Meek v. McCollum
Filing
18
OPINION AND ORDER by Judge Ronald A. White: Denying 2 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
JERRY DALE MEEK,
Petitioner,
v.
JIMMY MARTIN, Warden,
Respondent.
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Case No. CIV 16-543-RAW-KEW
OPINION AND ORDER
This matter is before the Court on Petitioner’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (Dkt. 2). Petitioner is a state prisoner in the custody of the
Oklahoma Department of Corrections who currently is incarcerated at North Fork
Correctional Center in Sayre, Oklahoma. Represented by counsel, he is attacking his
conviction in McCurtain County District Court Case No. CF-2012-311 for First Degree
Murder. He sets forth the following grounds for relief:
I.
The State’s evidence was insufficient to convict Petitioner.
II.
Trial counsel was ineffective for failing to make a “goodbye note”
written by the victim part of the record, failing to object to hearsay, and
failing to object to an evidentiary harpoon.
III.
The cumulative effect of errors deprived Petitioner of a fundamentally
fair trial.
(Dkt. 9 at 2-3).
Respondent concedes that Petitioner has exhausted his 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.
Petitioner’s motion to supplement record on appeal and for evidentiary
hearing.
C.
The State’s brief in Petitioner’s direct appeal.
D.
Petitioner’s reply to the State’s brief.
E.
Summary Opinion affirming Petitioner’s judgment and sentence and
denying Petitioner’s motion to supplement record and for evidentiary
hearing.
F.
Petitioner’s petition for rehearing of direct appeal.
G.
Order denying rehearing.
H.
Transcripts of preliminary hearing, motions hearing, jury trial, and
sentencing.
I.
Trial exhibits.
I.
Original 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.
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28 U.S.C. § 2254(d). The Supreme Court further explained the AEDPA standard in
Harrington v. Richter, 562 U.S. 86 (2011):
If this standard is difficult to meet, that is because it was meant to be.
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on
federal-court relitigation of claims already rejected in state proceedings. Cf.
Felker v. Turpin, 518 U.S. 651, 664 (1996) (discussing AEDPA’s “modified
res judicata rule” under § 2244). It preserves authority to issue the writ in
cases where there is no possibility fairminded jurists could disagree that the
state court's decision conflicts with this Court’s precedents. It goes no further.
Section 2254(d) reflects the view that habeas corpus is a “guard against
extreme malfunctions in the state criminal justice systems,” not a substitute for
ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307,
332, n. 5 (1979) (Stevens, J., concurring in judgment). As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that
the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.
Richter, 562 U.S. at 102-03.
Background
A review of the record shows that Shelia Walker, who was Hope Meek’s mother,
testified that she and Ms. Meek talked on the phone daily. (Tr. 225, 229). On the evening
of Wednesday, February 20, 2002, Ms. Meek called Ms. Walker, very upset and crying. Ms.
Meek told Ms. Walker that Petitioner had pushed her onto a glass-top coffee table, breaking
the table and leaving pieces of glass in her back, arm, and buttocks. Ms. Meek also told said
she was afraid to move away and take the children, that Petitioner would not allow her to
take them, and she would not give up the children. (Tr. 231-33).
Ms. Walker encouraged Ms. Meek to leave with the children and wired $200.00 to
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assist her. Ms. Walker knew Ms. Meek would never leave her children. Ms. Walker advised
Ms. Meek to go to the emergency room for treatment of her injuries. Ms. Meek agreed to
call Ms. Walker the following day, however, this was their final conversation. (Tr. 233-235).
When Ms. Walker did not hear from Ms. Meek the next day, Thursday, February 21,
2002, she began calling Ms. Meek and Petitioner’s home. Ms. Walker called numerous
times, however, Petitioner did not return Ms. Walker’s calls until Tuesday, February 26,
2002. Petitioner spoke with Ms. Walker’s daughter, Mary Jane, and stated he had not
reported to the police that Ms. Meek was missing. Ms. Meek’s family urged him to report
Ms. Meek’s absence. Ms. Walker and her family searched for Ms. Meek in Valliant and
posted flyers in Valliant and Idabel. They also created websites in an attempt to locate her.
(Tr. 235-38).
When Ms. Meek remained missing for several weeks, Ms. Walker attempted to gain
custody of her six-year-old granddaughter, J.K., who was not Petitioner’s child. Although
her attempt was unsuccessful, Ms. Walker testified she did receive visitation rights with Ms.
Meek’s three children, J.K., J.M., and C.M. (Tr. 238-40).
When J.K. was ten years old, she visited Ms. Walker, her grandmother, and asked
about Ms. Meek and whether Ms. Walker knew where Ms. Meek was. Ms. Walker told J.K.
she did not know. J.K. told Ms. Walker that the last time she saw her mother, Petitioner and
her mother were fighting upstairs, and J.K and J.M. were sent to their room. J.K. also told
Ms. Walker that everything then got quiet, and she never saw her mother again. (Tr. 240-42).
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Dennis James testified that in 2001, he was an officer with the Valliant, Oklahoma,
Police Department. On November 9, 2001, Hope Meek came to the Police Department and
reported to Officer James that Petitioner had assaulted her. Ms. Meek told him she was at
dinner at Petitioner’s house when he received a phone call. Ms. Meek asked him who had
called, and he became angry and told her to get out. When she did not leave, Petitioner
picked her up and threw her out the door onto the concrete porch. Ms. Meek reported to
Officer James that she sustained scratches on her elbows and sore ribs, however, she did not
want to pursue charges. (Tr. 259-61).
Ten days later, on November 19, 2001, Officer James was dispatched to Petitioner and
Ms. Meek’s home regarding a domestic disturbance. When Officer James questioned Ms.
Meek, she said she was removing items from a cabinet when Petitioner came over and raked
all the cans out of the cabinet. Petitioner also hit Ms. Meek’s right ear and kicked her legs
out from under her, knocking her to the floor. Ms. Meek then got up and called the police.
Petitioner prepared a written statement about what had occurred, and it was admitted into
evidence as State’s Exhibit 4 (Dkt. 12-12 at 5-7). Again, Ms. Meek did not want to pursue
charges. (Tr. 261-66).
Officer James testified he again was dispatched to the Meek residence on February
26, 2002, regarding a missing person. When he arrived, Petitioner had prepared a written
statement, and the officer understood Ms. Meek had disappeared. (Tr. 265-67). In the
statement, admitted into evidence as State’s Exhibit 5 (Dkt. 12-12 at 8-9), Petitioner stated
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that Ms. Meek became angry and told Petitioner she was going to leave and start over (Dkt.
268, 273-74).
Petitioner’s statement further asserted he got J.K. ready for school and took the two
younger children to daycare. Petitioner next got some money from the bank, went to WalMart to get some camping supplies, then returned home and took a nap. He further stated
he picked up the children from daycare and drove out of town to take the them camping.
After putting up the tent, the children were cold, so Petitioner broke camp and drove around.
He drove to Broken Bow, Oklahoma, where he got the children some snacks at Love’s. He
then drove to Paris, Texas, where he bought lottery tickets before returning home around
midnight. (Tr. 273-75). Petitioner told Officer James that Ms. Meek took a couple of bags
of clothes but left her truck, her purse, her cell phone, and her keys at their residence. (Tr.
275, 277). Petitioner also said that Hope Meek was five feet two inches tall and weighed 95
pounds, and he was six feet, two inches tall and weighed 170 pounds. (Tr. 278).
At trial, Petitioner’s testimony from a January 28, 2003, hearing was read into the
record. The hearing occurred as part of a guardianship proceeding where Shelia Walker
sought custody of Hope Meek’s children. (Tr. 287). At the hearing, Petitioner testified Ms.
Meek “just left” in late February 2002. Petitioner denied hitting her. He testified Ms. Meek
talked about leaving him for several years. Sometimes Ms. Meek would talk about taking
the children, and sometimes she did not say anything about taking them. (Tr. 290-92).
Petitioner also testified he bought some large Rubbermaid containers to hold his camping
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gear and took the children camping at Hochatown. It was cold, so he and the children packed
up the camping items and Petitioner drove to Taco Bell in Broken Bow to get the children
some food. He next drove to Paris, Texas, and then returned home. (Tr. 295-299).
Petitioner further testified at the hearing that he removed some carpet out of the
master bedroom and had it replaced a few days after Ms. Meek went missing. (Tr. 300).
Petitioner also stated that Ms. Meek had boyfriends and “got around.” (Tr. 302). Petitioner
denied having an affair at the time of Ms. Meek’s disappearance. (Tr. 303). He admitted
that since Ms. Meek disappeared, he had called the OSBI only once to learn of the status of
her missing person case. (Tr. 306).
Beverly Abbott testified she worked with Hope Meek at the E-Z Mart. Ms. Meek
worked part time at the store, about one or two days per week, and Ms. Abbott was the
assistant manager. (Tr. 309-11). Ms. Meek also came in the store as a customer about two
or three times per week. One time Ms. Meek asked Ms. Abbott to help her move and
rearrange her furniture. Ms. Abbott agreed and went to Hope Meek’s house to help her. (Tr.
313). On another occasion, Ms. Abbott was at Ms. Meek’s house when Petitioner showed
up. Petitioner wanted to know what Ms. Abbott was doing there, and when Ms. Meek
became nervous, Ms. Abbott left. When asked if Ms. Abbott had ever seen Ms. Meek
without her cell phone or her purse, Ms. Abbott stated she had not.
Ms. Abbott testified she last saw Ms. Meek in February 2002 in the evening when she
came in to buy a drink. Ms. Meek was nervous and “just wasn’t right,” and Ms. Meek asked
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Ms. Abbott if she had seen Petitioner talking to someone in a white car. (Tr. 313-17). Ms.
Meek was scheduled to work a couple of days after that incident, but Ms. Abbott never saw
her again. Ms. Meek did not give notice she was quitting her job at the store, and she did not
answer her cell phone after that. (Tr. 316-18).
Around February 26, 2002, Ms. Abbott called Ms. Meek’s cell phone and Petitioner
answered it. He told Ms. Abbott that she was not there, and he had not talked to her or seen
her. (Tr. 318). Ms. Abbott testified Ms. Meek would not have left her children voluntarily.
(Tr. 319).
Helen Lowrance testified she worked for the Department of Human Services, and on
February 19, 2002, she worked in the food stamp, medical, and daycare eligibility division.
Ms. Meek was one of her clients, although Ms. Lowrance never had met her. On February
19, 2002, Ms. Lowrance received a call from a woman who identified herself as Hope Meek.
The woman told Ms. Lowrance she wanted to close her cases because “she was getting back
with her husband.” Ms. Lowrance closed out Ms. Meek’s medical and daycare cases. (Tr.
331-33).
Antoinette Ricks testified that in the fall of 2001, she worked as the bookstore
manager at the E.T. Dunlap Center at Southeastern College in Idabel. She met Hope Meek
when Ms. Meek was buying some books. Ms. Ricks testified she and Ms. Meek “just
clicked,” and Ms. Meek would come into the bookstore more than once a week to visit with
Ms. Ricks. Ms. Meek frequently would have her two youngest children with her. Sometimes
8
Ms. Meek would have a babysitter for the children, but there were some occasions when Ms.
Ricks would watch the children in the bookstore while Ms. Meek attended class. (Tr. 35255). Ms. Meek and Ms. Ricks became friends, and Ms. Ricks helped Ms. Meek get a job
with the sheriff’s department as a dispatcher. (Tr. 356-57, 360).
Ms. Ricks saw bruises on Ms. Meek’s leg, neck, and chest area. Ms. Meek called Ms.
Ricks the day before Ms. Meek went missing, but Ms. Ricks missed the call. (Tr. 364). Ms.
Ricks never saw Ms. Meek without her cell phone. (Tr. 358). Ms. Ricks testified that Ms.
Meek loved her children and had a very close relationship with them. (Tr. 357). Based upon
her friendship with Ms. Meek, Ms. Ricks did not believe Ms. Meek would ever leave her
children. (Tr. 365).
Gerald McDaniel testified he knew Hope Meek through his cousin, Rocky Dunithan.
The two men lived together with McDaniel’s grandmother, and Mr. Dunithan and Ms. Meek
were good friends. On February 20, 2002, Ms. Meek called their residence, wanting to speak
with Mr. Dunithan. Mr. McDaniel told Ms. Meek that Mr. Dunithan was not home. Later,
Ms. Meek came to the house looking for Mr. Dunithan. Mr. Dunithan was not at home, but
Ms. Meek and Mr. McDaniel had a conversation. During the conversation, Ms. Meek told
Mr. McDaniel that Petitioner threw her on the ground and “they dug glass out of the back of
her neck and her arm.” Mr. McDaniel testified he observed a scratch on one of Ms. Meek’s
arms and on the back of her neck. (Tr. 374-78).
Penny Howell testified that her husband, Kelly Howell, and Petitioner worked
9
together at Weyerhauser. On February 9, 2002, around 10:00 p.m., Petitioner came to the
Howell residence with his four-wheeler and wanted to ride with Mr. Howell. Petitioner was
angry and told Ms Howell that he and Ms. Meek were fighting. (Tr. 388-91).
Ms. Howell further testified that on February 19, 2002, she received a phone call from
Ms. Meek who said Mr. Howell was having an affair with Ms. Meek’s friend, Tonya
Nations. In return, Ms. Howell told Ms. Meek that Petitioner was having an affair with his
co-worker named Marguerite. During the conversation, Ms. Meek told Ms. Howell that
Petitioner had pushed, shoved, and choked her. Ms. Meek specifically told Ms. Howell of
two incidents when these acts occurred. In one, Petitioner choked Ms. Meek on the couch,
stopping only when her little boy came in the room. In another incident, her little girl would
not stop crying, and Petitioner came into the kitchen, choked Ms. Meek, and pinned her
against the refrigerator. Ms. Meek told Ms. Howell she loved Petitioner and did not want a
divorce. Ms. Meek also said she was taking classes, however, Petitioner did not like it. Ms.
Meek stated she planned to confront Petitioner about his affair but was not going to leave
him. (Tr. 399-06).
The next night, Petitioner called Ms. Howell. In a very angry tone, he told her to mind
her own business and not to tell Ms. Meek anything or give her any advice if she knew what
was good for her. Ms. Howell testified she did not tell police about these occurrences at the
time of Ms. Meek’s disappearance, because Mr. Howell told her to stay out of it. After Ms.
Meek disappeared, Ms. Howell observed flyers posted around town regarding her
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disappearance. One day, Ms. Howell pulled into Gary’s Mini-Mart after taking her husband
to work, and she saw Petitioner removing a flyer from a pole in front of the Mini-Mart. (Tr.
407-09).
Kelly Howell, Penny Howell’s ex-husband, testified that on February 20, 2002, the
day before Ms. Meek’s disappearance, Petitioner told him to “keep [his] bitch on a short
leash.” According to Mr. Howell, this was in reference to Ms. Howell’s conversation with
Hope Meek the day before. (Tr. 432, 438-39).
Tonya Schooley testified she knew Hope Meek because Ms. Meek was a neighbor of
Ms. Schooley’s ex-husband, Richard Mortenson. Mr. Mortenson was Ms. Meek’s neighbor
when Ms. Meek was separated from Petitioner, and she lived in a rent house next to Mr.
Mortenson. On February 20, 2002, the day before her disappearance, Ms. Meek called Ms.
Schooley and wanted Ms. Schooley to bring her some Excedrin. Ms. Schooley took the
Excedrin to Ms. Meek at the Meeks’ marital residence. Ms. Schooley testified Ms. Meek had
moved back into this residence about two weeks prior to this date. Ms. Meek was moving
slowly when she came out to get the medicine, saying she and Petitioner had gotten into a
fight. Ms. Schooley saw a bruise on Ms. Meek’s neck, one on her arm and one “close to the
back of her spine.” Ms. Meek told Ms. Schooley she had questioned Petitioner about an
affair with a woman named Marguerite. Ms. Schooley never heard from Hope Meek again
after this encounter. Ms. Schooley further testified that Ms. Meek was a “very good mother”
and would not have left her children. (Tr. 426).
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J.K. testified she lived with Petitioner and Tiffany Oney and that Petitioner was her
legal guardian. J.K. considered Ms. Oney to be her legal guardian also, but Ms. Oney and
Petitioner were not legally married. J.K. further testified her real mother’s name was Hope.
J.K. did not remember the last time she saw her mother, and she did not remember her
mother being in the house when she was six or when she was in kindergarten. (Tr. 448-52).
In fact, she could not remember anything about her mother or ever talking with anyone about
anything having to do with her mother and Petitioner. (Tr. 453-63).
Vicki Bell testified she was employed by the Department of Human Services for ten
years, commencing in 1996. On February 28, 2002, she conducted investigations into alleged
abuse and neglect cases. Her investigations included interviews with children to determine
the validity of the reports made in those cases. In February 2002, she was asked by the OSBI
to interview J.K. and J.M. regarding the disappearance of their mother, Hope Meek. J.K. was
almost seven years old, and J.M. was too young to be interviewed. (470-74, 502).
Ms. Bell further testified that J.K. understood the questions and answered them
appropriately. J.K. told Ms. Bell that she heard her mother tell her friends that Petitioner hit
her with glass. J.K. pointed to her left shoulder and to the back of her neck and explained
to Ms. Bell that was how her mother described being hit with the glass. (Tr. 477-78).
J.K. told Ms. Bell that she, her brother, and her father lived in their home, and
Petitioner had told J.K. that her mother was with friends. J.K. also told Ms. Bell the last time
she saw her mother was in her mother and Petitioner’s bedroom, and her mother and
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Petitioner were fighting. J.K. asked if she and her brother could go downstairs, and when
her mother gave permission, J.K. and her brother went downstairs to watch television. She
heard a fight between her mother and Petitioner, and she heard the “F-word.” The fight
ended when her mother got quiet. J.K. described another occasion where her mother had
been in the car and Petitioner kicked her mother, and she also described an incident when
Petitioner hit her mother and the police were called. (Tr. 479-80).
J.K. told Ms. Bell that after the fight, she and her brother helped Petitioner cut out a
section of carpet, roll it up, and place it in the trunk of their red car. They dumped the carpet
at a dump she thought was close to Hochatown. J.K. said they went fishing, fed the ducks,
and went camping. Then, they went to her grandparents’ house and finally returned home.
(Tr. 481). J.K. said she had not talked to her mother since that time, and Petitioner had told
J.K. her mother was gone forever. (Tr. 480-82).
OSBI Agent Cliff Fielding testified he was assigned to assist in the investigation into
the disappearance of Hope Meek. Agent Fielding testified that on February 28, 2002, he
interviewed Petitioner and executed a search warrant for the Meek residence. (Tr. 540-41).
Ms. Meek’s cell phone was recovered from a counter of the residence, and her keys were
found inside the stove in the pull-out broiler drawer. During the interview with Petitioner,
he told Agent Fielding he found the keys on the kitchen counter when he got home. (Tr. 544547).
Agent Fielding further testified Petitioner gave a statement to Officer Dennis James
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on February 26, 2002, two days prior to the Fielding’s interview with Petitioner. Petitioner’s
written statement to Officer James differed in several respects from what he told Agent
Fielding. For example, in his statement, Petitioner indicated he went to Wal-Mart and bought
camping supplies on the afternoon of February 21, 2002. (States Exhibit 5, Dkt. 12-12 at 89). In his interview, however, Petitioner told Agent Fielding he went to Wal-Mart to buy
camping supplies and plastic containers. (Tr. 552). The surveillance tape from Wal-Mart
of Petitioner’s trip there and the receipt for his purchase showed that he had purchased only
two large, fifty gallon plastic totes and nothing else. (Tr. 559; State’s Exhibits 52-53, Dkt.
12-12 at 54-55).
During the interview, Petitioner told the agent that on February 20, 2002, he and Ms.
Meek had an argument because Ms. Meek believed Petitioner was having an affair with his
coworker, Marguerite Hart. Ms. Meek and Petitioner “scuffled” over the keys to Petitioner’s
red truck, but Petitioner got the keys. Inside the house, Petitioner and Ms. Meek continued
the argument, with Ms. Meek striking Petitioner in the back and Petitioner pushing Ms. Meek
down between the coffee table and some pillars in the family room. The two older children,
J.K. and J.M. were at the house. Around 2:30 p.m., Petitioner left the house to go to work.
(Tr. 549-50).
At Petitioner’s workplace, his supervisor, Joe Williams, told Petitioner that Ms. Meek
had called Mr. Williams and asked him to put Petitioner on a different shift, so he would not
work the same shift as Marguerite Hart. Mr. Williams and Petitioner walked out to the
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parking lot where Petitioner saw Ms. Meek and all the children in Ms. Meek’s truck.
Petitioner and Ms. Meek began arguing, and Petitioner told her he would not argue with her
there. They drove to Valliant City Park to talk. Agent Fielding testified all this information
was not contained in the statement Petitioner made two days prior to the interview. (Tr. 550).
Petitioner told Agent Fielding that on February 21, 2002, he returned home from work
after his shift ended at 7:00 a.m. Ms. Meek told him to get J.K. ready for school, which he
did. Ms. Meek sent J.K. to school and then she left the house in her truck. Ms. Meek
returned home around 8:00 a.m. and went to sleep. She was angry and threatened to leave.
Petitioner got the two younger children up and took them to daycare. Petitioner then went
to the bank and cashed a check for $1,000.00, drove to the Wal-Mart in Hugo, Oklahoma,
bought camping items, and returned home. (Tr. 551-52).
Ms. Meek was at home but Petitioner did not talk to her. He took a nap for about two
hours. Petitioner then got up, left $500.00 in cash on the counter next to Ms. Meek’s cell
phone and truck keys, and loaded the camping equipment into his truck. He called in to his
work and reported he would not be working that night. Petitioner picked up the children
around 4:00 p.m. and drove to Hochatown. When it was almost dark, Petitioner found a
campsite near Hochatown Cemetery and set up a tent. The children played for about an hour,
but it was cold and Petitioner decided it was time to leave. He drove to Broken Bow where
he stopped at a Love’s and bought some snacks. Petitioner next drove to Paris, Texas and
bought a lottery ticket, then he drove back to Valliant. When Petitioner arrived back at his
15
residence around midnight, Ms. Meek’s truck was there, and inside the house he saw her
truck keys and cell phone on the counter. The $500.00 was gone. He looked for Ms. Meek
in the house but did not find her, and she had not left a note anywhere in the house. Petitioner
did not know if Ms. Meek’s purse or any of her clothes were missing. He told the agent he
never heard from Ms. Meek again. (Tr. 552-54).
Petitioner told Agent Fielding that on February 26, 2002, he made a missing person
report to Valliant Police Department regarding Ms. Meek’s disappearance, after Ms. Meek’s
family told him he needed to do so. Officer Dennis James took the report. Petitioner told
Agent Fielding that he believed Ms. Meek had a boyfriend who was a crack dealer, she was
shacked up with someone, and she had threatened to kill herself. This information was not
contained in the report Petitioner gave to Officer Dennis James. (Tr. 555). Agent Fielding
testified the two plastic totes Petitioner purchased were not found during the search of
Petitioner’s house. (Tr. 559).
Elmer Roberts testified on February 27, 2002, he owned a carpet store in Idabel. (Tr.
578-79). At closing time on that date, Petitioner came into his store and wanted some carpet
laid “pretty quick.” Mr. Roberts went to Petitioner’s home that evening and measured the
upstairs area. (Tr. 581-82). When Mr. Roberts went into the master bedroom, he observed
a rectangular piece of carpet had been removed from the room, but the pad was still there.
(Tr. 588-89). The new carpet was installed in Petitioner’s house the next morning. (Tr. 583;
610-11). Gary Hamilton, who installed the carpet, testified the pad as well as a large piece
16
of carpet were missing from the master bedroom when he arrived at Petitioner’s house on the
morning of February 28, 2002. The area of missing carpet was approximately nine square
yards. (Tr. 614).
OSBI Special Agent Chad Dansby testified he became the case agent in Hope Meek’s
disappearance case in 2010. Agent Dansby prepared a timeline of events concerning the
investigation into Ms. Meek’s disappearance, which was admitted into evidence as State’s
Exhibits 65-A, B and C. Agent Dansby also testified concerning the many steps he took in
attempting to locate Ms. Meek and that he never found her. (Tr. 662-701).
Petitioner testified in his own defense. He told the jury he met Hope after he got out
of the Air Force, while she was getting a divorce from her first husband. He said his main
purpose in having Hope come to Oklahoma with him in 1997 was that he needed her to drive
one of his cars from New Mexico. Petitioner had no plans to marry Ms. Meek, even though
he was living with her and engaging in a sexual relationship with her. Petitioner testified,
“[S]he ended up getting pregnant.” She did not want another baby or even another
relationship, according to Petitioner. Ms. Meek wanted an abortion, but Petitioner did not
want her to have one. He testified they reached an agreement that Ms. Meek would have the
baby, and if she wanted to move on, she would. Petitioner and Ms. Meek were married on
December 1, 1997, and J.M. was born December 18, 1997. (Tr. 996-1001).
Petitioner further testified he and Ms. Meek had good and bad times. Their
relationship was like a roller coaster, and Petitioner filed for divorce in 1999. He did not like
17
the way Ms. Meek dealt with J.M., however, because Ms. Meek told him he could not get
custody of J.M., they reunited. Petitioner and Ms. Meek bought a house in Valliant in July
2000, and she became pregnant again. Petitioner testified Ms. Meek wanted an abortion, and
she previously had had an abortion without her first husband’s knowledge. C.M. was born
in March 2001. (Tr. 1002-05, 1008).
Petitioner’s testimony can best be summarized as a collection of complaints about Ms.
Meek and a recitation of incidents that showed her bad character. For example, she wanted
not one, but two abortions, she put the children in daycare without his knowledge, she stayed
out all night and came home in the early hours of the morning, she brought her boyfriend into
the home, she made “1-900” phone calls, she had parties while he was at work, and so forth.
(Tr. 1000, 1005, 1009-12).
In the fall of 2001, Ms. Meek moved out of their house and into a rent house with the
children. He claimed Ms. Meek put the children in daycare to get rid of them. (Tr. 1012-15).
During his separation from her, if he was not working, he had the children. (Tr. 1018).
Petitioner denied ever abusing Ms. Meek. (Tr. 1022, 1025).
When Ms. Meek wanted to return to the marital home in December 2001, Petitioner
testified he did not want her to, but he was afraid of getting a divorce. He was afraid Ms.
Meek would take the children and move away. J.K. was a daddy’s girl, and Petitioner knew
he would have no chance at custody of her, because he was not her biological father. (Tr.
1027-238). Ms. Meek moved back into the marital home around the end of January or the
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first of February of 2002. (Tr. 1030).
Petitioner testified that Ms. Meek kept staying out late at night and being dissatisfied
with taking care of the children. (Tr. 1031-32). Ultimately, Petitioner testified in accordance
with what he told Agent Fielding in his interview, denying he ever physically assaulted Ms.
Meek and insisting she left and he never heard from her again. (Tr. 1046-99).
Ground I: Sufficiency of the Evidence
Petitioner alleges in Ground I of the petition that the trial evidence failed to show
beyond a reasonable that he committed murder. The Oklahoma Court of Criminal Appeals
(OCCA) denied relief on this claim as follows:
After thorough consideration of Meek’s propositions of error and the
entire record before us on appeal, including the original record, transcripts,
exhibits and briefs, we have determined that the judgment and sentence of the
district court shall be affirmed.
In reaching our decision, we find . . . that, in reviewing sufficiency
claims, this Court examines the evidence in a light most favorable to the State
and determines whether there was sufficient evidence for any rational trier of
fact to find the essential elements of the offense beyond a reasonable doubt.
Easlick v. State, 90 P.3d 556 (Okla. Crim. App. 2004); Spuehler v. State, 709
P.2d 202 (Okla. Crim. App. 1985). This Court reviews “the direct and
circumstantial evidence, crediting all inferences that could have been drawn
in the State’s favor, to determine if any rational trier of fact could have found
the essential elements of the charged crime beyond a reasonable doubt.” Davis
v. State, 103 P.3d 70 (Okla. Crim. App. 2004). In a light most favorable to the
State, we find that any rational trier of fact could have found the essential
elements of first degree malice murder beyond a reasonable doubt. See Arnold
v. State, 803 P.2d 1145, 1148 (Okla. Crim. App. 1990).
19
Meek v. State, No. F 2014-34, slip op. at 2 (Okla. Crim. App. Aug. 27, 2015) (unpublished).1
“Sufficiency of the evidence can be considered to be a mixed question of law and
fact.” Case v. Mondagon, 887 F. 2d 1388, 1392 (10th Cir. 1989), cert. denied, 494 U.S. 1035
(1990). 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 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
1
Parallel citations in the Oklahoma Court of Criminal Appeals’ opinion have been omitted
throughout this Opinion and Order.
20
Cir.), cert. denied, 498 U.S. 904 (1990) (citing United States v. Troutman, 814 F.2d 1428,
1455 (10th Cir. 1987)).
The OCCA applies the principles of Jackson when a defendant challenges the
sufficiency of the evidence. In Spuehler v. State, 709 P.2d 202, 203-04 (Okla. Crim. App.
1985), which is cited the opinion affirming Petitioner’s judgment and sentence, the OCCA
adopted the Supreme Court’s holding in Jackson as the standard in Oklahoma to evaluate
claims of insufficient evidence.
“The Court may not weigh conflicting evidence nor consider the credibility of
witnesses. Rather, the Court must ‘accept the jury’s resolution of the evidence as long as it
is within the bounds of reason.’” Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996)
(quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)). Both direct and
circumstantial evidence are considered in determining whether sufficient evidence supports
a conviction. Lucero v. Kirby, 133 F.3d 1299, 1312 (10th Cir. 1998) (citing United States
v. Swallow, 511 F.2d 514, 520 (10th Cir. 1975)). Even where facts supporting conflicting
inferences are presented, the court must presume the jury resolved any conflicts in favor of
the prosecution and must defer to that resolution. Turrentine v. Mullin, 390 F.3d 1181, 1197
(10th Cir. 2004).
Consistent with Lucero, the OCCA also holds that circumstantial evidence can
provide proof of an element of a crime. Cf. Hamby v. State, 720 P.2d 345, 346 (Okla. Crim.
App. 1986) (where victim testified she saw the defendant naked in doorway moving his hand
21
around on his genitals, but did not see his genitals, circumstantial evidence showed that a
reasonable person could properly infer that the defendant exposed his private parts in a public
place, and the defendant’s conviction was properly supported by sufficient evidence). Under
Oklahoma law, “a body need not be found in order for the crime of murder to be proven.”
Arnold v. State, 803 P.2d 1145, 1148 (Okla. Crim. App. 1990) (citing Rawlings v. State, 740
P.2d 153 (Okla. Crim. App. 1987)). “Circumstantial evidence may be used to prove the
corpus delecti.” Id. In addition, “[m]alice aforethought may be proved by circumstantial
evidence.” Davis v. State, 268 P.3d 86, 111 (Okla. Crim. App. 2011) (citing Bland v. State,
4 P.3d 702, 713-14 (Okla. Crim. App. 2000)). In Rutan v. State, 202 P.3d 839 (Okla. Crim.
App. 2009), another case where the victim’s body never was found, the OCCA found
“evidence of the history of verbal and physical abuse inflicted upon the victim by Appellant
supports a finding that she used unreasonable force on [the victim] which resulted in his
death.” Id., 202 P.3d at 850.
The State was required to prove beyond a reasonable doubt the following elements of
the crime of First Degree Murder: (1) the death of a human, (2) the death was unlawful, (3)
the death was caused by Petitioner, and (4) the death was caused with malice aforethought.
(Instruction No. 4-61; OUJI-CR (2d) (Dkt. 12-13 at 227)). Petitioner contends the State
failed to prove all these elements because Hope Meek’s body never was found.
As set forth by the State in its brief on direct appeal, there was ample evidence
presented from which the jury could find beyond a reasonable doubt that Petitioner
22
committed first degree murder in the death of Hope Meek. The evidence showed Ms. Meek
attempted to reconcile with Petitioner, and she was upset with him because she believed he
was having an affair with his co-worker. (Tr. 404-06, 422, 1027-30). The evidence also
showed Petitioner was violent with Ms. Meek. (Tr. 260-64, 364, 423-24, 479-80). Under
Rutan, this was circumstantial evidence of Petitioner’s use of violence against Ms. Meek
which resulted in her death. The evidence further showed Ms. Meek was a caring mother
who never would have left her children, and it showed she never would have failed to
communicate with her mother regarding her whereabouts. (Tr. 233-34, 319, 365, 425).
Petitioner testified that Ms. Meek moved out of the marital home in August or
September of 2001, however, in December 2001 she wanted to return to the marital home.
(Tr. 1017-18). In January 2002, he told Ms. Meek that she could not move back into their
home, because she “still was [running] around and whoring and stuff.” (Tr. 1029). He did
not want to reconcile with her, but he was afraid to divorce her because he knew he could not
gain custody of J.K., and he feared he would lose custody of his biological children. (Tr.
1028). She moved back in to the marital home in January or February of 2002. (Tr. 102930).
Petitioner never testified or told anyone that he loved Hope Meek or that he had ever
loved her. He also never testified or told anyone he or the children missed her. Instead, his
testimony demonstrated that Hope Meek was a burden to him, and he felt trapped and taken
advantage of by Ms. Meek. This situation with his wife, coupled with her agitation at him
23
over his alleged affair with a coworker provided the circumstantial evidence of Petitioner’s
intent to kill Ms. Meek as contemplated by Davis, 268 P.3d at 111. Further, Petitioner
admitted he had had the use and possession of all of his and Ms. Meek’s property since she
disappeared. (Tr. 1143). Cf. Bland v. State, 4 P.3d 702, 714 (Okla. Crim. App. 2000)
(evidence presented at trial showed the appellant was unhappy with the victim because he
felt he was stuck doing the victim’s work, and the appellant had possession of the victim’s
property after the victim was killed. This evidence, along with other evidence presented at
trial, provided circumstantial evidence of the appellant’s malice aforethought in killing the
victim).
The record shows that J.K. heard her parents fighting and never saw her mother again.
(Tr. 479-81). Petitioner took J.K., aged six; J.M., aged three; and C.M., less than one year
old, on a camping trip on the night Hope Meek disappeared. (Tr. 553). The surveillance tape
from Wal-Mart of Petitioner’s trip there and the receipt for his purchase at the store showed
he bought the two large, 50-gallon plastic totes and nothing else, despite his claim that he
also bought camping supplies. (Tr. 559). Petitioner removed carpet from the master
bedroom of his and Ms. Meek’s home the day of her disappearance. (Tr. 480-81), and within
one week he had new carpet installed. (Tr. 580-83, 610-18). The two plastic totes Petitioner
purchased were not found during the search of his house. (Tr. 559).
Agent Dansby’s timeline, based upon the evidence presented, demonstrated the logical
sequence of events which culminated in Ms. Meek’s death at the hands of Petitioner. (Tr.
24
658-701). All of this circumstantial evidence proved Ms. Meek was dead, despite the fact
that her body never was found. After careful review of the record, the Court finds the
evidence was sufficient under the standard of Jackson v. Virginia. The Court, therefore,
finds the OCCA’s determination that the evidence was sufficient did not constitute an
unreasonable application of the Jackson standard. The Court further finds Petitioner has
failed to show “there was no reasonable basis for the state court to deny relief” as required
by Richter. This ground for habeas corpus relief fails.
Grounds II: Ineffective Assistance of Trial Counsel
Petitioner alleges his trial counsel was ineffective in (1) failing to make the so-called
“goodbye note” allegedly written by Hope Meek a part of the record, (2) failing to object to
hearsay testimony, and (3) failing to object to an alleged evidentiary harpoon. Petitioner
raised this claim on direct appeal, and the OCCA denied relief as follows:
We find . . . Meek has not shown that counsel’s conduct fell below the
wide range of reasonable professional conduct, or that the result of the
proceeding would have been different had counsel performed as he now, in
hindsight, would have preferred. Strickland v. Washington, 466 U.S. 668, 689
(1984). Meek suffered no prejudice in counsel’s failure with regard to [the
goodbye note] . . . . Counsel’s failure to object to much of the hearsay
evidence . . . was likely due to a type of trial strategy showing that the victim
tried to blame Meek for their troubled marriage and finally left; therefore,
counsel’s conduct did not constitute ineffective assistance. Lastly, Meek
suffered no prejudice in the failure of counsel to preserve issues [regarding
sufficiency of the evidence and the alleged evidentiary harpoon], as no error
occurred.
Meek, slip op. at 5 (Dkt. 11-5).
As stated by the OCCA, the proper standard for analyzing a claim of ineffective
25
assistance of counsel is set forth in Strickland v. Washington. In Strickland, the Supreme
Court set forth the two-part test for determining the validity of an ineffective assistance of
counsel claim:
(1) “counsel’s performance was deficient,” and (2) “the deficient
performance prejudiced the defense.” Id., 466 at 687.
“[W]hile in some instances even an isolated error can support an ineffective-assistance
claim if it is sufficiently egregious and prejudicial, it is difficult to establish ineffective
assistance when counsel’s overall performance indicates active and capable advocacy.”
Richter, 562 U.S. at 111 (internal citations and quotation marks omitted). Regarding the
prejudice prong of Strickland, the Richter Court held:
In assessing prejudice under Strickland, the question is not whether a
court can be certain counsel’s performance had no effect on the outcome or
whether it is possible a reasonable doubt might have been established if
counsel acted differently. Instead, Strickland asks whether it is reasonably
likely the result would have been different. This does not require a showing
that counsel’s actions more likely than not altered the outcome, but the
difference between Strickland’s prejudice standard and a more-probable-thannot standard is slight and matters only in the rarest case. The likelihood of a
different result must be substantial, not just conceivable.
Id., 562 at 111-12 (internal citations and quotation marks omitted).
Under AEDPA, a “state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland standard itself.” Richter, 562
U.S. at 101. When evaluating the state court’s resolution of Strickland’s performance
requirement, federal courts must “use a ‘doubly deferential’ standard of review that gives
both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571
26
U.S. 12, 15 (2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 189-90 (2011)). “The
question ‘is not whether a federal court believes the state court’s determination’ under
Strickland ‘was incorrect but whether [it] was unreasonable--a substantially higher
threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Shiro v. Landrigan,
550 U.S. 465, 473 (2007)).
A.
The “Goodbye” Note
This claim formed the basis of Petitioner’s motion to supplement the record on direct
appeal pursuant to Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, tit. 22, Ch.
18, App. (2006). Respondent contends the circumstances regarding production of this note
were “incredible.” The unsigned, undated, handwritten note read as follows:
Jerry,
Through it all I have always been the one trying to hold this family
together. You need to grow up & live your own life instead of your Mommy
telling you what to do. You all are finally getting what you have been wanting
so this is my way of saying good-bye. I will always love you but I have been
pushed till I can’t take it no more.
I love you.
(Dkt. 11-2 at 5) (emphasis in original).
The record shows that defense counsel did not advise the State of the note’s existence
until well into the defense’s case, when its admission into evidence was sought. (Tr. 97576). Defense counsel told the trial court that the note had been in his files for at least two
months before trial, but he maintained it had not been copied with all the materials the
27
defense provided to the State in discovery. (Tr. 976). Defense counsel further informed the
trial court that Petitioner discovered the note in his lunch box after his interviews with the
police, and it had been in Petitioner’s possession since 2002. (Tr. 978, 980).
The State objected to the note’s admission, because it was not disclosed in discovery,
and its existence had never been mentioned in the history of the case. The State also pointed
out for the trial court that: (1) Petitioner made five statements regarding Ms. Meek’s
disappearance and never mentioned the note once; (2) Petitioner’s house was searched on
February 28, 2002, and the note was not discovered; (3) Petitioner was interviewed by Agent
Fielding and never mentioned the note; and (4) Petitioner gave sworn testimony in another
proceeding in 2003 regarding Ms. Meek’s disappearance and never mentioned the note. (Tr.
979-80).
Based upon this record, the trial court ruled as follows regarding the admission of the
note:
The Court makes the following findings: The Defendant through
counsel’s own statement says that the document is extremely important. The
Court finds that any delay in discovery is prejudicial to the State because of the
importance that the Defendant puts on this. The Court further finds that
subsequent to the disappearance of Mrs. Meek there was a search of the
defendant’s premises pursuant to a search warrant. This letter was not
discovered. The Court further finds that it was never mentioned until Saturday
or Sunday, one to two days after the State has rested. No; two to two and a
half days after the State had rested; two days after the Defendant had given an
opening statement. There was no mention of the letter in Defendant’s opening
statement and the prior testimony of the defendant and any statements given
by the defendant there was no mention of this letter. The letter is not dated. It
is not signed.
28
The Court further finds there is no opportunity to test the authenticity.
The Court further finds that it is incredible that a document that the Defense
says is extremely important remains secret for eleven plus years until Sunday,
three days after the State rests. I further find that the delay is meant to obtain
a tactical delay in discovery; it is meant to obtain a tactical advantage and the
explanation of the delay is incredible and find that it is not accidental.
Therefore, the document will not be allowed and the motion in limine is
granted. The Defendant will not mention the document.
(Tr. 982-83).
A defendant has the right to present a defense, but he must comply with rules of
procedure and evidence which are designed to assure fairness and reliability in criminal
proceedings. Crane v. Kentucky, 476 U.S. 683, 689-90 (1986). See also Simpson v. State,
230 P.3d 888, 895 (Okla. Crim. App. 2010). The right to present a complete defense is
recognized in Oklahoma, but there are some limitations. Summers v. State, 231 P.3d 125,
151-52 (Okla. Crim. App. 2010).
In Nevada v. Jackson, 569 U.S. 505 (2013), the trial court ruled the defendant could
not present evidence of the victim’s prior rape allegations against him, because the defendant
failed to provide the required written notice to the prosecution that he intended to present this
evidence, as required by Nevada law. On habeas review, the Ninth Circuit Court of Appeals
held this ruling violated the defendant’s right to present a defense. The Supreme Court,
however, reversed the Ninth Circuit, holding the notice requirement was not unconstitutional.
Id., 569 at 509-10.
In line with the reasoning of Jackson, the OCCA holds that when the defense willfully
fails to disclose evidence in order to gain a tactical advantage, the trial court does not abuse
29
its discretion by precluding introduction of the evidence at trial. In such a case, the exclusion
does not deny the defendant a meaningful opportunity to present a complete defense. Lozano
v. State, 313 P.3d 272, 273-74 (Okla. Crim. App. 2013).
Based upon the above record, the OCCA found the issue regarding the note’s
admission was waived, because defense counsel failed to make an offer of proof regarding
the note’s contents. Because Petitioner used this issue as the basis for one of his ineffective
assistance of counsel claims, as well as his Rule 3.11 motion, the OCCA addressed the
ineffective assistance of counsel issue, denying relief as follows:
. . . [W]e find that defense counsel waived the issue by failing to make
an offer of proof regarding the contents of the note sought to be offered. See
Okla. Stat. tit. 12, § 2104. Meek seeks to overcome this failure by raising a
related ineffective assistance of counsel claim and by filing a motion for an
evidentiary hearing and for supplementation of the record pursuant to Rule
3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App.
(2015). We have reviewed the ineffective assistance claim along with the
motion and find that Meek suffered no prejudice in the failure of counsel’s
attempt to introduce the evidence. He cannot, therefore, meet the prejudice
prong of a Strickland analysis. Likewise, the motion for evidentiary hearing
and for supplementation of the record is denied.
Meek, slip op. at 2-3 (footnote omitted).
In Richter, the Supreme Court held the question to be asked on habeas review
regarding counsel’s representation is “whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id. 562 U.S. at 105. As set forth above,
Petitioner testified about Ms. Meek’s shortcomings and her dissatisfaction with her life with
him. He also gave his version of her disappearance. Therefore, his defense was presented
30
to the jury. The provenance of the note was very questionable, as shown by the trial court’s
statements finding its appearance more than eleven years after Ms. Meek’s disappearance to
be “incredible.” (Tr. 983). Finally, the evidence against Petitioner was significant.
After careful review of the record, this Court finds the OCCA’s decision that trial
counsel was not ineffective in failing to make an offer of proof regarding the note is not
contrary to, or an unreasonable application of, federal law, nor was it an unreasonable
determination of the facts in light of the evidence presented at trial. Therefore, this ground
for habeas relief fails.
B.
Hearsay Evidence
Petitioner alleges his counsel was ineffective for failing to object to testimony of
numerous witnesses regarding statements Ms. Meek made to them. He argues the following
testimony was improperly admitted: Shelia Walker’s statements recounting that Ms. Meek
told Ms. Walker that Petitioner had beaten her; Ms. Walker’s statements about what J.K. told
Ms. Walker regarding the last time J.K. saw Ms. Meek; Officer James’ testimony about what
Hope Meek said concerning Petitioner’s abuse of her; Beverly Abbott’s testimony about a
conversation she had with Ms. Meek shortly before Ms. Meek’s disappearance; Penny
Howell’s testimony about a phone conversation she had with Ms. Meek in which Ms. Meek
told Ms. Howell about Mr. Howell’s affair; Gerald McDaniel’s testimony about what Ms.
Meek said concerning Petitioner’s abuse of Ms. Meek; Tonya Schooley’s testimony about
what Ms. Meek told her concerning Petitioner’s abuse of Ms. Meek; and Vicki Bell’s
31
testimony about what J.K. told her concerning the last time J.K. saw Ms. Meek and a fight
between Petitioner and Ms. Meek.
Petitioner alleged on direct appeal that this testimony was improperly admitted in
violation of the Oklahoma statutory prohibition against the admission of hearsay and in
violation of the Confrontation Clause. He claimed his trial counsel was ineffective with
respect to the hearsay, and he also presented the underlying substantive claim. The OCCA
denied relief as follows:
. . . [W]e find that statements introduced, which were made by Hope
Meek prior to her disappearance were not met with contemporaneous
objections, thus error is waived, except that this Court may review for plain
error. Okla. Stat. tit. 12, § 2104. Plain errors are those errors which are
obvious in the record, and which affect the substantial rights of the defendant;
that is to say that the error affects the outcome of the proceeding; moreover,
this Court will not grant relief for plain error unless the error seriously affected
the fairness, integrity or public reputation of the judicial proceeding or
otherwise represents a “miscarriage of justice.” Hogan v. State, 139 P.3d. 907,
923 (Okla. Crim. App. 2006); Simpson v. State, 876 P.2d 690, 700-01 (Okla.
Crim. App. 1994). Here, no plain error occurred, as the statements, in context,
were utilized to show the state-of-mind and to provide motive for the killing.
Washington v. State, 989 P.2d 960, 973 (Okla. Crim. App. 1999).
Appellant also makes reference to out-of-court statements made by
witness J.K. Some were met with objection others were not. The introduction
of witness J.K.’s out-of-court statements did not violate the confrontation
clause of either the United States or Oklahoma Constitutions as J.K. appeared
at trial and was subject to cross-examination. Crawford v. Washington, 541
U.S. 36, 68, n.9 (2004); United States v. Owens, 484 U.S. 554, 580 (1988);
California v. Green, 399 U.S. 149 (1970); Mitchell v. State, 120 P.3d 1196,
1207 (Okla. Crim. App. 2005). We further find that the trial court did not
abuse its discretion in allowing J.K.’s statements under Oklahoma’s rules of
evidence, as the statements complied with Okla. Stat. tit. 12 § 2804.l (2011).
No error occurred in the introduction of J.K.’s statements.
32
Meek, slip op. at 3-4. When the OCCA adjudicates a claim pursuant to its plain error review,
it has addressed any due process argument regarding that claim, because the OCCA’s plain
error test is the same one utilized by the Tenth Circuit in determining a due process violation.
Thornburg v. Mullin, 422 F.3d 1113, 1124-25 (10th Cir. 2005).
The Sixth Amendment as made applicable to the states through the Fourteenth
Amendment states, “In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” U.S. Const. amend. VI, XIV. In Crawford v.
Washington, 541 U.S. 36 (2004), the Supreme Court thoroughly examined the historical
meaning of the Sixth Amendment’s Confrontation Clause and determined that “[t]estimonial
statements of witnesses absent from trial have been admitted only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Id.,
541 U.S. at 59. The Supreme Court’s holding, however, is limited to testimonial statements:
The text of the Confrontation Clause reflects this focus. It applies to
“witnesses” against the accused--in other words, those who “bear testimony.”
2 N. Webster, An American Dictionary of the English Language (1828).
“Testimony,” in turn, is typically “[a] solemn declaration or affirmation made
for the purpose of establishing or proving some fact.” Ibid. An accuser who
makes a formal statement to government officers bears testimony in a sense
that a person who makes a casual remark to an acquaintance does not. The
constitutional text, like the history underlying the common-law right of
confrontation, thus reflects an especially acute concern with a specific type of
out-of-court statement.
Id. 541 U.S. at 51.
“The Confrontation Clause bars the introduction of testimonial hearsay against a
criminal defendant, unless the declarant is unavailable and the accused has had a prior
33
opportunity to cross-examine the declarant.” Smith v. Sirmons, 200 F. App’x 822, 825 (10th
Cir. 2006) (citing Crawford, 541 U.S. at 53-54). Testimonial hearsay includes “ex parte
in-court testimony or its functional equivalent--that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably expect to be used prosecutorially, . . .
extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions . . . [and] statements that were made under
circumstances which would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.” Crawford, 541 U.S. at 51-52 (citations and
internal quotation marks omitted). The admission of non-testimonial hearsay does not
implicate the Confrontation Clause. Id. at 68. See also United States v. Faulkner, 439 F.3d
1221, 1226 (10th Cir. 2006 ) (“[T]he Clause has no role unless the challenged out-of-court
statement is offered for the truth of the matter asserted”).
The OCCA determined the statements made by the victim were statements relevant
to her state of mind--a firmly established exception to the inadmissibility of hearsay. See
Moore v. Reynolds, 153 F.3d 1086, 1107 (10th Cir. 1998) (holding hearsay statements were
properly admitted under the “state of mind” exception because the exception is a “firmly
rooted hearsay exception.”). In Oklahoma, hearsay is defined as “a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Okla. Stat. tit. 12, § 2801(3). Non-testimonial hearsay may be
34
admitted against a defendant “if the hearsay is inherently trustworthy and reliable,” and
reliability can be inferred “where the evidence falls within a firmly rooted hearsay
exception.” Miller v. State, 98 P.3d 738, 744 (Okla. Crim. App. 2004). Pursuant to Okla.
Stat. tit. 12, § 2803(3), “[a] statement of the declarant’s then existing state of mind, emotion,
sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain and
bodily health” is not excluded by the hearsay rule, regardless of the declarant’s availability.
Under Oklahoma law, prior incidents of abuse by the defendant against the deceased
spouse are admissible in marital homicide cases. Harris v. State, 84 P.3d 731, 747 (Okla.
Crim. App. 2004); Smith v. State, 932 P.2d 521, 530 (Okla. Crim. App. 1996). Additionally,
the OCCA holds that statements of a decedent which show the decedent’s state of mind
toward the defendant or which supply the motive for the killing are admissible in a homicide
case. Andrew v. State, 164 P.3d 176, 188 (Okla. Crim. App. 2007); Welch v. State, 2 P.3d
356, 370 (Okla. Crim. App. 2000).
As set forth above, Shelia Walker, Officer James, Penny Howell, Gerald McDaniel
and Tonya Schooley testified that Ms. Meek told them Petitioner had physically abused her.
Tonya Schooley and Gerald McDaniel also testified they saw injuries on Ms. Meek which
she said were caused by Petitioner. Beverly Abbott testified that Ms. Meek asked her about
two days before her disappearance if Ms. Abbot had seen Petitioner talking to anyone in a
white car while Ms. Abbott was working at the E-Z Mart.
Petitioner denied he ever physically abused Ms. Meek. (Tr. 1096-99). Instead, he
35
testified that Ms. Meek physically abused him. (Tr. 1094-96). Petitioner also denied ever
having an affair with Marguerite Hart or another woman during his marriage to Ms. Meek.
(Tr. 1033). Petitioner’s defense was that Ms. Meek simply walked out one day and never
came back. Further, she did not care enough for her children not to leave, and Petitioner did
nothing to make her want to leave. (Tr. 711).
Ms. Meek’s statements as testified to by these witnesses were non-testimonial because
they were not made during custodial interrogation, in affidavits, as prior testimony not
subject to cross examination by Petitioner, or statements which the declarant would
reasonably expect to be used prosecutorially as addressed in Crawford. In fact, Ms. Meek
told Officer James she did not want to pursue charges against Petitioner when she reported
Petitioner’s abuse of her to him. Therefore, the admission of these witnesses’ statements did
not violate the Confrontation Clause. Given Petitioner’s testimony in support of his defense,
the evidence that Ms. Meek told people Petitioner beat her was admissible to show her state
of mind toward Petitioner. It also was probative of Petitioner’s motive to kill his wife--he
wanted to be rid of her. Similarly, the testimony of Ms. Abbott about Ms. Meek’s inquiries
regarding Petitioner’s interaction with a woman in a white car was probative of Ms. Meek’s
state of mind toward Petitioner and also of his motive to kill Ms. Meek.
Vickie Bell, a DHS employee, testified she interviewed J.K. shortly after Ms. Meek
disappeared. J.K. told her that Petitioner and Ms. Meek were fighting in their bedroom, and
she heard the “F-word.” Then Ms. Meek got quiet. Ms. Bell further testified J.K. told her
36
that after the fight, Petitioner had J.K. and her brother help him cut out a section of carpet,
roll it up, and put it in the trunk of their red car. (Tr. 480-81). J.K. told Ms. Bell she thought
they dumped the carpet at Hochatown, and they stayed in a tent for a while. They next went
to their grandparents’ house, and Petitioner then took them home. (Tr. 481). J.K. also said
Petitioner told her that Ms. Meek was gone forever. (Tr. 482).
The admission of this testimony and Ms. Walker’s testimony about J.K.’s statements
to her when J.K. was ten years old was the subject of a pretrial hearing on October 18, 2013.
(Tr. 10/18/13 39-62) (Dkt. 11-8). The trial court ruled Ms. Bell’s and Ms. Walker’s
testimony was admissible pursuant to Okla. Stat. tit. 12, § 2804, and stated all the
circumstances supporting the determination of the admissibility of J.K.’s statements to Ms.
Bell. Specifically, the trial court found J.K. was unavailable based upon the above statute,
i.e., that she had no memory of ever making the statements; that she testified at the
preliminary hearing and the defense did not cross-examine her; that the subject statements
testified to by Ms. Bell did not violate the tenets of Crawford; that part of the statement was
corroborated by other evidence in the case; that J.K. repeated her statements to other
witnesses; that J.K. appeared able to communicate; that there was no relationship between
Ms. Bell and J.K.; that J.K.’s interview with Ms. Bell occurred close in time to Ms. Meek’s
disappearance; that J.K. had no motive to fabricate her statements; and that J.K. had been in
the continuous custody of Petitioner since 2002. (Tr. 10/18/13 61-62).
Based upon this record, the OCCA found trial counsel was not ineffective for failing
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to object to the above testimony. The OCCA applied Strickland and determined that trial
counsel’s failure to object was based upon “a type of trial strategy showing the victim tried
to blame Meek for their troubled marriage and finally left; therefore, counsel’s conduct did
not constitute ineffective assistance.” Meek, slip op. at 5.
As fully addressed herein, Petitioner’s defense was that Ms. Meek could not tolerate
married life with him and their children any longer, and she simply walked out on them.
Testimony showing her complaints about Petitioner’s behavior toward her arguably
supported this defense. The fact that this strategy was unsuccessful does not equate to
ineffective assistance of counsel, given the “double-edged sword” nature of the evidence.
Cf. Wackerly v. Workman, 580 F.3d 1171, 1178 (10th Cir. 2009) (no ineffective assistance
where counsel strategically chose not to put on evidence of the defendant’s chronic substance
abuse; this “double-edged sword” evidence was just as likely to produce a negative reaction
in the jury as it was to produce one which would inspire the jury to mitigate the defendant’s
punishment).
Given this record, the Court finds the OCCA’s decision on this claim was not contrary
to, or an unreasonable application of, federal law, nor was it an unreasonable determination
of the facts in light of the evidence presented at trial. This ground for habeas relief is
meritless.
C. Evidentiary Harpoon
`
Petitioner alleges counsel was ineffective in failing to object to what he characterizes
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as an evidentiary harpoon by OSBI Agent Fielding. The OCCA has clearly defined the six
characteristics of evidentiary harpoons:
(1) they are generally made by experienced police officers, (2) they are
voluntary statements; (3) they are wilfully jabbed rather than inadvertent; (4)
they inject information concerning other crimes; (5) they are calculated to
prejudice the defendant; and (6) they are prejudicial to the rights of the
defendant on trial.
Scott v. State, 808 P.2d 73, 76 (Okla. Crim. App. 1991) (quoting Pierce v. State, 786 P.2d
1255, 1260 (Okla. Crim. 1990); Bruner v. State, 612 P.2d 1375, 1378 (Okla. Crim. 1980)).
Petitioner raised this claim on direct appeal as an ineffective assistance of counsel
claim, as well as an underlying substantive claim. He argued the trial court erred in admitting
the portion of Agent Fielding’s testimony regarding his interview with Petitioner. The record
shows that Agent Fielding’s testimony at issue was given in response to the prosecutor’s
direct question:
Q.
And at some point what stopped the interview I guess? At some point
was it just over or what happened?
A.
Well, I mean at the end of the interview I had confronted Jerry that I
believed there was more to the story or that he wasn’t being truthful or
confronted him that he might be involved in Hope’s disappearance. He
told me he didn’t want to talk to me anymore and requested an attorney,
and that was pretty much my extent of talking to Mr. Meek.
(Tr. 556).
The OCCA denied the substantive claim as follows:
. . . [W]e find that the agent’s answer given in direct questioning by the
prosecutor was not met with contemporaneous objection, thus any error is
waived. Okla. Stat. tit. 21, § 2104 (2011). We further find no plain error as
39
the answer did not meet the definition of an evidentiary harpoon, nor did the
question rise to the level of prosecutorial misconduct. See Scott v. State, 808
P.2d 73, 76 (Okla. Crim. App. 1991) (defining an evidentiary harpoon); see
also Garrison v. State, 103 P.3d 590, 612 (Okla. Crim. App. 2004) (No trial
will be reversed on the allegations of prosecutorial misconduct “unless the
cumulative effect was such to deprive the defendant of a fair trial.”).
Meek, slip op. at 4-5.
In his reply brief, Meek claims that the answer was a comment on
Meek’s invocation of his Constitutional rights. Meek, however, cites no
authority supporting his claim, and, furthermore, no new propositions may be
raised in a reply brief pursuant to Rule 3.4(F), Rules of the [Oklahoma] Court
of Criminal Appeals, Title 22, Ch. 18, App. (2015), thus the issue is waived for
consideration.
Meek, slip op. at 5 n.4.
Petitioner relies solely on Oklahoma law regarding this claim. As set forth above, the
OCCA expressly found the complained-of testimony was not an evidentiary harpoon, and it
did not constitute prosecutorial error under Oklahoma law. The OCCA’s interpretation of
state law is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62,
67–68 (1991). Further, this Court finds the OCCA’s determination that trial counsel was not
ineffective in failing to object to the testimony was not contrary to, or an unreasonable
application of Supreme Court law. Thus, habeas relief is not warranted.
To the extent Petitioner is attempting to raise a claim that trial counsel was ineffective
in his failure to object to a comment about his Fifth Amendment right to an attorney, this
claim also fails. The OCCA found such claim was procedurally barred, because Petitioner
did not raise it in his direct appeal, instead presenting it in his reply brief. Meek, slip op. at
40
5 n.4. As set forth above, the OCCA also found counsel was not ineffective for failing to
preserve this issue, “as no error occurred.” Meek, slip op. at 5.
While Petitioner did not clearly raise the substantive issue of improper comment upon
his right to an attorney on direct appeal, he vaguely raised on direct appeal an ineffective
assistance of counsel claim for failing to object to this comment, despite the OCCA’s finding
to the contrary. (Dkt. 11-1 at 44). Because the OCCA arguably did not address the claim,
this Court’s review will be de novo. See Williams v. Trammell, 782 F.3d 1184, 1191 (10th
Cir. 2015) (“We review de novo claims that the state court did not adjudicate on the
merits.”).
“[T]he Fifth Amendment . . . forbids either comment by the prosecution on the
accused’s silence or instructions by the court that such silence is evidence of guilt.” Griffin
v. California, 380 U.S. 609, 614 (1965). This holding refers to the accused’s failure to
testify. Id. at 615. The use of a criminal defendant’s pre-arrest silence to impeach the
defendant’s credibility when the defendant testifies is not prohibited by the Fifth
Amendment. Jenkins v. Anderson, 447 U.S. 231, 238-39 (1980). In Carter v. Ward, 347
F.3d 860, 864 (10th Cir. 2003), the Court, citing Jenkins, noted the Supreme Court left open
the issue of whether pre-arrest silence may be used by the prosecution to establish guilt, but
reiterated that “the Fifth Amendment did not prohibit the use of pre-arrest silence for
purposes of impeachment.” (emphasis in original). See also United States v. Chimal, 976
F.2d 608, 611 (10th Cir. 1992) (“It is well-established that a prosecutor may use a
41
defendant’s pre-arrest silence to impeach the defendant’s credibility.”)
As shown above, the prosecutor did not specifically ask Agent Fielding if Petitioner
said anything. Instead, he asked the agent how his conversation with Petitioner ended.
Given Petitioner’s defense of complete innocence of any involvement in Ms. Meek’s
disappearance, the agent’s testimony about Petitioner’s decision to contact an attorney rather
than speak with the agent was proper impeachment concerning Petitioner’s credibility. See
United States v. Watters, 237 F. App’x 376, 381-82 (10th Cir. 2007) (holding there was no
improper comment upon the defendant’s right to an attorney where the defendant raised the
defense that someone else occupied property where guns and drugs were found, and
prosecutor properly asked him during his testimony about his pre-arrest actions in contacting
an attorney before speaking with police).
The record shows that before his arrest, Petitioner gave investigators at least three
versions of what he did immediately before Ms. Meek’s disappearance. When he testified
in his own behalf, his testimony generally comported with the pre-arrest statement he gave
to Agent Fielding. The gist of Petitioner’s testimony was that he was the backbone of his
family and completely committed to the children, that Ms. Meek was selfish, that she was a
bad mother, that she wanted to leave him and the children, and that he had nothing
whatsoever to do with her disappearance. Therefore, Agent Fielding’s testimony that
Petitioner thought he needed an attorney before speaking further with law enforcement
impeached his testimony that he was completely innocent in his wife’s disappearance, and
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Fielding’s testimony did not violate Petitioner’s Fifth Amendment rights. Because the
underlying claim is meritless, counsel could not have been ineffective for failing to object
to the testimony. This claims for habeas corpus relief also fails.
Ground III: Cumulative Error
In Petitioner’s final ground for relief, Petitioner alleges the cumulative effect of errors
deprived him of a fundamentally fair trial. The OCCA denied relief on this claim, stating:
“Finally, . . . we find that there are no individual errors requiring relief. As we find no error
that was harmful to Meek, there is no accumulation of error to consider.” Meek, slip op. at
5 (citing Barnett v. State, 263 P.3d 959, 970 (Okla. Crim. App. 2011)).
“[T]he Supreme Court has never recognized the concept of cumulative error” Bush
v. Carpenter, 926 F.3d 644, 686 n.16 (10th Cir. 2019). Nonetheless, “[c]umulative-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.), cert.
denied, 522 U.S. 844 (1997) (citing United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir.
1990)). 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.”).
Here, the OCCA and this Court found no errors in Grounds I, II, or III of the petition.
This Court, therefore, concludes Petitioner cannot establish there was cumulative error, or
43
that the OCCA’s decision was contrary to Supreme Court law. Therefore, habeas relief
cannot be granted on this claim.
Request for Evidentiary Hearing
At the end of his brief in support of the petition, Petitioner requests an evidentiary
hearing “as to the Petition as a whole and in particular as to any issues which involve facts
not apparent from the existing record and to any issues which involve facts disputed by the
State.” (Dkt. 9 at 52). “[W]hen the state-court record precludes habeas relief under the
limitations of § 2254(d), a district court is not required to hold an evidentiary hearing.”
Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (citation and internal quotation marks
omitted). Further, “Petitioner is not entitled to an evidentiary hearing on meritless claims.”
Cleveland v. Sharp, 672 F. App’x 824, 826 (10th Cir. 2016). Because this Court found no
merit in any of Petitioner’s claims, an evidentiary hearing cannot be granted.
Certificate of Appealability
The Court further finds Petitioner has failed to make a “substantial showing of the
denial of a constitutional right,” as required by 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. 2) is
DENIED, and Petitioner is denied a certificate of appealability.
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IT IS SO ORDERED this 31st day of March 2020.
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