Fields v. Howard

Filing 19

OPINION AND ORDER by Judge Ronald A. White : DENYING 1 petitioner's Petition for Writ of Habeas Corpus (2254), and DENYING certificate of appealability (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
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DARYL FONZEL FIELDS,
Petitioner,
v.
BRUCE HOWARD,
Respondent.

Case No. CIV 14-436-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 former state prisoner, is challenging his conviction in
Carter County District Court Case No. CF-2012-514B for Second Degree Burglary, After Former
Conviction of Two or More Felonies. Pursuant to the Court’s previous Opinion and Order,
Petitioner has advised that he is seeking relief for his exhausted habeas claims in the petition: (1)
Confrontation Clause violation, (2) insufficient evidence, and (3) prosecutorial misconduct during
closing arguments (Dkt. 11).
Respondent concedes that Petitioner has exhausted his state court remedies for the purpose
of federal habeas corpus review (Dkt. 16). 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.
D.

Summary Opinion affirming Petitioner’s judgment and sentence. Fields
v. State, No. F-2013-561 (Okla. Crim. App. June 3, 2014).
Transcripts

E.

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).
Background
Petitioner was charged, in concert with Kristin Hope Allen, with the November 13, 2012,
second degree burglary of Robert Burkhart’s house in Ardmore, Oklahoma (O.R. 1). A “second
page” alleged the burglary was committed after Petitioner’s eight prior felony convictions (O.R. 2-3).
Petitioner was convicted by a jury and sentenced to imprisonment for six years (O.R. 53, 60, 74).
Confrontation Clause
Petitioner alleges in Ground One of the petition that his rights under the Confrontation Clause
were violated when the trial court improperly allowed Ardmore Police Officer Larry Payne to testify
on redirect about co-defendant Kristin Allen’s comments about Petitioner. Respondent asserts any
Confrontation Clause violation was harmless.
Petitioner raised this claim on direct appeal, and the Oklahoma Court of Criminal Appeals
(“OCCA”) found the testimony was error, but any error was harmless:
We reject Field’s claim that he is entitled to relief because of the trial court’s
admission of his non-testifying co-defendant’s statement from her police interview.
See Hanson v. State, 206 P.3d 1020, 1025 (Okla. Crim. App. 2009). The statement
was the kind of “testimonial hearsay” that the Crawford Court held violated the
Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 68 (2004)
(“testimonial” hearsay included statements made during police interrogations).
Because the prosecution did not show that the witness was unavailable and that
Fields had a prior opportunity to cross-examine her, the statement was inadmissible.
See id. (testimonial hearsay is inadmissible unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness).
The error, however, was harmless beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18, 24 (1967); see also Marshall v. State, 232 P.3d 467, 476
(Okla. Crim. App. 2010) (“violations of the Confrontation Clause are subject to
harmless error analysis”). There was substantial evidence of Fields’
guilt without the statement, and the prejudicial effect of the hearsay statement was
minimal. See Harmon v. State, 248 P.3d 918, 933 (Okla. Crim. App. 2011)
(“[w]here the weight of the properly admitted evidence is overwhelming and the
prejudicial effect of the inadmissible evidence is insignificant in comparison, the
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error may be viewed as harmless.”). Because we are convinced the error did not
contribute to the verdict, error in the admission of the hearsay statement of the codefendant was harmless beyond a reasonable
doubt. This claim is denied.
Fields v. State, No. F-2013-561, slip op. at 2-3 (Okla. Crim. App. June 3, 2014) (Dkt. 16-3).
The Supreme Court has held that “in § 2254 proceedings a court must assess the prejudicial
impact of constitutional error in a state-court criminal trial under the ‘substantial and injurious effect’
standard” from Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). Fry v. Pliler, 551 U.S. 112, 121
(2007). Confrontation Clause errors are subject to harmless error analysis, Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986), and habeas relief is warranted only if the error was not harmless, Moore
v. Marr, 254 F.3d 1235, 1246 (10th Cir. 2001).
When a federal court considers a Confrontation Clause violation in a habeas
proceeding, the relevant harmless error analysis is whether, assuming that the
damaging potential of cross-examination were fully realized, a reviewing court might
nonetheless say that the error had substantial and injurious effect or influence in
determining the jury’s verdict.
Littlejohn v. Trammell, 704 F.3d 817, 844-45 (10th Cir. 2013) (quoting Jones v. Gibson, 206 F.3d
946, 957 (10th Cir. 2000)). Habeas courts conduct harmless error review de novo, and must consider
factors such as the “importance of the witness’ testimony to the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-examination otherwise permitted, and
. . . the overall strength of the prosecution’s case.” Id. (quoting Van Arsdall, 475 U.S. at 684).
Petitioner complains of the following trial testimony by Officer Payne, the State’s rebuttal
witness:
Q. [Defense Counsel] You haven’t uncovered anything in your investigation to
reveal that [Petitioner] was intending to go there to steal things; is that right?
A. [Officer Payne] No, Sir.
(Tr. 161; Dkt. 18-4).
Q. [Prosecutor] Detective, you--on cross-examination from Mr. May, you said that-Mr. May said that you didn’t have any evidence if they had any intent to steal
anything. Did you interview--interview Kristin Allen in this case?
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A. [Officer Payne] I did interview her. Yes, sir.
Q. Do you stand by that statement that they didn’t have any intent to steal?
A. Their intention, as far as what she knew, was that she had been forced to walk
over there with him-[Defense Counsel]: Objection; hearsay.
[Officer Payne]: --that was her story.
THE COURT: Overruled.
[Officer Payne]: Then when they got there and the homeowner was not home, that
Mr. Fields told her that he needed to go pee--was his words; went down into the ditch
that was just to the west of the house; came back with a brick; wrapped the brick up
in the sweatshirt and hit the window twice, breaking the window; and he told her to
go inside, get the flat-screen TV and some liquor bottles and anything else that--that
she thought that they could sell and pass it out to him. That was her--that was her
answer in the interview.
(Tr. 163). On recross-examination defense counsel also asked Officer Payne about Ms. Allen’s
statements (Tr. 164).
Here, the Court agrees with the OCCA that the Confrontation Clause violation was harmless,
and as discussed below, there was substantial evidence of Petitioner’s guilt without the statement.
Any prejudicial effect of the hearsay statement was minimal and did not have a substantial and
injurious effect or influence on the jury’s verdict.
The Court also finds the determination of this issue by the OCCA was not contrary to, or an
unreasonable application of, clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1).
Furthermore, the OCCA’s decision was not 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). This ground
for habeas relief fails.
Sufficiency of the Evidence
Petitioner alleges in Ground Two of the petition that the State did not present evidence that
he entered the victim’s home or that he intended to steal. Instead, the evidence showed only that a
crime had been committed.

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Petitioner’s trial testimony conflicted with the explanation for his actions he gave in his
videotaped police interview. Petitioner insisted to Ardmore Police Detective Larry Payne that Mr.
Burkhart’s window already was broken, and the house already had been burglarized when he and Ms.
Allen came upon it (Tr. 157-59; State’s Exhibit 16). Petitioner claimed he and Ms. Allen were
merely checking out the situation. Id.
At trial, however, Petitioner testified he walked Ms. Allen to Mr. Burkhart’s house (Tr. 128).
When they arrived, she broke into the house and walked through it while he stood outside, refusing
to enter the house or to take anything from the house (Tr. 129-31). Petitioner claimed Ms. Allen was
the person who took Mr. Burkhart’s property by throwing it out the window (Tr. 132, 144). When
she tried to pass the television to Petitioner, he shoved it back inside, resulting in her throwing the
TV out the window in a manner that caused it to land around the corner of the house with no obvious
damage (Tr. 144-46).
On direct appeal, the OCCA reviewed this claim on the merits and denied relief:
After reviewing the evidence in the light most favorable to the State, we find that any
rational trier of fact could find beyond a reasonable doubt that Fields committed the
burglary with the intent to steal based on the circumstantial evidence in this case. See
Spuehler v. State, 709 P.2d 202, 203-204 (Okla. Crim. App. 1985) (quoting Jackson
v. Virginia, 443 U.S. 307, 319-320 (1979)); Easlick v. State, 90 P.3d 556, 559 (Okla.
Crim. App. 2004).
Fields, slip op. at 4.
In federal habeas review of a state court conviction, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in original). The Supreme Court repeatedly has emphasized the
deference the reviewing court owes to the trier of fact and “the sharply limited nature of
constitutional sufficiency review.” Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, 443
U.S. at 319).
“[A] federal habeas corpus court faced with a record of historical facts that supports

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conflicting inferences must presume--even if it does not affirmatively appear in the record--that the
trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.” Jackson, 443 U.S. at 326. The court must “accept the jury’s resolution of the evidence
as long as it is within the bounds of reason.” Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir.
1993) (citing United States v. Edmondson, 962 F.2d 1535, 1548 (10th Cir. 1992)). “To be sufficient,
the evidence supporting the conviction must be substantial; that is, it must do more than raise a mere
suspicion of guilt.” Beachum v. Tansy, 903 F.2d 1321, 1332 (10th Cir.) (citing United States v.
Troutman, 814 F.2d 1428, 1455 (10th Cir. 1987)), cert. denied, 498 U.S. 904 (1990).
The OCCA applies the principles of Jackson when a defendant challenges the sufficiency of
the evidence. Both Easlick, 90 P.3d at 557-59, and Spuehler, 709 P.2d at 203-04, which were cited
by the OCCA in Petitioner’s direct appeal, rely on Jackson as the standard and authority for claims
of sufficiency of the evidence.
“[W]here a sufficiency challenge was resolved on the merits by the state courts, . . . AEDPA
adds an additional degree of deference, and the question becomes whether the OCCA’s conclusion
that the evidence was sufficient constituted an unreasonable application of the Jackson standard.”
Diestel v. Hines, 506 F.3d 1249, 1267 (10th Cir. 2007) (citations and internal quotation marks
omitted), cert. denied, 553 U.S. 1079 (2008). This standard is called “deference squared.” Hooks
v. Workman, 689 F.3d 1148, 1166 (10th Cir. 2012) (quoting Young v. Sirmons, 486 F.3d 655, 666
n.3 (10th Cir. 2007)).
“Even if a state court resolves a claim in a summary fashion with little or no reasoning, [this
court] owe[s] deference to the state court’s result.” Paine v. Massie, 339 F.3d 1194, 1198 (10th Cir.
2003). A state court’s summary disposition must be upheld unless a federal habeas court is
persuaded, after conducting an independent review of the record and pertinent federal law, that the
state court’s result “unreasonably applies clearly established federal law.” Id. (quoting Aycox v.
Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)).
To determine whether there was sufficient evidence presented at trial to sustain Petitioner’s
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conviction, the Court first must look to Oklahoma law for the elements required for the crime.
Jackson, 443 U.S. at 324 n.16; see also Torres v. Mullin, 317 F.3d 1145, 1152 (10th Cir.), cert.
denied, 540 U.S. 1035 (2003). The elements of Second Degree Burglary are:
First, breaking;
Second, entering;
Third, a building;
Fourth, of another;
Fifth, in which property is kept;
Sixth, with the intent to steal.
Okla. Stat. tit. 21, § 1435; OUJI-CR (2d) 5-13, Instruction No. 4 (O.R. 48); (Dkt. 18-1 at 52).
Petitioner contests the second element, entering, and the sixth element, intent to steal (Dkt.
1 at 7). “Entering” is defined as “[a]n entry which occurs when any part of a person’s body is within
the building.” OUJI-CR (2d) 5-18, Instruction No. 5 (O.R. 49) (Dkt. 18-1 at 53). “Intent to Steal”
is defined as “[i]ntent permanently to deprive the person in rightful possession of property without
the possessor’s consent.” Id.1
Under Oklahoma law, the determination of intent is a question for the jury and may be proven
by direct or circumstantial evidence. Patton v. State, 973 P.2d 270, 287 (Okla. Crim. App. 1998);
Rowland v. State, 817 P.2d 263, 265-66 (Okla. Crim. App. 1991). Furthermore, intent as an element
of burglary in the second degree “may be presumed from evidence that the accused broke into and
entered the premises during the nighttime.” Lowe v. State, 673 P.2d 167, 168 (Okla. Crim. App.
1983) (citing Lyons v. State, 516 P.2d 283, 285 (Okla. Crim. App. 1973)).
Petitioner argued on direct appeal that the State’s proof of his intent to steal was dependent
on his co-defendant’s statement to police, which he asserted was improperly admitted. Ms. Allen’s
statement, however, was not central to or necessary for the jury to find him guilty beyond a
reasonable doubt.

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The Court notes the definition of “Intent to Steal” in Instruction No. 5 includes an error in
that it states the definition as “[i]ntent permanently to deprive the person in rightful possession of
property with the possessor’s consent (Dkt. 18-1 at 53). This error, however, was not raised in the
petition.
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The evidence showed that on November 13, 2012, at approximately 3:00 a.m., Sophia Lewis
was awakened by the sound of glass breaking. When she looked out her window, she saw a man
standing at her neighbor Robert Burkhart’s house. Ms. Lewis called the police and was asked to
look outside again. She then saw a young woman going through Mr. Burkhart’s window, and she
could hear the two people talking loudly. Ms. Lewis called the police again, but reported that it was
too dark to identify anyone. When the police arrived, Ms. Lewis observed that the man she has seen
by the neighbor’s window was being handcuffed (Tr. 81-85).
Respondent argues that eyewitness testimony indicated Petitioner not only was a principle,
but he also “entered” the house by leaning through the window. See Loman v. State, 806 P.2d 663,
666 (Okla. Crim. App. 1991) (Where the evidence shows a defendant had to reach through a
window, the element of entering is met when “any part of a persons [sic] body is within the
dwelling.”) (citing Lucero v. State, 717 P.2d 605, 607 (Okla. Crim. App. 1986); Beasley v. State, 635
P.2d 627, 628 (Okla. Crim. App. 1981)).
Ardmore Police Officer Matthew Garrett testified he had his vehicle lights off when he
responded to a burglary in progress at Mr. Burkhart’s residence. Officer Garrett parked his car a
couple of houses down from the house and walked to the scene of the reported burglary. As he
approached the residence, Officer Garrett noticed a man leaning into a broken window and pushing
the blinds to the side. The window screen was on the ground. As Garrett walked closer, he could
hear the man talking to someone. Garrett detained Petitioner who stated Kristin was inside the
house. Another officer arrived on the scene and detained Ms. Allen as she came from the backyard
of the residence. (Tr. 87-88, 93, 98).
Respondent further notes that Mr. Burkhart’s television was found lying on the ground,
around the corner of the house from the broken window, suggesting Petitioner placed it there,
contrary to his story that Ms. Allen tossed it from the window when he refused to take it (Tr. 100).
In the front yard by the broken window, the police also found several bottles of Mr. Burkhart’s liquor
with Petitioner’s fingerprints and a package of frozen pork chops (Tr. 92, 100, 162; State’s Exhibit
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2).
After careful review, the Court finds the evidence supports the OCCA’s finding that
Petitioner was a principal in the burglary of Mr. Burkhart’s house, and the State proved the elements
that he entered the premises and had the intent to steal Mr. Burkhart’s property. See Myers v. State,
17 P.3d 1021, 1033 (Okla. Crim. App. 2000), overruled on other grounds by James v. State, 152
P.3d 255 (Okla. Crim. App. 2007) (finding that “all of the evidence,” including the defendant’s
conflicting stories, supported the jury’s verdict of guilt); Lyons v. State, 516 P.2d 283, 285-86 (Okla.
Crim. App. 1973) (finding where the defendant testified in his own behalf and offered explanation
that he did not have the intent to steal after breaking into a building, but was merely looking inside,
his credibility was for the jury to decide); Henson v. State, 500 P.2d 859, 861 (Okla. Crim. App.
1972) (finding evidence the defendant was driving slowly near burglarized building with headlights
out, and had turned his lights on and off as if to signal someone, and had come to town with codefendant, was sufficient circumstantial evidence to support burglary charge). See also Davis v.
State, 103 P.3d 70, 78 (Okla. Crim. App. 2004) (“Pieces of evidence must be viewed not in isolation
but in conjunction.”) (citation omitted); Bernay v. State, 989 P.2d 998, 1008 (Okla. Crim. App.
1999) (holding the OCCA “will accept all reasonable inferences and credibility choices that support
the jury’s verdict”), cert. denied, 531 U.S. 834 (2000) (citation omitted).
For the reasons set forth above, the Court finds the OCCA’s decision on this claim was
neither contrary to, or an unreasonable application of, Jackson v. Virginia. This ground for habeas
relief is meritless.
Prosecutorial Misconduct
Construing the petition liberally, Haines v. Kerner, 404 U.S. 519 (1972), Petitioner also has
raised a claim of prosecutorial misconduct during closing arguments. Petitioner complains “[t]he
prosecutor stated that what the officer testified to, and what the co-defendant Kristin Allen said
proves Petitioner’s guilt beyond a reasonable doubt” (Dkt. 1 at 5). Petitioner is complaining of the
following portion of the prosecutor’s closing argument:
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. . . Kristin Allen told Detective Payne that she was in the house, but she was handing
property out to Mr. Fields, and Mr. Fields was telling her what to get. That is aiding
and encouraging the commission of a crime, in this case, burglary in the second
degree.
(Tr. 176-77). In final closing, the prosecutor commented:
What’s reasonable is what Detective Payne testified to and what Kristin Allen told
you. And Kristin Allen gave a statement that incriminated herself. But, in turn, it
also incriminated [Petitioner]. She said, “Yes, I was in the house. I was handing
property out to Daryl Fields. That’s because Daryl Fields was telling me what to
grab. Anything that was of value. Anything that had money” [sic]. She was fleecing
that place at 3:00 a.m. with Daryl Fields.
(Tr. 188). Defense counsel made no objections to any of the prosecutor’s contested comments.
The OCCA considered the claim on direct appeal and denied relief:
Reviewing for plain error only, we find Fields has not shown the prosecutor’s
remarks challenged in his brief effectively deprived him of a fair trial and reliable
sentencing proceeding. See Harmon v. State, 248 P.3d 918, 943 (Okla. Crim. App.
2011); Hogan v. State, 139 P.3d 907, 923 (Okla. Crim. App. 2006) (explaining
elements of plain error). Fields has not shown he was prejudiced by the prosecutor’s
reference to the hearsay statement. Nor did the prosecutor argue facts not in evidence
or attempt to define beyond a reasonable doubt. See Thomason v. State, 763 P.2d
1182, 1183 (Okla. Crim. App. 1988) (the statement “reasonable doubt is not all
doubt” was not fundamental error); Mack v. State, 188 P.3d 1284, 1289 (Okla. Crim.
App. 2008) (the parties have the right to freely discuss the evidence from their
respective views during closing).
Fields, slip op. at 3. Respondent alleges the OCCA’s determination of this claim was not contrary
to, or an unreasonable application of, Supreme Court precedent.
In a habeas corpus action, claims of prosecutorial misconduct are reviewed only for
a violation of due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986).
“[N]ot every trial error or infirmity which might call for application of supervisory
powers correspondingly constitutes a failure to observe that fundamental fairness
essential to the very concept of justice.” Donnelly v. DeChristoforo, 416 U.S. 637,
642 (1974) (citations and quotations omitted). In order to be entitled to relief, [a
petitioner] must establish that the prosecutor’s conduct or remarks “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” Id.
at 643. This determination may be made only after considering all of the surrounding
circumstances, including the strength of the State’s case. See Darden, 477 U.S. at
181-82.
Malicoat v. Mullin, 426 F.3d 1241, 1255 (10th Cir. 2005), cert. denied, 547 U.S. 1181 (2006).
Inquiry into fundamental fairness requires examination of the entire proceedings,
including the strength of the evidence against the petitioner, both as to guilt at that
stage of the trial and as to moral culpability at the sentencing phase. Any cautionary
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steps--such as instructions to the jury--offered by the court to counteract improper
remarks may also be considered. Counsel’s failure to object to the comments, while
not dispositive, is also relevant to a fundamental fairness assessment. . . . Ultimately,
this court considers the jury’s ability to judge the evidence fairly in light of the
prosecutor’s conduct.
Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (citations omitted), cert. denied, 540 U.S. 833
(2003).
After carefully reviewing the record, the Court finds the evidence supported the OCCA’s
determination that Petitioner was not prejudiced by the prosecutor’s reference to Ms. Allen’s hearsay
statement. The OCCA’s decision was consistent with clearly established Federal law, as determined
by the Supreme Court of the United States. In addition, the OCCA’s decision was not based on an
unreasonable determination of the facts in light of the evidence at trial. Habeas relief is not
warranted for this claim.
Certificate of Appealability
The Court further finds Petitioner has failed to make a “substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). In addition, he 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, Petitioner should be denied a
certificate of appealability.
ACCORDINGLY, Petitioner’s petition for a writ of habeas corpus (Dkt. 1) is DENIED, and
Petitioner is DENIED a certificate of appealability.
IT IS SO ORDERED this 13th day of March 2017.

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