Fryer v. Mohan
MEMORANDUM OPINION. Signed by Honorable Timothy D. DeGiusti on 1/17/17. (ml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
KALEIGH LYNN FRYER,
DEBBIE ALDRIDGE, Warden,
Mabel Basset Correctional Center,
Case No. CIV-14-662-D
Petitioner, a state court prisoner proceeding pro se, has filed a petition for writ of
habeas corpus seeking relief pursuant to 28 U.S.C. § 2254. [Doc. 1].
challenges the conviction entered against her in Logan County District Court Case
No. CF-10-91. Tried by a jury in 2011, Petitioner was found guilty of first degree murder
and sentenced to life imprisonment.
Petitioner presents seven grounds for relief. Respondent has responded to the
After a thorough review of the state court record (which Respondent has
provided), the pleadings filed in this case, and the applicable law, the Court finds that, for
the reasons set forth below, Petitioner is not entitled to the requested relief.
Pursuant to Fed. R. Civ. P. 25(d), Debbie Aldridge, who currently serves as warden of the
Mabel Bassett Correctional Center, is hereby substituted as the proper party respondent in this
I. Procedural History.
Petitioner appealed her conviction to the Oklahoma Court of Criminal Appeals
(hereinafter “OCCA”). In Fryer v. State, No. F-2011-919, slip op. (Okla. Crim. App.
Aug. 21, 2013), the OCCA affirmed her conviction. Petitioner did not seek certiorari to
the United States Supreme Court. She filed this action, challenging her state court
The following is a summary of the facts of Petitioner’s case. More facts will be
discussed throughout the opinion as needed.
At around 7:00 a.m. on May 13, 2010, Guthrie police officers were dispatched to
402 West Orbit, in Guthrie Oklahoma. Trial Tr. vol. III at 51-52. When they arrived,
they encountered Petitioner standing in the carport/porch area of the home. Id. at 53.
Police spoke briefly with Petitioner and entered the home. Id. at 53. They found the
victim Lewis Keith Fryer Jr. lying dead at the foot of his bed, his body partially covered
with a blanket. Id. 57-58, 156. Once they cleared the home, a police officer interviewed
Petitioner, who said that she had been asleep all night, and found her father dead after she
woke up around 7:00 a.m. Id. at 106-107; State’s Ex. 12-A. Another officer used
Petitioner’s cell phone to speak to Petitioner’s mother, who arrived to be care for
Trial Tr. vol. III at 112.
Agents from the Oklahoma State Bureau of
Investigation (“OSBI”) also arrived. They discovered that Petitioner was fifteen years
old and lived with her father—the victim—Lewis Keith Fryer Jr. Petitioner’s father and
mother were divorced, and she and her brother lived with her father following the
divorce. May 16, 2011 Tr. at 65-66. Her brother, Lewis Keith Fryer III moved out at
some point prior to the victim’s murder. Id. at 72-73. Michael Dean, the OSBI agent in
charge of the investigation, interviewed Petitioner and went to find Petitioner’s brother.
After interviewing Petitioner’s brother and discovering that he had a confirmed alibi for
the time of the murder, Dean went back to the home. Trial Tr. vol. VI at 19-20. Dean
directed an officer to interview Kaleigh again at the police department and assigned
another officer to seek a warrant for the cell phone, which was still in police custody. Id.
After agents received a search warrant for the home, they began their crime scene
investigation. Id. The investigation revealed a violent scene, with signs of struggle in the
victim’s bedroom. Id. at 21. Agents checked the doors and windows of the home and
found no signs of forced entry. Id. at 23. One window was slightly open, but agents did
not find any evidence that anyone had entered the house through that window recently.
Id. At that point, agents began to suspect Petitioner’s involvement, as there had been no
forced entry, the house was not ransacked, and only a few items were taken. Id. at 27. In
canvassing the neighborhood, agents began discovering that Petitioner lied about certain
things in earlier interviews. Id. at 27-31.
Friends in the neighborhood told agents that Petitioner had a boyfriend named
Jerry Chiles, who stayed with another family in the neighborhood. Id. at 28. Agents also
discovered that Petitioner may have been pregnant by Chiles. Id. at 29. Around 3:30
p.m. that day, Chiles’ friend, Sarah Kester, told agents that Chiles had called her and said
that he was at Crossroads Mall, and wanted someone to get him. Id. at 32-33. Chiles was
taken into custody at around 4:00 p.m. Id. at 33.
Dean and another officer interviewed Chiles.
Chiles initially denied any
involvement, telling police that he left Guthrie at 12:30 a.m. with a girl named Rachel
and her friends, but they had kicked him out of the car at Crossroads Mall. Id. at 35-36.
After he was pressed on that story, Chiles admitted that he lied and said that he took the
victim’s car. Id. at 36. Agents questioned Chiles further, and he admitted to killing the
victim. Id. At first, he told the agents that he went to Petitioner’s home to see her, but
the victim confronted him, leading to a struggle which ended in the victim’s death. Id. at
36. Agents confronted Chiles with problems with his story, and Chiles eventually told
police the same story that he told at trial. Id. at 38.
Chiles testified at trial about the events surrounding the murder. He and Petitioner
had met at a carnival, after which Chiles went to a motel with Petitioner and her mother.
Trial Tr. vol. VI at 136. They stayed at the motel all weekend, drinking alcohol and
using marijuana. Id. at 136-37. Chiles was 21 years old at the time. Id. at 125. Chiles
and Petitioner had dated for about four months at the time of the murder. Id. at 127.
Chiles spent a significant amount of time at Petitioner’s home, though not when her
father was home. Id. at 129-130. A couple of weeks before the murder, Petitioner and
Chiles were at a park called Silver Valley, and Petitioner asked Chiles to kill her father so
that she could live with her mother. Id. at 139-41. She told Chiles she would leave the
back door of her home open for him, told him where to find a knife in the kitchen, and
where he could locate the victim’s keys and wallet. Id. at 143-44. Chiles agreed to kill
the victim, claiming he had strong feelings for Petitioner. Id. at 141-42. Petitioner
walked Chiles through the plan on May 12, 2010, showing him where to find the knives
and her father’s things. Id. at 150. She also told him that she was pregnant that day. Id.
at 146. On the night of May 12, 2010, Petitioner again asked Chiles to kill the victim,
requesting that he do it before the weekend. Id. at 145. Chiles agreed. Id.
At 3:00 a.m. on May 13, 2010, Chiles went to Petitioner’s home. Id. at 154. He
entered through the back door. Id. at 155. He stopped outside of the victim’s bedroom,
where he observed the victim sleeping. Id. at 156. Chiles then went to the kitchen and
drew a knife from the knife block. Id. at 157. He walked back to the victim’s room and
stood, shaking and sweating. Id. He saw the victim’s arm move, and he started swinging
the knife. Id. at 158. The victim got up and started wrestling with Chiles, and even
managed to get control of the knife. Id. Chiles wrested the knife from the victim, cut his
hands, and stabbed him in the neck. Id. at 158-59. The victim fell to the floor beside the
bed, his face looking towards the bed. Id. at 159. Chiles took the victim’s phone, wallet,
keys, and a cup full of change. Id. at 161, 165. He looked through a zippered black
notebook, which Petitioner had told him sometimes contained money, but did not find
anything. Id. at 154, 161-62. Chiles then left in the victim’s car and drove toward
Oklahoma City. Id. at 163. He stopped at a convenience store in Edmond, where he
changed clothes, used the restroom, and purchased a cigar with money from the cup he
took. Id. 163-65. He drove to Crossroads Mall and dropped off a bag of his belongings.
Id. at 168. He then drove to a nearby neighborhood and abandoned the car, locking the
doors and placing the keys in the center console. Id. at 169-70. Chiles went to a 7Eleven near the mall and called Petitioner’s cell phone at around 7:00 a.m. Id. at 170-71.
He talked to Petitioner, who commented that there was a lot of blood. Id. at 171. She
told him that after they hung up, she would call the police. Id. Chiles expected Petitioner
and her mother to pick him up at Crossroad Mall, but they never came. Id. at 174,180.
Chiles stayed at the mall all day, calling Petitioner’s cell phone five more times
from a pay phone, and each time only reaching her voicemail. Id. at 175. He also called
Sarah Kester, who told him that the police were investigating. Id. at 175. Chiles stayed
at Crossroads Mall until he was picked up by a police officer. Id. at 181.
Having elicited this story from Chiles, agents set about to corroborate his
statement. Trial Tr. vol. VI at 40, 43-45. They found the victim’s vehicle, locked with
the keys in the center console. Id. at 44. They found bloodstains near the back door
through which Chiles said he entered and exited. Id. at 72-73; Trial Tr. vol. III at 132.
They found that, based on the post-mortem lividity in the victim’s face, he had died
facing the bed. Trial Tr. vol. VI at 47-48. Petitioner’s cell phone records showed that
Chiles had indeed talked to her at around 7:00 a.m., and that she called 911 shortly
thereafter. Id. at 63-64. The records confirmed that Chiles called her five additional
times that day.
Id. at 67.
The records also revealed that Petitioner accessed her
voicemail at 3:30 a.m., thirty minutes after the murder, and accessed the internet through
her phone at 3:35 a.m. and 5:44 a.m. Id. at 63. Surveillance video showed that Chiles
was at the convenience store in Edmond at 3:30 a.m. Id. at 68. Officers later took
Petitioner into custody and charged her with the murder of her father. Trial Tr. vol. IV at
III. Standard of Review.
Exhaustion as a Preliminary Consideration.
The exhaustion doctrine is a matter of comity. It provides that before a federal
court can grant habeas relief to a state prisoner, it must first determine that she has
exhausted all of her state court remedies. As acknowledged in Coleman v. Thompson,
501 U.S. 722, 731 (1991), “in a federal system, the States should have the first
opportunity to address and correct alleged violations of state prisoner’s federal rights.”
While the exhaustion doctrine has long been a part of habeas jurisprudence, it is now
codified in 28 U.S.C. § 2254(b). Pursuant to 28 U.S.C. § 2254(b)(2), “[a]n application for
a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.”
Beyond the issue of exhaustion, a federal habeas court must also examine the state
court’s resolution of the presented claim. “It is well established that federal courts will
not review questions of federal law presented in a habeas petition when the state court’s
decision rests upon a state-law ground that ‘is independent of the federal question and
adequate to support the judgment.’”
Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting
Coleman, 501 U.S. at 729). “The doctrine applies to bar federal habeas when a state
court declined to address a prisoner’s federal claims because the prisoner had failed to
meet a state procedural requirement.” Coleman, 501 U.S. at 729-30.
When a petitioner presents a claim to this Court, the merits of which have been
addressed in state court proceedings, 28 U.S.C. § 2254(d) governs the Court’s power to
grant relief. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (acknowledging that the
burden of proof lies with the petitioner). Section 2254(d) provides as follows:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
The focus of Section 2254(d) is on the reasonableness of the state court’s decision. “The
question under AEDPA [Antiterrorism and Effective Death Penalty Act of 1996] is not
whether a federal court believes the state court’s determination was incorrect but whether
Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
“Under § 2254(d), a habeas court must determine what arguments or theories
supported . . . the state court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision of [the Supreme] Court.”
562 U.S. 86, 102 (2011).
Harrington v. Richter,
Relief is warranted only “where there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with [the
Supreme Court’s] precedents.”
Id. (emphasis added).
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.” Id. at 102-03 (citation omitted). When reviewing a claim
under Section 2254(d), review “is limited to the record that was before the state court that
adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181.
A. Ground One: Sufficiency of Evidence.2
Petitioner challenges the sufficiency of the evidence in her case. She argues that
the only evidence connecting her to the murder—besides Chiles’ testimony—was (1) the
manner of Chile’s entry into the house, and (2) the fact that she was awake around the
time of the murder. [Doc. 1-1 at 2-4]. She claims that this evidence is suspect and
cannot support her conviction. Id. Petitioner also claims that other evidence about her
demeanor and motives was unreliable. Id. at 4. The OCCA rejected the claims on direct
appeal because the jury was properly instructed on the use of accomplice testimony and
The grounds Petitioner presents were all presented in substantially the same manner to the
OCCA on direct appeal. Petitioner appears to incorporate those grounds and arguments by
reference. Considering Petitioner’s pro se status, the Court has taken the arguments made to the
OCCA into account, even if not explicitly raised within the petition.
independent evidence linked Petitioner to the crime. Fryer, No. F-2011-919, slip op. at
2-3. Petitioner challenges that conclusion.
1. Clearly Established Law.
To determine whether evidence is sufficient to support a criminal conviction,
courts ask “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On habeas
review, this is a mixed question of law and fact, governed by 28 U.S.C § 2254(d)(1) and
(d)(2). Maynard v. Boone, 468 F.3d 665, 673 (10th Cir. 2006). This Court must
therefore presume that the OCCA’s factual determinations are correct, unless the
Petitioner rebuts that presumption by clear and convincing evidence.
28 U.S.C. §
2254(e)(1). On the legal question, this Court cannot overturn the OCCA’s sufficiency
determination unless that decision is objectively unreasonable. Parker v. Matthews, 132
S. Ct. 2148, 2152 (2012). The Supreme Court has described this standard as “twicedeferential.” Id.
The OCCA did not list the facts it considered when determining that the evidence
was sufficient, but this Court cannot say that the OCCA’s decision was objectively
unreasonable. Chiles’ testimony revealed that Petitioner asked him to murder her father
and arranged the plan for accomplishing that goal. Trial Tr. vol. IV at 139-40,143-45.
She plotted to leave the door unlocked for him on the night of the murder, directed him to
the knife block where he found the murder weapon, and told him where he could find her
father’s money and car keys. Id. at 143-45. Despite her statement that she was asleep
until hours after the murder, phone records show she was awake as soon as thirty minutes
after the deed was done. Trial Tr. vol. V at 102. Evidence of lividity in the victim’s face
shows that, contrary to her statement to police, Petitioner moved the victim’s body after
he died. Trial Tr. vol. VI at 48-50. Evidence at the crime scene indicated that Chiles left
the house through the back door, which was then locked and dead-bolted behind him.
Trial Tr. vol. III at 132; Trial Tr. vol. VI at 72-73. Petitioner challenged many of these
facts at trial and raised alternate theories and inferences based on the physical evidence.
But viewing the evidence in the light most favorable to the prosecution, as required by
Jackson, a reasonable juror could have found her guilty beyond a reasonable doubt.
Therefore, the OCCA’s decision was not objectively unreasonable.
Petitioner also advances the narrower argument that Chiles’ testimony was not
adequately corroborated as required by Oklahoma law. This argument carries no weight
in habeas review. Under Section 2254, habeas relief is only warranted where a state
court conviction “was contrary to or an unreasonable application of clearly established
Federal law, as determined by the Supreme Court of the United States.” The Supreme
Court has never required accomplice testimony to be corroborated by independent
evidence, and the Tenth Circuit has specifically rejected such a requirement.
Cummings v. Sirmons, 506 F.3d 1211, 1237 (10th Cir. 2007). Therefore, even if Chiles’
testimony was not appropriately corroborated under Oklahoma law, Petitioner cannot
obtain habeas relief because the OCCA’s decision was not contrary to or an unreasonable
application of clearly established federal law. Ground One is denied.
B. Ground Two: Illegal Seizure of Cell Phone.
Petitioner claims that the trial court should have suppressed evidence regarding
her cell phone and related phone records, as the cell phone was illegally seized. The
police first took possession of Petitioner’s cell phone at the scene of the crime. They
professed that they had no suspicions of her involvement at that time, but wanted to speak
to her mother. Trial Tr. vol. III at 69, 71. The officer who spoke to her mother never
returned the cell phone, and instead passed it on to another officer.
Id. at 72-73.
Although Petitioner requested her cell phone later that morning, she never received it. Id.
at 119. The law enforcement officials eventually obtained a warrant to search the phone,
at which time they uncovered the evidence presented at trial. Id. at 194-95. Petitioner’s
attorney did not file a motion to suppress the evidence, but did object to the evidence
based on the illegal seizure and an insufficient chain of custody for the cell phone.3
On appeal, Petitioner challenged the seizure of the cell phone, alleging that the
police illegally took possession of the cell phone and that the subsequent warrant did not
cure the illegal seizure. Appellant’s Br. at 11-15. The OCCA denied relief, holding that
The record is somewhat ambiguous on this point, but it appears that defense counsel objected at
trial to the cell phone’s admission based on illegal seizure and improper chain of custody. Trial
Tr. vol. III at 121. The trial court sustained the objection based on the chain of custody issue.
Id. When the prosecution later attempted to move for the admission of the cell phone after
testimony regarding chain of custody, defense counsel again objected based on chain of custody,
but not on the legality of the search. Trial Tr. vol. V at 100. The trial court overruled that
the cell phone evidence’s discovery was inevitable. Fryer, No. F-2011-919, slip op. at 35. Petitioner now challenges the OCCA’s decision.
Under Stone v. Powell, “where the State has provided an opportunity for full and
fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal
habeas corpus relief on the ground that evidence obtained in an unconstitutional search or
seizure was introduced at his trial.” 428 U.S. 465, 494 (1976). An “‘[o]pportunity for
full and fair litigation’ includes, but is not limited to, the procedural opportunity to raise
or otherwise present a Fourth Amendment claim.” Gamble v. Oklahoma, 583 F.2d 1161,
1165 (10th Cir. 1978).
It also “contemplates recognition and at least colorable
application of the correct Fourth Amendment constitutional standards.” Id.
Petitioner had a full and fair opportunity to litigate this issue in state court. While
she did not formally file a motion to suppress, Petitioner did raise the issue at trial and on
appeal. The OCCA gave careful consideration to her claim, appeared to recognize the
correct legal standards, and properly identified Nix v. Williams, 467 U.S. 431 (1984), as
the controlling authority for the inevitable discovery exception. It therefore appears that
Petitioner had an opportunity to litigate this issue in state court, and the OCCA
recognized the proper legal standards and conducted a colorable application of those
standards. This Court therefore cannot address this claim in a habeas action.4 Relief is
denied as to Ground Two.
Even if Petitioner did not receive a full and fair opportunity to litigate this issue, the record is
clear that the cell phone and the relevant phone records would have been inevitably discovered in
the course of the investigation. Therefore, the claim would fail on its merits.
C. Ground Three: Prosecutorial Misconduct.
Petitioner claims that prosecutors violated her Fifth Amendment rights by (1)
violating the trial court’s ruling on a motion in limine; (2) presenting false or misleading
evidence; (3) misrepresenting facts during closing argument; (4) suggesting false answers
to witnesses; (5) and impugning defense counsel. Petitioner raised these claims on direct
appeal. Fryer, F-2011-919, slip op. at 5-6. The OCCA found the prosecutors’ actions
were proper, with the exception of their discussion of defense counsel. Id. Still, the
OCCA found that impropriety did not affect Petitioner’s substantial rights. Id. at 6.
1. Clearly Established Law.
Prosecutors can advocate with earnestness and vigor, and may strike hard blows.
Berger v. United States, 295 U.S. 78, 88 (1935). But prosecutors may not strike foul
blows. Id. The line between hard and foul is an uncertain one, and even the Supreme
Court has admitted that “there is often a gray zone.” United States v. Young, 470 U.S. 1,
To resolve prosecutorial misconduct claims, courts must first determine
whether misconduct even occurred.
If prosecutorial misconduct occurs, it ordinarily warrants habeas relief only when
the misconduct “so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002). This
analysis considers the trial as a whole, and factors in the strength of the evidence,
cautionary steps to counteract improper remarks, and defense counsel’s failure to object.
Id. The determination of whether the misconduct rendered the trial fundamentally unfair
“essentially duplicate[s] the function of harmless-error review.”
Cargle v. Mullin,
317 F.3d 1196, 1207 (10th Cir. 2003). If the misconduct deprives a defendant of a
specific constitutional right, however, proof that the entire proceeding was unfair may not
be necessary. Paxton v. Ward, 199 F.3d 1197, 1218 (10th Cir. 1999).
The OCCA determined that the challenged actions were either proper or not
Considering the specific examples of prosecutorial misconduct that
Petitioner highlights, the Court finds that the OCCA’s conclusion is not contrary to or an
unreasonable application of clearly established law.
a. Violations of the motion in limine.
Prior to trial, Petitioner filed a motion in limine requesting that witnesses not
discuss her demeanor at the time of her arrest and afterward. The trial court ruled that
officers could testify as to their observations about her demeanor, but could not give their
opinions regarding her demeanor.
Trial Tr. vol. III at 24.
Petitioner claims that
prosecutors violated that order several times throughout the trial.
Of the examples that Petitioner presented to the OCCA, only one arguably shows
impropriety on the prosecutor’s part. The majority of examples show that the prosecutor
asked general questions about law enforcement officers’ concerns, or why they began to
suspect Petitioner. While the officers may have volunteered information that drifted
towards opinion testimony, the prosecutor’s questions do not appear designed or intended
to elicit such information. And the prosecutor’s comments in closing argument were
related to Petitioner’s demeanor and reasonable inferences drawn from her demeanor.
The only close call was a prosecutor’s inquiry as to an officer’s “reaction” to the
emotions displayed by Petitioner and her mother when they were alone. However, the
OCCA’s determination that the comments and questions were not improper is not itself
contrary to or an unreasonable application of clearly established law. Therefore, habeas
relief is not warranted on the issues related to the motion in limine.
b. Presentation of false and misleading evidence.
Petitioner claims that a prosecutor purposefully elicited false or misleading
information from an OSBI investigator. The investigator had interviewed Petitioner’s
brother, and wrote in his report that the brother thought that his mother might have
wanted to hurt the victim. But at trial, the investigator testified that the brother identified
both his mother and Petitioner as possibly having a desire to hurt the victim. Petitioner
argues that the prosecutor knew the investigator would change his story and elicited the
false information intentionally.
Knowingly failing to correct false testimony is improper. In fact, when the State,
“although not soliciting false evidence, allows it to go uncorrected when it appears,” a
constitutional violation may occur. Napue v. Illnois, 360 U.S. 264, 269 (1959). While a
stand-alone violation is possible under Napue, Petitioner limits her claim to prosecutorial
misconduct, therefore it is under that standard that the Court addresses this claim.
The OCCA determined that the record did not support Petitioner’s claim that the
prosecution knowingly used false or misleading evidence. This issue presents a close
call. The investigator’s report shows that Petitioner’s brother only thought his mother
would want to harm his father, which is contrary to the investigator’s testimony at trial.
It is not certain whether Petitioner’s brother did not mention her, or that he did mention
her but the investigator omitted that information from the report.
ambiguity, and applying the appropriate deference under the AEDPA, the Court
determines that the OCCA’s decision was not unreasonable.
But even if the OCCA was incorrect and the prosecutor’s failure to correct the
record was improper, relief is still not warranted, as the failure did not render the entire
proceeding fundamentally unfair. The brother’s opinion was immaterial in light of the
entire trial. Neither party cited the challenged evidence at any other time in the trial, nor
did defense counsel object. In light of the evidence of Petitioner’s guilt, the prosecutor’s
failure to correct the investigator’s testimony did not violate Petitioner’s Fifth
c. Misrepresentation of facts during closing.
During closing arguments, the prosecutor mentioned that the largest knife in the
knife block was missing. The prosecutor also said that petitioner’s phone records showed
she used her phone at 3:00 a.m. Petitioner argues that both statements misrepresented the
evidence at trial and therefore constituted prosecutorial misconduct.
An OSBI agent discussed the knife block at trial. Crime scene photos showed two
empty slots in the block. State’s Exs. 47, 48. It appears that there is one empty slot near
the bottom right side of the block, while the other, larger slot is located near the top right
of the block. Id. The agent described the larger slot as one which normally houses a
sharpening block. Trial Tr. vol. III at 179. The agent did not know whether that larger
slot could have held kitchen shears or what type of knife was used in the murder. Id. at
179, 184. The OCCA found that, based on the record, counsel’s reference to the “largest
knife in that block” was a reasonable inference from the evidence.
Affording the OCCA the required deference, this Court cannot say that conclusion
is objectively unreasonable. While it is likely that the large empty slot did not previously
hold a knife, that possibility is not inconceivable. And if the slot had held a knife, that
knife could very well have been the largest in the block. The facts at trial were vague
regarding the actual murder weapon, therefore the Court cannot definitively say that the
prosecutor’s comment amounted to a misrepresentation. And even if the comment was
improper, it was inconsequential. The size of the knife was irrelevant to the issues in the
case, namely whether the Petitioner arranged her father’s murder. A prosecutor even told
the jury in closing that the size of the knife did not matter. Trial Tr. vol. VII at 73. The
record shows that Petitioner told Chiles to get a knife from the block, but did not specify
which knife. Chiles’ independent selection of the knife does not have any relevance to
Therefore, any impropriety on that front did not render the trial
Multiple witnesses discussed Petitioner’s cell phone usage. The record shows
unequivocally that Petitioner accessed her cell phone at 3:30 a.m. Chiles was murdering
Petitioner’s father at 3:00 a.m., but he was in Edmond at a convenience store at 3:30 a.m.
Therefore, the time at which Petitioner accessed her cell phone is relevant to whether
Petitioner was awake during the murder. But during closing argument, a prosecutor
mentioned that Petitioner was on her phone at 3:00 a.m., not 3:30 a.m. The OCCA found
that the isolated misstatement did not affect Petitioner’s substantial rights. That decision
is not objectively unreasonable.
Prior to saying “she’s on the phone at 3 o’clock,” the prosecutor twice told the jury
that Petitioner accessed her voicemail at 3:30 a.m. Id. at 22, 27-28. It is clear from the
record that the misstatement was not an intentional attempt to mislead the jury. The jury
heard through testimony and twice during closing arguments that Petitioner accessed her
phone at 3:30 a.m. The Court cannot say that the isolated misstatement of time amounted
to misconduct or undermined the fairness of Petitioner’s trial.
d. Misrepresentations to the trial court.
Petitioner complains that prosecutors prevented her from presenting Chiles’
recorded interview because the recording contained other information which the jury
should not have heard, but then submitted their recording of Petitioner’s interviews that
also contained problematic information, and asked that the bailiff play that recording if
the jury wanted to hear it during deliberations. Petitioner claims that prosecutors misled
the trial court by claiming that their exhibit was properly tailored to exclude the improper
This issue relates to pre-trial motions in limine and a conflict question that arose
before trial. Rather than labor through the detailed background, it is enough to point out
that prosecutors never told the trial court that their recording was properly tailored or
redacted. Instead, they specifically asked the trial court not to allow its recording to go
with the jury as they deliberated, because it contained problematic information. May 16,
2011 Tr. at 84-85. Prosecutors told the trial court that if the jury wanted to hear the
portions of the recording that were played for the jury earlier in the trial (which were not
problematic), the bailiff should control when the recording stopped to prevent the jury
from hearing the improper information. Id. Thus, the prosecution was completely candid
with the trial court as to the infirmities of its exhibit. While Petitioner may not appreciate
that her exhibit was excluded, that dissatisfaction gives the Court no basis to find
prosecutorial misconduct. The prosecutor’s actions were not improper, and the OCCA’s
decision is therefore not contrary to or an unreasonable application of clearly established
Suggestion of false answers to witnesses.
Petitioner claims that a prosecutor suggested false answers to an OSBI agent on
redirect examination. She points specifically to the following exchange:
Q. Agent Richardson, Counsel asked you, his question was, there was no
evidence showing Kaleigh Fryer committed the murder in the crime scene.
[. . .]
Q. All right. And with regard to the crime scene, specifically State’s
Exhibit 100, which is the note, Baby don’t forget to shut the window after
your (sic) in okay. I love you and goodnight Boo, you’re not saying that
this isn’t evidence that Kaleigh Fryer was involved in this murder?
A. No ma’am, I’m not.
Q. All right. Because, in fact, it is evidence showing her involvement in
this murder, isn’t it?
A. Yes. It’s a note, assuming it was written by her.
Q. Right. And also the diary which states, “Kaleigh, Kaleigh. My life
sucks. I hate my dad. I wish I had a different life,” once again, this is
evidence that you collected from Kaleigh’s house—
A. Yes it is.
Trial Tr. vol. III at 185-86.
Although the prosecutor’s questions were leading, nothing in the record shows that
the prosecutor’s questions supplied false information.
The prosecutor asked those
questions to clarify the agent’s testimony after the defense attempted on crossexamination to show that the notes were irrelevant to the murder. Id. at 182-83. The
prosecutor’s questions did not explore how relevant the note was or whether it was
indisputable evidence of Petitioner’s involvement. The prosecutor only clarified that
although the agent did not know definitively when the note was written or who wrote it,
the note still had some relevance. The OCCA’s conclusion that these questions did not
amount to prosecutorial misconduct is not objectively unreasonable.
f. Impugning defense counsel.
Finally, Petitioner claims that the prosecution improperly referenced defense
counsel during closing arguments by noting that defense counsel “has a job to do and his
job is to see that Kaleigh Lynn Fryer walks out of these courtroom doors.” Trial Tr. vol.
VII at 58. The OCCA determined that these comments were improper, but found that
they did not render the trial fundamentally unfair. Having examined the entire record, the
Court concludes that the OCCA’s decision is not contrary to or an unreasonable
application of clearly established law. The comment, even if improper, was mild. The
evidence of Petitioner’s guilt, while circumstantial, was strong. The improper comment
did not have a substantial effect on the fairness of the proceeding.
Because the instances of prosecutorial misconduct either did not rise to the level of
misconduct, or did not render Petitioner’s trial fundamentally unfair, relief is denied as to
D. Ground Four: Comment on the Right to Remain Silent.
Petitioner claims that a prosecution witness made several comments on her right to
remain silent, thereby violating her Fifth Amendment rights. During direct examination,
OSBI Agent Michael Dean discussed the investigation, including information received
from the Petitioner. Dean also discussed Chiles’ confession and how it led them to seek
out Petitioner for more questioning. Dean testified that when they attempted to contact
Petitioner, he “believe[d] either her attorney called us, or we did get in touch. And she
said, call my attorney. One of those. I don’t recall. But they went and retained an
Trial Tr. vol. VI at 45.
When the prosecutor asked what additional
information Dean sought, he responded that he wanted more information about whether
Petitioner moved the body and how she knew the wallet and mug of money were missing.
Id. at 50-51. He also wanted her clothes for testing. Id. at 51. When the prosecutor
asked Dean whether he obtained any further interviews with Petitioner, he answered no.
On cross-examination, defense counsel asked Dean whether Petitioner came to
counsel’s office for the purpose of turning in her clothes for testing. Id. at 114-15. Dean
responded that he did not think she went to counsel’s office to surrender her clothes, but
rather she had been in contact with counsel before the request for her clothing. Id. at 115.
On direct appeal, Petitioner claimed that these statements violated her Fifth
Amendment rights by referencing her right to remain silent. The OCCA determined that
only the investigator’s comment that he did not obtain any more interviews with
Petitioner could be construed as addressing her right to remain silent. Fryer, No. F-2011919, slip op. at 7. The OCCA found that error harmless, however, and denied relief. Id.
1. Clearly Established Law.
“The state may not use a defendant’s exercise of his right to remain silent to obtain
his conviction.” Jones v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995) (citing Wainwright v.
Greenfield, 474 U.S. 284, 292 (1986)). Allowing such comments “cuts down on the
privilege [to remain silent] by making its assertion costly.” Griffin v. California, 380
U.S. 609, 614 (1965).
A comment is only improper if “‘the language used was
manifestly intended or was of such character that the jury would naturally and necessarily
take it to be a comment on the defendant’s right to remain silent.’” United States v. ToroPelaez, 107 F.3d 819, 826-27 (10th Cir. 1997) (quoting United States v. May, 52 F.3d
885, 890 (10th Cir. 1995)). If a trial court does allow improper comments on the
accused’s right to remain silent, that error is subject to a harmless error analysis.
Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir. 2001).
The OCCA’s determination that the majority of complained-of comments were not
improper is reasonable.
When Dean explained how he contacted Petitioner after
interviewing Chiles, his comments were simply that he might have arranged the meeting
through her attorney. This benign narrative was not manifestly intended to comment on
Petitioner’s silence, nor would the jury naturally and necessarily interpret the comment in
that manner. The same is true for Dean’s discussion of facts he wanted to clarify with the
Petitioner. Dean went over various inconsistencies between Petitioner’s statements and
the physical evidence. Dean discussed these inconsistences in the context of explaining
why he began to suspect that Petitioner played a role in the murder. Any reference to
wanting to interview Petitioner was not intended nor could be construed as a comment on
Petitioner’s right to remain silent. And Dean’s comment that Petitioner was in contact
with defense counsel came in response to defense counsel’s question as to her motivation
to surrender her clothing.
Defense counsel had questioned Dean at length about
Petitioner’s contact with counsel and whether she voluntarily came to counsel’s office
with the clothes.
Petitioner cannot claim a Fifth Amendment violation when the
comments were direct and accurate responses prompted by defense counsel’s questions.
In fact, defense counsel even commented that Dean’s response “may be a more fair way
to put it.” Trial Tr. vol. VI at 115. The Court cannot say that the OCCA was objectively
unreasonable in deeming these comments proper.
The OCCA did find that Dean’s comment that he had not obtained any further
interviews with Petitioner could be construed as a comment on her exercise of her right to
remain silent, but concluded that the error was harmless under Chapman v. California,
386 U.S. 18 (1967). Because the AEDPA is designed to limit habeas review rather than
expand it, the Supreme Court has determined that when analyzing whether an error is
harmless, federal courts should apply the more forgiving test set out in Brecht rather than
the general unreasonableness test under AEDPA. Fry v. Pliler, 551 U.S. 112, 119
(2007). Therefore, when a state court finds an error harmless under Chapman, federal
habeas courts must determine if the error “had substantial and injurious effect or
influence in determining the jury’s verdict.” Id. at 116 (quoting Brecht, 507 U.S. at 637
(1993)); Littlejohn v. Trammell, 704 F.3d 817, 833-34 (10th Cir. 2013). This standard is
mandated by the “[i]nterests of comity and federalism, as well as the State’s interest in
the finality of convictions that have survived direct review within the state court system.”
Littlejohn, 704 F.3d at 834. To grant relief, the reviewing court must have grave doubts
as to the error’s effect on the verdict, and the court should “treat the error…as if it
affected the verdict” if in “virtual equipoise as to the harmlessness of the error.” Selsor v.
Workman, 644 F.3d 984, 1027 (10th Cir. 2011) (quoting Fry, 551 U.S. at 121 n.3).
The Court has no grave doubts in this case. The prosecution presented significant
evidence of Petitioner’s motivations, schemes, and arrangements for her father’s murder.
The majority of that evidence came from Chiles, whose testimony was amply supported
by phone records and evidence at the crime scene. In contrast, the Petitioner had little
evidence to support a viable defense, and her statements to police were shown to be false
in multiple instances. The isolated comment that police were not able to get a further
interview with Petitioner, even if improper, did not have a substantial and injurious effect
on the jury’s verdict. Relief is denied as to Ground Four.
E. Ground Five: Improper Use of a Prior Consistent Statement.
Petitioner claims that the trial court violated her due process rights by allowing the
prosecution to introduce a letter that Chiles wrote to a friend, in which he gave the same
account of the crime that he gave at trial. Petitioner argues that the letter was written
after Chiles was charged and agreed to testify, and therefore was not properly introduced
as a prior consistent statement under the Oklahoma Evidence Code. Petitioner raised this
claim on direct appeal. The OCCA denied relief, finding that the letter gave the same
account that Chiles related to the police before he was charged or before he agreed to
testify. Fryer, No. F-2011-919, slip op. at 8. In those circumstances, the OCCA found
that the consistent statement was not made “after the alleged fabrication, influence, or
motive arose,” therefore the trial court did not err in allowing the evidence.5 Id.
Federal habeas courts cannot review state court actions that are based on state law.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Federal review therefore focuses not
on whether evidence was admissible under state law, but only on whether, “in light of the
It appears that the OCCA decided this claim solely on state law grounds, and did not squarely
address the due process aspect. The Court therefore reviews this claim de novo.
entire record, its admission resulted in a fundamentally unfair trial.” Knighton v. Mullin,
293 F.3d 1165, 1171 (10th Cir. 2002).
In light of the entire record, the letter’s admission did not render Petitioner’s trial
fundamentally unfair. Testimony showed that the story Chiles told the police (before he
was charged and before he agreed to testify) was the same as the story he told the jury.
This consistency made the letter ancillary and of little evidentiary weight. Also, the
physical evidence at the crime scene and phone records amply corroborated Chiles’ story,
further bolstering his testimony. The letter likely played little role in the jury’s decision,
and the Court cannot say that its introduction rendered the trial fundamentally unfair.
Relief is denied as to Ground Five.
F. Ground Six: Ineffective Assistance of Counsel.
Petitioner asserts several ineffectiveness claims based on her trial counsel’s failure
to (1) file a motion to suppress evidence from Petitioner’s cell phone; (2) impeach
witnesses; (3) utilize evidence to put a prosecution exhibit in context; (4) present an
important exhibit in admissible form; and (5) preserve the record for appeal. Petitioner
raised these claims on direct appeal, and the OCCA denied relief.
1. Clearly Established Law.
Counsel is constitutionally ineffective when counsel’s deficient performance
prejudices the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). On
habeas review, courts must apply the Strickland and AEDPA standards to the facts
of the case and decide whether “there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86,
101, 105 (2011). Federal courts cannot disturb a state court’s ruling unless the
Petitioner demonstrates that the state court applied the highly deferential Strickland
test in a way that every fairminded jurist would agree was incorrect. Id.
Courts analyze counsel’s performance for “reasonableness under prevailing
professional norms.” Strickland, 466 U.S. at 688. The Supreme Court shuns
specific guidelines for measuring deficient performance, as “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant.” Id. at 688-89. Instead,
courts must be highly deferential when reviewing counsel’s performance, and the
Petitioner must overcome the presumption that the “challenged action[s] ‘might be
considered sound trial strategy.’”
Id. at 689 (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)). Even if Petitioner shows deficient performance, she
must also show prejudice by establishing “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
The OCCA determined that Petitioner’s counsel was not constitutionally
ineffective.6 That determination was not unreasonable.
a. Failure to file a motion to suppress.
Petitioner asserts that trial counsel should have sought suppression of cell
phone evidence based on alleged insufficiencies in the search warrant. Petitioner
argues that the affidavit did not provide a sufficient basis for the magistrate to
determine that the cell phone was relevant to the murder. Appellant’s Br. at 41.
The OCCA determined that because the affidavit provided a substantial basis for
the magistrate’s finding of probable cause for the search, and the contents of the
cell phone would have been inevitably discovered, counsel was not ineffective.
Fryer, No. F-2011-919, slip op. at 10.
The OCCA’s decision is not unreasonable.
First, while somewhat
conclusory, the affidavit itself seems to provide probable cause to search the cell
phone. The affidavit shows that Petitioner found the victim dead in his bedroom,
covered with blood. O.R. Supp. Record at 392. The scenario can be readily
identified as a death under suspicious circumstances. As such, electronic devices
The OCCA cited Strickland in its analysis, and also frequently referred to a different
ineffectiveness standard under OCCA Rule 3.11. As noted in Lott v. Trammell, 705 F.3d 1167,
1213 (10th Cir. 2013), a denial under Rule 3.11 “operates as an adjudication on the merits of a
Strickland claim and is therefore entitled to deference under § 2254(d)(1).”
could be expected to contain evidence related to the crime, including information
regarding possible suspects and motives. The affidavit could have been open to
attack, but it was not so faulty that the OCCA was unreasonable in concluding that
counsel’s performance was not deficient for failing to challenge it. And even if
counsel’s performance were deficient, the OCCA’s reliance on the inevitable
discovery exception was reasonable.
The inevitable discovery exception allows the admission of evidence when
the “prosecution can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by lawful
means.” Nix v. Williams, 467 U.S. 431, 444 (1984). In this case, the cell phone
would have eventually been properly searched through lawful means. Even if the
initial warrant were invalid, the investigators could have submitted new affidavits
with more detail, thereby obtaining a valid warrant. Again, counsel could have
challenged and litigated that issue, but the Court cannot say that counsel was
objectively unreasonable in not doing so.
b. Failure to impeach witnesses.
Petitioner next claims that trial counsel should have impeached two
witnesses with readily available extrinsic evidence. First, Petitioner claims that
counsel should have confronted Agent Dean after he testified that Petitioner’s
brother listed his mother and Petitioner as individuals that might want to hurt the
victim, even though Dean’s report showed that the brother only referenced his
mother as a possible suspect. Appellant’s Br. at 44-45. Second, Petitioner claims
that counsel should have impeached Chiles’ friend—who testified that she did not
know him to be a violent person—with evidence that Chiles was the subject of a
protective order for violent behavior.
Id. at 45.
The OCCA rejected both
arguments on appeal, holding that these failures did not prejudice the defense.
Fryer, No. F-2011-919, slip op. at 10-11.
The Court agrees that there is no reasonable probability that, but for these
failures, the outcome of the trial would be different. Petitioner’s brother testified at
trial that his sister was “disloyal” to their father, that she did not like him, she was
not good to him, and that she wanted to live with her mother. May 16, 2011 Tr. at
67-68. Regardless of whether counsel had impeached Dean’s testimony, the jury
still would have heard the brother testify about Petitioner’s motivation for killing
her father. The failure to impeach Chiles’ friend is likewise inconsequential. The
jury already knew that Chiles could be violent, since he admitted to stabbing the
victim to death. Evidence that Chiles had been violent in a previous relationship
would neither significantly undermine the prosecution’s theory, nor create a
reasonable probability that the jury would have found Petitioner not guilty.
Counsel was therefore not ineffective for neglecting those avenues of
c. Failure to place the prosecution’s exhibit in context.
During trial, the prosecution introduced a page from a notebook recovered
from Petitioner’s home. The page read “Kaleigh Kaleigh. My life sucks. I hate my
dad. I wish I had a different life.” State’s Ex. 102. Defense counsel had tried to exclude
that evidence through an unsuccessful pre-trial motion in limine. Trial Tr. vol. III at 1920, 23. The page directly across from the introduced page was dated June 28th. Because
the murder occurred in May and the notebook was recovered on the day of the murder,
Petitioner argues that the entry introduced at trial was likely written at least year prior to
the murder. Petitioner claims that if defense counsel had presented the dated page, it
would have diminished the prejudicial nature of the other page by showing Petitioner’s
statement that she hated her father was not fresh at the time of the murder. Appellant Br.
at 46. Petitioner also asserts that the dated page gives context for her feelings, because it
expressed her love for someone named “Billie” and lamented that her father forbid her
from seeing Billie.
The OCCA determined that counsel’s failure was not
unreasonable, as that evidence could have likewise bolstered the prosecution’s case by
showing that Petitioner’s hatred of her father was longstanding. Fryer, No. F-2011-919,
slip op. at 11.
The Court does not find the OCCA’s decision unreasonable. Courts must presume
that counsel’s decisions are part of a sound trial strategy, and counsel’s omission of the
dated page can readily be construed as a strategic choice. The evidence at issue presents
two dangers. First, as the OCCA pointed out, the dated page could be perceived as
showing that Petitioner’s hatred of her father was not of a fleeting nature, but was rather
deep-seated and enduring. Second, the dated page indicates that Petitioner was angry
with her father for interfering with a relationship. The jury could have inferred from that
page that Petitioner had been angry with her father in the past for interfering with a
relationship, and perhaps she anticipated her father would interfere with her relationship
with Chiles. The consensus among the witnesses was that her father would not have
approved of their relationship. It is reasonable to assume that the evidence could bolster
the prosecution’s case by adding another layer of motivation for the murder. The Court
therefore cannot say that counsel was unreasonable for not presenting such evidence.
d. Failure to have key exhibit in admissible form.
Defense counsel attempted to present a recording of Chiles’ law enforcement
interview to the jury. Trial Tr. vol. VI at 100-04. Because the recording contained
information that was problematic, the trial court did not admit the evidence.
Petitioner now claims counsel should have prepared the exhibit in a way that would have
made it admissible, contending that the recording would show that Chiles frequently
denied planning the murder with her, that Chiles thought Petitioner accused him of the
murder, and that Chiles believed that Petitioner would not go to prison because of her
age. Appellant’s Br. at 47-48. Petitioner also alleges that the recording shows Dean
attributed some statements to Chiles that he did not make, and it would help negate the
prosecution’s assertion that Petitioner was awake during the murder. Id. Petitioner
raised this claim to the OCCA, which determined that counsel was not ineffective, as
Chiles and Dean both testified about the interview, rendering the recording cumulative.
Fryer, No. F-2011-919, slip op. at 11.
Counsel’s failure did not prejudice the defense. Chiles and Dean both testified
that Chiles lied during his interview and did not implicate Petitioner initially. And
Chiles’ reluctance to implicate Petitioner until he was told that she would not go to prison
is a strong indication that he was trying to protect her, not that he was shifting the blame
to save himself. As for the statements that may have weakened the prosecution’s case,
Petitioner neither identifies those statements nor expounds on their relevance to her
defense. The recordings show several inconsistencies in Chiles’ story prior to Chiles’
final account. The recording therefore corresponds to testimony at trial. There is no
reasonable probability that, had the jury heard the recorded interview, the outcome of the
trial would be different.
e. Failure to preserve the record.
Petitioner’s final ineffectiveness claim is based on trial counsel’s failure to
preserve the appellate record through appropriate objections. Specifically, Petitioner
claims that counsel should have challenged the sufficiency of the search affidavit and
tendered the recorded interview of Chiles after the trial court excluded it. Appellate Br.
at 49. Also, Petitioner claims that counsel should have objected to comments about
Petitioner retaining an attorney, Chiles’ letter to his friend, incidents of prosecutorial
misconduct, and hearsay statements from various witnesses. Id. Petitioner raised this
claim on direct appeal, and the OCCA determined that since it rejected the substantive
claims upon which the ineffectiveness argument was based, the ineffectiveness claim
based on a failure to preserve the record failed as well. Fryer, No. F-2011-919, slip op. at
The Court has addressed the substantive issues underlying this claim. The Court
found that suppression of the cell phone evidence was not warranted in Ground Two.
Supra at p. 13. The Court determined above that Petitioner suffered no prejudice from
counsel’s failure to properly present Chiles’ recorded interview. Supra at p. 34. The
Court found that any comments regarding Petitioner’s exercise of her right to remain
silent were harmless. Supra at pp. 25-26. Chiles’ letter did not render Petitioner’s trial
fundamentally unfair. Supra at pp. 26-27. Finally, the Court determined that the claims
of prosecutorial misconduct were either unfounded or did not render Petitioner’s trial
unfair. Supra at p. 22. As the Court has determined that those issues do not warrant
relief, Petitioner cannot show that counsel’s failure to preserve the issues caused
On the hearsay issue, Petitioner argues that trial counsel was ineffective for not
objecting to hearsay and preserving those issues for appeal.
On appeal, Petitioner
challenged hearsay statements related by Agent Dean. Dean spoke about the contents of
It is unclear whether Petitioner claims that this alleged ineffectiveness prejudiced her trial or
her appeal, or both. The Court has therefore considered the prejudice to both her trial and her
appeal in an abundance of caution.
Petitioner’s cell phone records, which he received from her cellular provider. Trial Tr.
vol. VI at 61-63. He also testified that he was told by the provider how to access the
internet from the phone. Id. at 96-97. Dean conveyed Petitioner’s brother’s suspicions
that Petitioner could have wanted to harm her father, and recounted Chiles’ statements
which were consistent with Chiles’ trial testimony. Id. at 19, 46-50. Petitioner claimed
on appeal that these statements were hearsay, and violated her Sixth Amendment right to
confront witnesses against her.
The OCCA substantively rejected these hearsay claims, primarily because
Petitioner was not prejudiced by the statements.8 Fryer, No. F-2011-919, slip op. at 8-9.
Because the OCCA found that Petitioner was not prejudiced by the introduction of those
statements, it also denied her ineffectiveness claim based on counsel’s failure to object to
the statements. Id. at 12.
The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
The Supreme Court has interpreted that right as guaranteeing “a
defendant’s right to confront those “who ‘bear testimony’” against him. Crawford v.
Washington, 541 U.S. 36, 51 (2004). “A witness’s testimony against a defendant is thus
inadmissible unless the witness appears at trial or, if the witness is unavailable, the
defendant had a prior opportunity for cross-examination.”
Massachusetts, 557 U.S. 305, 309 (2009). But not all statements are “testimonial.” The
The OCCA found that the cellular provider’s statement to the investigator was not testimonial,
but declined to decide whether the other statements were testimonial.
Supreme Court has “declined to precisely define the contours of what statements might
be considered ‘testimonial,’” though the Tenth Circuit has indicated that “[a] formal
statement is testimonial if a reasonable person in the position of the declarant would
objectively foresee that the primary purpose of the statement was for use in the
investigation or prosecution of a crime.” United States v. Ibarra-Diaz, 805 F.3d 908, 917
(10th Cir. 2015) (quoting United States v. Smalls, 605 F.3d 765, 778 (10th Cir. 2010)).
Of the statements that Petitioner highlights, only Dean’s comments regarding how
to access the internet and voicemail on the phone and his recitation of Chiles’ and
Petitioner’s brother’s statements were testimonial. Dean’s reference to Petitioner’s phone
records did not involve testimonial statements. See United States v. Yeley-Davis, 632
F.3d 673, 679 (10th Cir. 2011) (cell phone records are not testimonial). Counsel was not
ineffective for failing to preserve that meritless Confrontation Clause challenge.
Dean’s recitation of Chiles’ and Petitioner’s brother’s statements also did not
violate the Confrontation Clause, because both were testifying witnesses.
Confrontation Clause protects the right to confront the declarants of the testimonial
statements through cross-examination.
Petitioner was able to cross-examine both
declarants. Petitioner cites no authority, and the Court has located none, that apply the
Confrontation Clause to statements by witnesses who actually testify at trial, even if those
statements are presented by other witnesses. This may raise a hearsay issue, but not a
Confrontation Clause issue.9 Because any such Confrontation Clause challenge to those
statements would be meritless, Petitioner cannot show that counsel’s failure to object
prejudiced her trial or appeal.
Finally, the Court doubts whether Dean’s discussion of what steps Petitioner
would have to take to access the internet and voicemail on her cell phone was testimonial
Dean recounted how the cell phone worked, and it was not until cross-
examination that it became clear that he received the information from the cellular
provider. Hearsay is defined as an out-of-court statement offered “to prove the truth of
the matter asserted.” Fed. R. Evid. 801(c)(2). Petitioner has not pointed to any out-ofcourt “statement” conveyed by Dean, only his understanding based on his investigation.
Still, even if the statement was testimonial hearsay, and even if counsel was unreasonable
for not preserving that issue for appeal, the Court cannot say that it prejudiced the
defense. Had Dean not testified to the exact method of accessing internet and voicemail
through the phone, the record still contained plenty of evidence to allow the jury to infer
that it was Petitioner who accessed the phone. The only alternate theory was that the
phone accessed the internet and voicemail on its own, a most unlikely scenario. The
Court cannot say that Petitioner was prejudiced by counsel’s failure to object to that
evidence and preserve the issue on appeal.
Petitioner raised the hearsay issue in the context of the Confrontation Clause claim, not as a
separate claim. A stand-alone hearsay claim would be an attack on a state evidentiary ruling,
implicating the same analysis set out in Ground Five. The court cannot say that the admission of
these statements rendered Petitioner’s trial fundamentally unfair, therefore any ineffectiveness
claim based on a failure to object to hearsay would fail for lack of prejudice.
Petitioner fails to show that counsel rendered deficient performance which
prejudiced her defense. Therefore, the OCCA’s rejection of her ineffective assistance of
counsel claims was reasonable. Relief is denied as to Ground Six.
G. Ground Seven: Cumulative Error.
Petitioner claims that even if errors in her trial did not warrant relief individually,
they do warrant relief when considered in the aggregate. Petitioner raised this claim on
direct appeal and the OCCA denied relief, citing only one error in Dean’s comment on
her exercise of her right to remain silent. Fryer, No. F-2011-919, slip op. at 12.
The cumulative-error analysis addresses the possibility that two or more
individually harmless errors might “prejudice a defendant to the same extent as a single
reversible error.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990). This
analysis “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.”
Id. at 1470. Cumulative error only warrants reversal if the many errors “collectively ‘had
a substantial and injurious effect or influence in determining the jury’s verdict.’”
Cargle v. Mullin, 317 F.3d 1196, 1220 (10th Cir. 2003) (quoting Brecht,
507 U.S. at 638). Instances where courts find deficient performance by counsel must also
be aggregated, even if the ineffectiveness claim was ultimately denied for insufficient
prejudice. Id. at 1207.
The OCCA found error in Dean’s comment about Petitioner’s exercise of her
right to remain silent. Fryer, No. F-2011-919, slip op. at 7. The OCCA also found that a
prosecutor’s comment about defense counsel was “improper.” Id. at 6. The OCCA
determined that the improper action did not affect Petitioner’s substantial rights, but since
that analysis duplicates the harmless error review, the Court will consider that improper
conduct within the cumulative error analysis. The OCCA denied relief for Petitioner’s
claims that counsel should have impeached witnesses and should have presented the
recording of Chiles’ interview because Petitioner failed to show prejudice. Id. at 10-11.
It is unclear whether the OCCA determined that counsel’s failure to preserve the record
did not constitute ineffectiveness based on reasonableness or the lack of prejudice, but the
Court will assume the latter.
This leaves the Court with multiple errors to consider: comment on the right to
remain silent, the prosecutor’s comment about defense counsel, and defense counsel’s
failure to impeach two witnesses, present an exhibit in admissible form, and preserve
errors for appeal. Having considered these errors and the record as a whole, the Court
finds that the cumulative effect of these errors did not have a substantial and injurious
effect or influence on the jury’s verdict. The errors did not affect issues at the core of the
case. The prosecution presented significant evidence establishing Petitioner’s guilt, while
the defense theory and evidence was weak. The errors, considered in the aggregate, were
harmless. Relief is denied as to Ground Seven.
After a thorough review of the entire state court record, the pleadings filed herein,
and the applicable law, the Court finds that Petitioner is not entitled to the requested
relief. Accordingly, Petitioner’s Petition (Doc. 1), is hereby DENIED. A judgment will
be entered accordingly.
IT IS SO ORDERED this 17th day of January, 2017.
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