Ackward v. Bruce , 316 F. App'x 782 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
March 18, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
WORD ACKWARD, JR.,
Petitioner-Appellant,
v. No. 08-3102
(D.C. No. 5:07-CV-03052-WEB)
LOUIS BRUCE, Warden, Hutchinson (D. Kan.)
Correctional Facility; PAUL
MORRISON, Kansas Attorney
General,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before MURPHY, McKAY, and ANDERSON, Circuit Judges.
Word Ackward, an Oklahoma prisoner serving a life sentence for felony
murder, appeals from the district court’s denial of his petition for a writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254. We granted a certificate of
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
appealability (COA) on one issue: whether the introduction of the murder
weapon and associated testimony at trial had a substantial and injurious effect on
the verdict and consequently prejudiced Mr. Ackward’s constitutional rights.
Because we conclude that the admission of this evidence was harmless, we affirm.
BACKGROUND
The following is a brief summary of the facts, taken primarily from the
Kansas Supreme Court’s direct appeal decision. State v. Ackward, 128 P.3d 382,
385-86, 388, 392-93 (Kan. 2006). We presume the facts found by the state court
to be correct. See 28 U.S.C. § 2254(e)(1).
On February 12, 2003, Joshua Buckman was killed by gunshot at a Topeka,
Kansas apartment complex. On the night of the murder, he and his friend, Nathan
Wells, met Mr. Buckman’s friends, Mr. Ackward and Mario Oneal, at a gas
station. Mr. Buckman and Mr. Wells, who were in one car, followed
Mr. Ackward and Mr. Oneal, who were in another car, to the apartment complex
and parked next to them. Mr. Ackward backed the car he was driving into the
parking space, so the driver’s windows were facing each other. Mr. Buckman and
Mr. Ackward went into an apartment building, while the other two stayed in the
cars. According to Mr. Ackward, they went to the apartment building so that
Mr. Buckman could buy marijuana.
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A short while later, Mr. Wells and Mr. Oneal heard two gunshots.
Mr. Oneal moved to the driver’s seat of the car he was in and pointed a gun at
Mr. Wells, who was in the other vehicle, and asked him for money. As Mr. Wells
responded that he had no money, Mr. Ackward ran from the apartment building to
the passenger side of the car where Mr. Oneal was waiting for him. Mr. Ackward
yelled that he had money. Mr. Wells saw that Mr. Ackward was holding a gun.
Mr. Ackward and Mr. Oneal left. In the car, Mr. Ackward told Mr. Oneal that he
and Mr. Buckman had fought and that he had shot Mr. Buckman twice.
Police questioned Mr. Ackward for at least eight hours, and videotaped the
entire time he was in the interview room. Over the course of the eight hours,
Mr. Ackward changed his story several times. During questioning, Mr. Ackward
asked to talk to his father. Although the two conversed alone, police listened to
the conversation. It appeared that Mr. Ackward and his father discussed the
location of the gun. When Mr. Ackward’s father left the police station, police
officers followed him. He proceeded to a house where he picked up something
outside the house. As he was driving away, police officers stopped him. He had
a black magazine clip with ammunition in it.
After Mr. Ackward’s father left the police station, Mr. Ackward requested
an attorney. Despite that request, the police continued the interrogation.
Mr. Awkward confessed to shooting Mr. Buckman and agreed to show the police
where he had hidden the gun.
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The trial court suppressed the statements Mr. Ackward made after he
requested an attorney. But the court declined to suppress the gun. Mr. Ackward
was convicted of felony murder and attempted possession of marijuana with the
intent to distribute and sentenced to life and fourteen months’ imprisonment,
respectively.
The Kansas Supreme Court affirmed his convictions and sentences.
Ackward, 128 P.3d 382. In doing so, that court held that the trial court erred in
admitting the gun, because it was seized in violation of Mr. Ackward’s Sixth
Amendment right to counsel. Id. at 396-97. Nonetheless, the Kansas Supreme
Court determined that the error did not prejudice Mr. Awkward and was harmless
because there was ample evidence of the presence of a gun during the crime and
Mr. Ackward’s possession of it. Id. at 397. The court pointed to Mr. Wells’s
eyewitness testimony and Mr. Ackward’s statement. Id.Mr. Ackward then filed his petition for a writ of habeas corpus in federal
district court, challenging the Kansas Supreme Court’s harmless error analysis.
He argued that the Kansas Supreme Court erred in failing to apply the
beyond-a-reasonable-doubt harmless-error standard set forth in Chapman v.
California, 386 U.S. 18, 22-24 (1967). The federal district court agreed, but held
that the error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 638
(1993). Consequently, the district court denied habeas relief and a COA.
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ANALYSIS
Legal Standards
Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas
corpus relief will not be granted on a claim adjudicated on the merits in state
court unless that court’s adjudication was contrary to or an unreasonable
application of Supreme Court precedent or the decision was based on an
unreasonable determination of the facts in light of the evidence presented. See
28 U.S.C. § 2254(d)(1), (2). A state-court decision is contrary to clearly
established law “if the state court applies a rule different from the governing law
set forth in [Supreme Court] cases.” Bell v. Cone, 535 U.S. 685, 694 (2002).
In this case, the parties agree, and the federal district court correctly
concluded, that the Kansas Supreme Court applied an incorrect harmless error
standard, and should have applied the Chapman proof-beyond-a-reasonable-doubt
harmless-error standard. In other words, the court’s decision was contrary to
clearly establish Supreme Court precedent. See Turrentine v. Mullin, 390 F.3d
1181, 1190 (10th Cir. 2004). Because the Kansas Supreme Court decided this
claim under an improper standard, we do not give deference to its decision. See
Revilla v. Gibson, 283 F.3d 1203, 1220 n.14 (10th Cir. 2002).
Instead, like the district court, we consider whether the error “had
substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht, 507 U.S. at 623; see Fry v. Pliler, 551 U.S. 112, 127 S. Ct. 2321, 2328
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(2007) (holding that Brecht provides proper standard even though state court
failed to review error “for harmlessness under the ‘harmless beyond a reasonable
doubt’ standard set forth in Chapman.”). We review the district court’s
harmlessness conclusions under Brecht de novo. See Turrentine, 390 F.3d
at 1189.
In examining the entire record, we will conclude that an error has a
“substantial and injurious effect” if we are “in ‘grave doubt’ about the effect of
the error on the jury’s verdict.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.
2006) (quoting O’Neal v. McAninch, 513 U.S. 432, 435 (1995)). “‘Grave doubt’
exists where the issue of harmlessness is ‘so evenly balanced that [we are] in
virtual equipoise as to the harmlessness of the error.’” Id. at 1009-10 (quoting
O’Neal, 513 U.S. at 435). Relevant factors we may consider in our harmlessness
analysis include the importance of the evidence to the government’s case, whether
the evidence was cumulative, whether there is other evidence corroborating or
contradicting the evidence, and the strength of the government’s case. Cf.
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (listing factors to consider
when conducting harmless-error analysis under Chapman).
Application of Legal Standards
Upon de novo review and after considering the entire record, we agree with
the district court that admission of the gun was harmless under Brecht. The gun
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played a minor role in the trial; the prosecutor did not emphasize the gun; and the
prosecution’s case against Mr. Ackward was strong.
The testimony of Mr. Wells and Mr. Oneal implicated Mr. Ackward in the
murder. Both testified that Mr. Ackward and Mr. Buckman entered the apartment
building, that they heard two gunshots, and that they saw Mr. Ackward run out of
the apartment building after they heard the gunshots. Mr. Wells more specifically
testified that within a minute of hearing the two gunshots, Mr. Ackward ran from
the apartment building carrying a gun and yelling about having money.
Mr. Oneal testified that Mr. Ackward told him that he shot someone he had been
fighting with. When Mr. Oneal asked Mr. Ackward if he had killed
Mr. Buckman, Mr. Ackward responded that he did not think so. Mr. Oneal
further testified that in his statement to police, he said that Mr. Ackward told him
that he pulled his gun and shot Mr. Buckman twice.
In addition to the testimony of these two witnesses, other facts suggest that
admission of the gun evidence was harmless. Mr. Ackward’s father obtained the
gun’s magazine clip immediately after meeting with Mr. Ackward, thereby
suggesting that Mr. Ackward told him where to find it. There was no dispute that
a gun was used to commit the murder. In one of his versions of what happened,
Mr. Ackward admitted shooting Mr. Buckman, after the two had struggled over
Mr. Buckman’s gun. Indeed, Mr. Ackward never argued at trial that he did not
kill Mr. Buckman.
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Moreover, the prosecutor did not focus on the gun in opening or closing
arguments. In his opening statement, the prosecutor mentioned that there were
two shots in the apartment building, that Mr. Ackward ran out of the apartment
building holding the gun, and that Mr. Buckman was killed by a gunshot wound.
The prosecutor only briefly commented on the gun in closing argument, again
mentioning that Mr. Ackward ran from the apartment building with the gun that
was the murder weapon.
CONCLUSION
While we will not dismiss the gun as having no significance to the jury, we
cannot conclude that it and the emphasis placed on it by the State caused its
admission to have a substantial, injurious effect on the jury’s verdict. See Brecht,
507 U.S. at 637. Because the evidence of guilt in this case was strong, admission
of the evidence concerning the gun was harmless. Accordingly, we AFFIRM the
district court’s judgment.
Entered for the Court
Michael R. Murphy
Circuit Judge
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