Andrew v. Newton-Embry

Filing 68

MEMORANDUM OPINION, Accordingly, habeas relief is DENIED on all gounds, as more fully set out. Signed by Honorable David L. Russell on 9/9/15. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BRENDA EVERS ANDREW,
Petitioner,
v.
RICKEY MOHAM, Warden,
Mabel Bassett Correctional Center,
Respondent.

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Case No. CIV-08-832-R

MEMORANDUM OPINION
Petitioner, a state prisoner currently facing execution of a sentence of death, appears
with counsel and petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging her convictions in the District Court of Oklahoma County, Case No. CF-20016189, of one count of first-degree malice aforethought murder and one count of conspiracy
to commit first-degree malice aforethought murder.

Respondent has responded to

Petitioner’s Petition for a Writ of Habeas Corpus (hereinafter “Petition”),1 and Petitioner has
replied. The State court record has been supplied.2
PROCEDURAL HISTORY

1

References to the parties’ pleadings shall be as follows: Petitioner’s Petition for a Writ of
Habeas Corpus shall be cited as (Pet. at __.); Respondent’s Response in Opposition to Petition for
Writ of Habeas Corpus shall be cited as (Resp. at __.); and, Petitioner’s Reply Regarding Petition
for Writ of Habeas Corpus shall be cited as (Reply at __.).
2

The trial court’s original record shall be cited as (O.R. at __.). The trial transcript shall be
cited as (Tr., Vol. ___, p. __.).

Petitioner was convicted by a jury in the District Court of Oklahoma County of one
count of first-degree murder and one count of conspiracy to commit first-degree murder for
the death of her husband, Robert Andrew. For the crime of first-degree malice aforethought
murder, the jury recommended the imposition of a sentence of death, finding the existence
of two aggravating circumstances: (1) the murder was committed for remuneration or the
promise of remuneration; and (2) the murder was especially heinous, atrocious, or cruel. She
was also sentenced on the conspiracy count to ten years imprisonment and a $5000.00 fine.
Petitioner appealed her convictions and sentences to the Oklahoma Court of Criminal
Appeals (hereinafter “OCCA”). The OCCA affirmed Petitioner’s convictions and sentence
of death in a published opinion dated June 21, 2007. Andrew v. State, 164 P.3d 176 (Okla.
Crim. App. 2007). Petitioner’s petition for rehearing was denied. At the same time the
OCCA corrected its earlier opinion. Andrew v. State, 168 P.3d 1150 (Okla. Crim. App.
2007). Certiorari was denied on April 14, 2008. Andrew v. Oklahoma, 552 U.S. 1319, 128
S.Ct. 1889 (2008). Petitioner filed an Application for Post-Conviction Relief which was
denied by the OCCA in an unpublished opinion. Andrew v. State, No. PCD-2005-176 (Okla.
Crim. App. Jun. 17, 2008).
FACTUAL BACKGROUND
Under 28 U.S.C. § 2254(e), when a federal district court addresses “an application for
a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be presumed to be correct.” 28
U.S.C. § 2254(e)(1). For the purposes of consideration of the present Petition, the Court
2

provides and relies upon the following synopsis from the OCCA’s opinion summarizing the
evidence presented at Petitioner’s trial. Following review of the record, trial transcripts, and
the admitted exhibits, the Court finds this summary by the OCCA to be adequate and
accurate. The Court therefore adopts the following summary of the facts as its own:
Appellant’s husband Robert (“Rob”) Andrew was shot to death at their
Oklahoma City home sometime around 7:00 p.m. on November 20, 2001.
Appellant was also shot in the arm during this incident.
The Andrews were separated at the time and Rob Andrew was at the
home to pickup the two minor children for visitation over the Thanksgiving
holiday. The custom was that Appellant would bring the children out to the
car and Rob would take them from there. However, on this night, Appellant
asked Rob Andrew to come into the garage to light the pilot light on the
furnace because it had gone out.
Appellant’s version of the events from that point on was that as Rob
was trying to light the furnace, two masked men entered the garage. Rob
turned to face the men and was shot in the abdomen. He grabbed a bag of
aluminum cans to defend himself and was shot again. Appellant was hit
during this second shot.
Undisputed facts showed that after that, Appellant called 911 and
reported that her husband had been shot. Emergency personnel arrived and
found Rob Andrew’s body on the floor of the garage; he had suffered
extensive blood loss and they were unable to revive him. Appellant had also
suffered a superficial gunshot wound to her arm. The Andrew children were
found in a bedroom, watching television with the volume turned up very high,
oblivious to what had happened in the garage.
Appellant was taken to a local hospital for treatment. Her behavior was
described by several witnesses, experienced in dealing with people in
traumatic situations, as uncharacteristically calm for a woman whose husband
had just been gunned down.
Rob Andrew was shot twice with a shotgun. A spent 16–gauge shotgun
shell was found in the garage on top of the family van. Rob Andrew owned
a 16–gauge shotgun, but had told several friends that Appellant refused to let
3

him take it when they separated. Rob Andrew’s shotgun was missing from the
home. One witness testified to seeing Appellant at an area used for firearm
target practice near her family’s rural Garfield County home eight days before
the murder and he later found several 16–gauge shotgun shells at the site.
Appellant’s superficial wound was caused by a .22 caliber bullet,
apparently fired at close range, which was inconsistent with her claim that she
was shot at some distance. About a week before the murder, Pavatt purchased
a .22 caliber handgun from a local gun shop. Janna Larson, Pavatt’s daughter
testified that, on the day of the murder, Pavatt borrowed her car and claimed
he was going to have it serviced for her. When he returned it the morning after
the murder, the car had not been serviced, but Larson found one round of .22
caliber rimfire ammunition on the floorboard. In a conversation later that day,
Pavatt told Larson never to repeat that Appellant had asked him to kill Rob
Andrew, and he threatened to kill Larson if she did. He also told her to throw
away the .22 round she found in her car.
Police searched the home of Dean Gigstad, the Andrews’ next-door
neighbor, after the Gigstads reported finding suspicious things in their home.
Police found evidence that someone had entered the Gigstads’ attic through an
opening in a bedroom closet. A spent 16 gauge shotgun shell was found on the
bedroom floor, and several .22 caliber rounds were found in the attic itself.
There were no signs of forced entry into the Gigstad home. Gigstad and his
wife were out of town when the murder took place, but Appellant had a key to
their home. The .22 caliber round found in Janna Larson’s car was of the same
brand as the three .22 caliber rounds found in the Gigstads’ attic; the .22
caliber bullet fired at Appellant and retrieved from the Andrews’ garage
appeared consistent with bullets in these unfired rounds. These rounds were
capable of being fired from the firearm that Pavatt purchased a few weeks
before the murder; further testing was not possible because that gun was never
found. The 16 gauge shotgun shell found in the Gigstads’ home was of the
same brand as the 16 gauge shell found in the Andrews’ garage. Ballistics
comparison showed similar markings, indicating that they could have been
fired from the same weapon. Whether these shells were fired from the
16–gauge shotgun Rob Andrew had left at the home was impossible to confirm
because, as noted, that gun remains missing.
Within days after the shooting, before Rob Andrew’s funeral,
Appellant, James Pavatt and the two minor children left the State and crossed
the border into Mexico. They were apprehended while attempting to re-enter
the United States in late February 2002.
4

Appellant and Pavatt met while attending the same church. At some
point they began teaching a Sunday school class together. Appellant and
Pavatt began having a sexual relationship.[3] Around the same time, Pavatt,
a life insurance agent, assisted Rob Andrew in setting up a life insurance
policy through Prudential worth approximately $800,000. In late September
2001, Rob Andrew moved out of the family home, and Appellant initiated
divorce proceedings a short time later.
Janna Larson, Pavatt’s adult daughter, testified that in late October,
Pavatt told her that Appellant had asked him to murder Rob Andrew. On the
night of October 25–26, 2001, someone cut the brake lines on Rob Andrew’s
automobile. The next morning, Pavatt persuaded his daughter to call Rob
Andrew from an untraceable phone and claim that Appellant was at a hospital
in Norman, Oklahoma, and needed him immediately. An unknown male also
called Rob that morning and made the same plea. Rob Andrew’s cell phone
records showed that one call came from a pay phone in Norman (near Larson’s
workplace), and the other from a pay phone in south Oklahoma City. Rob
Andrew discovered the tampering to his car before placing himself in any
danger. He then notified the police. The next day, Appellant told Rob that she
read in the newspaper that someone cut his brakes, but no media coverage of
this event had occurred.
One contentious issue in the Andrews’ relationship was control over the
insurance policy on Rob Andrew’s life. After his brake lines were cut, Rob
Andrew inquired about removing Appellant as beneficiary of his life insurance
policy. Rob Andrew spoke with Pavatt’s supervisor about changing the
beneficiary. He also related his suspicions that Pavatt and Appellant were
trying to kill him. At trial, the State presented evidence that in the months
preceding the murder, Appellant and Pavatt actually attempted to transfer
ownership of the insurance policy to Appellant without Rob Andrew’s
knowledge, by forging his signature to a change-of-ownership form and
backdating it to March 2001.[4]
3

The State presented evidence that the Andrews’ marriage had been strained for several
years, and that Appellant had had a number of extramarital affairs. (footnote 3 in original)
4

According to one witness, Appellant had told her husband that she could sign his name
“better than he could.” Among other evidence, the State presented recordings of telephone
conversations from Appellant and Pavatt to the insurance company’s home office, inquiring about
the status of the policy and attempting to persuade them that a legitimate ownership change had been
made. (footnote 4 in original)
5

In the days following the murder, Pavatt obtained information over the
Internet about Argentina, because he had heard that country had no extradition
agreement with the United States. Larson also testified that after the murder,
Appellant and Pavatt asked her to help them create a document, with the
forged signature of Rob Andrew, granting permission for his children to travel
with Appellant out of the country. Appellant also asked Larson to transfer
funds from her bank account to Larson’s own account, so that Larson might
wire them money after they left town.
Appellant did not attend her husband’s funeral, choosing instead, to go
to Mexico with Pavatt and the children. Pavatt called his daughter several
times from Mexico and asked her to send them money. Larson cooperated
with the FBI and local authorities in trying to track down the pair.
After her apprehension, Appellant came into contact with Teresa Sullivan, who was
a federal inmate at the Oklahoma County jail. Sullivan testified that Appellant told her that
she and Pavatt killed her husband for the money, the kids, and each other. Appellant also
told her that Pavatt shot her in the arm to make it look as if she was a victim.
Expert testimony opined that the wound to Appellant’s arm was not
self-inflicted, but was part of a scheme to stage the scene to make it look like
she was a victim, just like her husband. Additional facts will be discussed as
relevant to Appellant’s propositions of error.
Andrew, 164 P.3d at 184-87.
Additional facts and testimony were submitted to the jury at trial but are not contained
in the OCCA’s summary. Additional facts necessary for a determination of Petitioner’s
claims will be set forth in detail throughout this Opinion where applicable.
PETITIONER’S CLAIMS FOR RELIEF
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter
“AEDPA”), in order to obtain federal habeas relief once a State court has adjudicated a
particular claim on the merits, Petitioner must demonstrate that the adjudication:
6

(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)(1-2).
The Supreme Court has defined “contrary to” as a State court decision that is
“substantially different from the relevant precedent of this Court.” Williams v. Taylor, 529
U.S. 362, 405 (2000) (O’Connor, J., concurring and delivering the opinion of the Court). A
decision can be “contrary to” Supreme Court precedent “if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court] cases” or “if the state court
confronts a set of facts that are materially indistinguishable from a decision of this Court and
nevertheless arrives at a result different from [Supreme Court] precedent.” Id. at 405-06.
The “unreasonable application” prong comes into play when “the state court identifies the
correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the
facts of the particular state prisoner’s case” or “unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.” Id. at 407. In
ascertaining clearly established federal law, this Court must look to “the holdings, as opposed
to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court
decisions.” Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) (quoting Williams, 529
at 412.
The “AEDPA’s purpose [is] to further the principles of comity, finality, and
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federalism. There is no doubt Congress intended AEDPA to advance these doctrines.”
Williams v. Taylor, 529 U.S. 420, 436 (2000). “The question under AEDPA is not whether
a federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable – a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007). The deference embodied in 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.” Harrington v.
Richter, 562 U.S. 86, 102-03 (2011)(citation omitted).
GROUNDS FOR RELIEF
Ground 1:

Exclusion of Witnesses.

In the first stage of trial, the trial court excluded the testimony of six defense witnesses
because it found that defense counsel had failed to provide adequate notice of their testimony
prior to the discovery deadline as they had been previously instructed. Petitioner claims the
trial court’s actions deprived her of a right to present a defense in violation of the Sixth,
Eighth and Fourteenth Amendments.
When considering Petitioner’s claim on appeal, the OCCA noted that Oklahoma law
permits exclusion of evidence for failure to comply with discovery rules, Andrew, 164 P.3d
at 196 (citing 22 O.S. Supp. 2002, § 2002), and stated that such a sanction may be
appropriate in the most severe cases, “where the violation is ‘willful and motivated by a
desire to obtain a tactical advantage.’” The state court further stated that alternative
sanctions are appropriate in other cases. Id. (citations omitted).
8

“‘[C]riminal defendants have the right to the government’s assistance in compelling
the attendance of favorable witnesses at trial and the right to put before a jury evidence that
might influence the determination of guilt.’” Taylor v. Illinois, 484 U.S. 400, 408
(1988)(quoting Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987)). “Few rights are more
fundamental than that of an accused to present witnesses in his own defense.” Id. (citing
Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). “In the exercise of [the right to present
witnesses], the accused, as is required of the State, must comply with established rules of
procedure and evidence designed to assure both fairness and reliability in the ascertainment
of guilt and innocence.” Chambers, 410 U.S. at 302.
“The accused does not have an unfettered right to offer testimony that is incompetent,
privileged, or otherwise inadmissible under standard rules of evidence. The Compulsory
Process Clause provides him with an effective weapon, but it is a weapon that cannot be used
irresponsibly.” Taylor, 484 U.S. at 410. “The integrity of the adversary process, which
depends both on the presentation of reliable evidence and the rejection of unreliable
evidence, the interest in the fair and efficient administration of justice, and the potential
prejudice to the truth-determining function of the trial process must also weigh in the
balance. Id. at 414-15.
On habeas review, this Court must determine whether the OCCA’s rejection of
Petitioner’s claims was objectively unreasonable, not whether it was correct. See Mitchell
v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001). As a condition for obtaining relief in this
Court, Petitioner must demonstrate that the state court’s ruling “was so lacking in
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justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
Larry Northcutt and Roger Frost
Petitioner claims error in the exclusion of testimony from Larry Northcutt5 and Roger
Frost. Both men were Oklahoma City police officers who also engaged in off-duty work as
neighborhood patrols for Petitioner’s homeowner’s association. Both men were offered by
the defense to show that Petitioner had requested additional police patrols in the
neighborhood because she was afraid of Rob Andrew taking possessions from the house and
that it was unlikely, knowing of the increased patrols, that she would have used her residence
as the location to murder her husband.
On appeal, the OCCA rejected Petitioner’s claims, reasoning:
First, Appellant claims that she was not allowed to present the
testimony from Sergeant Larry Northcutt and Officer Roger Frost, both of
whom worked during their off duty hours patrolling the Lansbrook
neighborhood where the Andrews lived. Counsel asked Northcutt whether
Appellant requested extra patrols around her house. Trial court ruled that the
information had not been provided in discovery; therefore, Northcutt could not
answer the question. Not until the day that Northcutt was to testify, did
Appellant provide a summary of his testimony. No good reason existed for
this other than to attempt to gain a tactical advantage; therefore, the trial court
did not abuse its discretion in precluding this testimony.
Counsel asked Frost, in many different ways, whether Northcutt told
him that Appellant requested extra patrols at her residence. The trial court
sustained each objection based on hearsay. What was evident from the
testimony was that the off-duty officers were providing extra patrol near the

5

Petitioner admits the anticipated testimony from Larry Northcutt was not specific
information with which the State would have been familiar. (Pet. at 38)
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residence. On appeal, Appellant argues that the testimony is not hearsay, it is
provided to show why the officers provided extra patrol. On the contrary,
counsel wanted to elicit this testimony to show that Appellant requested extra
patrols in order to show that she was not a calculating murderer. This
testimony was hearsay and the trial court did not abuse its discretion.
Furthermore, the jury was well aware that extra patrols were requested.
The only information that was kept from the jury was that Appellant had
requested those patrols. The failure to give this information to the jury did not
prejudice Appellant. The jury might have believed that her request for extra
patrols took place during the planning stage of this murder, and the request
was just another method of deflecting suspicion away from her.
Andrew, 164 P.3d at 196-97.
Petitioner argues the anticipated testimony was relevant and necessary to show that
not only would she have not used her house as the site of the murder knowing of the extra
patrols, but also would also have provided the jury with a reason for her to have kept the
shotgun other than the State’s theory she kept it to use it on her husband. The OCCA found
the trial court did not abuse its discretion precluding the testimony and that the failure to give
this information did not prejudice Petitioner as the jury was aware of the extra patrols.
Habeas relief for constitutional error is appropriate only when the error “had substantial and
injurious effect or influence in determining the jury’s verdict” and the petitioner can establish
that it resulted in “actual prejudice”. Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)(citations omitted). The only information not presented was Petitioner’s request to the
officers. The OCCA’s determination that Petitioner was not prejudiced is not unreasonable
considering the other evidence presented throughout the trial. Should, as Petitioner claims,
the OCCA’s determination on the propriety of the trial court’s rulings be error, Petitioner has

11

not demonstrated the exclusion of this limited testimony had a substantial and injurious effect
or influence on the jury’s determination.
Lisa Gisler and Carol Shadid
Petitioner attempted to present testimony from two of her neighbors regarding what
they heard at the time of the homicide in an effort to support her version of the events and
to rebut the version presented by the State.
Next, Appellant cites to her attempts to present the testimony of Lisa
Gisler and Carol Shadid, who were neighbors of Appellant, regarding what
they heard on the night of the murder. These witnesses heard noises, which
Appellant describes as a “loud noise” (Gisler) or “three shotgun blasts” and a
scream (Shadid). Appellant claims this testimony would corroborate her story
of the events and rebut the staging theory espoused by the State.
Defense counsel provided the State with a list of witnesses which
included these two witnesses; however, no summary of their expected
testimony was provided. Nevertheless, both of these witnesses provided
statements to the police. Their statements were contained in police reports that
were in the custody of the State. Defense counsel made an offer of proof
indicating that their testimony would be consistent with their statements to
police. Preclusion of this testimony, under the circumstances was too harsh a
sanction, thus there was an abuse of discretion here. The trial court had at its
disposal the possibility of a short continuance, if necessary, so the State could
prepare for cross-examination of these two witnesses, especially considering
the limited nature of their testimony. The trial court abused its discretion in
using the preclusion sanction.
Even though an abuse of discretion occurred, we find that the error was
harmless beyond a reasonable doubt. See Hooks v. State, 2001 OK CR 1, ¶ 14,
19 P.3d 294, 307. Despite Appellant’s claim, evidence that there were three
shots is consistent with the State’s theory of two shots fired from a shotgun
and one fired from a .22 caliber handgun. The testimony is inconsistent with
Appellant’s story that she heard only two shots fired. Furthermore, both
reconstruction experts, prosecution and defense, testified that Appellant’s
gunshot wound was evidence of a staged event.

12

Id. at 197.
Petitioner has not demonstrated the OCCA’s determination of harmlessness was
unreasonable. Implicit in the state court’s determination was that the testimony was
cumulative of other evidence presented at trial – even evidence of Petitioner’s statements that
Rob Andrew was shot twice and Petitioner once. Further, reconstruction experts on behalf
of the state and Petitioner testified the gunshot wound to Petitioner was staged. It is not
unreasonable to conclude that neighbors hearing screams and shots fired in rapid succession
would not sufficiently rebut the testimony of two expert witnesses. Considering all the
evidence in its entirety, the exclusion of this limited testimony did not have a substantial and
injurious effect or influence on the jury’s determination and was harmless.
Officer Ronald Warren
Petitioner claims the exclusion of testimony of Officer Ronald Warren was also error.
Officer Warren was one of the first officers on the scene. Petitioner contends Officer
Warren’s testimony was critical because he would have testified when he entered the garage
Petitioner was kneeling at Rob Andrew’s side, that she asked him to help her husband, and
that she was ignoring or not drawing attention to her own wound. Petitioner claims Warren’s
testimony was necessary to show her great concern for her husband.
Next, Appellant claims that exclusion of Officer Ronald Warren’s
testimony was error. The testimony was excluded, because of a lack of
pre-trial notice. This officer made a written report, which was in the custody
of the State. The report spells out his expected testimony. Like the above
witnesses, the exclusion of the testimony constituted an abuse of discretion.
However, defense counsel was able, through another witness, to elicit the same
evidence; evidence that Appellant was kneeling over obviously deceased Rob
13

Andrew attempting to aid him, while disregarding her own gunshot injury.
This excluded evidence was largely cumulative; therefore, the exclusion was
harmless beyond a reasonable doubt.
Id. at 197.
The OCCA’s determination the exclusion of this evidence was harmless is reasonable.
As the state court correctly recognized, the evidence was cumulative of other evidence
admitted at trial. Officer James Ramsey was also one of the first responders to the scene and
testified he observed Rob Andrew laying on the ground and Petitioner kneeling over him
while on the phone talking to the police. Additionally, evidence was admitted regarding
Petitioner’s 911 calls and an ambulance report documented that Petitioner asked at the scene
about the status of her husband. The evidence admitted at trial was available to show the jury
Petitioner had concern over her husband’s status after being shot. The exclusion of this
cumulative evidence did not have a substantial and injurious effect or influence in
determining the jury’s verdict.
Donna Tyra
Lastly, Appellant claims that the exclusion of testimony from Donna
Tyra was error. Donna Tyra was a detention officer at the County jail.
Defense counsel listed Tyra as a second stage witness who would offer
testimony about Appellant’s good character while incarcerated at the County
jail (the State did not list Tyra as a witness or have a report from her, unlike
the above witnesses)[.] However, defense counsel wished her to testify to
rebut witness Teresa Sullivan’s testimony regarding Appellant’s confession.
An offer of proof indicated that Tyra would have testified that Sullivan
was a known snitch, known as the “mouth of the south;” Sullivan and
Appellant could not have contacted each other, either verbally or through
notes; and that there were newspapers available to the inmates on the pod, so
that Sullivan could have learned the facts of the case through news reports.
14

Discovery of this testimony was not presented to the State.
Defense counsel was allowed to produce the testimony of Angela Burk,
who testified that Sullivan was a known snitch. She testified that she
communicated to Sullivan through the cell doors, and she testified that inmates
were sometimes out in the pod together. Any error in the failure to allow Tyra
to testify was harmless beyond a reasonable doubt.
Id. at 197-98.
Angela Burk was housed in the protective unit with Petitioner and Sullivan and was
called as a witness on behalf of the defense. Disregarding witness Burk’s testimony that
Sullivan was a known snitch and that inmates were able to communicate at times, Petitioner
claims exclusion of Donna Tyra’s testimony during the first stage of trial demands relief
because her testimony that inmates could not communicate with each other would have
provided evidence that Petitioner could not have confessed to Sullivan. Burk’s testimony
was supportive of Sullivan’s reputation in the protective unit. It was, however, contradictory
to the proposed testimony of Tyra regarding the ability of inmates to communicate with each
other. Considered together with the defense’s cross-examination of Sullivan and the
evidence presented at trial, Petitioner has not demonstrated the trial court’s exclusion of
Tyra’s testimony on this issue was so unfairly prejudicial that it had a substantial and
injurious effect or influence on the jury or it’s verdict.
The OCCA found some of the exclusions by the trial court to have been error, but
determined any such errors to have been harmless. Petitioner has not demonstrated the
OCCA’s determination is unreasonable or that the trial errors rise to the level of requiring
relief under Brecht and progeny. Accordingly, this ground for relief is denied.
15

Ground 2:

Hearsay Statements of the Deceased.

Petitioner claims the trial court allowed inadmissable hearsay statements of the
deceased before his death that improperly permeated the entire trial in violation of the
Confrontation Clause, Due Process Clause, and in violation of Oklahoma’s hearsay rules.
The complained of testimony consists of the decedent’s statements to law enforcement
officers about the brake lines on his vehicle being intentionally cut, similar statements
regarding his brake lines to non-law enforcement individuals, his statements regarding
attempts to obtain his 16 guage shotgun from Petitioner, his statements pertaining to attempts
to change the beneficiary of his life insurance policy, his statements regarding James Pavatt,
other statements made by Rob Andrew to others regarding Petitioner’s infidelity, allegations
made about him by Petitioner, and their separation and divorce proceedings. Petitioner also
complains of the admission of Rob Andrew’s computer journal recovered by police in their
investigation of his death.
The Confrontation Clause of the Sixth Amendment states: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” The Fourteenth Amendment renders the Clause binding on the States. Pointer v.
Texas, 380 U.S. 400, 403 (1965). In Crawford v. Washington, 541 U.S. 36 (2004), the
Supreme Court examined the common-law history of the confrontation right, noting that in
England, pretrial examinations of suspects and witnesses by governmental officials “were
sometimes read in court in lieu of live testimony”. Id. at 43. The Court cited the definition
of “testimony” as “‘[a] solemn declaration or affirmation made for the purpose of
16

establishing or proving some fact.” Id. at 51 (quoting 2 N. Webster, An American Dictionary
of the English Language (1828)), and stated:
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.
Only Rob Andrew’s statements to law enforcement about his belief that Petitioner and
James Pavatt were responsible for the brake lines being cut on his car are considered
testimonial evidence under Crawford and protected by the Confrontation Clause.6 As
explained in Giles v. California, 554 U.S. 353 (2008):
[O]nly testimonial statements are excluded by the Confrontation Clause.
Statements to friends and neighbors about abuse and intimidation and
statements to physicians in the course of receiving treatment would be
excluded, if at all, only by hearsay rules, which are free to adopt the dissent’s
version of forfeiture by wrongdoing.
Id. at 376. The Confrontation Clause also does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471
U.S. 409, 414 (1985)(non-hearsay aspect of testimony raises no Confrontation Clause
concerns).
The OCCA applied Crawford and denied this portion of Petitioner’s claim on direct
appeal:

6

Petitioner concedes this determination in her Reply brief at page 11.
17

Appellant also claims that Rob’s statements to the police that he believed
that Appellant and Pavatt were responsible were testimonial in nature, and thus,
in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004). Crawford held that testimonial hearsay violates the
confrontation clause. Id. at 51–52, 124 S.Ct. at 1364. Rob’s belief was
supported by the evidence in this case. The jury would have reached the same
conclusion absent this testimony. The introduction of this testimony was
harmless beyond a reasonable doubt, considering the mountain of evidence
leading to the conclusion that Appellant was responsible, in part, for the brake
line incident. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17
L.Ed.2d 705, 710–711 (1967). The inclusion of this evidence also showed the
inadequacy of the police in their ability to stop Appellant and Pavatt before they
actually carried out their plan to kill Rob Andrew. Crawford does not bar the
use of testimonial statements for purposes other than establishing the truth of
the matter asserted. Crawford, 541 U.S. at 59, fn. 9, 124 S.Ct. at 1369, fn. 9,
citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 2081–82, 85
L.Ed.2d 425 (1985). The inclusion of this testimony does not require reversal.
Andrew, 164 P.3d at 189.
Petitioner has not demonstrated that the OCCA’s determination the testimony was
presented for a non-hearsay purpose was unreasonable. The evidence was important to show
how the police investigation procedures into the incident differed and why there was a delay
between Rob Andrew’s report and the subsequent interview by law enforcement weeks later.
It was also explanatory regarding his frame of mind and his actions in the weeks leading up
to his murder.
Nor has Petitioner demonstrated the state court’s determination of harmlessness was
unreasonable. Habeas relief for constitutional error is appropriate only when the error “had
substantial and injurious effect or influence in determining the jury’s verdict” and the
petitioner can establish that it resulted in “actual prejudice”. Brecht v. Abrahamson, 507 U.S.
619, 637 (1993)(citations omitted).
18

Of the remaining statements complained of by Petitioner, their primary purpose was
not testimonial and, as such, their admissibility “is the concern of state and federal rules of
evidence, not the Confrontation Clause.” Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173, 2180
(2015)(citation omitted). The state court’s determination that the evidence was properly
admitted is a matter of state evidentiary law and not proper for habeas review. Estelle v.
McGuire, 502 U.S. 62, 67 (1991). Petitioner argues the admission of this evidence denied her
due process and a fundamentally fair trial.
Testimony found to be properly admitted.
Each of Petitioner’s claims of error found by the state court to have been properly
admitted are set forth below, along with the OCCA’s reasons for its determination. First, the
OCCA determined that the statements made regarding the victim’s shotgun were relevant to
several different aspects of the state’s case:
Appellant’s claim is broken down into different subject matters. We
start with testimony concerning Rob Andrew’s 16 gauge shotgun. The fact that
Rob Andrew owned a 16 gauge shotgun was not in dispute. The fact that he
was killed by a 16 gauge shotgun was also undisputed. This fact is significant
given the fact that the 16 gauge is less common than the 12 or 20 gauge shotgun
and the fact that Rob Andrew’s shotgun and the murder weapon were never
recovered. The statements revolve around Rob Andrew’s desires, expressed to
witness Ron Stump, to get his shotgun out of the marital home, after Appellant
had changed the locks and security codes. Rob told Ron that Appellant would
not let him have the shotgun. The statement was made just a week prior to the
murder. However, the statement was introduced to show that Rob did not have
the shotgun; inferring that it was still in Appellant’s control.
The State admits that statements made by Rob regarding Appellant’s
refusal to allow him into the house to retrieve his shotgun went beyond the
state-of-mind exception. They did not address whether the statement was
offered for the truth of the matter asserted. Nevertheless, any error in the
19

admission of these statements was harmless given the fact that there was a
substantial amount of evidence that the shotgun was in the possession of
Appellant and not in the possession of Rob Andrew. Appellant told police that,
if the shotgun were still at the house, it was in the hall or bedroom closet. Also
during the first part of September, 2001, as Rob was moving out of the home,
witness James Higgins saw the shotgun in the bedroom closet.
Andrew, 164 P.3d at 188.
Next, Petitioner does not specifically provide argument against the admission of Rob
Andrew’s statement to Ron Stump that he believed Petitioner finally found someone to kill
him, other than it was inadmissible hearsay and rendered her trial fundamentally unfair. The
OCCA determined the statement was evidence of Rob Andrew’s state of mind and admissible:
Coupled with this claim is an argument regarding Rob’s statement to
Ron Stump that Appellant had finally found someone to kill him (referring to
Pavatt). This statement was made just shortly after Rob had moved out of the
house. This statement is clearly a statement showing Rob’s state-of-mind at the
time. “Such antecedent declarations by a decedent are admissible in a homicide
case to show the decedent’s state of mind toward the defendant or to supply the
motive for killing.” Welch v. State, 2000 OK CR 8, ¶ 28, 2 P.3d 356, 370.
Testimony showing ill feeling, threats, or similar conduct by one
spouse toward another in a marital homicide case is relevant and
statements by the deceased expressing fear of a spouse are
admissible under the state of mind exception to the hearsay rule.
Washington v. State, 1999 OK CR 22, ¶ 36, 989 P.2d 960, 973.
Id. at 188-89.
Petitioner claims, citing to state law cases, that statements made by Rob Andrew of his
belief that Pavatt and Petitioner tried to kill him by cutting the brake lines on his car were
irrelevant, invaded the province of the jury and were inadmissible. The OCCA found the
evidence to be proper as state of mind, motive and relevant to the actions of the insurance
20

company:
Appellant next claims that hearsay evidence concerning Rob Andrew’s
belief that Appellant and James Pavatt tried to kill him by cutting the brake
lines to his car, were inadmissible. These taped statements were introduced
through Prudential employees. Again this evidence was introduced to show
Rob Andrew’s state-of-mind. His fear of Appellant and Pavatt, and the motive
for this killing: the insurance money. The conversations Rob had with the
insurance company were introduced to show why Appellant had a motive to kill
Rob. He was trying to keep Appellant from being the primary beneficiary to
the life insurance policy. The conversation shows why he would try to change
the beneficiary to his brother. The phone calls were also introduced to show
why the insurance company would not change the beneficiary over the phone
at Appellant’s request—increasing her anger and resentment of Rob Andrew.
Id. at 189.
The State introduced evidence of logs taken from Rob Andrew’s work computer which
contained descriptions of various incidents between he and Petitioner. Petitioner claims this
evidence was both inadmissible hearsay and cumulative.7
Appellant next challenges the admission of Rob’s computer journal. This
was admitted as part of a police report admitted as State’s exhibit 205, over
defense objection. The State points out that defense counsel referred to the
journal long before it was admitted into evidence by referring to portions which
say that Appellant was a good mom and the spiritual leader of the home.
Defense counsel asked questions about entries in the journal and actually read
portions of the journal before it was admitted. The inclusion of this evidence
was made relevant to rebut defense counsel’s use of the same evidence to show
Appellant was a good mom. Appellant cannot now complain about the use of
the journal. See Malicoat v. State, 2000 OK CR 1, ¶ 40, 992 P.2d 383, 403–04.
Id. at 190.
Habeas relief is possible only if Petitioner can demonstrate such undue prejudice from

7

Several of the activities and incidents described in the computer journal were admitted
elsewhere at trial and are the subject of other claims for relief by Petitioner.
21

the evidence that the entire trial is rendered fundamentally unfair:
“[T]he Due Process Clause of the Fourteenth Amendment provides a
mechanism for relief” when “evidence is introduced that is so unduly
prejudicial that it renders the trial fundamentally unfair. . . .” Payne v.
Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (citing
Darden v. Wainwright, 477 U.S. 168, 179-83, 106 S.Ct. 2464, 91 L.Ed.2d 144
(1986)); see also Estelle v. McGuire, 502 U.S. 62, 69-70, 112 S.Ct. 475, 116
L.Ed.2d 385 (1991); Knighton v. Mullin, 293 F.3d 1165, 1170 (10th Cir.2002)
(applying similar principles in federal habeas proceeding). We have held that
this standard will be satisfied only if “the probative value of [the challenged]
evidence is . . . greatly outweighed by the prejudice flowing from its admission.
. . .” Knighton, 293 F.3d at 1171 (internal quotation marks omitted).
Welch v. Sirmons, 451 F.3d 675, 688 (10th Cir. 2006).
In each sub-claim above, the OCCA thoroughly detailed the probative value of the
testimony and evidence when determining the admissibility of the evidence. Although much
of the evidence is not favorable to her, Petitioner has not demonstrated the probative value is
greatly outweighed by any prejudice to her or, more importantly on habeas review, that it was
so unduly prejudicial as to render her trial fundamentally unfair.
Evidence found to be inadmissible hearsay but harmless error.
The following instances involve statements admitted at trial that were determined by
the OCCA to be in whole or in part inadmissible hearsay, but found to be harmless error. The
first involves testimony of statements by Rob Andrew to his attorney and others expressing
his belief that Petitioner had attempted to kill him and conveying the difficulty he was
experiencing regarding attempting to change the beneficiary on his life insurance policies.
One of Appellant’s main complaints concerns the testimony of attorney
Craig Box. Rob Andrew hired Box to represent him in divorce proceedings
against Appellant. Box testified that Andrew told him about a series of calls
22

from Appellant and Pavatt, which led him to believe that they were responsible
for the brake line incident and attempt on his life. The State agrees that the
statements constituted inadmissible hearsay, but were harmless, nonetheless.
These statements supported the conspiracy charge by showing when an
agreement may have been consummated. They also support the theory that the
motive for murder was the insurance money. Thus the possibility exists that
they were not introduced for the truth of the matter asserted. Nevertheless, if
inadmissible, overwhelming admissible evidence was introduced to support
these claims, including statements by Appellant confirming her vitriolic hatred
for Rob and her desire to be the beneficiary of the insurance policy.
Furthermore, tape recordings of Pavatt trying to change the ownership of the
insurance policy with Prudential; his threats toward Rob; and statements he
made concerning Appellant’s request that he kill Rob were properly admitted.
The same can be said of other statements Rob made to others about the
trouble he was having in changing the beneficiary of the policy. This is
especially true in light of the evidence of falsified change of ownership papers,
and Appellant’s statements that she could sign Rob’s name as well as he could
and the fact that she routinely signed his name on employment related items.
Andrews, 164 P.3d at 189.
The OCCA also determined various other statements were improper but harmless:
The remainder of the statements Rob made to others about being kicked
out of the house; Appellant hiding money; Rob’s statements regarding
Appellant’s belief that he was having a homosexual affair; his statements about
Appellant’s affair with Nunley; and Rob’s statements regarding the changing
of the locks and Appellant’s refusal to let him see the children, constituted
inadmissible hearsay, for which no exception existed; however, they were also
harmless considering the amount of admissible evidence on these issues.
Id. at 190.
A trial error is harmless unless it is found to have had a “substantial and injurious effect
or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637. Under this standard,
habeas petitioners are not entitled to relief based on the trial error unless they can establish
23

that it resulted in actual prejudice. Id. Petitioner has not demonstrated the OCCA’s
harmlessness determination was contrary to, or an unreasonable application of, Brecht and its
progeny. As identified and described by the OCCA throughout its opinion, considerable
evidence was properly admitted to support the state’s case and the jury’s verdict. After
thorough review of the trial record, the Court finds Petitioner has not demonstrated these
various isolated statements made over the course of a lengthy trial, even when considered
together, resulted in actual prejudice that had a substantial and injurious effect or influence
in determining the jury’s verdict. Petitioners ground for relief is denied.
Ground 3:

Other Crimes and Bad Acts.

Petitioner claims evidence was admitted at her trial of other crimes and bad acts that
were not relevant to the crimes for which she was charged, denying her a fair trial in violation
of due process. Petitioner identifies twelve (12) instances of testimony or evidence she claims
the admission of which was error. The OCCA separately identified each one in its
consideration on Petitioner’s appeal. Although lengthy, the OCCA’s consideration is included
in its entirety here to both identify Petitioner’s claims and to set out the rationale for the state
court’s determination:
In proposition three, Appellant claims that the trial court erred by
allowing the State to introduce evidence of other crimes and bad acts which
were not relevant. The admission of this evidence, as with all evidence, is
reviewed under the abuse of that discretion standard spelled out above.
Evidence that a defendant committed other crimes is admissible to show
motive, opportunity, intent, preparation, plan, knowledge, identity or absence
of mistake or accident. 12 O.S.2001, § 2404(B); Lott, 2004 OK CR 27, ¶ 40, 98
P.3d at 334–35. Proof of “other crimes” must be clear and convincing. Id.
24

The State argues that nearly all of this “other crimes” evidence was res
gestae evidence, which is evidence that is (a) so closely connected to the
charged offense as to form part of the entire transaction, (b) necessary to give
the jury a complete understanding of the crime, or (c) central to the chain of
events. See Rogers v. State, 1995 OK CR 8, ¶ 21, 890 P.2d 959, 971 (and cases
cited therein).
The issue here boils down to whether the complained of evidence was
relevant to prove motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident; or whether the evidence is improper
character evidence, which is generally prohibited. See 12 O.S.2001, § 2404.
Specific instances of conduct to prove a person’s character or a trait of
character are admissible when the character is part of a claim or defense. 12
O.S.2001, § 2405(B).
Initially, Appellant attacks evidence concerning the cutting of the brake
lines of Rob Andrew’s car. Appellant claims that there was insufficient
evidence which tied her to this crime under a clear and convincing standard, not
that the evidence was otherwise inadmissible.
Sometime around the end of October, 2001, Appellant asked Pavatt to
kill Rob Andrew. About this same time, on October 26, the brake lines to Rob
Andrew’s vehicle were cut. Pavatt asked his daughter to call Rob and tell him
that he needed to come to Norman to pick up Appellant at the hospital; in an
obvious attempt to get Rob to drive some distance from his northwest
Oklahoma City home with faulty brake lines. Appellant claims that there was
insufficient evidence linking her to this incident.
Appellant claims that the only particular piece of evidence linking her
to the crime was inadmissible hearsay evidence concerning the fact that
Appellant knew about the brake lines being cut before she could have
innocently acquired the information. However, the State introduced evidence
of an enormous amount of phone calls between Pavatt and Appellant on
October 25 and October 26. Appellant attempts to give alternative meaning to
phone calls made on October 26 by stating these are the calls during the time
Rob Andrew was trying to change the beneficiary to his policy after learning
that his brake lines had been cut. However, Appellant does not try to explain
the number of phone calls made on October 25 and the morning of October 26.
Other evidence, furthermore, links Appellant to this attempt on Rob
25

Andrew’s life. Appellant appeared at the bank where Janna Larson was
working in Norman shortly after Larson called Rob Andrew, in an attempt to
get him to drive to Norman. During this visit, Appellant asked Larson about
phone calls she made to Rob Andrew. This evidence, coupled again with
evidence about Brenda’s hatred of Rob and her threats, show by clear and
convincing evidence a link between Appellant and the attempt on Rob
Andrew’s life.
Certainly this evidence was relevant to the charged crime of conspiracy
to commit first degree murder, which the State alleged started on September 1,
2001. The cutting of the brake lines, though not alleged as an overt act in the
conspiracy was relevant to show an agreement existed between Appellant and
Pavatt at the time the brake lines were cut. This evidence was also
“inextricably intertwined” with the murder offense, thus it was admissible
intrinsic evidence. See United States v. Viefhaus, 168 F.3d 392, 397–98 (10th
Cir. 1999) evidence[sic] is similar to the res gestae exception used by this
Court.
Next, Appellant complains about evidence that she had extramarital
sexual affairs with two other men. Appellant claims that this evidence,
although not criminal, was evidence of bad acts, only introduced to show her
bad character. This evidence was relevant to show motive.
The first affair, with Rick Nunley, started in 1997 and ended probably
about four years prior to this murder; however, Appellant and Nunley kept in
contact through phone conversations. Nunley met Appellant in downtown
Oklahoma City around the first of October, 2001. Appellant told Nunley about
the divorce proceedings. At some point between then and the murder,
Appellant expressed to Nunley that she was upset about Rob trying to change
the beneficiary on the life insurance policy. Cell phone records indicated
eighty-seven phone calls between Appellant and Nunley during the months of
September, October and November, 2001. Appellant also called Nunley from
jail when she was arrested, while returning to the United States from Mexico.
Evidence of their sexual affair was limited to one question during his testimony.
Thus, even though, the evidence of a sexual affair between Nunley and
Appellant was remote, its significance was a minimal part of the relationship,
and the mention of it was harmless in this case.
The second affair, this with James Higgins, started in 1999 and ended in
May 2001, just six months prior to Rob’s murder. Evidence of this affair was
more detailed. This sexual affair started when Appellant handed Higgins a key
26

to a motel room and they met that afternoon at the motel room. These types of
meetings occurred several times a week during those two years. They also had
sex at the Andrew home and in the car. All during this time, Appellant kept
telling Higgins how much she hated Rob Andrew. She also told Higgins that
she wished Rob Andrew was dead.
This Court has allowed evidence of an affair for the purpose of
establishing motive. In Allen v. State, 1993 OK CR 49, 862 P.2d 487, this
Court held that evidence that the defendant had a sexual relationship with his
secretary, which ended six months prior to the murder of his wife, was relevant
to show motive. Id. ¶ 17, at 491. This Court reasoned that evidence of a close
personal relationship, where intimate details of the defendant’s marriage were
shared, was relevant.
This case is no different; Appellant shared with both of these men her
hatred for Rob Andrew and her wish that he was dead. Her co-defendant was
just the last in a long line of men that she seduced; however, this last man
shared the same hatred of Rob and was willing to kill for Appellant. The
evidence of Appellant’s affairs proved motive and intent in this case. The trial
court did not abuse its discretion in admitting this evidence.

Appellant further complains about a litany of evidence under this “other
crimes evidence” claim. The complaints cover the following evidence:
testimony from Rob Andrew’s co-worker, Barbara Murcer–Green, concerning
confrontations at the workplace between Appellant and Rob Andrew and
Appellant’s threats to her personally, which was met with a contemporaneous
objection. This evidence was relevant to show Appellant’s hatred and rage, and
possible resentment toward Rob Andrew, thus it was relevant.
Other evidence included Higgins’ testimony that Appellant had “come
on to” his two adult sons when they were building a deck for the Andrews;
David Ostrowe’s testimony that she was dressed provocatively when the
Andrews and the Ostrowes went to dinner together (6–8 weeks before the
murder), someone in the restaurant called Appellant a “hoochie,” and
inappropriate talk about a trip to Mexico; Ron Stump’s testimony that
Appellant changed her hair color after learning what color of hair Ron liked;
and David Head’s testimony, over objection, about Appellant threatening to kill
him.
This Court is struggling to find any relevance to this evidence, other than
27

to show Appellant’s character. The State agrees that most of this evidence was
irrelevant to any issue in this case; however, even so, the introduction of this
evidence was harmless due to the overwhelming evidence in this case.
Additional evidence included William Burleson’s testimony about
Appellant’s demeanor at the funeral home; Cynthia Balding’s testimony about
Appellant hiding money; testimony regarding Appellant’s attempt to influence
the children with a puppy; Janna Larson’s testimony that she told her father,
James Pavatt, that she thought Appellant lied when she told him she had not
slept with any other men other than her husband and Pavatt; and testimony that
Pavatt told Larson that the Andrew children were well trained and would not
tell of the affair between he and Appellant.
First, out of this evidence, the evidence of Appellant’s demeanor at the
funeral home was relevant to show a consciousness of guilt, and as such is not
considered “other crimes” evidence. See Anderson v. State, 1999 OK CR 44,
¶ 15, 992 P.2d 409, 416. The witness testified that in all of his long experience,
her flat, cold, and unemotional demeanor was the most bizarre demeanor he had
ever seen from a grieving spouse.
The remaining evidence was relevant to show the relationship between
Appellant and Pavatt and the relationship between Appellant and Rob Andrew,
Appellant’s ability to lie and influence Pavatt, and her desire to keep their
sexual affair a secret from the children and others. The evidence concerning the
money was relevant to show motive, and the money provided the source which
Appellant was to utilize while on the run in Mexico, thus it was relevant as part
of this criminal episode.
This proposition would have even less merit had the trial court instructed
on the limited use of “other crimes” evidence. We shall discuss this refusal in
our discussion of instructional error below.
Andrew, 164 P.3d at 190-93 (footnotes omitted).
Petitioner first contends the OCCA addressed her claims only under state law and that
this Court owes no deference to the state court’s determination. This Court’s analysis,
however, is whether the state court’s determination was contrary to, or an unreasonable
application of, clearly established Supreme Court law. It is the decision of the state court that
28

is reviewed to determine whether this standard is met:
As we have said before, § 2254(d) dictates a “ ‘highly deferential standard for
evaluating state-court rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117
S.Ct. 2059, 138 L.Ed.2d 481 (1997), which demands that state-court decisions
be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123
S.Ct. 357, 154 L.Ed.2d 279 (2002)(per curiam). To the extent that the Court of
Appeals rested its decision on the state court’s failure to cite Dicks, it was
mistaken. Federal courts are not free to presume that a state court did not
comply with constitutional dictates on the basis of nothing more than a lack of
citation. See Mitchell v. Esparza, 540 U.S. 12, 16, 124 S.Ct. 7, 157 L.Ed.2d 263
(2003)(per curiam); Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d
263 (2002)(per curiam).
Bell v. Cone, 543 U.S. 447, 455 (2005).
The state court’s determination that the evidence was properly admitted is a matter of
state evidentiary law and not proper for habeas review. Estelle v. McGuire, 502 U.S. 62, 67
(1991). Habeas relief is possible only if Petitioner can demonstrate such undue prejudice
from the evidence that the entire trial is rendered fundamentally unfair:
“[T]he Due Process Clause of the Fourteenth Amendment provides a
mechanism for relief” when “evidence is introduced that is so unduly
prejudicial that it renders the trial fundamentally unfair. . . .” Payne v.
Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (citing
Darden v. Wainwright, 477 U.S. 168, 179-83, 106 S.Ct. 2464, 91 L.Ed.2d 144
(1986)); see also Estelle v. McGuire, 502 U.S. 62, 69-70, 112 S.Ct. 475, 116
L.Ed.2d 385 (1991); Knighton v. Mullin, 293 F.3d 1165, 1170 (10th Cir.2002)
(applying similar principles in federal habeas proceeding). We have held that
this standard will be satisfied only if “the probative value of [the challenged]
evidence is . . . greatly outweighed by the prejudice flowing from its admission.
. . .” Knighton, 293 F.3d at 1171 (internal quotation marks omitted).
Welch v. Sirmons, 451 F.3d 675, 688 (10th Cir. 2006)(overruled on other grounds). The
Tenth Circuit has held that the Oklahoma cases and statutes applied by the OCCA are
consistent with the constitutional principles set forth above as they acknowledge the prejudice
29

associated with the admission of other crimes evidence and place strict limitations on the
admission of such evidence. Id. Absent any clearly established Supreme Court precedent
regarding the admission of other crimes and bad acts evidence, this Court is bound to apply
deference to the OCCA’s determination provided it was not unreasonable.
Petitioner has not demonstrated the state court’s determination to be unreasonable. In
almost every instance complained of by Petitioner, the OCCA determined the evidence was
relevant to prove either motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or part of a claim or defense. Petitioner’s arguments aside,
it is not this Court’s charge to determine on habeas review if it would rule differently. Rather,
this Court must determine if the state court’s determination was objectively unreasonable.
“Thus, ‘only the most serious misapplications of Supreme Court precedent will be a basis for
relief under § 2254.’” House v. Hatch, 527 F.3d 1010, 1019 (10th Cir. 2008)(citations
omitted). “[E]valuating whether a rule application was unreasonable requires considering the
rule’s specificity. The more general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations”. Yarborough v. Alvarado, 541 U.S. 652, 664
(2004).
The OCCA applied state law and statutes to make its determination of the correctness
on the admissibility of the evidence at Petitioner’s trial regarding other crimes and bad acts
of the Petitioner. That consideration encompassed comparing that evidence to the evidence
presented throughout the case to determine relevance and any resulting unfair prejudice – an
analysis recognized by the Tenth Circuit to be consistent with a due process analysis. After
30

review of Petitioner’s trial and the OCCA’s decision on this claim, the Court does not find the
OCCA’s determination to be unreasonable. Petitioner has not shown the determination to be
contrary to, or an unreasonable application of, the general standard for a due process violation
articulated by the Supreme Court.
The OCCA also noted that it struggled to find the relevance of the testimony that
Petitioner had “come on to” witness Higgins’ two adult sons, that she had once dressed
provocatively and had been called a “hoochie”, her inappropriate talk about a trip to Mexico,
the changing of her hair color to apparently please a married man, and witness David Head’s
testimony about Petitioner’s threat to kill him. Despite the irrelevance of this testimony, the
OCCA found the error to be harmless due to the overwhelming evidence in the case. It bears
repeating that a trial error is harmless unless it is found to have had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637.
Under this standard, habeas petitioners are not entitled to relief based on the trial error unless
they can establish that it resulted in actual prejudice. Id. Petitioner has not demonstrated the
OCCA’s harmlessness determination was contrary to, or an unreasonable application of,
Brecht and its progeny. No actual prejudice has been demonstrated by the admission of the
testimony regarding Petitioner’s prior bad acts or that the state court’s reasoning and
determination is unreasonable. Accordingly, this ground for relief is denied.
Ground 4:

Opinion Testimony.

Petitioner claims both lay witness and expert witness opinion testimony was
improperly admitted at her trial which violated state law and her federal due process guarantee
31

of a fundamentally fair trial. Petitioner’s claim can be separated into two categories, expert
opinion by law enforcement officers and opinion testimony by lay and law enforcement
witnesses pertaining to Petitioner’s guilt.
Expert opinion by law enforcement officers.
Petitioner claims testimony of law enforcement officers were improper personal
opinion and not proper subjects of expert testimony. Officer Roger Frost testified regarding
Petitioner’s demeanor and inability to remember statements allegedly made by the
perpetrators, characterizing them as “strange”. Officer Teresa Bunn testified to similar
opinions regarding Petitioner’s demeanor and her inability to relate the distance between
herself and the shooter. Officer Klinka testified Petitioner was involved in the brake cutting
incident on Rob Andrew’s vehicle.
Next, Appellant claims that other witnesses were allowed to give
“expert” opinion evidence without being qualified to do so. An expert witness
is one who possesses scientific or specialized knowledge acquired by study or
practice or by both, and is, ordinarily, a person who has experience and
knowledge in relation to matters which are not generally known. Kennedy v.
State, 1982 OK CR 11, ¶ 27, 640 P.2d 971, 977.
The witnesses Appellant complains about here are police officers.
Police officers are allowed to give opinion testimony based on their training and
experience. Berry v. State, 1988 OK CR 83, ¶ 6, 753 P.2d 926, 929–30; McCoy
v. State, 1985 OK CR 49, ¶ 14, 699 P.2d 663, 665–66.
Sgt. Frost testified that it was “very strange” that Appellant could not
remember the words spoken by her alleged attackers. He also testified that she
was unusually calm and he felt it unusual that she did not ask about her husband
while at the hospital. Technical Investigator Teresa Bunn testified similarly.
We find that the trial court did not abuse its discretion in allowing this
testimony as it was properly based on their perceptions in conjunction with their
training and experience.
32

Frost was also allowed to testify that it was significant that Appellant
was shot at close range, without explanation. Any error in relation to this
testimony was harmless due to the overwhelming evidence that she was indeed
shot at close range. Officer Klinka was allowed to testify that he believed that
Appellant was involved in the cutting of Rob Andrew’s brake lines. Appellant
failed to object to this testimony, thus we review for plain error only. We find
that this testimony does not rise to the level of plain error based on the context
of the testimony as rebuttal to defense counsel’s cross-examination regarding
a link between Appellant and the brake line incident.
Andrew, 164 F.3d at 195-96.
In United States v. Garza, 566 F.3d 1194 (10th Cir. 2009), the Tenth Circuit held that
a police officer can acquire specialized knowledge in criminal practices and, thus, the
expertise to opine on such matters, and the reliability criteria for gate-keeping purposes
enumerated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), need not
be applied “woodenly” in all circumstances. Garza, 566 U.S. at 1199. Frost testified he had
served almost eighteen years as a police officer, had specialized training and experience in
dealing with victims of violent crimes, and had worked on several hundred cases in which he
had come into contact with victims of violent crimes. Bunn testified she had processed
several hundred crime scenes and had also received specialized training through the Army
every year on dealing with people who are in shock. The testimony of these officers was
found to be proper under state evidentiary law. Petitioner has not demonstrated the OCCA’s
determination to be contrary to, or an unreasonable application of, clearly established federal
law.
Officer Klinka’s testimony regarding Petitioner’s involvement in the incident regarding
the cutting of her husband’s brake line was reviewed for plain error and found to have been
33

rebuttal testimony to defense counsel’s questions pertaining to the connection between
Petitioner and the brake line incident. Petitioner has not demonstrated this determination to
be error, or to be contrary to clearly established Supreme Court law.
Petitioner also claims improper the testimony of Detective Garrett that he believed on
the day of the murder Pavatt was moving into Petitioner’s home. It is difficult to ascertain
whether Petitioner claims this to be improper expert opinion or law enforcement’s opinion of
her guilt.
Appellant claims that Detective Garrett was allowed to testify that he
believed that Pavatt was preparing to move into the Andrew home. The
questioning regarded what Pavatt was doing the day of the murder. Garrett
testified that Pavatt was moving his washer and dryer into the Andrew home.
The prosecutor asked, “Moving in?” Garrett answered “Yes.” An objection to
this testimony was sustained, but the trial court did not admonish the jury as
requested. Defense counsel objected that the answer was speculation and the
trial court announced that it was speculation, but the trial court denied counsel’s
request to have the jury admonished. We find that the trial court’s actions
cured this error as an admonishment would have merely magnified the
possibility of prejudice. See Ferguson v. State, 1984 OK CR 32, ¶ 10, 675 P.2d
1023, 1027.
Andrew, 164 F.3d at 196.
Citing only to state law, Petitioner asserts opinions such as this invade the province of
the jury and are improper. Whether the statement was improper, or the trial court’s failure to
admonish the jury trial error, Petitioner has not demonstrated the state court’s determination
is contrary to clearly established federal law or that the “error” had a substantial and injurious
effect and influence on the jury’s verdict.
Lay and law enforcement opinion as to guilt.
34

Petitioner next claims testimony from various witnesses expressing opinion as to
Petitioner’s guilt invaded the province of the jury and was improper.
Next, in proposition four, Appellant claims that the trial was infected
with improper and inadmissible opinion testimony. The admissibility of lay
witness’ opinions is a determination within the sound discretion of the trial
court whose decision will not be disturbed unless clearly erroneous or a clear
result of an abuse of discretion. Washington v. State, 1999 OK CR 22, ¶ 21,
989 P.2d 960, 970. Opinion testimony of a lay witness is permissible under 12
O.S.2001, § 2701 when it is rationally based on the perception of the witness
and is helpful to the determination of a fact in issue.
***
Ron Stump and Rod Lott both gave testimony indicating that they
believed that Appellant was responsible for killing Rob Andrew. Officer Mike
Klinka, Michael Fetters and Mark Sinor testified that Rob Andrew relayed to
them that he believed that Appellant was trying to kill him.
The questioning of Rod Lott came during re-direct after defense counsel
was allowed to ask if Rod Lott liked Appellant, and defense counsel’s
questioning of Lott’s motivation for testifying. The prosecutor asked why he
did not like her. Rod Lott answered, “I believe she’s responsible for his death.”
This testimony was properly admitted because Appellant opened the door on
cross-examination, so that the prosecution could delve into Lott’s motivation.
Stump’s initial opinion, that Appellant and Pavatt killed Rob Andrew,
and his testimony that he knew of no one that had a motive to kill Rob Andrew
other than Appellant and Pavatt was not met with an objection. We review for
plain error here, and we find none.
Mike Klinka’s, Michael Fetters’ and Mark Sinor’s testimony was
admitted to show Rob Andrew’s state-of-mind as explained above. There is no
reason to rehash this argument here.
Id. at 195.
Rod Lott’s testimony was in response on re-direct examination to defense counsel’s
cross-examination questioning as to whether he liked Petitioner. The testimony of Mike
35

Klinka, Michael Fetters and Mike Sinor was found to have been admitted to show Rob
Andrew’s state of mind. The instances were not found to have been error and Petitioner has
provided nothing to the contrary. Ron Stump’s testimony was not objected to. It was
reviewed for plain error by the OCCA and found that none existed.8 Whether or not it was
trial error to admit this testimony, Petitioner presents no clearly established federal law to
demonstrate the state court’s determination to be unreasonable, nor has she demonstrated the
“errors” had a substantial and injurious effect or influence on the jury’s verdict warranting
relief. Petitioner’s ground for relief is denied.
Ground 5:

Co-conspirator Testimony.

At trial, and over defense counsel’s objections, the State presented through Jana Larson
(James Pavatt’s daughter) statements made to her by Mr. Pavatt regarding Petitioner’s request
to help murder her husband. The testimony was allowed under the co-conspirator exception
to the rule against hearsay. Petitioner claims the testimony regarding the statements was
inadmissable hearsay because the requirements for the co-conspirator exception were not met,
depriving her of her rights of confrontation and cross-examination in violation of the Sixth
and Fourteenth Amendments to the United States Constitution.
Petitioner raised this claim on direct appeal and it was denied by the OCCA:
In proposition five, Appellant claims that hearsay was improperly
admitted under the guise of “co-conspirator hearsay.” This claim relates to

8

Mr. Stump’s testimony may only be loosely characterized as opinion. His testimony was
offered to explain why he traveled immediately to the crime scene and told detectives they should
consider Petitioner and Pavatt as suspects.
36

Pavatt’s statement to Janna Larson. Larson was allowed to testify that Pavatt
said, “[Y]ou’re never going to believe what that nuttier than a fruit cake woman
asked me to do. And then he told me that she asked him if he would kill her
husband or if he knew someone that could do it. . . .” Defense counsel objected
that the statement was hearsay within hearsay, the statement was not
corroborated, and there was no evidence of an agreement.
The record indicates that this conversation occurred around the end of
October, 2001. About the same time that Pavatt asked Larson to call Rob
Andrew and tell him to drive to Norman, Oklahoma to pickup Appellant, after
the brake lines to his vehicle had been cut.
Circumstantially, looking at the totality of the evidence introduced to
that point, it could reasonably be concluded that Pavatt had entered into an
agreement with Appellant to kill Rob Andrew. The conversation with Larson
was meant to get her reaction to the idea. He needed Larson to make a call to
get Rob Andrew to drive a long distance with faulty brakes. This conversation
furthered the conspiracy by allowing Pavatt to know what tactic to take with
Larson in involving her in the scheme. The trial court did not abuse its
discretion in allowing this evidence in as non-hearsay under the co-conspirator
theory. See 12 O.S.Supp.2002, § 2801.
Andrew, 164 P.3d at 190.
Petitioner provides considerable argument and authority to convince the Court that the
state court improperly and erroneously determined the testimony was a statement by a coconspirator and excepted from the state rules of hearsay. She argues the state court
determined without factual support the date of the initiation of the conspiracy between
Petitioner and Mr. Pavatt, allowing the prosecutors leeway to ensure the statement was made
during the period of the conspiracy. She further argues there was no evidence to prove the
existence of any agreement to commit a crime. Her purpose for these arguments is to
demonstrate the State “has gotten away with introducing this highly incriminating statement
but highly unreliable hearsay evidence by dressing it up as a co-conspirator statement” (Pet.
37

at 117), depriving her of her confrontation rights.
It is the Confrontation Clause, however, that is the basis of Petitioner’s constitutional
challenge in this Court. As addressed earlier in Ground 2, only testimonial statements are
excluded by the Confrontation Clause. Crawford v. Washington, 541 U.S. 36 (2004). Later
Supreme Court cases attempted to flesh out the definition of “testimonial”, developing what
was to become known as the primary purpose test. “In the end, the question is whether, in
light of all the circumstances, viewed objectively, the “primary purpose” of the conversation
was to “creat[e] an out-of-court substitute for trial testimony.” Michigan v. Bryant, 562 U.S.
344, 358 (2011).

“Thus, under our precedents, a statement cannot fall within the

Confrontation Clause unless its primary purpose was testimonial. ‘Where no such primary
purpose exists, the admissibility of a statement is the concern of state and federal rules of
evidence, not the Confrontation Clause.’” Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173, 2180,
(2015)(quoting Bryant, 562 U.S. at 359 (2011)). “We have never suggested, however, that
the Confrontation Clause bars the introduction of all out-of-court statements that support the
prosecution’s case. Instead, we ask whether a statement was given with the “primary purpose
of creating an out-of-court substitute for trial testimony.” Clark, 135 S.Ct. at 2183 (quoting
Bryant, 562 U.S. at 358).
Crawford and progeny apply to Petitioner’s claim. There is no valid argument, as
indeed there cannot be, that the primary purpose of Pavatt’s statement was to create an out-ofcourt substitute for trial testimony. As such, the statement and conversation were nontestimonial and state law evidentiary rules apply. As expressed throughout this opinion,
38

habeas relief does not lie for errors of state law. Estelle, 502 U.S. at 67. Petitioner has not
demonstrated the OCCA’s determination to be contrary to, or an unreasonable application of,
clearly established Supreme Court precedent, nor when compared to the evidence presented
at trial has she demonstrated any possible state evidentiary error to have risen to such a level
as to be considered a denial of her due process rights. Accordingly, Petitioner’s fifth ground
for relief is denied.
Ground 6:

Ineffective Assistance of Counsel.

In her sixth ground for relief, Petitioner raises a plethora of claims that she was denied
effective assistance of counsel at trial and on appeal. The claims made here encompass claims
previously raised on direct appeal, in her application for post-conviction relief, and in motions
for an evidentiary hearing.
To prevail on a claim of ineffective assistance of counsel under the Sixth Amendment,
Petitioner must first show that her counsel “committed serious errors in light of ‘prevailing
professional norms’” in that the representation fell below an objective standard of
reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984). In so doing,
Petitioner must overcome the “strong presumption” that her counsel’s conduct fell within the
“wide range of reasonable professional assistance” that “‘might be considered sound trial
strategy,’” Strickland, 466 U.S. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955).
She must, in other words, overcome the presumption that her counsel’s conduct was
constitutionally effective. United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993). A
claim of ineffective assistance “must be reviewed from the perspective of counsel at the time,”
39

Porter v. Singletary, 14 F.3d 554, 558 (11th Cir.), cert. denied, 513 U.S. 1009 (1994), and,
therefore, may not be predicated on “‘the distorting effects of hindsight.’” Parks v. Brown,
840 F.2d 1496, 1510 (10th Cir. 1987), quoting Strickland, 466 U.S. at 689.
If constitutionally deficient performance is shown, Petitioner must then demonstrate
that “there is a ‘reasonable probability’ the outcome would have been different had those
errors not occurred.” Haddock, 12 F.3d at 955; citing Strickland, 466 U.S. at 688, 694;
Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993).
In the specific context of a challenge to a death sentence, the prejudice component of
Strickland focuses on whether “the sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695;
quoted in Stevens v. Zant, 968 F.2d 1076, 1081 (11th Cir. 1992), cert. denied, 507 U.S. 929
(1993). Petitioner carries the burden of establishing both that the alleged deficiencies
unreasonably fell beneath prevailing norms of professional conduct and that such deficient
performance prejudiced her defense. Strickland, 466 U.S. at 686; Yarrington v. Davies, 992
F.2d 1077, 1079 (10th Cir. 1993). In essence, “[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686. “Counsel’s performance must be ‘completely unreasonable’ to
be constitutionally ineffective, ‘not merely wrong.’” Welch v. Workman, 639 F.3d 980, 1011
(10th Cir. 2011)(quoting Hoxsie v.Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997)).
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,
40

371, 130 S.Ct. 1473, 1485 (2010).
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards created
by Strickland and § 2254(d) are both “highly deferential,” [Strickland] at 689,
104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138
L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so,
Knowles, 556 U.S., at 123, 129 S.Ct. at 1420. The Strickland standard is a
general one, so the range of reasonable applications is substantial. 556 U.S., at
123, 129 S.Ct. at 1420 . Federal habeas courts must guard against the danger
of equating unreasonableness under Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.
Harrington v. Richter, 562 U.S. 86, 105 (2011).
Claims raised on direct appeal.
Petitioner first claims trial counsel were ineffective in failing to provide pre-trial
summaries of various witnesses’ testimony, resulting in those witnesses being precluded by
the trial court from testifying. These witnesses are the individuals identified in Petitioner’s
first ground for relief. On appeal, the OCCA applied Strickland and determined that any error
that arose from the exclusion of the witnesses was harmless, that Petitioner had not been
prejudiced by the inactions of trial counsel and, therefore, counsel were not ineffective.
Andrew, 164 P.3d at 198. Petitioner has not demonstrated the OCCA’s determination to be
contrary to, or an unreasonable application of, Strickland and its progeny. For the reasons set
forth in Ground 1, supra, the Court finds the OCCA’s determination of lack of prejudice to
be reasonable.
Petitioner next claims trial counsel’s failure to make contemporaneous objections to
41

“many damaging hearsay statements and opinion testimony” constitutes ineffective assistance
of counsel. The instances complained of are the subject of Petitioner’s second and fourth
grounds for relief.9 The OCCA found the majority of the evidence was properly admitted and
determined no resulting prejudice from counsels’ failure to contemporaneously object. Id. To
demonstrate prejudice, Petitioner merely re-urges her claims that the testimony and statements
were improper and incorporates her arguments from Grounds 2 and 4. As discussed above,
almost all of the complained of statements were non-testimonial. If found to have been
improper, the testimony was determined to have been harmless and the state court’s
determination to have been reasonable. Petitioner has, therefore, failed to demonstrate
resulting prejudice from trial counsel’s failure to contemporaneously object as she has not
shown a “reasonable probability” the outcome would have been different.
Claims raised on direct appeal and State’s Rule 3.11
On appeal, Petitioner raised ineffective assistance of counsel claims in conjunction
with an application for an evidentiary hearing. She claims the OCCA did not adjudicate these
claims on the merits, but rather under the state rule for evidentiary hearing on appeal, Rule
3.11, Okla. Stat. Tit. 22, Ch. 18 App. Considerable argument is presented that the OCCA’s
determination is not entitled to deference because the state court utilized Rule 3.11’s standard
for an evidentiary hearing rather than the standard for determining counsel ineffectiveness

9

Petitioner’s claim is for the failure to make contemporaneous objections. Petitioner admits
trial counsel filed pre-trial motions in limine, renewed objections at the pre-trial hearing and again
on the first day that testimony was taken. (Pet. at 144-45)
42

under Strickland. In Glossip v. Trammell, 530 Fed. Appx. 708 (10th Cir. 2013), the Tenth
Circuit discussed the lengthy history of this issue and held “Lott makes clear, then, that even
assuming the OCCA resolved Glossip’s claim of ineffective assistance pursuant to Rule 3.11,
that resolution is nonetheless an ‘adjudicat[ion] on the merits’ subject to the heightened
AEDPA standards set out in 28 U.S.C. § 2254(d)(1)”. Id. at 736.
Petitioner contends trial counsel was ineffective for failing to adequately investigate
and present evidence regarding blood on the jeans worn by her at the time of the shooting.
She claims trial counsel should have followed the advice of his own expert witness to have
the blood tested to determine its source in order to contradict the prosecution’s argument that
she fired the second shot into Rob Andrew. On appeal, the OCCA determined the prosecutor
could have made the same argument knowing the source of the blood:
The blood pattern evidence deals with the defense expert who testified
that Appellant had high velocity blood spatter on her jeans. In closing the
prosecution turned this evidence against Appellant by arguing that she received
this spatter by firing the second shot and getting blow back blood spatter from
Rob. However, this blood spatter had never been tested to determine its source.
Now, during the pendency of this Appeal, Appellant provides DNA analysis
which she argues shows that the blood stains were from her alone. The State’s
response points out that the blood is a mixture: the major component from
Appellant and the minor component being from an unknown male (arguably the
victim because the tester cannot exclude the victim as the source of the blood).
Appellant claims that utilizing a defense expert without first determining the
source of these stains led to the theory that she fired the second shot, making
her more culpable and allowing the jury to more easily give her the death
penalty. The prosecutor could have made this argument by stating that the
unknown (minor component) blood spatter came from the victim, forming the
basis for the same argument.
This evidence does not show by clear and convincing evidence that the
outcome would have been different; consequently, no evidentiary hearing is
43

necessary.
Andrew, 164 F.3d at 198-99.
Multiple blood stains patterns were on the front of Petitioner’s jeans. Prior to trial,
DNA testing was done on one of the patterns – a spot labeled by the experts as pattern #3.
That testing determined it was not the blood of Rob Andrew. At the time the DNA profile of
Petitioner was not available and the identification of the donor could not be established. At
trial, defense expert Garner testified in order to explain through crime scene reconstruction
Petitioner’s version of the event. During his testimony, he opined that two spots he believed
to be blood spatter, patterns #2 and #5, could not have resulted from Petitioner’s gun shot
wound. Petitioner claims that testimony was damaging to her in both stages of trial as it
opened the door for the prosecutor to argue that the blood must have been spatter from Rob
Andrew when Petitioner shot him, and that it characterized her as a cold blooded murderer.
She argues that had the blood been tested beforehand as it was post trial, the prosecutor could
not have made the argument because it would have been known that the blood belonged to
her.
To demonstrate ineffective assistance of counsel, both deficient performance and
prejudice must be shown. On habeas review, Petitioner must demonstrate the state court’s
determination to have been unreasonable. Petitioner’s reliance on Hooper v. Mullin, 314
F.3d 1162 (10th Cir. 2002), and Fisher v. Gibson, 282 F.3d 1283 (10th Cir. 2002), for
comparison to support her claims of ineffective assistance for failure to investigate is
misplaced. Petitioner’s claim does not rise to the level of the facts in Hooper or Fisher. In
44

Hooper, defense counsel made the strategic decision to present as mitigating evidence the
possibility that the petitioner might have brain damage and other psychological problems, but
then presented evidence without any further investigation in an unprepared and ill-informed
manner. Counsel presented experts without ever speaking to them prior to their testimony and
was totally unaware what they would say on the witness stand. Hooper, 314 F.3d at 1171. In
Fisher, the Tenth Circuit found that defense counsel had failed to view the crime scene, filed
no discovery motions, failed prior to trial to discover witnesses the state was to present, was
unfamiliar with his client’s version of the events, and failed to review prior transcripts of his
client’s extradition hearing containing potentially exculpatory evidence. The Tenth Circuit
stated the nature of the trial indicated a singular lack of preparation and that through most of
counsel’s examination of witnesses, including his own, he had no idea what answers he would
receive to his questions. Fisher, 282 F.3d at 1293-94.
Here, Petitioner does not claim counsel was ineffective for hiring a crime scene
reconstruction expert to assist with her trial, only that counsel was ineffective for failing to
have additional blood testing on her jeans. She claims that without the additional testing as
that done post-trial, counsel’s presentation of her expert provided the state with an argument
that she was the shooter of the second shotgun blast into her husband. The OCCA’s
determination of Petitioner’s claim was contained in the section of its opinion addressing
ineffective assistance of counsel claims. By finding the prosecutor could have made the same
argument by stating the blood spatter came from the victim, the OCCA implicitly determined
the prejudice component of Strickland was not met.
45

In addition to the state court’s reasoning, it is also not unreasonable to not find
prejudice considering the evidence presented at trial to support that the murder was staged
(with Petitioner’s involvement), that the murder was for remuneration, and the evidence
supporting the especially heinous, atrocious and cruel aggravating circumstance. Petitioner
has failed to demonstrate the determination of the OCCA is unreasonable.
Next, Petitioner claims counsel was ineffective for failing to present three neighbors,
her sister, and her brother-in-law as witnesses who could have corroborated her version of the
events on the night of the murder. The OCCA denied Petitioner’s request for an evidentiary
hearing and her claim of inefffective assistance of counsel on appeal:
Lastly, Appellant claims that additional witnesses exist who could have
corroborated Appellant’s story, could have bolstered Pavatt’s confessional
letter, and could have rebutted some of the State evidence.
Appellant provides, in the application for evidentiary hearing, an
affidavit from a neighbor who would have testified that she heard two shots, she
heard screaming, and she saw someone bending over in the front yard after the
shots. Appellant claims that this bolsters her story that the final two shots were
simultaneous, sounding like one shot, and the story that there were two
assailants as the person this neighbor saw outside could have been the second
assailant. This witness testified at Pavatt’s trial but did not testify at the present
trial.
Another witness regards the letter from Pavatt, introduced at trial,
wherein he stated that he and another assailant were responsible, and Appellant
was not involved. He stated that he shot Appellant and the other assailant shot
Rob Andrew. To this day, Pavatt has not named the second assailant.
Appellant now provides an affidavit from Appellant’s brother-in-law, James
Bowlin, who states that Pavatt told him the same story when he met them in
Mexico, just days prior to their arrest.
The last witness, not utilized at trial, was Appellant’s sister, Kimberly
Bowlin who states that it was her, not Appellant, who was present near the
46

target practice area just days prior to the murder.
Appellant’s application for evidentiary hearing shall be denied. She has
not presented clear and convincing proof to this Court that counsel was
ineffective for failing to present this evidence, thus entitling her to an
evidentiary hearing on this extra-record evidence and to have the record
supplemented with the evidence. See Rule 3.11 (“the application and affidavits
must contain sufficient information to show this Court by clear and convincing
evidence there is a strong possibility trial counsel was ineffective.”)
Andrew, 164 P.3d at 199.
Petitioner claims the three neighbors collectively would have testified they heard two
shots10, screaming, and one neighbor would testify he saw someone bending up and down and
heard them saying “Oh, oh”. It is not unreasonable for the OCCA to find this evidence
insufficient to demonstrate counsel’s ineffectiveness. Although Petitioner contends this
testimony would have bolstered her version of the events, it is reasonable to find it insufficient
to overcome the testimony of both experts that the crime scene was staged.
Nor was it unreasonable for the state court to have denied Petitioner’s claim of
ineffectiveness as to witnesses James and Kimberly Bowlin (Petitioner’s sister and brother-inlaw). Mr. Bowlin would have testified Pavatt told him in Mexico the same version of the
events as set out in Pavatt’s confession letter. Ms. Bowlin would have testified it was her, and
not Petitioner, at the area of the family farm where shotguns were being discharged days prior
to the murder. The confession letter was presented to the jury and Mr. Bowlin’s testimony

10

Petitioner asserts that “upon reflection, Ms. [Lisa] Gisler now says in an Affidavit that the
loud noise she heard was in fact two fairly concurrent shots.” (Pet. at 176) Review of Ms. Gisler’s
affidavit reveals her statement to be that she heard “at least two shots”. (Attachment 5, Appendix
to Petition)
47

would have been cumulative to the information contained in it. In addition to potentially
opening up further issues regarding Petitioner’s flight to Mexico and of witness bias, the
Bowlin’s testimony would not have exonerated Petitioner on the conspiracy and murder
counts, lessened the impression of Petitioner’s control over Pavatt, or contradicted the expert
testimony of the murder as a staged event.
Petitioner’s last claim of ineffective assistance of counsel presented on appeal and in
a motion for evidentiary hearing concerns trial counsel’s failure to present testimony from her
handwriting expert regarding the change of beneficiary document to Rob Andrew’s
$800,00.00 life insurance policy. Petitioner claims counsel was ineffective for failing to
present testimony that all the signatures – both Rob Andrew’s and Petitoner’s – found on the
change of beneficiary form were “cut and pasted” from two forms of annuity applications with
the insurance company. Petitioner claims this evidence would have undermined the state’s
theory that she forged her husband’s signature on the change of beneficiary form.
Next, Appellant claims that new evidence regarding the signatures on a
change of ownership application (State’s exhibit 24) for the $800,000.00 life
insurance police shows that she did not forge the signature of Rob Andrew, but
that Pavatt could have copied the signatures from other documents and pasted
them to this document; a “cut and paste” theory of forgery.
Appellant had retained an expert in this area for trial, Ernie Smith. He
told counsel of his “cut and paste” theory regarding Robert D. Andrew’s
signature. He was not called to testify. This was a sound strategic decision,
based on the evidence.
Appellant maintained that the change of ownership document was
genuine in conversations with the judge handling the divorce, a close friend,
and the Prudential Insurance Agency. Appellant and Pavatt were working
together to find some way that Appellant would receive the proceeds of the life
48

insurance policy. No clear and convincing evidence exists for the holding of
an evidentiary hearing, because in any event the documents were forged by
Appellant and Pavatt working together.
Id. at 199.
As the OCCA recognized, this evidence was in direct conflict to Petitioner’s earlier
representations to the judge handling her divorce, to her friend Rick Nunley, and to her
statements and arguments to Prudential Insurance employees made while attempting to force
the change of ownership of the policy into her name. It further would have bolstered the
state’s theory that the document was a forgery and undermined her position of its authenticity.
Petitioner has not demonstrated the OCCA’s determination that counsel’s actions were a
sound trial strategy is contrary to, or an unreasonable application of, clearly established
Supreme Court precedent.
Claims contained in post-conviction proceedings.
In her application for post-conviction relief, Petitioner claimed trial counsel was
ineffective for failing to advise her while she was in Mexico to surrender to the Mexican
authorities in order to avoid, pursuant to a treaty between the United States and Mexico, the
death penalty and a sentence of life without the possibility of parole. The treaty contains a
provision regarding Mexico’s policy that it may not extradite a person to a country if that
person will be subjected to those sentences. Petitioner claims that in her many conversations
with Greg McCracken he never advised her of the treaty and for her to surrender herself to

49

the Mexican authorities.11 Petitioner further claims appellate counsel was ineffective for
failing to raise this issue on direct appeal.
The OCCA determined that the language of the treaty regarding extradition was not
mandatory and that Mexico was under no obligation to refuse extradition. Without a specific
statement from the Mexican authorities that they would have refused extradition in her case,
the OCCA determined Petitioner had not shown a prejudicial result as required by Strickland.
Andrew v. State, No. PCD-2005-176, slip op at 3-4 (Okla. Crim. App. Jun. 17, 2008).
Petitioner argues the OCCA did not make an adjudication on the merits of her
Strickland claim and that this court must review her claim de novo. The Court disagrees with
this argument. The OCCA began its analysis with a citation to Strickland and set forth the
Supreme Court’s requirements necessary to demonstrate counsel was ineffective. Id. at 2-3.
The OCCA’s determination is entitled to a deferential review from this Court. Of primary
importance is that the state court’s determination – that Petitioner did not demonstrate
counsel’s failure to advise constituted ineffective assistance – is entitled to deference.
Regardless whether this claim is reviewed deferentially or de novo, the Court finds the
OCCA’s determination both reasonable and correct.
Ordinarily, to establish a claim of ineffective assistance of counsel, Petitioner must
demonstrate that counsel’s performance was deficient, and that counsel’s deficient
performance prejudiced Petitioner’s defense. See Strickland, 466 U.S. at 687. However,

11

Mr. McCracken represented Petitioner in her divorce proceeding prior to the murder and
later represented her at her trial.
50

where there is no constitutional right to counsel, there can be no deprivation of effective
assistance. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); Coleman v. Thompson, 501
U.S. 722, 752 (1991); see also McMann v. Richardon, 397 U.S. 759, 771, n. 14 (1970)(“[T]he
right to counsel is the right to the effective assistance of counsel.”). The Sixth Amendment
right to counsel attaches “only at or after the time that adversary judicial proceedings have
been initiated against him.” Kirby v. Illinois, 405 U.S. 682, 688 (1972). “[A] criminal
defendant’s initial appearance before a judicial officer, where he learns the charge against him
and his liberty is subject to restriction, marks the start of adversary judicial proceedings that
trigger attachment of the Sixth Amendment right to counsel.” Rothgery v. Gillespie County,
554 U.S. 191, 213 (2008). The Sixth Amendment right to counsel is meant to ensure “fairness
in the adversary criminal process.” United States v. Morrison, 449 U.S. 361, 364 (1981).
Petitioner is not entitled to relief even if she were able to establish Mr. McCraken
failed to properly advise her to surrender to Mexican authorities as she asserts, because her
Sixth Amendment right to effective counsel had not yet attached as no adversarial judicial
proceedings had begun. Petitioner fled for Mexico on November 26, 2001. The State filed
charges on November 29, 2001 and Petitioner was arrested upon her return to the United
States on February 28, 2002. At the time of the alleged telephone conversations, sometime
between her flight to Mexico and return to the United States, Petitioner was actively evading
the very judicial proceedings necessary for the Sixth Amendment right to counsel to attach.
Petitioner has cited no authority which supports a constitutional right to counsel for actively
fleeing fugitives avoiding criminal prosecution.
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As there was no right to counsel, counsel’s “failure” to advise Petitioner to surrender
to the Mexican authorities cannot constitute ineffective assistance. Nor can appellate counsel
be deemed ineffective for failing to raise this non-claim on appeal.
For the foregoing reasons, Petitioner has failed to demonstrate the determinations of
the OCCA to be contrary to, or an unreasonable application of, clearly established federal law
as determined by the Supreme Court. Accordingly, Petitioner’s sixth ground for relief is
denied in its entirety.
Ground 7:

Evidentiary Rulings.

Petitioner claims evidence was introduced at trial that cast a veil of suspicion over her,
served no purpose other than to arouse sympathy for the victim, and was cumulative to
evidence of the relationship between her and James Pavatt – all irrelevant and highly
prejudicial in violation of her due process rights. Each of the evidentiary errors complained
of here by Petitioner was raised on appeal to the OCCA and individually addressed and found
to have been properly admitted under the State’s evidentiary rules:
In proposition seven, Appellant raises a series of claims attacking the
introduction of certain evidence which she claims was irrelevant or at least
more prejudicial than probative. We restate the general rules of evidence here.
Evidence is relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” 12 O.S.2001, § 2401.
Relevant evidence is admissible unless it is prohibited under the evidence code.
One prohibition against admission is that the relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice. See 12 O.S.Supp.2002, § 2403. Again, introduction is judged
under an abuse of discretion standard.
First, Appellant claims, in the first section of this proposition, that
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evidence was introduced which was used to cast an unwarranted veil of
suspicion over Appellant and distract and confuse the jury. This evidence
included documents showing that Pavatt made Appellant the primary
beneficiary of two life-insurance polices. Appellant claims that there is no
evidence that these policies were still valid. Next, Appellant cites to evidence
consisting of a tape recording of conversations between Appellant and Rob
Andrew recorded in the days before the murder. These recordings include
conversations between Tricity[12] and Rob Andrew. Appellant next cites
evidence of two Agatha Christie mystery books entitled Murder is Easy and
Sparkling Cyanide. Appellant also complains about the introduction of a title
and registration to the Bowlins’ vehicle, which was found in the 1992 Chevrolet
Beretta Appellant and Pavatt used to drive to Mexico. Appellant claims that
this could have been caused by a mix-up in the inventory of both vehicles by
the Hidalgo police before the search warrant was served.

All of this evidence was relevant to some aspect of this case. Appellant
being named as beneficiary of Pavatt’s insurance, whether valid or not, was
evidence of the extent of their relationship and provided support for the fact
that, at least Pavatt, intended to make their relationship permanent at some
point. The tape recordings of the conversations show the way Appellant used
Tricity to get Rob Andrew to come over to the house alone. The evidence of
the books, considering all of the circumstances, was just one more piece of the
puzzle, relevant to show Appellant’s role in the children’s life to rebut the claim
that she was a “good mother.” The relevance of these books was slight, but not
substantially outweighed by the dangers found in Section 2403.
The relevance of the car ownership papers was relevant to support the
State’s theory that Pavatt and Appellant intended to switch cars with the
Bowlins at some point in order to avoid detection while in the United States
(after returning from Mexico). The admissibility was not dependent on the fact
that the papers may have never made it into the Beretta while in the possession
of Appellant. The Bowlins took these documents with them so that a vehicle
exchange could be made.
Appellant claims the next group of evidence was cumulative of the
relationship between Appellant and Pavatt. Relevant evidence may be excluded
if the probative value is substantially outweighed by the danger of needless

12

Tricity is the daughter of Rob Andrew and Petitioner.
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presentation of cumulative evidence. 12 O.S. Supp.2002, § 2403. Appellant
complains about a birthday card to Pavatt from Appellant; photographs of
Appellant, Pavatt, and the Andrew children taken while on a trip to Six–Flags
over Texas; evidence of Pavatt’s infatuation with Appellant; and finally the
contents of Appellant’s luggage, including her thong underwear. All of this
evidence was introduced to show the extent and the nature of the relationship
between Pavatt and Appellant, and their intentions in fleeing to Mexico—not
as a grieving widow, but as a free fugitive living large on a Mexico beach. As
this trial was primarily about the motive and intent of Appellant to kill her
husband with the aid of Pavatt, this evidence was highly relevant and its
probative value was not outweighed by any dangers.
The final group of evidence attacked here includes a letter written by the
victim to witness Ron Stump. This evidence, like the hearsay evidence cited
above, was relevant to show the victim’s state-of-mind and to provide a
explanation of the motive. Welch, 2000 OK CR 8, ¶ 28, 2 P.3d at 370.
Appellant also complains about the introduction of audio tape recordings of
phone conversations between herself and the victim. These tapes were relevant
to show the type of relationship these two people had, which would cause
Appellant to kill her own husband. They were relevant to show her level of
hostility, rage and hatred toward her husband, all which provide a motive for
the killing. Although she did not kill in a fit of rage, she did use her hatred as
a possible “I'll be better off with him dead” self justification for the murder.
The relevance of this evidence was not outweighed by any dangers.
Lastly, Appellant urges this Court to consider the hearsay evidence
complained of above as an attempt to introduce irrelevant evidence, only for the
purpose of eliciting sympathy for the victim. We find that the trial court did not
abuse its discretion in allowing the admission of any of the evidence raised in
the proposition.
Andrew, 164 P.3d at 193-94.
Petitioner directs this Court to one Supreme Court case in support of her contention
that her due process rights were violated by the admission of evidence she claims was
irrelevant, cumulative and prejudicial. Petitioner’s reliance on that case is misplaced. In
Lisenba v. California, 314 U.S. 219 (1941), two snakes were brought into the trial court to be
54

identified by a witness to further the charge of a conspiracy involving the defendant. The
petitioner claimed the sole purpose of the snakes was to prejudice the jury against him and
that those in the courtroom – including the jury – were in a panic as a result. In consideration
of this claim, the Supreme Court held:
We do not sit to review state court action on questions of the propriety of the
trial judge’s action in the admission of evidence. We cannot hold, as petitioner
urges, that the introduction and identification of the snakes so infused the trial
with unfairness as to deny due process of law. The fact that evidence admitted
as relevant by a court is shocking to the sensibilities of those in the courtroom
cannot, for that reason alone, render its reception a violation of due process.
Lisenba, 314 U.S. 219, 228-29 (1941).
As has been often stated by the Supreme Court, “federal habeas corpus relief does not
lie for errors of state law.” Estelle, supra. The Supreme Court in Estelle held that the
admission of prior injury evidence admitted in the case did not violate the petitioner’s due
process rights. In so holding, the Court referenced Spencer v. Texas, 385 U.S. 554, 563–564
(1967), and included a parenthetical quotation from that case in support of the Court’s
decision: “Cases in this Court have long proceeded on the premise that the Due Process
Clause guarantees the fundamental elements of fairness in a criminal trial. . . . But it has
never been thought that such cases establish this Court as a rulemaking organ for the
promulgation of state rules of criminal procedure”. Estelle, 502 U.S. at 70.
Here, Petitioner does not cite to any Supreme Court law directly on point, but relies
instead on the general principle that the Due Process Clause of the Fourteenth Amendment
provides an avenue for relief when evidence is introduced that is so unduly prejudicial that
55

it renders the trial fundamentally unfair. The Tenth Circuit, in Welch v. Sirmons, 451 F.3d
675 (10th Cir. 2006), held that the cases and statutes applied by the OCCA in determining
evidentiary issues are consistent with the constitutional principle of due process and a
fundamental fairness evaluation. Id. at 688. The OCCA thoroughly reviewed and considered
each of Petitioner’s claims and found the evidence complained of to have been relevant to
some aspect of the case and its probative value not outweighed by any dangers of unfair
prejudice. As no clearly established federal law supports Petitioner’s claims, habeas relief on
this ground is denied.
Ground 8:

Admission into Evidence of Audio Tape Recordings.

Petitioner claims the trial court failed to properly authenticate audio tape recordings
of her, James Pavatt and Robert Andrew’s telephone calls to the customer service department
of Prudential Insurance Company prior to admitting the recordings into evidence. The
recordings were of conversations with various employees of Prudential regarding the
ownership of a life insurance policy taken out on behalf of Robert Andrew. The exhibits were
sponsored by the manager of Prudential’s financial corporate and investigative division as the
custodian of the recordings. He testified that recording phone calls regarding insurance
policies was the policy of Prudential, that the recordings were kept in the ordinary course of
business, and that he had previously heard them at the trial of James Pavatt.
On appeal, the OCCA found the audio tapes sufficiently authenticated and properly
admitted:
In proposition eight, Appellant claims that the trial court abused its
56

discretion when it allowed the admission of audio cassette tapes without the
proper authentication. “Authentication may be proved by direct or
circumstantial evidence, and is sufficient if evidence supports a finding that the
matter in question is what its proponent claims it to be.” Hooper v. State, 1997
OK CR 64, ¶ 29, 947 P.2d 1090, 1102. A voice on a recording may be
authenticated if the witness’s opinion is based on hearing the voice at any time
in circumstances which connect the voice with the alleged speaker. Id. See 12
O.S.2001, § 2901.
Craig Box, Rob Andrew’s divorce attorney, listened to all of the tapes
and testified that the voice on the tapes was that of Appellant. Furthermore,
Appellant gives her name, address and policy number over the phone.
Appellant also allows Pavatt to converse with the Prudential Insurance office,
and she identifies Pavatt as her insurance agent. Pavatt’s voice was
authenticated by his actions during the call. He gave his company
authentication code.
Rob Andrew’s voice was identified by Ron Stump on other tapes
introduced earlier in the trial. Although Stump did not identify the voice on
these particular tapes as those of Rob Andrew, the jury had similarly
authenticated tapes from which to determine the voice was that of Rob Andrew.
The audio tapes in this case were sufficiently authenticated and the trial
court did not abuse its discretion in allowing these tapes into evidence.
Andrew, 164 P.3d at 194.
Here, Petitioner relies on state law to argue improper authentication and admission,
save for a cursory claim that she was denied due process of law and the error had a substantial
and injurious effect or influence in determining the jury’s verdict. Habeas corpus relief does
not lie for errors of state law: “Today, we reemphasize that it is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.” Estelle, 502
U.S. at 67-68.
Petitioner also does not present clearly established federal law as determined by the
57

Supreme Court regarding her due process claim. Petitioner’s reliance on Hicks v. Oklahoma,
447 U.S. 343 (1980), is misplaced. In Hicks, the Oklahoma Court of Criminal Appeals
affirmed the appellant’s conviction under a habitual offender statute previously declared
unconstitutional by that court, holding that the appellant was not prejudiced by the impact of
the invalid statute setting a minimum sentence of years because his sentence was within the
range of punishment that a jury could have imposed under the proper statute. The Supreme
Court held:
In this case Oklahoma denied the petitioner the jury sentence to which he was
entitled under state law, simply on the frail conjecture that a jury might have
imposed a sentence equally as harsh as that mandated by the invalid habitual
offender provision. Such an arbitrary disregard of the petitioner’s right to
liberty is a denial of due process of law.
Id. at 346.
Hicks is not clearly established federal law regarding federal review of state court
evidentiary rulings. The due process rights infringed upon in Hicks involved an arbitrary
disregard of the petitioner’s right to liberty by the state appellate court. Such is not the case
here. It is not this Court’s province to engage in supervisory review of a state court’s
evidentiary rulings. Relief is only available if Petitioner can demonstrate the state court
determination was contrary to, or an unreasonable application of, clearly established federal
law as determined by the Supreme Court. This Petitioner has not done and this ground for
relief is denied.
Ground 9:

Petitioner’s Statements to Law Enforcement.

After her husband was shot, Petitioner was taken by law enforcement to the hospital
58

to treat her wound. At the hospital, forensic evidence was gathered from her and her clothing.
Afterwards, Petitioner was taken to the police station where she was questioned regarding
both her and husband being shot, as she was the only witness to the event. Petitioner claims
the trial court erred in admitting a videotape of her statement to the police, arguing she was
in custody when she was interrogated without being advised of, or waiving, her constitutional
rights as mandated by Miranda v. Arizona, 384 U.S. 368 (1964).
Petitioner raised this claim on direct appeal.
In proposition nine, Appellant argues that her statements to police were
the result of custodial interrogation, thus their introduction was unconstitutional
because she had not been advised of her Miranda rights. During the Jackson
v. Denno hearing, Appellant admitted that she agreed to speak with the police
because she wanted to help the police catch those responsible for shooting her
husband. Appellant was taken to the police station to be questioned by
detectives. The detective interviewing her considered her to be a witness, not
a suspect. She was taken to a friend’s house after the interview. She was not
“arrested” at any time. She was not handcuffed, shackled or placed in any type
of restraint. Eye-witnesses are routinely taken to the police station for
interviews. Appellant was the only living eye-witness to this crime. Under the
circumstances of this case, a reasonable person in the same position would not
conclude that he or she was in custody. See Berkemer v. McCarty, 468 U.S.
420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984)(the relevant inquiry is
how a reasonable man under the circumstances would understand the situation.)
Warnings are not required “simply because the questioning takes place in the
station house, or because the questioned person is one whom the police
suspect.” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50
L.Ed.2d 714 (1977). The trial court did not abuse its discretion in allowing the
admission of Appellant’s statements.
Andrew, 164 P.3d 194-95 (footnotes omitted).
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that a person
questioned by law enforcement after being taken into custody or deprived of his freedom of
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action in any significant way must first be warned that he has a right to remain silent, that any
statement made may be used against him as evidence, and that he has the right to the presence
of either a retained or appointed attorney. Id. at 444. Statements made not in compliance with
this rule may not be admitted at trial. “An officer’s obligation to administer Miranda
warnings attaches, however, ‘only where there has been such a restriction on a person’s
freedom as to render him “in custody.”’” Stansbury v. California, 511 U.S. 318, 322
(1994)(quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)).
In determining whether an individual was in custody, a court must examine all
of the circumstances surrounding the interrogation, but “the ultimate inquiry is
simply whether there [was] a ‘formal arrest or restraint on freedom of
movement’ of the degree associated with a formal arrest.” California v. Beheler,
463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per
curiam) (quoting Mathiason, supra, 429 U.S., at 495, 97 S.Ct., at 714).
Id.
The determination of whether a person is in custody depends on the objective
circumstances of the interrogation, not the subjective views of either the interrogating officers
or the person being questioned. Id. at 323. Miranda warnings are required only when there
has been such a restriction on a person’s freedom as to render him in custody, Mathiason, 429
at 495, and the fact an investigation has focused on a suspect does not trigger the need for
Miranda warnings in noncustodial settings. Minnesota v. Murphy, 465 U.S. 420, 431 (1984).
Petitioner claims the fact she was watched by police at the hospital, that the police
checked her out of the hospital and took her to the police station in a police car, that she was

60

wearing only hospital gowns13, and that she was taken to a closed room with no windows to
be questioned shows that any reasonable person would have considered herself to be in
custody. Respondent responds that additional evidence was presented at the pre-trial hearing
on the issue that objectively demonstrates Petitioner was not in custody. Such evidence
consisted of the collection of her clothing at the hospital for evidence, Petitioner freely signing
search waivers because “she was trying to help”, Petitioner never stating she did not want to
go to the police station for an interview, never being handcuffed or placed under arrest that
night, never being told she was a suspect, and at the conclusion of the interview, being
transported by police to a friend’s house where her children were located. Most importantly,
Petitioner testified at the pre-trial hearing that she spoke with the officers because she wanted
to tell them what happened and because she wanted to help the police catch the people who
shot her husband.
Based upon the review of the pre-trial hearing testimony, Petitioner has not
demonstrated the OCCA’s objective determination that a reasonable person in the same
situation would understand she was not in custody is contrary to, or an unreasonable
application of, clearly established federal law.
Ground 10: Trial Venue.
Petitioner claims pervasive publicity before and during trial entitled her to a change

13

At the time of the interview and after Petitioner had been transported to a friend’s house,
her residence was still being processed by police as a crime scene and a search of the house for
evidence was still ongoing.
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of venue, and that the trial court’s denial of her pre-trial motion and the OCCA’s
determination upholding the trial court’s decision to retain venue denied her Sixth, Eighth,
and Fourteenth Amendment rights.
Prior to trial, the trial court held a hearing on Petitioner’s motion for change of venue.
Petitioner’s counsel presented extensive material in the form of affidavits from local citizens
and lists of material and local media accounts of the murder and subsequent events. The trial
court stated the issue was whether jurors summoned could set aside any exposure to the media
coverage and base a verdict on the evidence presented at trial. Denying Petitioner’s motion,
the trial court noted that the only way to know whether pre-trial publicity was prejudicial was
through voir dire. Thereafter, the trial court and counsel conducted extensive individual voir
dire of each potential juror to determine the extent of pre-trial knowledge about the case and
any potential bias or predetermination of responsibility.
On appeal, the OCCA upheld the trial court’s decision to deny the change of venue
motion:
In proposition ten, Appellant claims the trial court erred in not granting
her request for a change of venue. Prior to trial, Appellant filed a motion for
a change of venue. The trial court held a hearing on the motion January 9 and
21, 2003. The defense presented evidence of the extensive coverage of the case
in the local media, as well as polling data showing that a substantial number of
Oklahoma County residents were somewhat familiar with the case and had
opinions about the case. After considering this evidence, the trial court denied
the motion, stating:
I don’t think we’re going to know [whether unbiased jurors can
be seated] until such time as we bring in a large panel, put them
up in the jury box and voir dire them. It’s unfortunate but that’s
actually the only way . . . that you can make that determination.
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We review the trial court’s denial of Appellant’s motion for change of
venue for an abuse of discretion. DeRosa v. State, 2004 OK CR 19, ¶ 21, 89
P.3d 1124, 1135–36. Pretrial publicity alone does not warrant a change of
venue. United States v. McVeigh, 918 F.Supp. 1467, 1473 (W.D.Okl.1996)(
“Extensive publicity before trial does not, in itself, preclude fairness”). The
influence of the news media must be shown to have actually pervaded the trial
proceedings. Hain v. State, 1996 OK CR 26, ¶ 8, 919 P.2d 1130, 1136. We
consider all relevant evidence to determine whether a fair trial was possible at
that particular place and time, keeping in mind the ultimate issue: whether the
trial court was in fact able to seat twelve qualified jurors who were not
prejudiced against the accused. DeRosa, 2004 OK CR 19, ¶ 19, 89 P.3d at 1135
(“if a trial court denies a defendant’s change of venue motion and the defendant
is then tried and convicted, the question is no longer about hypothetical and
potential unfairness, but about what actually happened during the defendant’s
trial”).
From the beginning, this case received considerable attention in the local
media. That fact cannot be disputed. Appellant refers us generally to the
record of the hearing on her change-of-venue motion, but she does claim that
air of prejudice pervaded the trial proceedings themselves. Again, our chief
concern is not how, or how often, the case played in the media, but whether, at
the end of the day, the trial court was able to empanel twelve fair and impartial
jurors.
The trial court is entitled to considerable discretion on issues involving
jury selection, because it personally conducts voir dire and has the opportunity
to observe the demeanor of the panelists—so much of which is lost in the
transcription of the proceedings. Harris v. State, 2004 OK CR 1, ¶ 11, 84 P.3d
731, 741. Nowhere in her brief does Appellant claim, much less demonstrate,
that any juror actually seated was biased against her due to adverse pretrial
publicity. Instead, Appellant invites this Court to hold that, because of
extensive media coverage, prejudice should be presumed. We decline that
invitation and hold that the trial court did not abuse its discretion in denying a
change of venue.
Andrew, 164 P.3d at 187.
It is axiomatic that the constitutional right to a jury includes the empanelment of
impartial jurors. However, as the Supreme Court acknowledged in Irvin v. Dowd, 366 U.S.
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717, 722 (1961), impartiality does not require a juror to be “totally ignorant of the facts and
issues involved.”
In these days of swift, widespread and diverse methods of
communication, an important case can be expected to arouse the interest of the
public in the vicinity, and scarcely any of those best qualified to serve as jurors
will not have formed some impression or opinion as to the merits of the case.
This is particularly true in criminal cases. To hold that the mere existence of
any preconceived notion as to the guilt or innocence of an accused, without
more, is sufficient to rebut the presumption of a prospective juror’s impartiality
would be to establish an impossible standard. It is sufficient if the juror can lay
aside his impression or opinion and render a verdict based on the evidence
presented in court.
Id. at 722-23 (citations omitted).
Supreme Court precedent establishes two avenues of relief for pretrial publicity. The
first is presumed prejudice. Presumed prejudice cases are rare, found in only three Supreme
Court cases dating back to the 1960s. Goss v. Nelson, 439 F.3d 621, 628 (10th Cir. 2006).
In those cases, prejudice was presumed because “the influence of the news media, either in
the community at large or in the courtroom itself, pervaded the proceedings.” Murphy v.
Florida, 421 U.S. 794, 799 (1975). In Rideau v. Louisiana, 373 U.S. 723, 726 (1963),
prejudice was presumed because the pretrial publicity created such a “spectacle” that Rideau’s
subsequent trial was all “but a hollow formality.” In Estes v. Texas, 381 U.S. 532, 550-52
(1965), the Court applied Rideau to find a due process violation in the televising and
broadcasting of a defendant’s trial. In Estes, the press overran the courtroom imposing “a
circus atmosphere.” Murphy, 421 U.S. at 799; Estes, 381 U.S. at 535-38. Finally, in Sheppard
v. Maxwell, 384 U.S. 333, 353-54 (1966), the “massive and pervasive” media attention
64

greatly exceeded the circumstances in Estes. In addition to “extremely inflammatory
publicity,” the “courthouse was given over to accommodate the public appetite for carnival.”
Murphy, 421 U.S. at 799. “The fact is that bedlam reigned at the courthouse during the trial
and newsmen took over practically the entire courtroom, hounding most of the participants
in the trial, especially Sheppard.” Sheppard, 384 U.S. at 355. The Supreme Court found that
these circumstances deprived Sheppard “of that ‘judicial serenity and calm to which [he] was
entitled.’” Id. (quoting Estes, 381 U.S. at 536).
As the Supreme Court in Murphy explicitly acknowledged, Rideau, Estes, and
Sheppard do not “stand for the proposition that juror exposure to information about a state
defendant’s prior convictions or to news accounts of the crime with which he is charged alone
presumptively deprives the defendant of due process.” Murphy, 421 U.S. at 799. Prejudice
was presumed in Rideau, Estes, and Sheppard because “[t]he proceedings in [those] cases
were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system
that subscribes to any notion of fairness and rejects the verdict of a mob.” Murphy, 421 U.S.
at 799. Accordingly, the Tenth Circuit, in applying this precedent, has “held that prejudice
will only be presumed where publicity ‘created either a circus atmosphere in the court room
or a lynch mob mentality such that it would be impossible to receive a fair trial.’” Goss, 439
F.3d at 628 (quoting Hale v. Gibson, 227 F.3d 1298, 1332 (10th Cir. 2000)).
In order to demonstrate that prejudice should be presumed, the defendant must
“establish that an irrepressibly hostile attitude pervaded the community.” Id. at
1567. “Simply showing that all the potential jurors knew about the case and that
there was extensive pretrial publicity will not suffice to demonstrate that an
irrepressibly hostile attitude pervaded the community.” Id. Presumed prejudice
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is “rarely invoked and only in extreme circumstances.” Id.
Hale, 227 F.3d at 1332 (quoting Stafford v. Saffle, 34 F.3d 1557, 1567 (10th Cir. 1994)).
While Petitioner has shown that the pretrial publicity in her case was significant, she
has not shown that her case is one of the rare and extreme cases where the media attention
fostered “an irrepressibly hostile attitude.” Stafford, 343 F.3d at 1567. Petitioner argues that
prejudice should be presumed because of the frequency and nature of the publicity, and the
demonstrated impact this publicity had upon the pool from which the jury was drawn.
However, just as she failed to do on direct appeal, Petitioner has not made a connection
between the publicity and the fairness of her trial. Supreme Court precedent requires a
showing of more than mere exposure, even if that exposure is substantial. To find a
presumption of prejudice, the media must have overwhelmingly influenced the community
to the point where it was simply impossible to receive a fair trial. Petitioner details the media
content and then based on its “frequency and nature,” argues for a presumption of prejudice;
however, her argument amounts to no more than an assumption of prejudice.
In denying Petitioner’s claim, the OCCA acknowledged that a change of venue is
warranted when “[t]he influence of the news media must be shown to have actually pervaded
the trial proceedings.” Andrew, 164 P.3d at 187. The OCCA denied relief, however, because
Petitioner did not claim or demonstrate “that any juror actually seated was biased against her
due to adverse pretrial publicity.” Id. For the reasons set forth above, the Court finds that the
OCCA’s decision is in accord with Supreme Court precedent on presumed prejudice.
Petitioner is therefore not entitled to relief on this portion of her claim because she has failed
66

to show that the OCCA’s decision is contrary to, or an unreasonable application of, Supreme
Court law.
Beyond presumed prejudice, the Supreme Court has held that a defendant may obtain
relief when pretrial publicity causes actual prejudice. Irvin is an actual prejudice case. In
Irvin, voir dire spanned four weeks. Irvin, 366 U.S. at 720. From the panel consisting of 430
potential jurors, 370 expressed an opinion about Irvin’s guilt, and 268 of the 370 were
excused for cause because their opinions were fixed. Of the twelve jurors who actually sat
on the jury, eight believed Irvin was guilty before trial even began. Id. at 727. In these
circumstances, the Supreme Court held as follows:
With such an opinion permeating their minds, it would be difficult to say that
each could exclude this preconception of guilt from his deliberations. The
influence that lurks in an opinion once formed is so persistent that it
unconsciously fights detachment from the mental processes of the average man.
Where one’s life is at stake—and accounting for the frailties of human
nature—we can only say that in the light of the circumstances here the finding
of impartiality does not meet constitutional standards.
Id. at 727-28 (citation omitted). The Court continued:
No doubt each juror was sincere when he said that he would be fair and
impartial to petitioner, but psychological impact requiring such a declaration
before one’s fellows is often its father. Where so many, so many times,
admitted prejudice, such a statement of impartiality can be given little weight.
As one of the jurors put it, ‘You can’t forget what you hear and see.’ With his
life at stake, it is not requiring too much that petitioner be tried in an
atmosphere undisturbed by so huge a wave of public passion and by a jury other
than one in which two-thirds of the members admit, before hearing any
testimony, to possessing a belief in his guilt.
Id. at 728 (citations omitted).
Petitioner’s case is far removed from the circumstances found in Irvin. Of the twelve
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jurors ultimately selected to serve, ten had heard something about the case in varying degrees
through the media but none had formed an opinion as to guilt. All affirmed they could be
impartial. Although Petitioner presents selected passages expressing varying knowledge of
the pre-trial media coverage by her jurors related in voir dire, a complete review of the voir
dire does not demonstrate any juror had predisposed beliefs regarding her guilt or an
appropriate sentence. Most importantly, Petitioner has not demonstrated any juror was biased
against her due to pre-trial publicity.
In conclusion, the Court finds that Petitioner is not entitled to relief on this ground.
Because Petitioner has not demonstrated that the OCCA’s ruling on the issue of pretrial
publicity is contrary to or an unreasonable application of Supreme Court law, Petitioner’s
claim is denied.
Ground 11: Challenges to Instructions.
Petitioner claims her due process rights to a properly instructed jury were denied when
the trial court erroneously denied requested instructions regarding jailhouse informant
testimony, improperly instructed the jury on “flight”, and failed to instruct the jury on the
lesser offense of accessory after the fact and the proper use of “other crimes” evidence.
Jailhouse informant instruction.
Petitioner claims the trial court was required under Oklahoma law to give an
instruction requested by the defense when the State relied in part on the testimony of Theresa
Sullivan involving statements made to her by Petitioner while they were both in custody in
the county jail. The OCCA rejected this claim on appeal:
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First, Appellant claims that the trial court erred in failing to give
cautionary instructions on jailhouse informant testimony. The instruction was
requested in response to witness Teresa Sullivan’s testimony. Sullivan testified
that Appellant confessed that she and Pavatt killed Rob Andrew for the money,
house, kids and each other. Sullivan was an inmate in the Oklahoma County
Jail when Appellant confided in her.
This instruction is to be given when a witness is a “professional
jailhouse informant.” Wright v. State, 2001 OK CR 19, ¶ 21, 30 P.3d 1148,
1152. Sullivan was in federal custody while at the county jail. She was not
facing any State charges, and she testified that she did not expect any benefit
from testifying. She did not seek out authorities with which to share her story.
She, as well as others incarcerated in the county jail with Appellant, were
contacted to determine whether they had information relevant to this case. The
possibility that Sullivan was a jailhouse informant was not supported by the
evidence presented to the trial court. The trial court did not err in failing to give
this instruction.
Andrew, 164 P.3d at 200 (footnotes ommitted).
A petitioner seeking collaterally to attack a state court conviction based on an
erroneous set of jury instructions “bears a heavy burden of proof.” Shafer v. Stratton, 906 F.2d
506, 508 (10th Cir.1990). “Habeas proceedings may not be used to set aside a state
conviction on the basis of erroneous jury instructions unless the errors had the effect of
rendering the trial so fundamentally unfair as to cause a denial of a fair trial in the
constitutional sense,” Shafer, 906 F.2d at 508 (quotation omitted), or “so infected the entire
trial that the resulting conviction violates due process,” Estelle, 502 U.S. at 72 (quoting Cupp
v. Naughten, 414 U.S. 141, 147 (1973)). Moreover, the burden on a petitioner attacking a
state court judgment based on a failure to give a requested jury instruction is especially great
because “‘[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a
misstatement of the law.’” Tyler v. Nelson, 163 F.3d 1222, 1227 (10th Cir.1999)(quoting
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Maes v. Thomas, 46 F.3d 979, 984 (10th Cir.1995))(additional citations omitted).
Although Ms. Sullivan was at the Oklahoma County jail along with Petitioner, she was
in federal custody and testified that no promises had been made to her by state prosecutors for
her testimony. She denied accusations by defense counsel on cross-examination that she was
a “known snitch” and that she was testifying in exchange for favors of any kind. For these
and other reasons, the OCCA determined she was not a “professional jailhouse informant” as
required by state law in order to require the jailhouse informant jury instruction. Petitioner
does nothing more that cite to general Supreme Court law to assert she was denied due
process and a fair trial.14 Without clearly established federal law to the contrary, or an
unreasonable application of the same by the state court, Petitioner’s claim lacks merit and
must be denied.
“Flight” instruction.
Petitioner next claims giving the flight instruction burdened the presumption of
innocence and denied her a fair trial. She further asserts that the instruction should be
discontinued by the state court as it relates to consciousness of guilt. Both of these claims
were considered and denied by the OCCA:
Next, Appellant claims that the trial court erred in instructing the jury on
the doctrine of flight. Along with this claim, Appellant urges this Court to
eliminate and discontinue the jury instructions on the doctrine of flight as it
relates to consciousness of guilt. Appellant explained to Sullivan that she left
for Mexico to get the kids away from everything, for a little vacation. Her

14

Petitioner does not deny that her counsel addressed these and other issues on Ms.
Sullivan’s cross-examination.
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statement explaining her act of departure warranted the giving of the flight
instructions. See Mitchell v. State, 1993 OK CR 56, ¶¶ 7–8, 876 P.2d 682, 684.
Appellant’s argument against the doctrine of flight does not persuade this Court
to change its position on this issue. The trial court did not err in giving this
instruction.
Andrew, 164 P.3d at 200.
Again, Petitioner does not direct this Court to any Supreme Court law demonstrating
the OCCA’s determination to be unreasonable. Instructive on these claims is the Tenth
Circuit’s decision in Robinson v. Gibson, 35 Fed. App’x. 715 (10th Cir. 2002). In Robinson,
the Tenth Circuit considered whether the instruction on flight impermissibly infringed on the
presumption of innocence and unconstitutionally shifted the State’s burden of proof to the
defendant. Citing Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir. 1997), the Court found
the burden was not shifted by the instruction as the trial court also instructed the jury on the
presumption and on the State’s burden of proving each element of the offense beyond a
reasonable doubt. Robinson, 35 Fed App’x. at 721. The Court further found the instuction
did not deprive the defendant of due process or a fair trial. Id. at 722. In the instant case, the
OCCA found no error in the trial court giving the instruction regarding flight. Petitioner has
not demonstrated the challenged instruction was so fundamentally unfair as to deprive her of
a fair trial and due process of law. Nor has she demonstrated the OCCA’s determination to
be contrary to, or an unreasonable application of, clearly established federal law as determined
by the Supreme Court.
Accessory after the fact.
Although not requested by the defense at trial, Petitioner claims the trial court should
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have sua sponte instructed on a lesser-related offense of accessory after the fact, and that
failure to do so denied her a fair trial and due process of law.
Appellant next claims that the trial court failed in its duty to instruct on
the lesser related offense of accessory after the fact. Instructions on this offense
were not requested during trial. There was no evidence that Appellant was an
accessory after the fact. Her defense was that she did not know who killed her
husband. She did not claim that she knew Pavatt killed her husband, so she
helped him flee to Mexico to avoid capture, which might be a basis for the
instruction. Furthermore, the State’s evidence did not support an instruction on
this offense. Therefore, the trial court did not err in failing to give this
instruction sua sponte.
Andrew, 164 P.3d at 200 (footnote omitted).
In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held that the Due
Process Clause of the Fourteenth Amendment sometimes requires a state charging a defendant
with a capital offense to permit the jury to consider alternative, lesser included offenses that
do not carry with them the prospect of a death sentence. Id. at 627; see also Schad v. Arizona,
501 U.S. 624, 647 (1991). Two problems with Petitioner’s claim readily appear. First,
Petitioner never requested the instruction regarding accessory after the fact. Petitioner may
not prevail on a Beck claim on a lesser included offense instruction that she failed to request
at trial. Grant v. Trammell, 727 F.3d 1006, 1011 (10th Cir. 2013) (citing Hooks v. Ward, 184
F.3d 1206, 1234 (10th Cir. 1999)). The second obstacle for Petitioner is that the due process
clause “does not require a lesser included offense instruction to be given unless ‘the evidence
would ... support[ ] ... a verdict’ on that lesser included offense.” Id. at 1013 (quoting Beck,
447 U.S. at 627).
As the OCCA determined, there was no evidence presented to support that Petitioner
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was an accessory after the fact – that she knew Pavatt killed her husband yet helped him flee
to Mexico – and the State’s evidence did not support such an instruction on the offense.
Petitioner has failed to demonstrate the decision of the OCCA to be contrary to, or an
unreasonable application of, clearly established federal law, or to be an unreasonable
determination of the facts in light of the evidence presented at trial.
Instruction on other crimes evidence.
Petitioner lastly claims the trial court’s failure to give the uniform instruction regarding
evidence of other crimes and bad acts, when coupled with the circumstantial nature of the
State’s case, prejudiced her and denied her a fair trial. The OCCA found any error did not rise
to a level requiring reversal:
Appellant next complains about the trial court’s refusal to give limiting
instructions on the use of “other crimes” evidence (see discussion above
regarding the evidence). We find that jury instructions on the use of other
crimes evidence was warranted in this case, although some of the evidence
indicating that Appellant committed other crimes or “bad acts” was part of the
“res gestae,” much of the evidence was presented as “other crimes” evidence
for the specific purposes spelled out in 12 O.S.Supp.2002, § 2404. However,
in spite of this error, we find that the error to give the requested instruction did
not create the type of injury which requires reversal of this case. See 20
O.S.2001, § 3001.1; also see Anderson v. State, 1999 OK CR 44, ¶ 16, 992
P.2d 409, 416–17.
Andrew, 164 P.3d at 201.
Petitioner again fails to direct this Court to any federal law to demonstrate the
unreasonableness of the state court’s determination. “[I]t is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.” Estelle, 502
U.S. at 63 (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Although the OCCA found
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the requested instruction was warranted, it determined the error did not require reversal.
When compared with the evidence the State presented against Petitioner, the trial court’s
failure to give the requested instruction was harmless. Petitioner has not shown the failure
to give the limiting instruction had a substantial and injurious effect or influence on the jury’s
verdict, Brecht, 507 U.S. at 631, or that the OCCA’s determination was contrary to, or an
unreasonable application of, clearly established federal law as determined by the Supreme
Court. Accordingly, Petitioner’s ground for relief is denied in its entirety.
Ground 12: Challenges to Penalty Phase Instructions.
Petitioner claims she was denied her right to a fair trial when the trial court failed to
give proper and pertinent second stage jury instructions stating the applicable law.
Specifically, Petitioner challenges: (1) the Oklahoma uniform jury instruction on the murder
for remuneration aggravator; (2) the trial court’s supplemental instruction in response to a jury
question regarding the meaning of the life without possibility of parole sentencing option; and
(3) the Oklahoma uniform instruction defining mitigating circumstances.
Murder for remuneration instruction.
Petitioner complains the trial court erred by not giving adequate instructions when it
refused to give her requested instruction defining “remuneration”. The OCCA determined
Petitoner’s requested instruction did not adequately define the murder for remuneration
aggravating circumstance and that the uniform instruction given by the trial court adequately
stated the law:
Appellant claims, in proposition twelve, that the trial court failed to
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properly instruct the jury during the second stage proceedings, thus depriving
her of her right to fair sentencing proceeding. She first claims that the trial
court failed to instruct on the necessary elements of murder for remuneration.
This argument rests on the trial court’s failure to give Appellant’s requested
instruction on the aggravating circumstance of murder for remuneration.
The trial court gave the uniform instructions on the murder for
remuneration aggravating circumstance. The uniform instruction only states
that “the person committed the murder for remuneration or the promise of
remuneration or employed another to commit the murder for remuneration or
the promise of remuneration.” OUJI–CR 4–72 (2000). No further defining
instructions are included in the uniform instructions.
Appellant requested that the jury be instructed as follows:
The State has alleged that the defendant committed the murder
for remuneration or the promise of remuneration. This
aggravating circumstance is not established unless the State
proves beyond a reasonable doubt that:
First: the murder was committed by the defendant
for the purpose of her financial gain.
Second: the defendant was in a position to receive
financial gain by the act of murder at the time the
homicide occurred.
We initially note that this requested instruction does not fully describe
or define the murder for remuneration aggravating circumstance, thus it does
not accurately state the law. This Court has determined that the murder for
remuneration instructions accurately state the law.
The traditional application of the “murder for remuneration” aggravating
circumstance has been where a defendant has been hired or has hired another
person to perform an act of murder. Plantz v. State, 1994 OK CR 33, ¶ 42, 876
P.2d 268, 281. Murder for remuneration has also been applied to killings
motivated primarily to obtain proceeds from an insurance policy. Id. We find
that the trial court did not abuse its discretion in refusing Appellant’s proposed
instruction.
Andrew, 164 P.3d at 201-02.
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The Tenth Circuit has previously considered an almost identical claim and described
the parameters on habeas review:
We may set aside a state conviction on the basis of erroneous jury instructions
when the “ailing instruction by itself so infected the entire trial that the resulting
conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct.
475, 116 L.Ed.2d 385 (1991)(quoting Cupp v. Naughten, 414 U.S. 141, 147, 94
S.Ct. 396, 38 L.Ed.2d 368 (1973)). On habeas review, however, “the fact that
the instruction was allegedly incorrect under state law is not a basis for habeas
relief.” Id. at 71–72, 112 S.Ct. 475 (citations omitted). Furthermore, “the [state]
courts’ interpretation of the state . . . statute is a matter of state law binding on
this court.” Chapman v. LeMaster, 302 F.3d 1189, 1196 (10th Cir. 2002); see
also Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535
(1983)(“We are bound to accept the [state] court’s construction of that State’s
statutes.”)(citing O’Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 38
L.Ed.2d 702 (1974)); Hatch v. Oklahoma, 58 F.3d 1447, 1464 n. 11 (10th
Cir.1995)(“Even if petitioner were to challenge this construction of [the statute]
directly, we would have to defer to the Oklahoma court’s construction of a state
statute.”)(citations omitted).
Parker v. Scott, 394 F.3d 1302, 1319 (10th Cir. 2005).
Petitioner’s reliance on Woodson v. North Carolina, 428 U.S. 280 (1976), is misplaced.
Woodson involved the application of a statute making the death penalty mandatory in cases
of first degree murder and that afforded no consideration of the offender’s character, record,
or the circumstance of the offense. Petitioner is arguing that an additional instruction of her
choosing should have been given to the jury and not that her death sentence was statutorily
mandated. Here, as in Parker, Oklahoma law, as interpreted by its state courts, does not
include the additional element that Petitioner seeks. Parker, 394 at 1319. Petitioner has not
demonstrated the OCCA’s determination to be unreasonable.
Response to jury inquiry.
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Petitioner claims the trial judge’s response to a jury question about the life without the
possibility of parole sentencing option was inadequate and that she is, therefore, entitled to
a new sentencing proceeding.
Appellant next claims that the trial court’s answer to the jury’s question
about life without parole was inadequate. During second stage deliberations,
the jury sent out a note asking, “Is [sic] life without parole mean incarceration
in prison until her natural death?” The trial court answered that life without
parole was self-explanatory. Trial counsel did not object to this answer, thus
we review for plain error. This type of answer was one of the options
recommended in Littlejohn v. State, 2004 OK CR 6, ¶ 11, 85 P.3d 287, 293–94,
therefore, there is no plain error here.
Andrew, 164 P.3d at 202.
Petitioner offers only general Supreme Court law regarding cases involving erroneous
jury instructions and the heightened standards of reliability in capital cases. An almost
identical argument to Petitioner’s claim was considered and rejected by the Tenth Circuit in
Littlejohn v. Trammell, 704 F.3d 817 (10th Cir. 2013). In Littlejohn, the Tenth Circuit
restated that Oklahoma’s three-option sentencing scheme fulfills the Supreme Court’s
requirements that a jury be notified regarding the defendant’s parole ineligibility. Id. at 827.
Further, the Court found that the trial judge’s response to the jury’s questions regarding the
life without possibility of parole sentencing option did not create a false choice, negate, or
contradict the three sentencing choices. Id. at 831. Circuit precedent and Petitioner’s failure
to demonstrate the OCCA’s determination to be contrary to federal law as determined by the
Supreme Court dictate the denial of this claim.
Instruction regarding mitigating circumstances.
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Oklahoma Uniform Jury Instruction (OUJI) CR2d 4-78 defines mitigating
circumstances as factors which “in fairness, sympathy, and mercy, may extenuate or reduce
the degree of moral culpability or blame”. Petitioner argues this definition impermissibly
narrows application of mitigation evidence to exclude evidence warranting a sentence less
than death simply because such evidence does not lessen her moral culpability or blame for
the crime of which she has been convicted.” (Pet. at 273)
Next, Appellant claims that the uniform instructions on mitigating
circumstances, OUJI–CR 2d 4–78, ran afoul of Lockett v. Ohio, 438 U.S. 586,
604, 98 S.Ct. 2954, 2964–65, 57 L.Ed.2d 973 (1978), as the prosecutor was
allowed to use the language to fashion an argument which compared mitigation
with culpability. The same argument made here was rejected in Hogan v. State,
2006 OK CR 19, ¶ 94, 139 P.3d 907, 936. We find no reason to revisit this
issue, especially in light of the fact that the jury was instructed that they could
decide what mitigating factors existed beyond those listed pursuant to
OUJI–CR 4–79, and consider them as well. See also Rojem v. State, 2006 OK
CR 7, ¶¶ 57–58, 130 P.3d 287, 299. Appellant’s arguments regarding the
second stage instructions must fail.
Andrew, 164 P.3d at 202.
There is no Supreme Court precedent requiring a trial court to affirmatively
instruct on the specific mitigating evidence the defendant wishes the jury to
consider. Therefore, this claim fails under AEDPA. See Smith v. Spisak, [558]
U.S. [139, 149], 130 S.Ct. 676, 684, 175 L.Ed.2d 595 (2010)(no right to habeas
relief if Supreme Court has not previously held jury instruction unconstitutional
for same reason); see also Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct.
1411, 1419, 173 L.Ed.2d 251 (2009)(legal rule must be “squarely established”
by Supreme Court). In addition, the OCCA correctly noted Penry 1 and its
predecessors involved instructions “which improperly limit[ed] the jury’s
consideration of certain evidence [in addition to] the absence of an instruction
specifically directing their consideration of certain evidence.” Welch, 968 P.2d
at 1244. Here, Welch’s jury was not prevented from considering mitigating
evidence and was specifically instructed it was limited only by its own
judgment.
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Welch v. Workman, 639 F.3d 980, 1008-09 (10th Cir. 2011).
Here, as in Welch, the jury was instructed on the meaning of mitigation, that it must
unanimously find the existence of the aggravating factors beyond a reasonable doubt, and that
it was authorized to consider the death penalty only if the aggravating circumstances
outweighed the evidence of mitigating circumstances. Id. at 1009-10. Petitioner has failed to
demonstrate the OCCA’s determination was contrary to, or an unreasonable application of,
clearly established federal law as determined by the Supreme Court. According, this claim
is denied.
Ground 13: Prosecutorial Misconduct.
Petitioner claims various comments by the prosecutor were improper and deprived her
of her due process rights under the Fourteenth Amendment to the Constitution, rendering her
death sentence unreliable. The OCCA reviewed each of Petitioner’s individual instances of
claimed prosecutorial misconduct and determined there to be no due process violations15:
In proposition thirteen, Appellant alleges several instances of what she
calls prosecutorial misconduct. We first note that no trial will be reversed on
the allegations of prosecutorial misconduct unless the cumulative effect was
such to deprive Appellant of a fair trial. Garrison v. State, 2004 OK CR 35, ¶
128, 103 P.3d 590, 612. Many of the allegations here were not preserved at
trial with contemporaneous objections, thus we review for plain error. We will
not find plain error unless the error is plain on the record and the error goes to
the foundation of the case, or takes from a defendant a right essential to his
defense. Simpson, 1994 OK CR 40, ¶ 23, 876 P.2d at 698.

15

The OCCA addressed in its Opinion each of the instances claimed in the Petition to have
been improper. Rather than be duplicative and list each instance again, the Court refers to the
OCCA’s Opinion to identify Petitioner’s claimed errors.
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Appellant first claims that the prosecutor intentionally misled the jury
by pointing out to them that Tricity Andrew did not beg for her mother’s life.
Defense counsel had planned and had informed the Court that he intended to
ask Tricity if she wanted her mother to get the death penalty, but the question
was never asked, possibly due to Tricity’s emotional state on the witness stand.
Appellant also claims that the prosecution attacked defense counsel’s choice to
use Appellant’s fifteen-year-old niece to ask to spare Appellant’s life by asking
the jury, “would you put your 15–year–old niece on the stand to do that? I
wouldn't.” There was no objection to either of these comments.
While these comments were “low blows” and may have constituted
improper argument and casting aspersions on defense counsel, we can
confidently say that they did not rise to the level of plain error.
Appellant next claims that the prosecutor improperly attacked her by
stating in response to mitigating evidence indicating she was a good mother,
“Would she bring men into her house with her children there and her husband
at work?” This comment was not met with an objection. The comment was
properly based on the evidence, and it was in response to the list of mitigating
evidence, thus did not constitute error. See Selsor v. State, 2000 OK CR 9, ¶ 35,
2 P.3d 344, 354.
Appellant, next points us to the prosecutors comment that, “Rob
Andrew’s parents would like to visit him in prison.... The only place they get
to visit is his grave.” The prosecutor used this comment to rebut mitigating
evidence that Appellant “has many relatives who would visit her in prison if
given the opportunity.” Again, no objection was lodged. This comment is
similar to the ones condemned in Duckett v. State, 1995 OK CR 61, ¶ 46, 919
P.2d 7, 19. However, as in Duckett, we find that the comment did not rise to
the level of plain error.
Appellant next claims that the prosecutor attempted to elicit sympathy
for the victim by pointing out that Appellant murdered a man with admirable
attributes, noting specific aspects of his life. Again, there was no objection.
This argument did not rise to the level of plain error.
Next, Appellant complains that the prosecutor, during second closing,
attacked defense counsel’s argument. The prosecutor pointed out that defense
counsel argued that Rob would ask for forgiveness just as Jesus did on the
cross, then later told them that Appellant was “a cold-blooded, heartless killer.”
These comments were separated by nearly fourteen pages of transcript and were
80

in direct response to defense counsel’s argument. There was no error here. See
DeRosa, 2004 OK CR 19, ¶ 70, 89 P.3d at 1149.
Next, Appellant claims the prosecutor argued facts not in evidence by
trying to get the jury to imagine what Rob’s last word[s] were, “Was it
goodbye, I love you, Brenda? Was it I forgive you? Was it, take care of my
children?” No objection to these comments was lodged. This was also,
arguably, in response to defense counsel’s argument regarding Rob’s belief in
forgiveness and argument regarding the aggravating circumstance of heinous,
atrocious or cruel. No plain error occurred here.
Appellant claims that the prosecutor’s argument that Rob’s mother could
not make it to the witness stand was arguing facts not in evidence. Defense
Counsel objected, and the trial court interrupted the argument, allowed the
prosecutor to rephrase, then, just a few lines later, after an objection to other
comments, reminded the jury, in no uncertain terms, that “nothing that the
attorneys say is evidence.” We find that any error in these comments was
cured, due to the later instruction by the court.
Appellant claims that the prosecutor misstated the evidence by inferring
that the victim impact witnesses wanted the death penalty through their
testimony, even though Rob’s father testified that “all of our family will do
everything in our power to assist for convictions and punishment for all of those
who are involved in this and responsible for the murder of my son and that they
will never ever walk free again.” These arguments were in direct response to
the defense argument that the victim impact witnesses didn’t ask for the death
penalty. The prosecutor informed the jury that, by law, the victim impact
witnesses could not ask for a specific punishment during their victim impact
testimony. There was no objection and the comments do not rise to the level
of plain error.
Appellant claims that the prosecutor argued that she deserved the death
penalty for things that are not “aggravating circumstances.” Appellant points
out that the prosecutor argued that “she killed [Rob] because she wanted the
money; she wanted the custody of the children.” The prosecutor also argued
that she deserved the death penalty for the way she treated Rob after “[h]e had
forgiven her time and time again.” There was no objection here. Remember
that one of the aggravating circumstances alleged was continuing threat—this
argument was to establish that her motive and callousness caused her to be a
continuing threat. There is no error here.
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Appellant has failed to show either that her trial was so infected by
misconduct as to violate due process, or that her death sentence was improperly
or unconstitutionally obtained. DeRosa, 2004 OK CR 19, ¶ 70, 89 P.3d at 1149.
Appellant was convicted and sentenced to death based upon the facts and
circumstances of this case, rather than any improper remarks by the prosecutor.
Id.
Andrew, 164 P.3d at 202-04.
The deferential standard of review under 28 U.S.C. § 2254(d) is required since the
OCCA adjudicated Petitioner’s prosecutorial misconduct claim on the merits. See Walker v.
Gibson, 228 F.3d 1217, 1241 (10th Cir. 2000), abrogated on other grounds by Neill v. Gibson,
278 F.3d 1044, 1057 (10th Cir. 2001). Petitioner does not demonstrate that the prosecutor’s
misconduct denied her a specific constitutional right. The appropriate standard for a
prosecutorial misconduct habeas claim, therefore, is “‘the narrow one of due process, and not
the broad exercise of supervisory power.’” Darden v. Wainwright, 477 U.S. 168, 181
(1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). Accordingly, “it is
not enough that the prosecutor’s remarks were undesirable or even universally condemned.”
Darden, 477 U.S. at 181 (citation omitted). A prosecutor’s improper remarks require reversal
of a conviction or sentence only if the remarks “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643, 645 (1974).
The fundamental fairness inquiry requires an examination of the entire proceedings and the
strength of the evidence against the petitioner, both as to the guilt stage and the sentencing
phase. Id. at 643. “Any cautionary 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
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the comments, while not dispositive, is also relevant to a fundamental fairness assessment.”
Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (citations omitted).
Petitioner has not demonstrated her due process rights were violated by any or all of
the prosecutor’s statements. See Thornburg v. Mullin, 422 F.3d 1113, 1124-25 (10th Cir.
2005) (holding that the OCCA had adjudicated the merits of a due process claim because the
OCCA’s analysis of plain error involved the same test used to determine whether there was
a denial of due process). Upon review of the entire proceedings, rather than parsing out
individual statements, the Court determines that considered alone or together the prosecutor’s
remarks did not so infect the trial with unfairness as to make the resulting conviction a denial
of due process. Many of the prosecutor’s statements were not objected to by defense counsel.
As identified by the OCCA, many of the statements were proper argument and/or reasonable
comments on the evidence and law.

A few others, if improper, were cured with

admonishments by the trial court. Petitioner has not demonstrated that the OCCA’s
determination is contrary to, or an unreasonable application of, clearly established federal law.
Accordingly, this claim is denied.
Ground 14: The Especially Heinous, Atrocious, or Cruel Aggravating Circumstance.
Petitioner claims the evidence presented to show that the murder was especially
heinous, atrocious or cruel was insufficient to prove the existence of the aggravating
circumstance beyond a reasonable doubt, resulting in a death sentence lacking the reliability
required by the Eighth Amendment.
To find a murder heinous, atrocious or cruel, the State must prove the victim suffered
83

torture or serious physical abuse. Serious physical abuse requires a showing the victim was
subjected to “great physical anguish” or “extreme mental cruelty.” Neill v. State, 896 P.2d
537, 555 (Okla. Crim. App. 1994). “Evidence that a victim was conscious and aware of the
attack supports a finding of torture.” Davis v. State, 103 P.3d 70, 81 (Okla. Crim. App. 2004).
“Torture includes the infliction of either great physical anguish or extreme mental cruelty,
while physical abuse requires evidence of conscious physical suffering.” Hooker v. Mullin,
293 F.3d 1232 (10th Cir. 2002)(quoting Romano v. Gibson, 239 F.3d 1156, 1176 (10th Cir.
2001)).
“When reviewing the sufficiency of the evidence on a habeas corpus petition, 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.’” Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir.
2004)(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
“This standard reflects our system’s longstanding principle that it is the jury’s
province to weigh the evidence and to draw reasonable inferences from
testimony presented at trial.” Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th
Cir. 2004). Our review is “sharply limited,” and when there are conflicting
facts in the record that permit disparate inferences, the Court “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.” Id. at 1197 (quoting Messer v. Roberts, 74 F.3d 1009, 1013
(10th Cir.1996)).
Wilson v. Sirmons, 536 F.3d 1064, 1105 (10th Cir. 2008).
The OCCA concluded the following facts supported the heinous, atrocious or cruel
aggravating factor:
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Appellant, in her phone call to police told the emergency operator,
during her second 911 call, that her husband was breathing, conscious and was
trying to talk, even after being shot twice. This conversation occurred at around
five minutes after Rob Andrew was shot. The medical examiner testified that
Rob was shot twice. The medical examiner also testified that death would not
have been instantaneous.
Although the murder weapon was never found, circumstantial evidence
showed that Rob was shot with a single-shot shotgun, which would have
required manual reloading between the shots. The evidence supported the fact
that Rob was conscious during this time and even after being shot the second
time. When emergency personnel arrived, Andrew was still clutching a trash
bag full of empty aluminum cans, which reasonably suggested that he either
tried to shield himself from being shot, or attempted to ward off his attacker.
All of these facts tend to show that Rob Andrew suffered serious physical
abuse, and was conscious of the fatal attack for several minutes.
Andrew, 164 P.3d at 201.
Petitioner has offered little more to support her claim than a general statement that “the
record does not reflect the intentional, drawn out, mental cruelty present in cases where this
aspect of the aggravator has been found.” (Pet. at 287) The OCCA detailed several facts
developed at trial demonstrating that Rob Andrew was conscious and aware of the attack that
took his life and that would have caused him great physical anguish and suffering. Petitioner
has failed to demonstrate the OCCA’s conclusion is contrary to, or an unreasonable
application of, clearly established federal law as determined by the Supreme Court, or is an
unreasonable determination of the facts in light of the evidence presented at trial.
Ground 15: Cumulative Errors.
Petitioner claims in the event that any individual error in her case is deemed
insufficient to warrant relief, the accumulation of errors so infected the trial and sentencing
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proceedings with unfairness that she was denied due process of law and a reliable sentencing
proceeding. The OCCA considered this claim on direct appeal:
In proposition fifteen, Appellant urges this Court to view the alleged
errors in a cumulative fashion, should we hold that no individual error rises to
the level of reversible error. We have reviewed the case to determine the effect,
if any, of Appellant’s alleged accumulation of error. We find, even viewed in
a cumulative fashion, the errors we identified do not require relief. Stouffer v.
State, 2006 OK CR 46, ¶ 205–06, 147 P.3d 245, 280.
We found error, although harmless, in the admission of some State’s
evidence and exclusion of some defense evidence. We also found error in the
failure to include an instruction on “other crimes” evidence. We find that even
viewed in a cumulative fashion, these errors do not require relief. Furthermore,
these errors combined with alleged and unpreserved error which did not rise to
the level of plain error did not cause Appellant to receive an unfair trial.
Andrew, 164 P.3d at 205.
It is true as a general principle of law that “[t]he cumulative effect of two or more
individually harmless errors has the potential to prejudice a defendant to the same extent as
a single reversible error.” United States v. Oberle, 136 F.3d 1414, 1423 (10th Cir.
1998)(quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)). However,
“‘[a] cumulative-error analysis merely aggregates all the errors that individually have been
found to be harmless, and therefore not reversible, and it analyzes whether their cumulative
effect on the outcome of the trial is such that collectively they can no longer be determined
to be harmless.’

The analysis, however, ‘should evaluate only the effect of matters

determined to be error, not the cumulative effect of non-errors.’” Id. (quoting Rivera, 900 F.2d
at 1470-71); See also Newsted v. Gibson, 158 F.3d 1085, 1097 (10th Cir. 1998); Castro v.
Ward, 138 F.3d 810, 832-33 (10th Cir. 1998); United States v. Trujillo, 136 F.3d 1388, 1398
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(10th Cir. 1998).
Upon review of the entire trial transcript and the evidence and testimony presented, the
Court does not find the cumulation of those errors determined to be harmless had a
“substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507
U.S. at 637. Because this Court has concluded that no additional error occurred during either
stage of trial, the only matters considered here are the errors found by the OCCA. Each of the
errors identified had minor significance. See Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir.
2000)(“[c]ourts must be careful not to magnify the significance of errors which had little
importance”). As expressed by the OCCA, the errors were not so egregious or numerous as
to prejudice Petitioner to the same extent as a single reversible error. Although this was a
circumstantial evidence case, the cumulative effect of the errors, when compared with the
evidence and testimony presented at trial, did not significantly strengthen the State’s case or
diminish Petitioner’s case. No reasonable probability exists the jury would have acquitted
Petitioner absent the errors. Additionally, the cumulative effect of the errors was insufficient
to undermine the aggravating circumstances found by the jury. Accordingly, Petitioner’s
fifteenth ground for relief is denied.
Ground 16: Constitutionality of Sentence.
In Anderson v. State, 130 P.3d 273 (Okla. Crim. App. 2006), the OCCA determined
that juries should be instructed that a person convicted of certain crimes is subject to
Oklahoma’s eighty-five percent (85%) rule – that is, the person would actually serve 85% of
their sentence before becoming eligible for parole or good time credits. Petitioner claims that
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failure to instruct her jury on the rule violated her Eighth Amendment rights pursuant to
Simmons v. South Carolina, 512 U.S. 154 (1994), and progeny, and the failure of the OCCA
to apply Anderson’s rule to her case violates her due process rights.
Petitioner filed her appeal brief the day before the OCCA handed down the Anderson
opinion. While the direct appeal was pending, Petitioner filed her application for postconviction relief, raising the above issue in a claim of ineffective assistance of appellate
counsel. The OCCA considered Petitioner’s claim in determining the prejudice prong of an
ineffective assistance of counsel claim:
In proposition three, Andrew claims that a new rule of law announced
after her direct appeal brief was filed renders her sentence unconstitutionally
unreliable and a violation of due process of law. The new rule of law she refers
to is our pronouncement in Anderson v. State, 2006 OK 6, 130 P.3d 273, that
juries should be informed that a person convicted of an enumerated crime
would be required to serve eighty-five percent of their sentence before
becoming eligible for parole. See 21 O.S. 2001, §§ 12.1 & 13.1. Andrew also
claims that, should this Court determine that this issue was waived on direct
appeal; direct appeal counsel was ineffective for failing to raise it in the original
brief or in a supplemental brief, as required by the Court’s rules. See Rule
3.4(F), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18,
App. (2007). Thus, in order to prevail on this issue, Andrew must show
ineffective assistance of appellate counsel. This she cannot do.
The jury had three sentencing options: death, life without the possibility
of parole, and life with the possibility of parole. There is no indication that the
jury was deciding between life and life without parole. Andrew cannot show
that the outcome would have been different had an 85% instruction been given.
See Cole v. State, 2007 OK 27, ¶ 65, fn. 15, 164 P.3d 1089. Thus the second
prong of Strickland cannot be met.
Andrew v. State, No. PCD-2005-176, slip op. at 5-6 (Okla. Crim. App. Jun. 17,
2008)(footnote omitted).
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To obtain relief under the AEDPA, Petitioner must show the OCCA’s decision is
contrary to, or an unreasonable application of, “clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “That statutory phrase
refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the
time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
“[F]ederal courts may no longer extract clearly established law from the general legal
principles developed in factually distinct contexts.” House v. Hatch, 527 F.3d 1010, 1017 n.
5 (10th Cir.2008). Petitioner’s ability to obtain relief hinges on his ability to point to
“Supreme Court precedent clearly establishing the legal right on which [his] claim is
premised.” Lambert v. Workman, 594 F.3d 1260, 1263 (10th Cir.2010).
Petitioner seeks relief from the OCCA’s decision by asserting it is in conflict with
several Supreme Court decisions. In support of her due process claim, Petitioner cites
Simmons v. South Carolina, 512 U.S. 154 (1994), as well as related cases, Shafer v. South
Carolina, 532 U.S. 36 (2001), and Caldwell v. Mississippi, 472 U.S. 320 (1985). In Simmons,
a plurality opinion, the Supreme Court held “where the defendant’s future dangerousness is
at issue, and state law prohibits the defendant’s release on parole, due process requires that
the sentencing jury be informed that the defendant is parole ineligible.” Simmons, 512 U.S.
at 156. Because the jury in Simmons may have reasonably believed that Simmons could be
paroled if given a life sentence, the Court found that an unacceptable “misunderstanding
pervaded the jury's deliberations” — one which “had the effect of creating a false choice
between sentencing petitioner to death and sentencing him to a limited period of
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incarceration.” Id. at 161.
Simmons and its progeny are inapplicable to Petitioner’s claim. As discussed above,
Simmons protects against the “false choice.” Its holding requires jury notification of a capital
defendant’s parole ineligibility when the State has alleged that he is a continuing threat. This
notification prevents “a false choice between sentencing petitioner to death and sentencing
him to a limited period of incarceration.” Simmons, 512 U.S. at 161. See Ramdass v.
Angelone, 530 U.S. 156, 166 (2000) (noting that “Simmons created a workable [and limited]
rule.”). In Petitioner’s case, the jury was not faced with this false choice, but was given three
sentencing options: life, life without the possibility of parole, and death (O.R.VI, 1039). This
in and of itself is Simmons compliant
Beyond the limited circumstances of Simmons, the Supreme Court has not mandated
a jury be told about a defendant’s parole eligibility. In fact, the Supreme Court has
specifically acknowledged that the States have discretion in this area. Simmons, 512 U.S. at
168 (citing California v. Ramos, 463 U .S. 992, 1014 (1983), “for the broad proposition that
[the Supreme Court] generally will defer to a State’s determination as to what a jury should
and should not be told about sentencing.”); see also Ramdass, 530 U.S. at 165 (acknowledging
that O’Dell v. Netherland, 521 U.S. 151, 166 (1997), “reaffirmed that the States have some
discretion in determining the extent to which a sentencing jury should be advised of probable
future custody and parole status in a future dangerousness case, subject to the rule of
Simmons.”); O’Dell, 521 U.S. at 166 (noting that Simmons “carved out an exception to the
general rule described in Ramos . . . for the first time ever”). Under these circumstances,
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Petitioner’s claim is nothing more than a state law claim and outside the province of a federal
court to reexamine. Estelle, 502 U.S. at 67–68. See also Parker v. Sirmons, 384 F. App’x 750,
752 (10th Cir. 2010) (unpublished) (finding no due process violation for Anderson error);
Gardner v. Jones, 315 F. App’x 87, 91–92 (10th Cir. 2009) (unpublished) (acknowledging the
limited holding of Simmons and finding that a petitioner was not denied a fundamentally fair
trial “in a constitutional sense” by the trial court’s failure to instruct the jury on the 85%
Rule); Taylor v. Parker, 276 F. App’x 772, 775–76 (10th Cir. 2008) (unpublished) (failure to
instruct on the 85% Rule did not result in a fundamentally unfair trial).
The Eighth Amendment aspect of Petitioner’s claim does not enhance her ability to
obtain relief. For this portion of his claim, Petitioner cites the Supreme Court’s decision in
Hicks v. Oklahoma, 447 U.S. 343 (1990), asserting the failure of the OCCA to apply the rule
to Petitioner’s case violates her right to due process as guaranteed by the Fourteenth
Amendment. This argument fails at the threshold because it is premised not on clearly
established federal law, but on “general legal principles developed in factually distinct
contexts.” House, 527 F.3d at 1017 n. 5; see Littlejohn v. Trammell, 704 F.3d 817, 830 n. 5
(10th Cir. 2013) (rejecting a similar argument based on general principles drawn from several
Supreme Court cases interpreting the Eighth Amendment).
The trial court’s instructions were compliant with Simmons and before the OCCA’s
announcement regarding the 85% rule in Anderson. The OCCA’s consideration on postconviction of Petitioner’s claim, included as a ground for ineffective assistance of counsel,
reasonably recognized that the failure to give the instruction did not create any false choices,
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and as such, did not satisfy the necessary prejudice prong of an ineffective assistance of
counsel claim. For the foregoing reasons, the Court finds that Petitioner has failed to show
the OCCA’s decision is contrary to, or an unreasonable application of, Supreme Court law.
Petitioner’s ground for relief is, therefore, denied.
Ground 17: Claim of Non-disclosed Evidence by Prosecution.
Petitioner claims the prosecutor in her case withheld material and exculpatory evidence
regarding the testimony of Teresa Sullivan. Ms. Sullivan was housed with Petitioner in the
Oklahoma County jail prior to trial and testified Petitioner told her she and Pavatt killed her
husband for money, the kids and each other; that Pavatt shot her in the arm to make her appear
to be a victim; and that they fled to Mexico because they believed they would be caught.
Petitioner claims that contrary to the testimony of Ms. Sullivan and the closing arguments of
the prosecutor, Ms. Sullivan’s defense attorney had a conversation with the prosecutor prior
to trial and stated he might ask her to write a letter to federal prosecutors regarding Sullivan’s
testimony. He stated he planned to file a motion in her federal case for a reduction of her
sentence if Ms. Sullivan indeed testified in Petitioner’s case.
Petitioner presented this and other newly discovered evidence to the OCCA in her
motion for a new trial. The OCCA’s determination detailed, along with its reasoning, the new
evidence and Petitioner’s arguments. It is included here in its entirety and incorporated by
the Court to further describe the substance of Petitioner’s claim:
Appellant filed a motion for new trial with this Court on September 21,
2005. Appellant’s motion is brought pursuant to 22 O.S.2001, §§ 952 and 953,
alleging newly discovered evidence. The State filed a response on June 21,
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2006.
The test for whether a motion for a new trial should be granted
based upon newly discovered evidence is: (1) whether the
evidence is material; (2) whether the evidence could not have
been discovered before trial with reasonable diligence; (3)
whether the evidence is cumulative; and (4) whether the evidence
creates a reasonable probability that, had it been introduced at
trial, it would have changed the outcome.
Ellis v. State, 1992 OK CR 45, ¶ 50, 867 P.2d 1289, 1303.
The motion contains information that Teresa Sullivan, who testified
against Appellant, received a reduction of her federal sentence due to her
cooperation with the Oklahoma County District Attorney’s office in this case.
Sullivan testified that she had twenty-two (22) months left on her sentence;
however, a new sentence was given by the federal court after she testified,
which basically allowed her release just five (5) months after testifying. The
documents indicate that Sullivan was granted the early release because of her
cooperation in this case.
Information attached to the motion also indicates that Sullivan received
a downward departure on her federal sentence because she cooperated with the
federal authorities in the investigation of her co-defendants (even though she
testified that she was not a snitch). The gist of the motion is that the State knew
about the potential for a benefit to Sullivan, but failed to disclose the
information.
Sullivan testified that Appellant confessed that she and James Pavatt
killed Rob Andrew. Sullivan’s attorney says in a letter written to the federal
prosecutor that he had to explain to her that she might receive additional
consideration on her federal sentence if she were called to testify against
Appellant. It appears that Sullivan provided information to the State (before
testifying) with no understanding that she might receive a benefit. When she
testified at trial, there were no guarantees that she would receive any benefit.
One document in particular states that Oklahoma City Police detectives
contacted Sullivan at her place of federal confinement as part of their
investigation (as well as others who where incarcerated with Appellant at the
Oklahoma County Jail). Sullivan provided information to the detectives before
contacting, William P. Earley, the federal public defender who represented her
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in her federal case. The documents indicate that Earley filed the motion for a
reduction of sentence after Sullivan testified as any effective advocate might
have done. He stated that he would have filed this motion regardless of any
input from the Oklahoma County District Attorney’s office.
Appellant has not presented a sufficient showing to be granted a new
trial. Substantial additional evidence supports the conviction. We are further
convinced that, were we to grant a new trial with this “newly discovered
evidence” being introduced, the outcome of the trial would be the same.
Sullivan was thoroughly cross-examined regarding her motivation to
testify against Appellant, with repeated attempts to show her bias. Defense
counsel also called a witness to refute the possibility that Appellant shared any
information with Sullivan. The knowledge of the fact that Sullivan was the
beneficiary of an act of grace by the federal courts would not change the
outcome of this trial.
Andrew, 164 P.3d at 204-05 (footnote omitted).
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that suppression
of favorable evidence by the prosecution after request by the accused violates due process,
irrespective of the good faith or bad faith of the prosecution, where the evidence is material
to either guilt or to punishment. Id. at 87. That duty of disclosure was extended even when
the accused had not made a request, United States v. Agurs, 427 U.S. 97, 107 (1976), and
encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley,
473 U.S. 667, 676 (1985). The evidence is material “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have been
different.” Id. at 682.
In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court explained that “favorable
evidence is material, and constitutional error results from its suppression by the government,
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‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.’” Id. at 433 (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)). The Supreme Court emphasized four aspects of
materiality under Bagley. First, the touchstone of materiality is a “reasonable probability” of
a different result. The question is “whether in its absence [the defendant] received a fair trial,
understood as a trial resulting in a verdict worthy of confidence. Id. at 434. Second, it is not
a sufficiency of evidence test, but a showing “that the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine confidence in the
verdict.” Id. at 434-45.

Third, “once a reviewing court applying Bagley has found

constitutional error there is no need for further harmless-error review.” Id. at 435. The fourth
and final aspect of Bagley materiality “is its definition in terms of suppressed evidence
considered collectively, not item by item.” Id. at 436.
In Strickler v. Greene, 527 U.S. 263 (1999), the Supreme Court explained the standards
and components of a Brady violation:
There are three components of a true Brady violation: The evidence at
issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.
Id. at 280-82.
“[W]hen ‘the reliability of a given witness may well be determinative of guilt or
innocence,’ nondisclosure of evidence affecting credibility falls within [the] general rule [of
Brady].” Scott v. Mullin, 303 F.3d 1222, 1231-32 (10th Cir. 2002), quoting Giglio v. United
95

States, 405 U.S. 150, 154 (1972). “[I]mpeachment Brady material will only require a new
trial ‘if the false testimony could . . . in any reasonable likelihood have affected the judgment
of the jury.’” Id. at 1232 (quotation omitted). “As we stressed in Kyles: ‘[T]he adjective is
important. The question is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.’” Strickler at 289-90
(quoting Kyles).
By determining the results of her trial would have been the same with the additional
evidence that Teresa Sullivan may have testified with expectations of benefits in her federal
case, the OCCA determined Petitioner received a fair trial resulting in a verdict worthy of
confidence. The issue here is whether that determination was unreasonable.16 The State
presented evidence of a conspiracy between Petitioner and Pavatt to kill her husband starting
prior to the incident of the cut brake lines and continuing through their flight to Mexico.
Evidence was also received that Petitioner hated her husband, of her attempt to remain the
beneficiary of his life insurance policy, that she loaned Pavatt money to pay for his wife to
return overseas, and expert testimony that the shooting of Petitioner in the arm was staged.
The new evidence of possible assistance with Sullivan’s federal sentence in exchange for her
testimony is minimal in its prejudicial impact when compared to the above evidence and a

16

The Court does not consider the veracity of Petitioner’s claim that the new evidence
demonstrates the prosecutor withheld this evidence from defense counsel and the jury. Instead, this
Court adopts the reasoning that the OCCA considered the claim to be valid when it made its
determination and reviews this determination for unreasonableness.
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plethora of other circumstantial evidence presented throughout a lengthy trial. This is
especially true in light of defense counsel’s stringent cross-examination and questioning
Sullivan regarding her motives to testify and about a bogus check crime for which she had
been previously convicted. Further, evidence was presented to cast doubt on Ms. Sullivan’s
testimony and her motive for testifying. Angela Burk was presented by defense counsel to
rebut Ms. Sullivan’s testimony. She testified Sullivan was a “known snitch”, that she had
access to television and newspapers reporting on Petitioner’s case, that Petitioner was shy,
quiet, and never talked to anyone about her case, and that Sullivan was testifying in order to
get some benefit.
The question under the AEDPA is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was unreasonable. The state court
determined that even with the inclusion of this information the outcome of the trial would
have been the same – that is, that even in its absence Petitioner received a fair trial,
understood as one resulting in a verdict worthy of confidence.

Petitioner has not

demonstrated the OCCA’s determination to be unreasonable. Petitioner’s seventeenth ground
for relief is denied.
Ground 18: Evidentiary Hearing.
Throughout her Petition and more generally in this ground for relief, Petitioner claims
she is entitled to an evidentiary hearing on various claims. Petitioner filed a Motion for
Evidentiary Hearing specifically setting forth the grounds for relief on which she believes she
is entitled to present additional evidence.
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For the reasons set forth throughout this

Memorandum Opinion and in the Order on her Motion for Evidentiary Hearing, Petitioner’s
request for an evidentiary hearing is denied.
CONCLUSION
After a complete review of the transcripts, trial record, appellate record, record on postconviction proceedings, briefs filed by Petitioner and Respondent, and the applicable law, the
Court finds Petitioner’s request for relief in her Petition For Writ of Habeas Corpus (Dkt. No.
26) should be denied. ACCORDINGLY, habeas relief is DENIED on all grounds. An
appropriate judgment will be entered.
IT IS SO ORDERED this 9th day of September, 2015.

98