Petition for Writ of Certiorari — Wingfield v. Massie

Supreme Court, U.S. .

| FILED

t |

97 1140 JAN - 8 1998

NO. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

HOLLY GRACE WINGFIELD,

Petitioner,

-Y-

NEVILLE MASSIE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

GLOYD L. McCOY

COYLE & McCOY

119 N. Robinson, Suite 320

Oklahoma City, Oklahoma 73102

Telephone: 405/232-1988

Telecopier: 405/272-9859

COUNSEL FOR PETITIONER

QUESTIONS PRESENTED

1. Was the evidence presented at Holly

Wingfield’s state trial for murder sufficient to satisfy the

standard enunciated in Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781 (1979)?

2. Can a federal appellate court sustain a state

conviction on habeas review by making findings that

conflict with the findings of the state jury?

a Can a federal habeas appellate court uphold

a state conviction despite the fact that the federal district

court makes a specific factual finding that the jury’s

verdict was based on an improper legal standard and the

appellate court fails to find that that factual finding was

clearly erroneous?

TABLE OF CONTENTS

PAGE

Cees BO a 6 SSS SS 6 OR Fi we eH -i-

Ce BES ES re a OR OS 2

Se ee ES 6 hh A PES FG 2

Constitutional and Statutory

ee 2

ee eee 3

Reasons for Granting the Writ .............. 10

I. HOLLY WINGFIELD DID NOT MURDER

HER SISTER; THE EVIDENCE SHOWED

THAT HER BROTHER WAS GUILTY; THE

TENTH CIRCUIT’S CONCLUSION THAT

HOLLY KILLED HER SISTER IS

INCONSISTENT WITH THE JURY’S

FINDING THAT SHE DID NOT KILL HER

MOTHER AND FATHER; THE DECISION

OF THE TENTH CIRCUIT CONFLICTS

WITH A DECISION OF THE NINTH

CIRCUIT COURT OF APPEALS ....... 10

Il. A JURY’S VERDICT CANNOT BE UPHELD

WHEN A DISTRICT COURT’S FINDING

THAT AN IMPERMISSIBLE FACTOR WAS

THE BASIS OF THE VERDICT AND THE

FINDING HAS NOT BEEN FOUND TO BE

CLEARLY ERRONEOUS ............ 12

CEE. «i s:a & Oba eee eee oe ewe eee 12

-ii-

TABLE OF AUTHORITIES

CASES: PAGE

Knox v. Commonwealth, 735 S.W.2d 711

EE EE 12

Kyles v. Whitley, 514 U.S. 419, 115 S.Ct.

ee ee ca be bt ees ec scenes 13

Mitchell v. Prunty, 107 F.3d 1337

a 10, 11

Pope v. State, 396 A.2d 1054 (Mass.App.

EE DE LS Se 12

United States v. Infelise, 813 F. Supp.

ct tp ee ee eee ee 12

Wingfield v. Massie, 122 F.3d 1329

rr ee ke ee 6s eases 2

STATUTES AND CONSTITUTIONAL

PR IONS

a lb Ro eb de ee oe 2

ee el db cles ee awe’ 6a 5

SC E'S Ge Ci cw ee acc secceces 2

ee 2

Se I I Es RID wo ces sc cecceccecee 3

Okla. Stat. Ann. tit. 21, § 701.7A ............ 3

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

HOLLY GRACE WINGFIELD,

Petitioner,

-y-

NEVILLE MASSIE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

To: |The Honorable Chief Justice and Associate Justices

of the United States Supreme Court

Petitioner, Holly Wingfield, prays that a Writ of

Certiorari issue to review the judgment of the United States

Court of Appeals for the Tenth Circuit entered in this case

on the 19th day of August, 1997.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Tenth Circuit is published as Wingfield v. Massie, 122

F.3d 1328 (10th Cir. 1997). The opinion is attached as

Appendix "A." The order of the Tenth Circuit denying

rehearing was not published and is attached as Appendix

"B." The judgement of the lower court which granted

habeas corpus relief is attached as Appendix "C."

JURISDICTION

The judgment of the United States Court of Appeals

for the Tenth Circuit was entered on August 18, 1997. A

timely petition for rehearing and suggestion for rehearing en

banc was filed. The rehearing request was denied on

September 10, 1997. Justice Breyer has subsequently

granted Ms. Wingfield until January 8, 1998 to file her

Petition for Writ of Certiorari. Jurisdiction of this Court is

imposed pursuant to 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. Amend V provides in pertinent part:

No person shall be . . . deprived of life,

liberty, or property, without due process

of law...

U.S. Const. Amend XIV provides in pertinent part:

Section 1 . . . No State shall make or enforce

any law which shall abridge the privileges and

immunities of citizens of the United States;

-2.

nor shall any State deprive any person of life,

liberty, or property, without due process of

law; nor deny to any person with its

jurisdiction the equal protection of the laws.

Okla. Stat. Ann. tit. 21, § 701.7A, the Oklahoma

first degree murder statute provides:

A person commits murder in the first degree

when that person unlawfully and with malice

aforethought causes the death of another

human being. Malice is that deliberate

intention unlawfully to take away the life of a

human being, which is manifested by external

circumstances capable of proof.

Okla. Stat. Ann. 21, § 172 provides:

All persons concerned in the commission of

crime, whether it be felony or misdemeanor,

and whether they directly commit the act

constituting the offense, or aid and abet in its

commission, though not present are principals.

STATEMENT OF THE CASE

Holly Wingfield, at the age of sixteen, was charged

with murdering her father, her stepmother and her eighteen-

month-old sister, Crete. She was acquitted of murdering her

father and stepmother. However, the Oklahoma jury

convicted her of murdering her sister.

At the trial, the evidence showed that Holly’s

brother, Ty, then age nineteen, was the person who killed

the members of the Wingfield family. Ty Wingfield had

4.

pled guilty in order to avoid receiving the death penalty.

The State of Oklahoma wanted two convictions so Holly was

tried before a jury. Although Holly was the person on trial,

the prosecution’s case continually alluded to the actions of

her brother.

During the opening statement, the state prosecutor

said:

The evidence will be that they talked and they didn’t

know what to do about Crete, the little two year old

girl. Finally Ty made up his mind and he went and

got the 22 and he called the baby and shot her.

(Tr. 278)(emphasis added)

At trial, Ty Wingfield admitted that Holly was not

with him when their younger sister was killed. (Tr. 641) He

testified that Holly had nothing to do with the killings:

Q. Mr. Wingfield, to the best of your knowledge

Holly Wingfield had nothing to do with these killings,

did she?

A. To the best of my knowledge.

(Tr. 661)

Ty Wingfield testified that Holly begged him not to

kill Crete. (Tr. 662, 671) Various witnesses testified at trial

that Ty Wingfield had consistently admitted that he alone

was responsible for the killing of the child. (Tr. 306, 308,

331, 361, 391, 395, 405, 410, 420-21, 424-25, 425-26). Ty

Wingfield also testified that he would have killed Holly but

that he "[rjun out of bullets." (Tr. 676)

-4-

After being denied relief in the Oklahoma appellate

court, Ms. Wingfield, pursuant to 28 U.S.C. § 2254 filed

for habeas corpus relief in the United States District Court

for the Northern District of Oklahoma, Case No. 96-C-255-

K. The Honorabie Terry C. Kern, Presiding Judge of the

Northern District of Okiahoma, entered an order granting the

writ of habeas corpus. Judge Kern ruled that the evidence

was insufficient to sustain the murder conviction.

Judge Kern made extensive factual findings regarding

the case. Among the relevant factual findings were the

following:

1. Prior to the murders, Ty Wingfield admitted to

using marijuana, crank, valium and alcohol.

2. Holly was present at the murders. At her

brother’s direction she help load the bodies on a truck

and attempted to clean up the bloody mess in the

house.

3. At her brother’s instruction, Holly wrote two

checks, one of which was apparently cashed.

4. Holly was instructed by her brother to follow him

to the home of Joy Mauldin in Hawsville, Texas. It

was Ty’s idea to go to Texas because he had made

arrangements to sell the truck in order to sell drugs.

He needed Holly to drive the other vehicle.

5. At the preliminary hearing, Wendy Mauldin

testified that Holly told her “she had Crete in the

kitchen and Ty walked in there and she told Ty not

to do anything but he called Crete into the other

bedroom and she said she couldn’t stop him."

.

6. Wendy Mauldin testified that Hoily had told her

that she was scared at the time her brother killed

Crete.

7. At the May 20, 1988 deposition and at Holly’s

jury trial, Ty testified that he was told at the

beginning of the case that unless he implicated his

sister the State would seek the death penalty.

8. Following a seven day jury trial, Holly was

acquitted of murdering her father and stepmother.

9. Ken Toon, a deputy sheriff from Texas, said that

Ty admitted that he had killed Clint, Louise and

Crete Wingfield.

10. Ty admitted that he had testified at the

preliminary hearing that Holly had made some

comments about killing the parents but only when she

got mad, only as idle talk, but had never asked him,

nor planned with him, to kill them.

11. Ty agreed that Holly had not encouraged him to

shoot their father. He further admitted he

misinterpreted Holly’s statement whether he was

"going to do it" because of his agitation and loss of

control due to drugs.

12. Crete was killed outside the bedroom in the

hallway. Holly was not with him at the time.

13. Ty admitted that it was his idea to go to Texas

and that he needed Holly to drive the van to Texas so

he could sell it. Ty also admitted that he directed

Holly to write the checks that were cashed.

he

Aieakaiuiads hashed

14. Ty told his uncle that Holly had begged him not

to kill the child.

15. Ty said that Holly had discouraged him from

killing the child, saying "No."

16. The prosecutor asked Ty why he had not killed

Holly. He replied, "run out of bullets."

17. Donna Lewis testified that Holly had taken the

child to the kitchen. Holly did not want Ty to kill

Crete. Ty called for Crete and as the child walked

around the corner, Holly heard a shot and "figured

that Ty had killed Crete."

18. Crete went home to Ty on her own when Ty

called her name.

19. While Ty may have ultimately told Holly that he

would have to kill Crete, there was uncertainty about

his intentions.

20. There was no plan or scheme between Holly and

Ty to kill Crete Wingfield.

21. At the time Ty called for Crete, there was "still

that glimmer of home" that Ty would not kill Crete.

22. The Wingfields lived in rural Craig County; no

neighbors lived close by; Holly was scared and

probably in shock; the killings all occurred in a short

time span.

23. Holly’s failure to show emotion after the killings

is consistent with shock.

4.

Most importantly, Judge Kern made a factual finding

that the jury had based their verdict on impermissible

factors. Judge Kern wrote:

Whatever Petitioner did after the commission

of the murders is not sufficient to convict her

of aiding and abetting the murder of Crete.

Even the jury was confused about the

application of the law to the evidence of what

Petitioner did after the commission of the

murders. [The jury sent out a question] "If

Holly had nothing at all to do with the actual

killing of her dad, mother and sister, but

consented to the disposing of the bodies, the

cleaning up, putting the baby in the bag,

packing and leaving -- not reporting Ty when

they separated -- does this constitute abiding

[sic] & abetting?”

Dist.Ct.Op. at 25-26.

Most importantly, Judge Kern made the following

finding regarding the jury’s verdict:

[T]he evidence reveals that Petitioner wanted

to protect Crete from the moment Ty shot his

father. Petitioner grabbed Crete and ran to

the living room, then to the kitchen where she

tried to comfort Crete. When Ty told

Petitioner he was going to kill Crete, she

begged him not to kill the child. Even taking

Ms. Randall’s comments as true, there is still

bs no evidence of a plan or scheme to kill Crete.

The Court concludes from the jury’s questions

and the State’s argument that the verdict of

yr

a

the jury may well have been based on the fact

that Petitioner did nothing to save Crete’s

life. This, however, morally wrong, does not

constitute first-degree murder under

Oklahoma law.

Dist.Ct.Op. at 29 (emphasis in original)

The Tenth Circuit, despite Judge Kern’s specific

factual findings, reversed the grant of habeas corpus relief,

saying that there was evidence to support the conviction:

[W]e believe there was sufficient evidence

from which a reasonable jury could have

inferred that Holly had personally intended

the death of Crete. First, Ty answered "yes"

to the question, "Ty, prior to the time that

your father and Louise and your little step

sister were killed, was there any time that

Holly talked to you about killing them?

(emphasis added). Although the reference to

"them" might have been intended to refer

only to Clint and Louise, the most obvious

meaning of the word "them" in the context of

this question includes Crete, and the jury

could have found from this testimony that

Holly had intent to kill Crete when the

murders occurred. Second, and most

compelling, through the testimony of Sally

Randall, that Ty told her he was going to kill

Crete and that she then told Crete to "go to

Ty." The jury could have found that

statement to Crete was direct involvement by

Holly intending to cause Crete’s death. Third,

there was ample evidence that Holly showed

-9-

no remorse at the death of Crete and that she

helped dispose of Crete’s body. In

conjunction with the other evidence, a jury

could infer from Holly’s lack of remorse that

the killing of Crete was consistent with her

intent and desires.

122 F.3d at 1333.

Ms. Wingfield sought en banc review. The request

was denied. Ms. Wingfield now petitions this Court for a

Writ of Certiorari.

REASONS FOR GRANTING THE WRIT

I.

HOLLY WINGFIELD DID NOT MURDER HER

SISTER; THE EVIDENCE SHOWED THAT HER

BROTHER WAS GUILTY; THE TENTH CIRCUIT’S

CONCLUSION THAT HOLLY KILLED HER SISTER

IS INCONSISTENT WITH THE JURY’S FINDING

THAT SHE DID NOT KILL HER MOTHER AND

FATHER; THE DECISION OF THE TENTH CIRCUIT

CONFLICTS WITH A DECISION OF THE NINTH

CIRCUIT COURT OF APPEALS.

The Tenth Circuit’s decision is in conflict with a

decision from the Ninth Circuit Court of Appeals. In

Mitchell v. Prunty, 107 F.3d 1337 (9th Cir. 1997), the State

of California was attempting to show that a gang member

had aided and abetted in a murder case when he let fellow

gang members into his apartment with the knowledge that

they intended to use it to facilitate a murder. The California

-10-

law is the same as the Oklahoma law with regard to being an

aider and abettor.

The Ninth Circuit in Prunty rejected the argument.

That court said, "[TJhere is no way Mitchell could have

admitted fellow gang members into his apartment with the

intent to commit murder. Thus, even if Mitchell facilitated

Judabean’s murder by making the landing of his apartment

building available to the assailants, this actus reus was not

coupled with the necessary simultaneous mens rea." 107

F.3d at 1341 (footnotes omitted; emphasis in original).

Here, assuming that Holly told Crete to "go to Ty", Holly’s

actus reus was not coupled with the necessary simultaneous

means rea. She had no intent. She did not want her sister

dead. Regardless of Holly’s words, the child’s fate was

sealed. The Tenth Circuit ignored this argument in their

opinion.

The Tenth Circuit’s decision is in conflict with

Mitchell v. Prunty in another respect. The opinion relies on

a statement by Ty Wingfield that he and Holly had talked

about killing them. That statement has no foundation. The

jury rejected the conclusion that Holly had intended to kill

her parents. She was found not guilty. Obviously, the jury

did not give any factual credence to anything that led one to

believe that she wanted to kill them. If this evidence was

rejected as to the parents, so too must it be rejected with

regard to Crete. In Mitchell, the Ninth Circuit said, "It is

not reasonable to affirm a conviction based on testimony that

is clearly rejected by the verdict." 107 F.3d at 1339 n. _

Holly was charged with murdering her parents. The

jury found her not guilty. Obviously rejecting the idea that

she had discussed killing them. Although this Court has

sanctioned inconsistent verdicts, the Court should grant

26.

certiorari here to discuss just how inconsistent verdicts can

be. See United States v. Infelise, 813 F.Supp. 599 (N.D. III.

1993)(inconsistent verdicts may require setting aside a

conviction where those verdicts are based on charges with

"virtually identical elements"). The Tenth Circuit’s failure

to consider the jury’s findings with regard to the other

charges as proof of Holly’s innocence justifies review of this

case.

Il.

A JURY’S VERDICT CANNOT BE UPHELD WHEN A

DISTRICT COURT’S FINDING THAT AN

IMPERMISSIBLE FACTOR WAS THE BASIS OF THE

VERDICT AND THE FINDING HAS NOT BEEN

FOUND TO BE CLEARLY ERRONEOUS.

The district court judge made a factual finding that

the Oklahoma jury found Holly guilty because they felt she

owed a duty to try and save Crete Wingfield. Dist.Ct.Op.

at p. 24-25. The Tenth Circuit opinion did not address this

important finding. Holly had no legal duty to protect her

sister. See Knox v. Commonwealth, 735 S.W.2d 711 (Ky.

1987); Pope v. State, 396 A.2d 1054 (Mass.App. 1979). A

person cannot be lawfully convicted under the standards of

due process if there was no violation of any duty.

CONCLUSION

For the foregoing reasons, Petitioner respectfully

requests that this Petition for Writ of Habeas Corpus be

granted. This Court’s duty to administer justice occasionally

requires busy judges to engage in a detailed review of the

particular facts of a case, even though the Court’s labors

may not provide posterity with a newly minted rule of law.

24.

Kyles v. Whitley, 514 U.S. 419, 455, 115 S.Ct. 1555

(1995)(Stevens, J., with whom Ginsburg, J. and Breyer, J.,

join). A review of this case’s facts should show that, as

expressed by the district court judge in this case, Ms.

Wingfield is not guilty of the crime of murder.

Respectfully submitted,

COYLE & McCOY

Wied f. Meloy

GLOYD'L. McCOY

119 N. Robinson, Suite 320

Oklahoma City, OK 73102

Telephone: 405/232-1988

Telecopier: 405/272-9859

COUNSEL FOR PETITIONER

.*