Dennis L. Fritz v. Ron Champion Attorney General of The State of Oklahoma, 66 F.3d 338, 10th Cir. (1995)

66 F.
3d 338
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Dennis L. FRITZ, Petitioner-Appellant,

v.
Ron CHAMPION; Attorney General of the State of Oklahoma,
Respondents-Appellees.
No. 94-6327.
(D.C.No. CIV-92-2223-C)
United States Court of Appeals, Tenth Circuit.

Sept. 11, 1995.
Before TACHA, LOGAN, and BRISCOE, Circuit Judges.
ORDER AND JUDGMENT1

1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Petitioner Dennis Leon Fritz appeals from a district court order adopting, in its
entirety, the magistrate judge's recommendation to deny his petition for habeas
corpus pursuant to 28 U.S.C. 2254. Upon review of the state court record and
consideration of the arguments advanced on this appeal, we affirm the denial of
habeas relief for substantially the reasons stated in the magistrate judge's
thorough and well-reasoned recommendation.
Petitioner was convicted in Oklahoma of first degree murder on complementary

theories of deliberate-intent homicide and felony (rape) murder. See Okla. Stat.
tit. 21, 701.7A & B. He was sentenced to life imprisonment. His conviction and
sentence were affirmed on direct appeal, Fritz v. State, 811 P.2d 1353
(Okla.Crim.App.1991), and reaffirmed in state post-conviction proceedings.
Petitioner then commenced this action seeking habeas relief on the following
grounds:
4 Insufficient evidence to support his conviction. Specifically, petitioner argues the
(1)
state failed to prove he was physically present at the time and place of the murder.
5
(2) Loss of a meaningful appeal before the Oklahoma Court of Criminal

Appeals through state counsel's misrepresentations and the court's consideration
of record evidence not referenced in the parties' briefs. Specifically, petitioner
argues the state misinformed the court when it stated petitioner had been seen
at the nightclub where decedent had been working on the night of the murder.
(3) Denial of due process by the state charging petitioner with felony murder
after the statute of limitations had expired on the underlying felony of rape.
Specifically, petitioner argues he was denied due process when forced to
defend against a charge that was not only barred by the statute of limitations,
but also was stale.
(4) Denial of due process as a result of the state's delay in filing charges.
Specifically, petitioner argues he was prejudiced by the delay because by the
time he was charged, he could not recall where he was on the night the murder
occurred.
(5) Denial of Sixth Amendment right to counsel by state's use of information

obtained by a jailer during his conversations with petitioner.
(6) Numerous instances of prosecutorial misconduct, which resulted in denial

of petitioner's Sixth Amendment right to counsel as well as due process rights.
Specifically, petitioner enumerates the following instances of prosecutorial
misconduct:
(a) Withholding of exculpatory videotaped confession of Ricky Simmons;

10
11 Withholding of exculpatory statements of Andrea Cooper Hardcastle and Donna
(b)
Marie Fisher Acree;
(c) Expanding the testimony of expert witnesses during closing arguments;
12
(d) Comments on facts not in evidence;
13
(e) Comments on credibility of petitioner and his counsel;

14
(f) Presenting false evidence concerning alleged plea negotiations.
15
16 Denial of fair trial by trial court's refusal to give requested instruction regarding
(7)
hair and body fluid comparisons.
17 Denial of effective assistance of counsel at both the trial and on appeal.
(8)
Specifically, petitioner contends trial counsel failed to seek suppression of the
testimony of the jailer Mike Teeney. He also argues that trial counsel failed to
procure witnesses who could impeach the testimony of James Harjo. Petitioner also
contends both his trial counsel and appellate counsel failed to object to or recognize
the trial court's abuse of discretion in denying the jury's request of a read back of the
testimony of petitioner's hair expert.
18 Cumulative constitutional errors by court and counsel denied petitioner a fair
(9)
trial.
19
In our view, the magistrate judge's extensive treatment of the issues obviates
the need for much further explication. However, there is one fundamental
matter that may warrant specific discussion, namely the overall strength of the
state's first-degree murder case against petitioner, which has been called into
question directly, by petitioner's challenge to the sufficiency of the evidence
placing him at the crime scene, and indirectly, insofar as it figures into the
analysis of other claims of constitutional trial error.
20
Petitioner's defense at trial was essentially to concede the probable culpability

of co-defendant Ron Williamson,2 down play his personal relationship with
Williamson, emphasize the lack of testimony placing him with either
Williamson or the victim on the night of the murder, and argue that Williamson
(or someone else) acted alone. While a number of witnesses, including
petitioner himself, ultimately substantiated the state's claim that petitioner and
Williamson were in fact frequent and close companions, the defense continued
to rely on the significant point that no one had seen petitioner with Williamson
or the victim on the night of the murder. If this were the extent of the
evidentiary record, we would have to agree with petitioner that his conviction
rested on a constitutionally inadequate case of guilt by association. But the
state's circumstantial case against petitioner merely began with his relationship
with co-defendant Williamson, it did not end there.
21
A number of facts regarding petitioner's peculiar behavior following the murder

fit together to form a suggestive picture of his involvement. A neighbor recalled
an early morning incident in petitioner's backyard around the time of the

murder, in which petitioner and another man were spraying themselves with a
hose despite winter temperatures. Instead of offering an innocent explanation of
the incident, plaintiff simply denied it happened, placing his credibility
(already undermined in a number of respects) in direct opposition to that of a
witness with no known reason to lie. Two other disinterested witnesses testified
to conspicuous changes in petitioner's conduct following the murder and to his
apparent undue concern about the progress of the murder investigation. Perhaps
most suggestive was petitioner's unusual absence from work the day after the
murder and his inability to account for that absence or his whereabouts the
previous night. Petitioner was unable to explain his whereabouts not only at
trial years later, but also during police interviews conducted just months after
the crime.
22
Physical evidence gathered at the crime scene lent substance to the suggestive
circumstances noted above. Semen samples capable of excluding some eighty
percent of the population matched petitioner, although they also matched
Williamson. The state's forensic hair expert found eleven pubic hairs and two
scalp hairs consistent with petitioner's. Unlike the semen samples, the hair
matches could not be explained as equally consistent with Williamson's
presence alone (two pubic hairs and two scalp hairs found at the scene were
consistent with his) and, thus, were especially damning to the defense theory of
the case. Furthermore, while a defense expert discounted some of the pubic
hair matches, he also acknowledged the significance of finding matches with
two different types of hair relating to the same individual.
23
Finally, a number of the state's witnesses recited inculpatory statements made

by petitioner himself, including one in which he unequivocally indicated his
participation with Williamson in the crime. Admittedly, petitioner raised
questions going to the weight or credibility of this testimony. However, the jury
was free to resolve these questions against petitioner and accept the testimony
at face value--and we may not reweigh such matters, Romero v. Tansy, 46 F.3d
1024, 1032 (10th Cir.), cert. denied, 115 S.Ct. 2591 (1995). Thus, petitioner's
admissions effectively sealed the case already made by the circumstantial and
physical evidence presented.
24
Accordingly, we conclude that a rational trier of fact reasonably could have

found petitioner guilty beyond a reasonable doubt. See id. (reciting standard for
constitutional sufficiency of evidence established in Jackson v. Virginia, 443
U.S. 307, 319 (1979)). Further, we agree with the district court that the state's
case was strong enough to undercut petitioner's claims of prejudice in
connection with some relatively minor evidentiary issues raised in the petition.3
25
We also add in response to issue three enumerated above, that expiration of the
statute of limitations on a predicate felony is completely irrelevant to the
continuing viability of a felony-murder charge. See, e.g., Sochor v. State, 619
So.2d 285, 290-91 (Fla.), cert. denied, 114 S.Ct. 638 (1993); State v. White,
477 N.W.2d 24, 25-26 (Neb.1991); Commonwealth v. Munchinski, 585 A.2d
471, 482-83 (Pa.Super.Ct.1990), appeal denied, 600 A.2d 535 (Pa.1991); State
v. Dennison, 801 P.2d 193, 202 (Wash.1990); People v. Morris, 756 P.2d 843,
850 (Cal.1988); People v. Harvin, 259 N.Y.S.2d 883, 885-86
(N.Y.Sup.Ct.1965). Second, Oklahoma's characterization of first-degree murder
as a single crime encompassing alternative theories of deliberate homicide and
felony murder, which permits a "unanimous" conviction by a jury that cannot
agree on either alternative individually, is constitutionally permissible. See
Schad v. Arizona, 501 U.S. 624, 630-45, 648-52 (1991); Sullivan v. Borg, 1
F.3d 926, 927-29 (9th Cir.1993), cert. denied, 114 S.Ct. 931 (1994); see also
Lewis v. Parsons, No. 91-6009, 1992 U.S.App. LEXIS 14297, at * 8-* 9 (10th
Cir. June 15, 1992)(unpublished order and judgment applying Schad to
Oklahoma murder conviction).
26
The judgment of the district court is AFFIRMED. All outstanding motions are
denied. The mandate shall issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470
Williamson was tried separately for the murder, found guilty, and sentenced to
death. See Williamson v. State, 812 P.2d 384 (Okla.Crim.App.1991), cert.
denied, 503 U.S. 973 (1992)
We need not decide whether the state's case was so overwhelming as to obviate
consideration of petitioner's facially troubling claim that a third party's
videotaped confession to the crime was withheld by the prosecution. The
transcript of petitioner's sentencing hearing clearly shows that counsel had in
fact been given a copy of the videotape, see Sentencing Tr. at 5, 10, which
would explain why the claim was not raised by counsel in the state courts

Dennis L. Fritz v. Ron Champion Attorney General of The State of Oklahoma, 66 F.3d 338, 10th Cir. (1995)

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66 F.

Dennis L. FRITZ, Petitioner-Appellant,

United States Court of Appeals, Tenth Circuit.

Before TACHA, LOGAN, and BRISCOE, Circuit Judges.

ORDER AND JUDGMENT1

Petitioner was convicted in Oklahoma of first degree murder on complementary

(2) Loss of a meaningful appeal before the Oklahoma Court of Criminal

(5) Denial of Sixth Amendment right to counsel by state's use of information

(6) Numerous instances of prosecutorial misconduct, which resulted in denial

(a) Withholding of exculpatory videotaped confession of Ricky Simmons;

(e) Comments on credibility of petitioner and his counsel;

Petitioner's defense at trial was essentially to concede the probable culpability

A number of facts regarding petitioner's peculiar behavior following the murder

an early morning incident in petitioner's backyard around the time of the

Finally, a number of the state's witnesses recited inculpatory statements made

Accordingly, we conclude that a rational trier of fact reasonably could have

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