Grissom v. Duckworth

WENDELL ARDEN GRISSOM, Petitioner, v. KEVIN DUCKWORTH, Interim Warden, Oklahoma State Penitentiary, Respondent.¹

Case No. CIV-11-1456-R

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

August 3, 2016

MEMORANDUM OPINION

Petitioner, Wendell Arden Grissom, a state court prisoner, has filed a Petition for Writ of Habeas Corpus seeking relief pursuant to 28 U.S.C. § 2254. Doc. 20. Petitioner, who is represented by counsel, is challenging the convictions entered against him in Blaine County District Court Case No. CF-2005-80. Tried by a jury in 2008, Petitioner was found guilty of four crimes: murder in the first degree (Count 1), shooting with intent to kill (Count 2), grand larceny (Count 3),² and possessing a firearm after a felony conviction (Count 4). Petitioner was sentenced to death for the murder, and for his non-capital crimes, he received a consecutive sentence of life plus sixty-five years. The juryfound three aggravating circumstances in support of Petitioner's death sentence: (1) Petitioner knowingly created a great risk of death to more than one person; (2) Petitioner committed the murder while serving a sentence of imprisonment on conviction of a felony; and (3) the existence of a probability that Petitioner will commit criminal acts of violence that would constitute a continuing threat to society (O.R. V, 651, 673-74, 757-59; S. Tr. 2-3).

Petitioner has presented eleven grounds for relief. Respondent has responded to the petition and Petitioner has replied. Docs. 43 and 58. In addition to his petition, Petitioner has filed motions for discovery and an evidentiary hearing. Docs. 21 and 47. After a thorough review of the entire 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 herein, Petitioner is not entitled to his requested relief.

I. Procedural History.

Petitioner appealed his convictions and sentences to the Oklahoma Court of Criminal Appeals (hereinafter "OCCA"). The OCCA affirmed in a published opinion. Grissom v. State, 253 P.3d 969 (Okla. Crim. App. 2011), cert. denied, 132 S. Ct. 825 (2011). Petitioner was denied post-conviction relief. Grissom v. State, No. PCD-2008-928 (Okla. Crim. App. 2011) (unpublished).

II. Facts.

Pursuant to 28 U.S.C. § 2254(e)(1), factual determinations made by the OCCA are presumed correct in this proceeding. From the evidence presented at trial, the OCCA determined the following facts:

On November 2, 2005, [Petitioner] left Arkansas and headed west on Interstate 40, driving his white Chevrolet truck. Just across the Oklahoma state line, he picked up a homeless hitchhiker, Jessie Johns. As they continued west, the two men drank whiskey and got acquainted. They also discussed plans to commit some robberies or burglaries to raise money. Later that evening, [Petitioner] checked into a hotel in Oklahoma City, paying $266.00 for a weekly rental. [Petitioner] shared his room that evening with Jessie Johns, who slept on the floor.

The following morning, Jessie Johns watched as [Petitioner] showed him how to load a .44 caliber black powder pistol, one of two firearms in [Petitioner's] possession at the time. The other was a two-shot .22 caliber derringer. The two men drank more alcohol that morning as they again headed west in [Petitioner's] truck on Interstate 40. They stopped around 10:45 a.m. at the Love's Country Store on Exit 108, where security cameras recorded each man buying a pair of brown cotton gloves. They then drove into rural Blaine County, looking for a house to burglarize.

[Petitioner] ultimately parked his truck in the driveway of the residence of Matt and Dreu Kopf, near Hitchcock, in rural Blaine County. He told Jessie Johns to wait until the shooting was over and then come in and help him burglarize the house. [Petitioner] approached a sliding door at the rear of the residence and knocked. Dreu Kopf was inside her home that morning with her best friend, Amber Matthews, and her two young children, eighteen month-old Rylie and infant Gracie Jo. Rylie was in her crib in the bedroom and Ms. Kopf was holding Gracie. Ms. Matthews answered the sliding glass door as Ms. Kopf turned in her glider chair to speak with [Petitioner]. He asked Ms. Kopf if her husband was home. She replied that her husband was at work. [Petitioner] told her he would come back later. Ms. Matthews closed the door, but seconds later [Petitioner] reappeared. Ms. Kopf handed the baby to Ms. Matthews and approached the door again. [Petitioner] shot a pistol round into the large glass pane and shattered it. He then stepped into the residence and fired a second shot at Ms. Kopf, striking her in the hand.

Amber Matthews ran with the baby into Rylie's bedroom. Ms. Kopf fought with the intruder and pushed him across the room onto a couch. While Ms. Kopf was on top of [Petitioner] fighting him, she begged him to take what he wanted and leave. He just laughed at her as he pulled the black powder pistol from his waist and put it to her head. She grabbed at the weapon as he fired it, but a bullet tore through her hand and struck the side of her head, fracturing her skull. [Petitioner] then stuck the big pistol in her hip and fired again. The force of this shot threw Ms. Kopf onto the floor.

[Petitioner] got up and headed toward the bedroom where the children and Ms. Matthews were. Ms. Kopf then heard Ms. Matthews beg for her life, and the report from [Petitioner's] pistol. Ms. Kopf escaped from the house to her garage and activated the overhead door. Realizing that she was leaving a blood trail for her killer to follow, she knew she could not hide. She saw the white truck in her driveway pointed toward the road for a getaway, and ran toward it.

Jessie Johns had left the truck and approached the residence after hearing several shots. He saw Ms. Kopf run from the house. He stepped through the shattered door and found [Petitioner] standing over a wounded Amber Matthews. He watched as [Petitioner] fired another shot into Ms. Matthews with the .44. Johns then told [Petitioner] that someone had run from the house. [Petitioner] ran toward the truck, tried to get inside, and fired his .44 pistol again at Ms. Kopf as she pulled away. Not far from her house, Dreu Kopf flagged down a trio of truckers hauling rock and told them that her friend and children were dead and she had been shot. One of the truck drivers, himself a retired police officer, got into the truck with Ms. Kopf. He reported the shooting by phone to the Kingfisher County Sheriff's Office and drove Ms. Kopf to the hospital in nearby Watonga.

Realizing their plans were foiled, [Petitioner] and Johns attempted their escape from the crime scene on a red four-wheeler ATV they found in the Kopf's garage. A postal delivery man saw two men on the red four-wheeler leaving the Kopf residence with a black dog chasing them. The rock haulers, who had encountered Dreu Kopf only a few minutes earlier, saw two men speed past them on a red four-wheeler. The men on the four-wheeler ran out of gas after a short distance, but managed to hitch a ride with a passing farmer, who assumed they were laborers. He gave them a ride to the Hillstop Cafe, just over the Kingfisher County line on Highway 33.

The two women who were running the Hillstop Cafe that day became frightened when they noticed a pair of men looking in the windows of the store from outside and looking inside cars parked at the Hillstop. The two men then came in the store. Each bought an individual can of beer. One of the men, later identified as Jessie Johns, walked across the highway, ducked into some trees, and sat there drinking his beer. The other man headed across a wheat field on foot. Johns later walked back across the street and purchased a second can of beer. After he left the store the second time, one of the clerks called the Kingfisher County Sheriff's Office and reported two suspicious men hanging around the store. The clerks alsoasked the only customer in the store, a local man waiting on his lunch, to stay with them until the two strangers were gone.

Recognizing the possible connection to the report of a shooting at the nearby Kopf residence about thirty minutes earlier, Kingfisher County Sheriffs officers now raced toward the Hillstop Cafe. Not far away, emergency personnel and various officers of the Watonga Police Department, the Blaine County [ ] Sheriffs Office, and the Oklahoma Highway Patrol descended on the Kopf residence after the initial report of a shooting. Officers approached the home cautiously, but managed to enter and find the Kopf children alive. Amber Matthews was unconscious and mortally wounded. She died during a medical evacuation flight to an Oklahoma City hospital.

Back at the Hillstop Cafe, a Kingfisher County deputy sheriff approached Jessie Johns, who was now walking down the road, and detained him for investigation. The deputy questioned Johns briefly, searched him for weapons, and drove him back to the Hillstop Cafe. Meanwhile, law enforcement officers continued to gather information about the crimes at the Kopf residence and the suspicious persons reported at the Hillstop. About forty-five minutes after being detained, police arrested Jessie Johns for involvement in the four-wheeler theft and other crimes at the Kopf residence.

Investigators eventually located [Petitioner] hiding in a rock pile near the Hillstop Cafe. They recovered a blood-stained .22 pistol and a pair of brown cotton gloves from his person. They ultimately recovered [Petitioner's] .44 pistol and a second pair of brown cotton gloves discarded near the crime scene. The State also presented evidence that a DNA profile isolated from blood stains on [Petitioner's] jeans matched to a DNA profile from the known blood of Dreu Kopf. [Petitioner] did not testify at trial, but the State presented a videotape of his statement to police. On appeal, [Petitioner] describes these crimes as "a

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