petitioner 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. Mr. Allen turned his wife over and attempted to get some response from her. He then saw the signs of a struggle in the living room and stood for an undetermined period of time surveying the scene.
Petitioner then returned to his wife's body, straddled her, and shook her in an attempt to get some response from her. When this failed, he went 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. Mr. Allen, 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, Petitioner wiped the hammer with paper towels and took the hammer and towels to the attic by way of the garage. Petitioner returned to the kitchen area and called 911. Mr. Allen remained on the telephone line until a police officer arrived at the residence. Petitioner 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 an 6:00 A.M. on June 12th 1990. Mr. Allen turned himself in at the request of the District Attorney's office following the funeral of his wife on Friday, June 15th, 1990.
GROUNDS FOR RELIEF
GROUND I
MR. ALLEN 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 PETITIONER, DEMONSTRATED BOTH THE APPEARANCE AND HE 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 defense witnesses, including Petitioner. The skeptical disbelieving nature of the court's questions made it obvious that he found the testimony of theses witnesses suspect or somehow not worthy of the jury's belief. These episodes demonstrate that the court was more interested in acting as 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. Mr. Allen testified that he found the hammer, which was generally used by the children as a toy, on the kitchen counter. Mr. Allen 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 he recalled, 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, Appellant panicked and took it to the attic.
In its questioning, the trial court expressed skepticism that Petitioner would not know were 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 Mr. Allen'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 other wise 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 for 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 form the victim or, for that matter, anyone else 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 eyes 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, deprived Petitioner of his federal due process rights. 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.3d 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 could 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); Aetna Life Insurance Company v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d. 823 (1986) (due process denied where biased judge, who had financial interest in outcome of case, heard case).
In this case, the trial court's bias was evident not only in his questioning of defense witnesses, but in his rulings on the admissibility of prejudicial evidence which should have been kept from the jury. (See below)
The Oklahoma Court of Criminal Appeals ruling on direct appeal rejecting this issue, and its later rejection of this issue in post-conviction proceedings, resulted in a decision contrary to, or was an unreasonable application of, established federal law. The decision was also an unreasonable determination of the facts as found in the trial court record. Accordingly, habeas relief should issue. 28 U.S.C. section 2254 (d) (1) (2).
GROUND II
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.
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 U.S. 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 results 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, Mr. Allen'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 Appellant. 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 feelings against Appellant in the community. Of those persons expressing an opinion on the case, over 84% believed it was very likely to some what 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. Allen.1 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 th4e 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 indicated 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 know they 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.d. 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; Appellant'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 and in state collateral proceedings, violated his 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 under Oklahoma law. 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 violates due process.
B. The standard employed by the Oklahoma Court of Criminal Appeals for evaluating change of venue claims violates due process and the right to a fundamentally fair trial. Moreover, the Court of Criminal Appeals in Mr. Allen'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, 76 S.Ct. 585 (1956), found that all defendants were entitled to some form of "equal justice." For example, although a sate might not be required to provide an appellate system, once it provides for one, 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.
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. For example, in Brecheen 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. Brecheen 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 shown that the inhabitants of the district are so prejudiced that a fair and 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 a "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 Oklahoma Court of Criminal Appeals actually applied. THe trial court realistically denied Mr. Allen's motions on this subject without really applying any test. The Oklahoma appellate court denied Mr. Allen relief on this issue primarily relying on Coates v. State, 773 P.d. 1281, 1286, (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 Oklahoma court in Coates, supra, were purportedly derived from Murphy v. Florida, supra. Applying the first Murphy test, the Oklahoma 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 circumstances 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 was 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 direct appeal, i.e., that the Court should have granted the Motion for Change of Venue Mr. Allen made during trial. The Oklahoma appellate court only ruled on Mr. Allen's pre-trial Motion for Change of Venue. See, Allen v. State, 863 P.2d 487 (Okl. Cr. 1993).
In Allen, supra, the Oklahoma 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 some expert that jurors often hide their true feelings 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 of Criminal Appeals.
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; filmed and broadcast in camera argument on the motion to exhume the body; and photographed the entire jury 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 demonstrate that the media had pervaded these proceedings. Murphy v. Florida, supra.
As if ignoring the problems associated with the media coverage of Mr. Allen's trial wasn't enough, the Oklahoma 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 Oklahoma 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 tests were applied by the 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. Then the Oklahoma Court of Criminal Appeals consistently applies inconsistent standards of review to this issue is further proof of the almost total and complete failure of the courts in Oklahoma to apply Oklahoma's change of venue statute in a manner consistent with its plain language and the 14th Amendment to the Constitution of the United States of America, and United States Supreme Court cases construing due process rights in the context of change of venue requests.
Moreover, if the Court of Criminal Appeals did apply the "virtual impossibility" standard of Brecheen 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. The Oklahoma courts have never defined it, and no defendant 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.
Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585 (1956)
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 Mr. Allen 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 stated 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. 69, 70, 71)
Mr. Allen challenged each of these prospective jurors for cause, and was denied. Mr. Allen 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 jurors, 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 Mr. Allen not had to wast 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, habeas relief should be granted. The decision of the Oklahoma Court of Criminal Appeals on this issue in the direct appeal, and its later rejection of this same issue in post-conviction proceedings, was contrary to or and unreasonable application of clearly established Supreme Court precedent, and was equally unreasonable in light of the facts presented in the pretrial and trial court record. 28 U.S.C. section 2254 (d) (1) (2).
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 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 his 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 States's case in chief.
Consequently, Eastman's testimony was both cumulative and a rehash of the testimony previously given by witness Herring.
The Oklahoma 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 longstanding vitality in Oklahoma, the violation of this rule violated Petitioner's federal 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, Petitioner is entitled to habeas relief under the standards of 28 U.S.C. Section 2254.
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 Mr. Allen was entirely circumstantial, and largely rested on physical evidence of blood spatter and the like.
Approximately two (2) hours after Petitoner alerted 911, an officer came to the secen 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 Guba 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, responds 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 statement 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 Appellant as the guilty party. Had the audio portion of the tape been played for the jury, Mr. Guba 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 the 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 habeas relief under the standards of 28 U.S.C. section 2254
DISCOVERY VIOLATIONS COMMITTED BY THE STATE DENIED PETITIONER HIS DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT.
Mr. Allen 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, OSBI 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 tricks 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 hammmer 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 had 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. 269) This late coming disclosure -- suspect as it6 was -- was obviously intended as an unanticipated ambush tactic by the prosecution, and assisted greatly its theory that he 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, 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 670 (11th Cir. 1987).
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, 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 habeas relief. The decision of the state court's meets the standards set forth in 28 U.S.C. section 2254 (d).
BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT, PETITIONER'S CONVICTION MUST BE VACATED WITH INSTRUCTIONS TO DISMISS.
The evidence presented against Mr. Allen was entirely circumstantial. In Oklahoma, for a conviction to be founded on circumstantial evidence, theat 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). 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 proceess. 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, Mr. Allen was largely convicted as a reflex to pervasive, prejudicial publicity and negative community sentiment.
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 Mr. Allen 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. 3
Because the entirety of the trial record demonstrates that, even in the light most favorable to the state, the evidence was legally insufficient to support the conviction, habeas relief should be granted under 28 U.S.C. section 2254.
CONCLUSION
Based on the foregoing reasons and authorities, this Court should grant habeas corpus relief to Stephen Lee Allen.
Respectfully submitted,
David Autry
Oklahoma City, OK
1The 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. 54); "His case has been highly publicized. I think he's guilty. Things just don't fit. His story keeps changing." (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 news 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 he 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 newspaper and reports from experts on the way the blood flies when you hit 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)
2Interestingly, Coates did not overrule either Breechen, Thomsen 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.
3 During the autopsy, Dr. Hemphill found a contact lens on the decedent's body which did not match the prescription for Ms. Allen or Appellant. This points to a perpetrator other than Mr. Allen. Two contact lenses were removed from the cheeks of Sandra Allen at the hospital before the autopsy was performed and a third contact lens was found. (Tr. 7/30/, 8/1/91 pp. 176-81, 185, 188, 206, 207; Tr. 8/2, 6, 7/91 pp. 259,265, 267-68) This circumstantial evidence was not only inconsistent with guilt, but entirely consistent with innocence.
Shortly before her death, Sandra Allen received the suspicious phone call referred to in the Statement of Facts. This circumstantial evidence points to someone other than Mr. Allen.
The blood spatter evidence was not entirely consistent with guilt. In fact, the great weight of blood spatter evidence pointed toward innocence. Two defense experts testified that the bloodstains on Petitioner's clothing were entirely consistent with the actions Mr. Allen described in attempting to render aid to his wife. There was no brain or other tissue on Petitioner's clothing. These experts testified that it was not possible for Appellant to have killed his wife without getting tissue on his clothing. Mr. Allen could not have "staged" blood stains on his clothing which were entirely consistent with his version. ((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 OSBI witness, Doug Perkins, based his review on looking at only the shoes and shirt Petitioner was wearing, not his shorts. Perkins did not view the crime scene. He could not explain the absence of tissue on Petitioner's clothing, or how this fact was consistent with Mr. Allen being the killer. Perkins analysis of the shirt was invalid because he did not view the spatter as it would have appeared with a person wearing the shirt.
The state's theorized that the ball peen hammer was the murder weapon, and that Mr. Allen then "staged" the crime scene. However, the evidence did not exclude all reasonable theories that the hammer was in fact not the murder weapon. Dr. Hemphill could not identify the hammer as the murder weapon, but could not exclude it. Dr. Michael Baden testified that a hammer leaves distinct tool marks on any surface it strikes; no such marks were present on the body. Thus, the hammer could not be the murder weapon. Other defense experts, Peter Barnett and Terry Lauber, testified there was no blood on the surface of the hammer or in crevices in the hammer. Blood would necessarily have been in the crevices if the hammer was used to inflict the injuries. Thus, the hammer could not have been the murder weapon. Back
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