Barry v. Moham

Filing 22

OPINION AND RDER by Judge Ronald A. White : Denying 1 Petition for Writ of Habeas Corpus (2241/2254). Petitioner also is denied a certificate of appealability. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

MICHELLE ANN BARRY,
Petitioner,
v.
DEBBIE ALDRIDGE, Warden,
Respondent.

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Case No. CIV 13-040-RAW-KEW

OPINION AND ORDER
This matter is before the court on Petitioner’s petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. Petitioner, a pro se inmate currently incarcerated at Mabel
Bassett Correctional Center in McLoud, Oklahoma, attacks her conviction in Latimer County
District Court Case No. CF-2003-093 for First Degree Murder. She sets forth the following
grounds for relief:
I.

Admission of hearsay evidence.

II.

Trial was infected with improper and inadmissible opinion testimony
which invaded the province of the jury, resulting in denial of a fair trial
and due process of law.

III.

Improper admission of bad character evidence which violated right to
due process and a fair trial.

IV.

Abuse of discretion by the trial court in admitting gruesome and
inflammatory autopsy photographs.

V.

Petitioner was deprived of the effective assistance of counsel.

VI.

Accumulation of error in this case deprived the petitioner of due
process of law.

The respondent concedes that Petitioner has exhausted her state court remedies for the
purpose of federal habeas corpus review. The following records have been submitted to the
court for consideration in this matter:
A.

Petitioner’s direct appeal brief.

B.

The State’s brief in Petitioner’s direct appeal.

C.

Summary Opinion affirming Petitioner’s Judgment. Barry v. State, No.
F-2009-1120 (Okla. Crim. App. Jan 25, 2012).

D.

State court record.

Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus
relief is proper only when the state court adjudication of a claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d).
Facts
The Oklahoma Court of Criminal Appeals (OCCA) set forth the facts of this case in
its Opinion affirming Petitioner’s Judgment:
At approximately 4:00 a.m. on August 17, 2003, Mary Gideon and her
husband were awakened by knocking on the front door of their home in
Wilburton, Oklahoma. They opened their door to Appellant standing on their
front porch yelling, “Help me! Help me!” Mr. Gideon called 911 while Mrs.
Gideon followed Appellant to the house next door where Appellant and her

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two children, five-year-old A.H. and seven-month-old Andrea, lived with
Appellant’s parents. Appellant’s mother, father, and A.H. were standing on
the front porch when they arrived. Mrs. Gideon went inside with Appellant
where she saw the baby, Andrea, on the couch in the living room. The child
was naked and motionless with bruises on her head and body. Her body was
cool to the touch, her eyes were fixed, and she was not breathing and appeared
to have no pulse.
The police and EMTs responded to the 911 call, and Andrea was taken
to the hospital by ambulance where she was pronounced dead upon arrival.
The doctor who saw her in the emergency room believed that she had been
dead for an hour.
Appellant spoke with Latimer County Deputy Sheriff Robert Bias at the
hospital. He asked her what happened to the baby and she told him that her
five-year-old son, A.H., hit the baby in the head. Later that day Appellant
waived her Miranda rights and spoke with John Hobbs, Director of Law
Enforcement for the Choctaw Nation. During the interview, Appellant told
Hobbs that she gave Andrea a bottle and put her to bed at 11:00 p.m. on
August 16, 2003. She stated that she woke and found Andrea unresponsive in
the hallway just outside the bedroom door. When asked what she thought had
happened, Appellant responded, “I think A.H. hit her in the head with a board.
I woke up and found A.H. standing in the hallway next to Andrea and there
was a board lying on the floor next to her.” Toward the end of the interview,
Appellant told Bias that if she did kill the baby she didn’t remember doing it.
At trial, Appellant’s mother, Elizabeth Barry, testified that on August
16, 2003, Appellant left the house at 4:30 p.m. and came home around 10:30
p.m. During the time that Appellant was gone, Mrs. Barry watched the
children. After Appellant came home, she took the children into her room to
go to bed at around 11:00 p.m. Mrs. Barry and her husband also went to bed
at this time. At 11:30 p.m., Mrs. Barry’s other daughter, Angela, came to the
house and told Mrs. Barry that her car had broken down not very far away.
Mrs. Barry drove Angela back to her car and then drove to a Handy Stop
where she called Don Kilpatrick to come help Angela. Around midnight, Mrs.
Barry went back home. She looked into Appellant’s room where she saw
Appellant and A.H. asleep in the bed and she heard Andrea cooing in her
bassinet. Mrs. Barry went back to bed.
Mrs. Barry testified that sometime during the night, she heard water
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running and she got up to investigate the source. She went out into the hall
where she saw Robert Heath coming out of the bedroom.1 Heath acted
surprised to see her and said, “Oh, Beth.” He told her, “Well, I just came by
to clean up.” He had two girls with him and he introduced them to Mrs. Barry.
One of the girls, Christa Jones, came from the living room and got A.H. and
took him by the hand down the hall. Heath told Mrs. Barry that the girls were
going to help Appellant so that she could get some rest. Although Mrs. Barry
thought this was strange, she was sleepy so she just went back to bed. When
questioned at trial, Mrs. Barry admitted that she did not mention seeing Heath
or the two girls with him in the statement she made to the police shortly after
the event nor did she mention it in any of her testimony at prior proceedings.
This was the first time Mrs. Barry had told anyone that she saw Heath and the
two girls in the house on the night that Andrea was killed.
Don Kilpatrick testified that on August 16, 2003, he lived with
Appellant’s sister, Angela. He testified that on this date, Mrs. Barry called him
and told him that Angela’s car was broken down a short distance from the
Barry’s house. Kilpatrick went to where Angela’s car was broken down to
check it out. While he was working on the car, a white car drove by slowly,
turned its lights out, and parked around the curve near the Barry house.
Kilpatrick heard a car door shut. A short time later, the car drove back by and
it was occupied by only one person. Kilpatrick continued to work on Angela’s
car. When he finished, at around 1:00 or 1:30 a.m., he saw Robert Heath
walking away from him toward the Barry’s house.
Mrs. Barry’s and Kilpatrick’s testimony that Robert Heath was seen in
and near the Barry house on the night that Andrea was killed was not
undisputed. Robert Heath testified at trial that on the afternoon and evening
of August 16, 2003, he was at Jose Vanzuela’s house drinking beer. At or
about 3:00 in the afternoon, Appellant came over to Vanzuela’s house where
she and Heath argued about money. While they were arguing, Heath thought
he saw the police coming and he took off running toward the back of the
apartments, because he did not want to be arrested on an outstanding warrant.
As he ran around the apartments at full speed, he hit a window air conditioner
with his head. When he walked back around to the front, Heath had blood
running down his face and a large injury to his forehead. Appellant and
Vanzuela told Heath to go get help and when he refused Vanzuela asked both

1

Robert Heath was A.H.’s and Andrea’s father. He had lived in the Barry home before when
he was dating Appellant but was not living there in August of 2003.
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Appellant and Heath to leave. Appellant and Vanzuela parted ways, and Heath
walked to a trailer park where some girls he knew were staying. The girls
called an ambulance, and Heath was taken to the hospital. After Heath’s head
was treated, he was arrested for public intoxication on the outstanding warrant,
and he was placed in the drunk tank in the Latimer County Jail until the next
day when he was taken to the Choctaw Tribal Building and told that his
daughter, Andrea, had been killed during the night.
Heath’s testimony was corroborated by several witnesses at trial.
Vanzuela testified that Heath and Appellant were at his house arguing on
August 16, 2003, and after Heath split his head open, he asked them both to
leave. Wilburton Police Officer Jesse James testified that on August 16, 2003,
he was dispatched to a medical emergency at a trailer park. When he arrived,
he saw that the injured person was Heath. Because Officer James knew that
Heath had an outstanding warrant, he followed the ambulance to the hospital.
After Heath had been treated and released, James took Heath into custody and
booked him into the Latimer County Jail. Heath was stumbling drunk when
James booked him into the jail, and James watched as Heath was put into the
drunk tank. James saw Heath again the following day at 3:00 p.m. when he
went to the jail to get Heath to take him to the Choctaw Tribal Building.
Officer James testified that Heath looked the same when he got him out of the
jail on August 17 as he did when he was booked into jail on August 16. Tim
Baker, who was the Wilburton Police Chief in August 2003, testified that he
was with Officer James when Heath was arrested and booked into the Latimer
County Jail at around 11:30 p.m. on August 16, 2003. To his knowledge,
Heath was in the Latimer County Jail from 11:30 p.m. on August 16, 2003,
until he was taken to be interviewed at about 3:00 p.m. the next day.
Barry v. State, No. F-2009-1120, slip op. at 1-6 (Okla. Crim. App. Jan. 25, 2012) (footnote
renumbered).
The OCCA’s factual findings are entitled to a presumption of correctness, unless
Petitioner produces clear and convincing evidence to rebut the presumption. 28 U.S.C. §
2254(e)(1).
Ground I: Admissibility of Hearsay Testimony
Petitioner alleges in Ground I that Robert Heath killed their daughter Andrea. In

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support of this theory, the defense attempted to call Janet Clark as a witness. Ms. Clark was
prepared to testify that two frantic young women came to her house in the early morning
hours of August 17, 2003, and claimed they had been at Petitioner’s house where they
witnessed Robert Heath throw his baby against the wall. The State objected to Ms. Clark’s
testimony, arguing it was inadmissible hearsay. The defense asserted that these eyewitness
statements were admissible as excited utterances or the present sense exceptions to the
hearsay rule. The prosecutor, however, alleged there was no indicia of reliability with the
statements, because they did not come to light until 2007, allowing time and motive to
fabricate. The trial court excluded the proffered testimony, finding the statements made by
the witnesses to Janet Clark were not admissible as excited utterances, because “there was
quite a time lapse between the incident and the story,” and the girls would have had “ample
time to fabricate a story” prior to arriving at Ms. Clark’s home. The trial court did not allow
the defense to present the hearsay evidence. See Petition at 21.
The OCCA denied relief on this claim:
. . . Janet Clark was interviewed twice, once on August 6, 2007, and
once on December 11, 2007. The substance of these interviews was written
in memorandums and provided to the trial court, as an offer of proof of what
Clark would say if allowed to testify about the hearsay statements made to her
by Christa Jones and Karen Spain-McComb. Clark told the interviewer that
on August 17, 2003, at about 2:30 a.m., Christa Jones and Karen SpainMcComb woke her up by banging on her door. The girls were crying,
distraught, and otherwise visibly shaken. Clark said that they told her they had
been at Appellant’s house babysitting so Appellant could get some rest. They
were sitting in the living room watching TV with A.H. when Robert Heath
came to the home and banged on the door sometime after midnight. Heath,
who told them he was there to get his stuff, was angry and loud and although
he broke dishes and trashed the house, no one woke up. Jones and SpainMcComb told Clark that Heath went into Appellant’s room and when Andrea
woke and began to cry, Heath reached into the baby’s bed, took the baby by
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and arm and a leg and threw her against the wall. Jones and Spain-McComb
ran out of the house. The girls told Clark that they did not go to the police
because they were afraid of Heath. Instead, they ran to Jose Valenzuela’s
apartment but they were unable to wake anyone. Next they ran east to a house
where Spain-McComb’s grandmother lived. When they were unable to
awaken anyone at this house, they hid for a while behind a bus parked at the
house because they were afraid Heath was following them. After hiding
behind the bus they walked a distance to Clark’s home where they told her
what had happened.
After listening to argument and reading the memorandums of
interviews, the district court found the statements made to Clark by Jones and
Spain-McComb were not spontaneous enough to fall within either the excited
utterance exception or the present sense impression to the hearsay rule as there
was more than ample time between the startling event and their conversation
with Clark for the girls to fabricate a story.2 The record supports the trial
court’s finding that there was time between the startling event and the hearsay
statements relating to it for reflection and fabrication. The statements were not
a continuing transaction with the event and were not made under
circumstances excluding the possibility of premeditation and fabrication. Nor
were the statements made so contemporaneously with the event to negate “the
likelihood of deliberate and conscious misrepresentation.” Hancock v. State,
155 P.3d 796, 813 (Okla. Crim. App. 2007). Under the record before this
Court, we do not find that the trial court abused its discretion in so ruling. This
evidentiary ruling did not deny Appellant her constitutional right to present a
complete defense.
Barry, No. F-2009-1120, slip op. at 8-10 (Okla. Crim. App. Jan. 25, 2012) (footnote

2

The August 6, 2007, memorandum of interview noted that Clark advised that
sometime after this incident, Crista [sic] Jones was killed in a car accident and Karen SpainMcComb was incarcerated. The availability of the declarant is immaterial to the
admissibility of a hearsay statement under either 12 O.S. 2001, § 2803(1) or (2), and there
is no indication that the trial court improperly considered this information in ruling upon the
hearsay issue. However, after ruling that these statements were not admissible under either
exception to the hearsay rule, the district court did advise defense counsel that he was willing
to recess the proceedings so that counsel could have Spain-McComb transported to testify
at trial. Defense counsel declined this offer, presumably because, as the State noted on
record, Spain-McComb was located and contacted in prison and denied making the
statements which are the subject of the hearsay at issue.
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renumbered).
The respondent alleges this claim is a matter of state law that is not subject to federal
habeas corpus review. A criminal defendant has the right under the Sixth Amendment to “a
meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S.
319, 324 (2006). The right to present a defense does not, however, prohibit judges from
excluding evidence under well-established rules of evidence. Id. at 326.
A habeas petitioner is only entitled to habeas relief for an improper state evidentiary
ruling,” if the alleged error was so grossly prejudicial [that it] fatally infected the trial and
denied the fundamental fairness that is the essence of due process.” Regilla v. Gibson, 283
F.3d 1203, 1212 (10th Cir. 2002) (internal citations omitted). Here, the court finds Petitioner
has not met that standard, and she was not denied her right to a complete defense.
The court further finds the district court was correct in its ruling that the statements
did not meet the requirements for either the excited utterance or present sense exception to
the hearsay rule. Furthermore, Petitioner has not shown how she was prejudiced by the
exclusion of Janet Clark’s testimony, when Karen McComb was located during the trial, and
she denied Ms. Clark’s story. If the trial court had allowed Ms. Clark to testify about what
Ms. McComb allegedly told her on the night of the murder, it would have been rebutted by
the prosecutor’s calling Ms. McComb as a witness.
The OCCA’s decision on this claim did not result in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1). Furthermore, this
decision did not result in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(2).
8

This ground for habeas relief fails.
Ground II: Improper Opinion Testimony
Petitioner alleges in Ground II that the trial court abused its discretion by allowing the
expert opinion of Officer John Hobbs regarding the interview techniques he used to interview
Petitioner. She also claims Dr. Rita Chandler had no special qualifications to testify about
the incapability of A.H., Petitioner’s five-year-old autistic son, to commit the murder.
Hobbs testified about his interrogation of Petitioner on August 17, 2003. He claimed
to have specialized training in interview and interrogation techniques and explained he used
a two-stage technique when questioning suspects. The first stage was an initial interview
with basic questions to “get a feel for whether a person is going to be deceptive or not.”
Hobbs said he watches the suspect to determine whether he can observe anything he might
“consider to be nervous energy that they are burning off due to the fact they are nervous
because they know that they are lying at that point, such as bouncing a foot or twirling their
hair or different items like that.” This initial interview is followed by the interrogation
portion which is more accusatory. During the interrogation process, he focuses on areas in
which he senses deception by the subject. Hobbs testified that during the initial interview
stage, Petitioner was very unemotional and appeared to be slightly angry and frustrated.
Hobbs thought Petitioner was not honest about how Andrea was killed and whether A.H. may
have killed her.
On cross-examination, the defense attempted to mitigate the damage by questioning
Hobbs about his ability to determine if a witness was being deceptive. Counsel asked him
if he was “some kind of a human lie detector,” and he responded, “No.” Petitioner asserts
Hobbs’ opinions were highly prejudicial and inadmissible speculation.
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Petitioner also complains that Dr. Chandler gave certain expert testimony, but she has
no special skill or knowledge in the areas of forensic pathology, pediatrics, or biometric
engineering. In addition, Dr. Chandler stated no factual, documented, or tested basis for her
opinion that A.H. would not have been capable of inflicting Andrea’s skull fractures.
The OCCA discussed and denied relief as follows:
. . . The record reflects that on direct examination, Hobbs initially
testified about his specialized training in interview and interrogation
techniques. He testified that he was trained to look for indicators that someone
was being deceptive and that during his interview with Appellant, he noticed
several such indicators. Hobbs found it significant that during the interview
Appellant failed to make eye contact with him when he asked what had
happened to Andrea and that she burned off nervous energy by playing with
a small hole in her jeans. He also noted that Appellant was unemotional,
angry, and frustrated during the interview. Hobbs testified that he used these
cues to ask Appellant pointed questions during the interrogation that followed
the interview. Appellant argues that Hobbs in effect gave personal opinions
characterizing her honesty and credibility based upon sheer speculation.
Title 12 O.S. 2001, § 2702 provides that, “[i]f scientific, technical or
other specialized knowledge will assist the trier of act to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training or education may testify in the form of
an opinion or otherwise.” It is well settled that “police officers are [ ] capable
of giving expert testimony, based upon their experience and specialized
training.” Webster v. State, 252 P.3d 259, 279 (10th Cir. 2007). See also
Andrew v. State, 164 P.3d 176, 196 (Okla. Crim. App. 2007). A review of the
record reflects that Hobbs’ testimony was based on his perceptions in
conjunction with his extensive training and experience. While he testified that
based upon his training he believed that Appellant was being deceptive at
times during the interview, his testimony explained the direction of his inquiry
during the subsequent interrogation and did not invade the province of the jury.
Additionally, despite Appellant’s argument to the contrary, we find that this
testimony, which did not purport to be scientific in nature, was not subject to
the requirements of Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579
(1993). See Malone v. State, 168 P.3d 217 n.153 (Okla. Crim. App. 2007).
There was no plain error in the admission of this testimony and the trial court

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did not abuse its discretion in allowing it to be introduced into evidence at
trial.
Appellant complains additionally that Dr. Rita Chandler also testified
beyond the realm of her expertise. It was established at trial that Dr. Chandler
has a PhD in Educational Psychology and provides family training in autism.
She testified that she worked with A.H., who is autistic, since 2004 when she
was asked to do so by the Developmental Disability Services Division of the
Department of Human Services. Dr. Chandler testified that in 2004, when she
first began working with A.H., he was not conversational and his spontaneous
language skills were limited. She could tell by his actions that A.H.’s thinking
was extremely disorganized. Dr. Chandler also testified that A.H. was small
for his age. Given her assessment of A.H., Dr. Chandler opined at trial that he
would not have possessed the rational thinking process or the physical strength
to be able to remove his sister from her crib, take [her] to the hallway and
crush her skull. Although Appellant argues to the contrary, we find the record
supports the conclusion that Dr. Chandler’s expert testimony was not
speculative but rather, was properly based upon her perceptions of the child in
conjunction with her extensive training and experience. Again, there was no
plain error in the admission of this testimony and the trial court did not abuse
its discretion in allowing this the same to be introduced into evidence at trial.
Barry, No. F-2009-1120, slip op. at 11-13.
The respondent alleges the OCCA’s determination that the trial court did not err in
allowing expert opinion testimony was a matter of state law that is not subject to federal
habeas corpus review. “[I]t is not the province of a federal habeas court to reexamine statecourt determinations on state-law issues. In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citing 28 U.S.C. § 2241;
Rose v. Hodges, 423 U.S. 19, 21 (1995) (per curium)). To the extent Petitioner is arguing
that the state court erroneously interpreted and applied state law, habeas relief is not
warranted. Boyd v. Ward, 179 F.3d 904, 916 (10th Cir. 1999). A writ of habeas corpus

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cannot be issued on the basis of a perceived error of state law, “absent a determination that
the state law violation rendered the trial fundamentally unfair.” Spears v. Mullin, 343 F.3d
1215, 1245 (10th Cir. 2003) (citing James v. Gibson, 211F.3d 543, 545 (10th Cir. 2000)
(internal citations omitted)).
The court finds Petitioner’s trial was not fundamentally unfair, and this evidentiary
issue is not cognizable on habeas review. Furthermore, the OCCA’s determination of this
claim was not contrary to, or an unreasonable application, of Supreme Court law, and the
decision was not based on an unreasonable determination of the facts presented at trial. See
28 U.S.C. § 2254(d). This claim for habeas relief is meritless.
Ground III: Other Crimes and Bad Character Evidence
Petitioner next claims the trial court improperly allowed introduction of evidence of
other crimes or bad character evidence regarding her prescription drug usage, testimony
about bugs on the victim’s back, and Petitioner’s lack of emotion after the murder. The
respondent alleges this matter also is an issue of state law not subject to federal habeas
corpus review.
The OCCA discussed this issue and denied relief as follows:
Prior to trial defense counsel filed a motion in limine seeking to prevent
the State from offering evidence of Appellant’s drug usage, the condition of
Appellant’s home, Appellant’s poor parenting abilities and her lack of emotion
with regard to her children. A hearing was held on this motion. With regard
to evidence of Appellant’s drug usage, the trial court held that the State was
precluded from introducing general evidence that Appellant was a drug user
although the court noted that evidence of her drug usage immediately prior to
the killing may be admissible depending on the nature of the drugs used and
their effect on her temperament. The trial court also ruled that the State was
precluded from offering evidence of Appellant’s poor housekeeping and
parenting skills and lack of emotion with regard to her children unless such
evidence was shown at trial to be relevant.
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Appellant argues . . . that the trial court erred in allowing the State to
introduce irrelevant and prejudicial character evidence that it used to
improperly suggest her guilt. Again, the trial court’s decision regarding the
admission of evidence is reviewed for abuse of discretion and will not be
reversed absent a clear abuse of discretion. Hancock, 155 P.3d at 813. “A
ruling on a motion in limine is advisory and not conclusive.” CuestaRodriguez v. State, 241 P.3d 214, 240 (Okla. Crim. App. 2010). . . .
Appellant’s failure to object to some of the evidence at issue in the motion in
limine at the time it was offered waives all but plain error as to the evidence
not met with contemporaneous objection.
Appellant first complains that the trial court’s ruling on the motion in
limine was violated when John Hobbs testified that during his interview with
Appellant he asked her if she used drugs and she told him that she used
prescription pills sometimes. Defense counsel objected to this testimony and
the trial court sustained the objection. Hobbs testified that he had inquired
about Appellant’s drug usage because of the number of times that she had
indicated she did not remember in response to questions he asked her. The
single reference to Appellant’s drug use indicated only occasional drug use
and, as explained by Hobbs, was relevant as a possible explanation of why
Appellant could not respond to the questions he asked her. This evidence was
relevant for the reason explained by Hobbs and its probative value was not
substantially outweighed by its potentially prejudicial effect. 12 O.S. 2001, §
2403.
Next Appellant complaints that the trial court’s ruling on the motion in
limine was violated when State’s witness Mary Gideon testified that when she
saw Andrea there were bugs on the child. This testimony was met with
objection and the objection was sustained. When a trial court sustains an
objection, the error is usually cured. See McElmurry v. State, 60 P.3d 4, 30
(Okla. Crim. App. 2002). Although Mrs. Gideon mentioned bugs twice, she
was not allowed to go into detail about the bugs or what she saw. The trial
court’s ruling cutting off Gideon’s testimony was sufficient to cure any error.
Finally, Appellant complains that the trial court’s ruling on the motion
in limine was violated when State’s witness Hobbs testified about Appellant’s
lack of emotion after the death of her child and her lack of remorse. Appellant
notes that defense counsel did not object to this testimony at trial and
accordingly all but plain error has been waived. We do not find that this
evidence rose to the level of plain error. This argument does not require relief.
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Barry, No F-2009-1120, slip op. at 13-15.
The respondent alleges the determination of this claim by the OCCA was not error,
and the claim was a matter of state law that is not subject to federal habeas corpus review.
As noted above, state court evidentiary rulings are based on questions of state law and “may
not provide habeas corpus relief . . . unless [those rulings] rendered the trial so fundamentally
unfair that a denial of constitutional rights results.” Duckett v. Mullin, 306 F.3d 982, 999
(10th Cir. 2002) (internal quotations omitted); see also Smallwood v. Gibson, 191 F.3d 1257,
1277 (10th Cir. 1999) (applying the same standard to review a state court’s decision to admit
evidence of prior bad acts). Thus, to the extent Petitioner’s claim in Ground III relies solely
on state law, she fails to state a cognizable claim for habeas relief. Moreover, as set forth
below, the court finds that the admission of the challenged prior bad acts did not render
Petitioner’s trial fundamentally unfair.
Regarding Chief Hobbs’ testimony about Petitioner’s admission to using prescription
drugs, the evidence was relevant to find why, in response to many of Hobbs’ questions, she
could not remember what happened the night of the murder. The testimony was relevant to
help determine if Petitioner’s perception and memory of the events in question was
influenced by drug use. Trial counsel objected to the question, however, and the court
sustained the objection, thereby curing any error. (Tr. II 377-78). The court finds Petitioner
has failed to show she was denied a fundamentally fair trial by the remaining unobjected-to
testimony concerning her memory loss and the potential cause of the memory loss.
With respect to Mrs. Gideon’s description of the baby’s body when she was
summoned to the house, she described creases on the baby’s back, discoloration of her skin,
and bugs on her back. (Tr. II 223-24). Defense counsel immediately objected, the objection
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was sustained, and any error was cured under Oklahoma law. See Slaughter v. State, 950
P.2d 839, 869 (Okla. Crim. App. 1995).
Even if there had been no objection, Mrs. Gideon’s testimony was not a comment on
Petitioner’s residence or evidence of Petitioner’s bad character., and it did not rise to the
level of rendering the trial fundamentally unfair. Instead, it was a single description of the
baby’s body as Mrs. Gideon found it.

The testimony was brief, and the prosecutor

immediately shifted the witness’s attention to the creases she observed on the baby’s back.
(Tr. II 224).
Finally, Petitioner complains that testimony by Chief Baker and Chief Hobbs about
her lack of emotion after her baby’s murder was improper bad character evidence. Chief
Baker testified that he saw Petitioner sitting in a patrol car at the hospital where the baby was
taken, and she was emotionless and staring forward. He further testified that she was not
under arrest and was free to go inside the hospital to check on her baby, but chose instead to
remain in the police car. (Tr. II 321-22). Chief Hobbs testified that Petitioner was very
unemotional during his interview with her shortly after the murder, but at times she appeared
angry. (Tr. II 379). Petitioner did not object to the testimony at trial, thereby waiving all but
plain error under Oklahoma law. The OCCA found the testimony did not rise to the level of
plain error. Barry, No. F-2009-1120, slip op. at 15.
The respondent asserts the testimony about Petitioner’s lack of emotion was not
improper character evidence, but rather evidence of consciousness of guilty by conduct. The
court finds Petitioner’s demeanor shortly after the murder was a proper subject for comment
by the police officers who had participated in numerous crime investigations. It was not
improper to show Petitioner’s lack of emotion when her baby had just been murdered.
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Furthermore, under Oklahoma law, police officers are allowed to give opinion
testimony about a defendant’s lack of emotion, based on their training and experience. See
Andrew v. State, 164 P.3d 176, 195-96 (Okla. Crim. App. 2007). There was no objection to
this testimony at trial, and Petitioner’s trial was not rendered fundamentally unfair by its
admission.
Interpreting Oklahoma law, the OCCA reviewed Petitioner’s claims presented in
Ground III of this habeas petition and found no error. A federal court is bound by a state
court’s interpretation of its own state laws. Parker v. Scott, 394 F.3d 1302, 1311 (10th Cir.
2005); Hawkins v. Mullin, 291 F.3d 658, 662-63 (10th Cir. 2002). Because the OCCA’s
determination of this claim was not contrary to, or an unreasonable application of, Supreme
Court law, see 28 U.S.C. § 2254(d)(1), this habeas claim must fail.
Ground IV: Autopsy Photographs
Petitioner complains in Ground IV that the trial court improperly allowed the
admission of three autopsy photographs of Andrea’s skull to show the nature and extent of
the fatal skull fracture inflicted on the infant. Petitioner complains the photographs were
gory and prejudicial. The respondent maintains the photographs were proper to show the
nature and extent of the baby’s fatal injuries, and Petitioner was not denied a fundamentally
fair trial.
The OCCA reviewed this claim on direct appeal and found no error in the introduction
of the autopsy photographs at trial:
The State introduced three autopsy photographs at trial which showed
Andrea’s scalp peeled back to reveal the extensive skull fracture which caused
her death. . . . Appellant argues that the photographs were unduly gruesome
and served only to incite feelings of horror, sympathy and revenge. She

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complains that the photos were not admissible as their probative value was
substantially outweighed by the danger of unfair prejudice. 12 O.S. 2001, §
2403. Although defense counsel filed a pretrial motion requesting that these
photos be excluded, this motion was denied and counsel did not renew his
objection to the photographs when the State sought to introduce them at trial.
As counsel lodged no timely objection at trial, we review for plain error only.
Williams v. State, 188 P.3d 208, 223 (Okla. Crim. App. 2008).
The admission of photographs is within the trial court’s discretion and
will not be disturbed absent an abuse of discretion. Browning v. State, 134
P.3d 816, 837 (Okla. Crim. App. 2006). This Court has held that photographs
may be relevant to show the nature and location of wounds, corroborate the
medical examiner’s testimony, or show the crime scene. Id. Autopsy
photographs in particular may be relevant to support the testimony of the
medical examiner and aid the jury in understanding the nature of the wounds
suffered by the deceased. Mitchell v. State, 235 P.3d 640, 655 (Okla. Crim.
App. 2010). While the autopsy photographs introduced in the present case
were indeed graphic and gruesome, they were also relevant to support the
medical examiner’s testimony by showing the nature and extent of the fatal
injuries suffered by Andrea. The photographs were relevant and their
probative value was not substantially outweighed by the danger of unfair
prejudice. We find no abuse of discretion in the trial court’s decision to admit
the photographs. Appellant was not deprived of her constitutional rights by the
admission of these photographs.
Barry, No. F-2009-1120, slip op. at 15-16.
The admission of photographs is an issue of state law, and “[f]ederal habeas review
is not available to correct state law evidentiary errors . . . .” Wilson v. Sirmons, 536 F.3d
1064, 1114 (10th Cir. 2008) (citations omitted). The Supreme Court has held that a habeas
petitioner is only entitled to relief under the due process clause when “evidence is introduced
that is so unduly prejudicial that it renders the trial fundamentally unfair.” Payne v.
Tennessee, 501 U.S. 808, 825 (1991).
Here, the OCCA examined the admissibility of this evidence state law and found no
error. This court finds the OCCA’s determination was not contrary to, or an unreasonable
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application of, relevant of Supreme Court law, and it did not deprive Petitioner of a
fundamentally fair trial. This claim is meritless.
Ground V: Ineffective Assistance of Trial Counsel
Petitioner alleges in Ground V that she was denied effective assistance of trial
counsel, because he failed to object to the autopsy photos at issue in Ground IV. She also
argues that trial counsel was ineffective in abandoning the defense theory that her son A.H.
killed the baby and in failing to hire an expert and present evidence to support that theory.
The OCCA reviewed these claims and in its detailed and thorough opinion found that
trial counsel was not ineffective:
. . . Appellant alleges that failings of defense counsel deprived her of
her Sixth Amendment right to the effective assistance of counsel. This Court
reviews claims of ineffective assistance of counsel under the two-part
Strickland test that requires an appellant to show: (1) that counsel’s
performance was constitutionally deficient; and (2) that counsel’s performance
prejudiced the defense, depriving the appellant of a fair trial with a reliable
result. Strickland v. Washington, 466 U.S. 668, 687 (1984); Davis v. State,
123 P.3d 243, 246 (Okla. Crim. App. 2005). It is not enough to show that
counsel’s failure had some conceivable effect on the outcome of the
proceeding. Rather, an appellant must show that there is a reasonable
probability that, but for counsel’s unprofessional error, the result of the
proceeding would have been different. Head v. State, 146 P.3d 1141, 1148
(Okla. Crim. App. 2006). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id.
In support of her claim, Appellant first cites to trial counsel’s failure to
object to the admission of the autopsy photographs, to the trial testimony and
argument regarding Appellant’s drug use and lack of remorse and emotion,
and to the opinion evidence of John Hobbs and Dr. Chandler. As noted [in the
above discussion], there was no error in the admission of most of this
evidence. Defense counsel cannot be deemed to have rendered ineffective
assistance for failing to object to admissible evidence. Although defense
counsel did not object to each instance where Appellant’s drug use was
mentioned, he did object to some and this objection was sustained, curing the
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error. The instances where improper evidence was not met with objection did
not render Appellant’s trial fundamentally unfair and Appellant has not shown
a reasonable probability that, but for counsel’s alleged unprofessional error,
the result of the proceedings would have been different.
Appellant next complains that defense counsel was ineffective for
failing to present a critical, viable defense theory with available evidence. She
specifically complains that counsel was ineffective for abandoning the defense
that five-year-old A.H. had caused the fatal injuries to Andrea in favor of the
defense that Robert Heath killed the child. Additionally, Appellant claims that
counsel was ineffective for failing to hire an expert to rebut the medical
examiner’s opinion regarding the force required to cause the skull injury that
killed Andrea and to present evidence of A.H.’s aggressive and violent history
to show that he was physically and mentally capable of causing the fatal injury.
When Appellant was interviewed by John Hobbs, she told him that
although she did not know what had happened to Andrea, she thought that
A.H. hit her on the head with a board because she woke to find A.H. standing
in the hallway next to Andrea and there was a board lying on the floor next to
her. This was the theory of defense proffered at Appellant’s earlier trials and
Appellant claims that it should have been pursued again in her third trial. In
support of this argument, Appellant notes that her first trial ended in a mistrial
and her second trial was reversed and remanded in part because trial counsel
failed to offer evidence rebutting the State’s expert testimony that A.H. was
not physically capable of inflicting the fatal injuries upon Andrea. She argues
on appeal that in light of the serious problems with offering the defense that
Robert Heath was the actual killer, trial counsel was ineffective for
abandoning the defense that A.H. was the one who killed Andrea.
. . . Defense counsel in the present case took great care to avoid . . .
pitfalls [from the previous two trials] by filing and arguing a motion in limine
to exclude evidence of Appellant’s drug use prior to the killing, the condition
of Appellant’s home, and testimony regarding Appellant’s parenting abilities
and her lack of emotion with regard to her children. This motion was granted
as to prior drug use offered merely to show that Appellant was a drug user, the
condition of her home, and her general lack of parenting skills. It was,
however, noted by the trial court at the hearing on the motion in limine that
evidence deemed inadmissible based on the motion in limine could become
relevant at trial and be ruled admissible at that time. Defense counsel
acknowledged and agreed that evidence of Appellant’s drug usage and lack of
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parenting skills could become admissible if the defense opened the door to the
admission of this evidence.
When considering a claim of deficient performance, courts must
evaluate the conduct from counsel’s perspective at the time. See Strickland,
466 U.S. at 689. We indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance, and that, under the
circumstances, the challenged action might be considered sound trial strategy.
Id. “The question is whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it deviated
from best practices or most common custom.” Harrington v. Richter, 562 U.S.
86, 105 (2011) (citing Strickland, 466 U.S. at 690). Courts have consistently
emphasized that counsel is to be given broad latitude with regard to his or her
choice of trial strategy. . . . Furthermore, it is not the role of this Court to
second-guess counsel’s strategic choices. See Strickland, 466 U.S. at 689
(“Judicial scrutiny of counsel’s performance must be highly deferential.”).
Although Appellant argues that defense counsel should have presented
both defenses as they were not inconsistent, it appears that counsel made a
strategic choice to abandon the position that A.H. had killed Andrea as the
presentation of this defense would likely have opened the door to evidence
damaging to Appellant that counsel had successfully precluded in his motion
in limine. This decision falls squarely within the type of strategic decision to
which we give strong deference and we cannot find that it was, under the
circumstances of this case, unreasonable. Having determined that defense
counsel’s decision not to pursue the defense that A.H. killed Andrea was
reasonable trial strategy under the circumstances, it was also reasonable for
defense counsel not to hire experts or put on evidence in support of this
abandoned defense. Appellant has failed to show that counsel’s performance
was constitutionally deficient and that counsel’s performance prejudiced the
defense, depriving her of a fair trial with a reasonable result. Strickland, 466
U.S. at 687 (1984); Davis, 123 P.3d at 246. Appellant was not denied her
constitutional right to the effective assistance of counsel. . . .
Barry, slip op. at 17-21 (footnote omitted).
In conjunction with her claim of ineffective assistance of counsel, Petitioner asked the
OCCA for an evidentiary hearing concerning her claim that trial counsel was ineffective in
failing to use available evidence and to adequately investigate and identify additional
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evidence that could have been utilized at trial. Id. at 21 (citation omitted). She specifically
asserted that “defense counsel was ineffective for failing to investigate and present the
testimony of a forensic pathologist to rebut the State’s expert evidence about the force used
to inflict the fatal injuries that resulted in Andrea’s death.” Id. at 22. In addition, Petitioner
claimed counsel was ineffective in “failing to present available evidence, much of which was
part of the record from [her] first two trials, indicating that A.H. was a violent and disturbed
child.” Id.
The OCCA thoroughly reviewed the application for an evidentiary hearing, attached
affidavits, and other non-record evidence and noted that “several of the exhibits attached to
[the] application contain exactly the type of evidence defense counsel painstakingly sought
to keep the State from introducing at trial.” Id. (footnote omitted). “Additionally, the
interviews and evaluations of A.H. purporting to show that he demonstrated aggressive
behavior were conducted after Andrea was killed and were not necessarily indicative of his
behavior before the homicide.” Id. The OCCA denied the application for an evidentiary
hearing, finding that Petitioner “failed to show with clear and convincing evidence a strong
possibility that counsel was ineffective for failing to identify or use the evidence raised in the
motion.” Id. at 23.
“The standards created by Strickland and § 2254(d) are both highly deferential, and
when the two apply in tandem, review is ‘doubly’ so. . . . When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal citations omitted).
This court finds the record in this case clearly establishes that trial counsel’s
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performance satisfied the requirements of Strickland v. Washington. The court further finds
the determination of this claim by the OCCA was not contrary to, or an unreasonable
application of, clearly established Supreme Court law. Ground V of the petition fails.
Ground VI: Cumulative Error
Finally, Petitioner alleges that the alleged accumulation of error in her trial deprived
her of a fair trial. The OCCA found that “although her trial was not error-free, any error and
irregularities, even when considered in the aggregate, do not require relief because they did
not render her trial fundamentally unfair, taint the jury’s verdict, or render sentencing
unreliable.

Any errors were harmless beyond a reasonable doubt, individually and

cumulatively.” Barry, slip op. at 23-24.

“Cumulative-error analysis applies where there are two or more actual errors. It does
not apply, however, to the cumulative effect of non-errors.” Hoxsie v. Kerby, 108 F.3d
1239, 1245 (10th Cir.) (citing United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990)
cert. denied, 522 U.S. 844 (1997)). See also Castro v. Ward, 138 F.3d 810, 832-33 (10th
Cir.), cert. denied, 525 U.S. 971 (1998); Le v. Mullin, 311 F.3d 1002, 1023 (10th Cir. 2002),
cert. denied, 540 U.S. 833 (2003) (“When reviewing a case for cumulative error, only actual
errors are considered in determining whether the defendant’s right to a fair trial was
violated.”).
As discussed above, there is no basis for habeas corpus relief for Grounds I-V of the
petition. Therefore, there is no cumulative error. The OCCA’s determination of this claim
was consistent with federal law, and Ground VI of the petition fails.
Certificate of Appealability
The court further finds Petitioner has failed to make a “substantial showing of the
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denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). In addition, she has
not “demonstrate[d] that reasonable jurists would find [this] court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Therefore, a certificate of appealability cannot be issued.
ACCORDINGLY, Petitioner’s petition for a writ of habeas corpus (Dkt. 1) is
DENIED, and this action is, in all respects, dismissed. Petitioner also is denied a certificate
of appealability.
IT IS SO ORDERED this 15th day of March 2016.

Dated this 15th day of March, 2016.

J4h4i0

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