Appendix — Diestel v. Hines (No. 07-1236)
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APPENDIX A
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 06-7070
{Filed November 1, 2007]
WILLIAM JAMES DIESTEL,
Petitioner-Appellant,
Vv.
Lexington Correctional] Center,
Lexington, Oklahoma,
)
)
)
)
)
REGINALD HINES, Warden, )
)
)
Respondent-Appellee. )
)
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 03-CV-170-JHP)
Burke Mordy, Mordy & Mordy, P.C., Ardmore, OK,
(Andrea D. Miller, Oklahoma City, OK, and Phil S.
Hurst, Hurst, McNeil & Gordon, Sulphur, OK, with
him on the brief), for Petitioner-Appellant.
Keeley Lane Parris, Assistant Attorney General (W.A.
Drew Edmonson, Attorney General, with him on the
brie.. Oklahoma City, OK, for Respondent-Appellee.
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Before HENRY, LUCERO, and HARTZ, Circuit
Judges.
HARTZ, Circuit Judge.
William James Diestel was convicted of first-degree
murder in Okiahoma state court. After the Oklahoma
Court of Criminal Appeals (OCCA) affirmed his
conviction, he filed in the United States District Court
for the Eastern District of Oklahoma an application for
habeas relief under 28 U.S.C. § 2254, raising two
claims: (1) the state did not present sufficient evidence
to prove beyond a reasonable doubt that he was sane
at the time of the offense, and (2) his due-process
rights were violated because the court did not instruct
the jury about the consequences of a verdict of not
guilty by reason of insanity. Although a magistrate
judge recommended that relief be granted on the first
of these claims (sufficiency of the evidence), the district
court denied relief on both claims. Mr. Diestel
appealed. We have granted a certificate of
appealability (COA) on both claims. See 28 U.S.C.
§ 2253(c)(1) (requiring a COA to appeal denial of
habeas application).
We have jurisdiction under 28 U.S.C. § 1291 and
affirm. On the first issue, we hold that there was
enough evidence at trial for the jury to find beyond a
reasonable doubt that Mr. Dieste! could distinguish
right from wrong at the time of his offense. On the
second, we hold that the OCCA’s decision was not
contrary to federal constitutional law set forth by the
United States Supreme Court.
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I. BACKGROUND
A. The Killing
The facts of the killing are _ substantially
undisputed, except for Mr. Diestel’s state of mind at
the time. In October 2000 Mr. Diestel traveled from
California to Oklahoma to seek out the victim, Doug
Casey, a former acquaintance from Santa Paula,
California. On October 27 he stopped at the home of
Helen Scott and asked for directions to the Casey
residence. About 11:45 a.m. he arrived at the Casey
residence and spoke to Carolyn Casey, the victim’s
mother, saying that he was Doug Casey’s friend. She
told him that Casey was at work at the Chickasaw
Point Golf Course.
Mr. Diestel went to the golf course and inquired
about Casey. Upon being informed that Casey would
be working a while longer, Mr. Diestel waited at a
restaurant at the golf course. When Casey came into
the restaurant with a colleague before his workday
ended, Mr. Diestel appeared to be using a newspaper
to hide himself from Casey’s view.
Casey clocked out of work between 2:30 and 3:00
p.m. and headed for the parking lot. Mr. Diestel
approached him and said, “[D]o you remember me?”
Supp. R. Vol. IT at 303. Casey responded, “[OJh shit!”
and ran away. Jd. Mr. Diestel drew a gun and fired
several times. After Casey had rounded a corner and
was out of sight, Mr. Diestel returned to his car and
left the area. Casey had been shot in the neck; the
bullet severed his carotid artery, and he bled to death.
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Local police were informed of the shooting, and Mr.
Diestel was soon stopped by Sergeant Duke Remington
of the Kingston Police Department. Mr. Diestel got out
of his car and put his hands in the air before
Remington was able to stop his own vehicle. When Mr.
Diestel was arrested, he said that he had shot Casey
because Casey had raped a girl and set fires in
California. He then asked about Casey’s condition,
telling another officer that he had not intended to kill
him.
B. The Trial
At trial Mr. Diestel did not deny the shooting;
instead, he claimed that he was insane at the time.
Under Okla. Stat. tit. 21, § 152(4), people are not
capable of committing crimes if they are “temporarily
or partially deprived of reason, upon proof that at the
time of committing the act charged against them they
were incapable of knowing its wrongfulness.” In
evaluating claims of insanity Oklahoma courts have
held that “a defendant was legally insane if during the
commission of the crime he was suffering from a
mental disease or defect rendering him unable to
differentiate between right and wrong.” Pugh v. State,
781 P.2d 843, 844 (Okla. Crim. App. 1989) (internal
quotation marks omitted). This is part of the
M’Naghten test, which also states that a defendant is
insane if suffering from a mental disease or defect
“rendering him. . . unable to understand the nature
and consequences of his acts.” Jd.
Mr. Diestel’s defense was that he could not tell
right from wrong because he was afflicted with
paranoid schizophrenia. He claimed that this disease
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caused him to hallucinate that he was visited by
angels and to have delusions that Casey embodied the
evil Emperor Nero, whom Mr. Diestel needed to
apprehend. In support of this defense, Mr. Diestel
called several members of his family to testify about
his history of mental illness. He also called two
mental-health experts, one of whom, Dr. John R.
Smith, testified that Mr. Diestel was legally insane
because he could not distinguish right from wrong at
the time of the shooting.
We summarize the relevant trial testimony in some
detail.
1. Lay Witnesses
a. State’s Witnesses
The state called several witnesses who described
Mr. Diestel’s behavior before, during, and after the
shooting. They did not express opinions on Mr.
Diestel’s sanity, but their observations could form part
of the basis of the opinions of others, including the
jury.
Helen Scott, whose house Mr. Diestel had
approached when searching for the Casey residence,
said that Mr. Diestel asked for directions to that
residence and that she gave them to him. Mr. Diestel
was “aclean-cut guy, nice-looking, well-dressed.” Supp.
R. Vol. II at 235. Nothing he said or did caused her any
concern. He appeared to know where he was and the
purpose of his visit.
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Charles Wayne Canaday and Wesley Chaney, two
employees at the golf course who encountered Mr.
Diestel, recalled that Mr. Diestel was hard to
understand and was slurring his words somewhat.
Although nothing about Mr. Diestel’s demeanor was of
concern, Canaday recalled Mr. Diestel being “a little
bit nervous.” Id. at 242. Mr. Diestel appeared to know
where he was, and he asked about nobody other than
Casey.
Melony Velock, a golf-course employee who served
Mr. Diestel in the golf course’s restaurant, said that
Mr. Diestel sat at the restaurant’s bar. He ordered a
beer. She chatted briefiy with him, both observing that
they were not from Oklahoma. But Velock said that
Mr. Diestel “gave me the creeps [because m]ost people
talk to me and are very social with me and he wasn’t.
He was very quiet and very—he wasn’t very social.” Id.
at 255. Mr. Diestel then ordered a sandwich. While
Mr. Diestel was still there, Casey entered the
restaurant with another person. Velock’s testimony
continued as follows:
Q: Now, with respect to Mr. Diestel, did he do
anything that drew your attention when Mr.
Casey came in?
A: Somebody had said somebody was looking
for Doug [Casey]. So I told Doug and I was
teasing him about being a female and stuff.
He said, you don’t know who it is, and I said,
no. Then he said, oh, and then I went back to
the bar to ask the gentleman if he needed
anything else and he was sitting at the bar
with a newspaper facing over that direction
and it was wide open.
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: From the appearance you indicated that Mr.
Diestel had turned sideways and raised a
paper up?
: Yes.
Q: Did you believe that when he did so he was
basically trying to secrete himself?
: I just thought it was weird that it was not
sitting on the counter. Most people have it
folded up and are reading it while they’re
sitting there and he had it wide open.
: Was it of such a manner that, in fact—
: Nobody could have seen him.
: Could he have even read the paper in the
manner in which he was holding it?
: I don’t know.
Id. at 256-57. When Casey left the restaurant, Mr.
Diestel folded the newspaper and put it down. After
that, he and Velock chatted some more, and he ordered
a hamburger and another beer. On cross-examination
Velock said that Mr. Diestel’s positioning of the
newspaper had not struck her as “weird until after the
fact.” Id. at 262.
Several golf-course employees testified about the
shooting itself. Terry Gable was a greenskeeper. At
2:30 p.m. Gable, along with Curtis Ferrell and Casey,
was getting ready to leave for the weekend. Ferrell
stayed behind at the course, while Gable and Casey
walked toward their cars in the golf course’s parking
lot. Mr. Diestel drove his tr_ck, which had been parked
at the lot, “up behind [Casey’s car] so he couldn’t
move.” Jd. at 303. Mr. Diestel got out and walked up to
Casey. He asked, “[A]re you Doug Casey?” and then
“[D]jo you remember me?” 7d. at 305. “|AJbout a
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split-second” later Casey said, “[O}h shit,” id. at 276,
and began to run away. Mr. Diestel braced himself on
his truck and fired three shots from what looked like
a black handgun. When Casey continued running, Mr.
Diestel pursued and fired a second series of shots.
Then, according to Gable, Mr. Diestel
basically just pulled his gun down like he was
looking at it. He sort of just looks up at me—I’m
directly right in front of him—like he just, I
don’t know, was checking his gun. I figured he
emptied his clip or whatever. He just pulled his
gun down after he gets through firing and just
sort of glances up at me and then goes back to
looking at his gun and basically just turns and
starts slowly walking back to his truck.
Id. at 281. Gable observed that Mr. Diestel was fairly
calm: “He just sort of [gave] me this little look. I’m
right there in front of him and then just casually turns
and starts heading toward his truck.” Jd. at 296. By
this point Casey was out of Gable’s sight. Gable drove
away and parked his car on the path Mr. Diestel would
need to use to leave the golf course, “hoping to get the
tag number off the truck.” Jd. at 281. He was unable to
obtain the license-plate number, but he saw Mr.
Diestel “drlilve by pretty calmly. He didn’t speed or
whatever.” Id. Gable returned to the scene of the
shooting ‘:o find Ferrell tending to Casey “in a pool of
blood.” Id. at 282.
John Rock, another greenskeeper, testified that he
had seen Mr. Diestel driving his truck earlier. “Usually
when you see somebody for the first time you can
usually tell maybe what kind of mood they’re in. He
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didn’t look happy. It was almost like he was upset at
me or something.” Id. at 322.
The next several witnesses for the state were police
officers and other government employees who
responded to Mr. Diestel’s shooting. Sergeant
Remington was the officer who stopped Mr. Diestel
after he was informed by radio dispatch that there had
been a shooting at the golf course. When he saw Mr.
Diestel’s truck, he activated his emergency lights.
“Before I ever pulled up and got stopped behind the
vehicle a white male had exited the vehicle with his
hands raised in the air. At that time I told the subject
to lay down on the ground and he complied.” Jd. at 358.
He then approached Mr. Diestel, handcuffed him,
patted him down, and found a knife. The testimony
continued as follows:
Q: Did Mr. Diestel say anything at the time you
approached him?
A: Yes, sir, he did.
Q: What was the first thing he said?
A: After I handcuffed him he had stated the
only reason he did it was because he raped a
girl and set a bunch of fires in California.
Was that his total statement?
Yes, sir.
P&
Id. at 360. Remington then advised Mr. Diestel not to
speak before being advised of his Miranda rights, but
Mr. Diestel repeated that “the only reason I did it is
because he raped a girl and set a bunch of fires in
California.” Id. A first responder then reported on
Remington’s police radio that Casey had stopped
bleeding. Remington said that “la]t this time, Mr.
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Diestel then asked me, is he going to be okay?” Id. at
361. Mr. Diestel “seemed to be very calm” and “was not
shaken up in any way.” Jd. He was compliant and
obedient, and he responded as if he understood
Remington’s directions. Inside Mr. Diestel’s vehicle
Remington saw a black semiautomatic pistol, a Bible,
and newspaper clippings apparently discussing forest
fires in California.
Tony Damron of the Marshall County Sheriffs
Office arrived at Mr. Diestel’s vehicle a few seconds
after Remington had pulled it over. Damron testified
that Mr. Diestel was very calm and made no
statements to the effect that he had “just apprehended
a terrible person, I just shot Nero, go get Nero, [or] I’ve
done you a great favor.” Id. at 376. Damron described
his interaction with Mr. Diestel as follows:
I asked him why he’s shot the guy out at the
golf course and he stated that he had raped a
girl and set some fires out in California. Then I
asked him, I said, well, was it a girlfriend or
what? And he said, yes... . I said, well, how did
you meet him? He said that he had walked up to
him and stated to him, “do you remember me?”
And he said that’s when the victim had [taken]
off and started running and he started shooting
at him. I asked him how far that he was when
he started shooting at him, and he said,
approximately 30 yards. He stated that the
Sheriff in some county in California knew the
victim and knew what kind of guy he was.
lla
Id. at 377. Damron said that Mr. Diestel inquired
about Casey’s condition, asking, “li]s he going to make
it?” Id. The testimony continued:
Q: Did Mr. Diestel ever indicate to you his
intent whether or not he meant to kill
[Casey], wound him, do anything like that?
A: I had asked Mr. Diestel if he intended to kill
him and he said, no, he intended to wound
him. I said, you intended to wound him, and
he said, yes, I intended to wound him. I
didn’t intend to kill him.
Q: At the time that he was making these
statements to you, . .. did Mr. Diestel tell
you that he ever told Doug Casey, halt,
you're under arrest, stop, don’t move,
anything like that?
A: Mr. Diestel specifically stated to me that
when he had first made contact with Mr.
Casey he asked him, he said, “do you
remember me?” And that’s when Mr. Diestel
stated to me that that’s when Mr. Casey took
off running.
Id. at 378. Damron added to the list of items in the car:
one can of Body Guard, pepper spray, clothes and
toiletries, a fanny pack, a 15-foot rope, a 40-foot chain,
a chain lock, and several books: Nero, The End of the
Dynasty; ’m Your Jesus of Mercy; Nero, Reality and
Legend; and The Answer, The Holy Bible. On
cross-examination Damron added that Mr. Diestel did
not seem scared. On redirect he stated that Mr.
Diestel’s condition changed as he received more
information:
12a
: The information he received that became
available to him about the condition of Doug
Casey, did his demeanor change?
A: Yes, it did.
: How so?
A: He was starting to ask more of how he was
doing and it was like that everything was
sinking in on what he had done.
Id. at 391. In his view, Mr. Diestel’s mounting concern
was more for himself than for the victim.
Chris Cisco, a state park ranger, had been directed
to go to the scene of the arrest to assist by taking
custody of Mr. Diestel and some evidence. He
described Mr. Diestel as coherent: “[H]e knew who I
was and where he was... and understood what I was
telling him.” Jd. at 397. He was also “very calm and
very polite and very cooperative.” Jd. After taking Mr.
Diestel to the county jail, Cisco had the chance to
observe him. Mr. Diestel did not mention Nero, and he
seemed to understand who he was, where he was, and
the purpose for his being in jail.
David Seals, a Special Agent for the Oklahoma
State Bureau of Investigation, interviewed Mr. Diestel.
He testified that he was “very lucid, very clear-minded,
deliberate in his actions, appropriately nervous.” Id. at
407. He described various items taken from Mr.
Diestel, including a list of phone numbers for golf pro
shops and golf courses in the area. Like the other
officers, he stated that Mr. Diestel did not mention
Nero.
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Carolyn Casey, the victim’s mother, testified that
she had met Mr. Diestel for the first time when he
knocked on her door the day of the shooting. He asked
about Doug Casey’s whereabouts, and Ms. Casey asked
why he wanted to know. He said he was “just an old
friond passing through and wanted to look him up.” Jd.
at 439. She described his behavior as follows:
He was standing right at the door. He kept
putting his hands either in his pockets or
behind him. I don’t remember exactly which it
was. He kind of shuffled a little bit on the porch
and he kept looking down. He wouldn't really
look at me. He asked me then if Doug was at
work and I told him I wasn’t for sure, that it
had been raining and I didn’t know if he’d be at
work or not. He said, at the golf course? I said,
well, I don’t know if he’d be on the course or in
the maintenance area because the weather had
been bad. Again, he asked me, he said,
something about like—but he is at work, and I
said, yes, in Durant.
Id. at 440. She asked again about his purpose, and he
repeated his answer. But there was nothing alarming
about his behavior. He mentioned only Casey, not
Nero.
Ms. Casey testified that on reflection she had heard
the name William James Diestel once before. The
family had lived in Santa Paula, California, until Doug
Casey was 20 or 21.
When Doug was about 16 he had gotten into a
fight. ... He had been dating a girl and they’d
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been dating for over a year. Doug and I went to
my grandmother’s funeral in Missouri and were
gone about a week or two. While we were gone
she went out with this person a couple of times
from what I understand. When we got back to
California she told Doug about it and said that
he was still bothering her and he wouldn’t leave
her alone. So Doug went to where he worked
and confronted him.
Id. at 444-45. A fight ensued and the authorities got
involved. The Caseys had the opportunity to press
charges against Mr. Diestel but did not.
b. Defense Witnesses
The deiznse callec four lay witnesses, only three of
whom gave testimony relevant to the issues on appeal.
It also introduced five depositions, but these are not in
the record on appeal and do not figure in the parties’
briefs, so we assume that they are not material to the
issues before us.
John Atwood, Mr. Diestel’s older stepbrothcer,
testified that he had a good relationship with Mr.
Diestel. He stated that his brother was “a very
emotional person,” Supp. R. Vol. III at 480, who
reacted very strongly to his father’s death from cancer
in 1992 and began reporting visits from
angels—apparently his father and two other deceased
relatives. At first, Atwood testified, Mr. Diestel said
that the angels told him to care for a child, but they
eventually came to tell him to stop an evil demon who
was raping women and setting wildfires. He referred
to the demon as “this guy in Santa Paula,” id. at 482,
15a
and spoke of the rape of a girl he had once dated.
Atwood said that Mr. Diestel spoke of these voices
“numerous times.” Jd. at 483.
Atwood repeatedly advised Mr. Diestel to seek
professional help, but he was stubborn. He did,
however, eventually get some treatment; he saw his
ex-wife’s father, a psychiatrist, who prescribed
medication that appeared to help. He also saw another
psychiatrist (a Dr. Templeton), but apparently only
twice. During this time Mr. Diestel continued to work
and was even promoted in his job.
After his divorce in the mid-199%s, Mr. Diestel
became a heavy drinker. The drinking did not seem to
affect his job performance, but over time the visions
appeared to intensify, and he began speaking of them
to family members other than Atwood. He also started
to become more religious. He read the Bible and a book
called The Answer, as well as books about Nero. He
told Atwood of going to the authorities to report the
causes of wildfires, rapes, and vandalism. From the
summer of 2000 until the shooting in October, Mr.
Diestel’s condition seemed to worsen. Atwood said that
he became more closed and seemed like he
always was dwelling on something. He
appeared to be always angry and he wasn’t the
happy person that I knew before that period.
There was always periods of him seeming
stressed, seeming angry and dwelling about
something. I beheve that was the Nero thing
and the things that he was picking up from the
books that he was reading.
Id. at 497.
That Cctober there was a significant fire in
Atwoce’s backyard caused by explosions of gasoline in
the gardening shed. Atwood showed Mr. Diestel the
fire; Mr. Diestel seemed disturbed about it, but he did
not talk about it directly. A few days later he left for
Oklahoma.
After Mr. Diestel was arrested in Oklahoma, he
called Atwood to ask him to call the President of the
United States, who would pardon him. He did not
explain why he would ke pardoned. “I told iim, are you
serious? Do you really believe you're going to get
pardoned? He said, yeah, call the President and find
out that I'll be pardoned.” Id. at 494. He repeated this
statement in later phone calls.
Other than the shooting of Casey, Atwood could
recall no violence by Mr. Diestel. He had heard of the
earlier fight with Casey, but Mr. Diestel had said only
that someone had punched him in the face over a
girlfriend.
In 1994 or 1995 Mr. Diestel began talking about
capturing the “guy from Santa Paula [who] was raping
and starting fires and vandalizing” and taking him to
the police. Id. at 499. Atwood “knew that it wasn’t a
good idea for [Mr. Diestel] to have a gun,” id., so he
asked him if he had one. He did, and Atwood took it
from him. About eight months later Atwood returned
the gun because Mr. Diestel seemed better and
claimed that he wanted to sell it, but Mr. Diestel
simply traded it for another gun. When Atwood found
out about this, he took the second gun away.
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Cross-examination elicited that Atwood had never
reported to law-enforcement authorities Mr. Diestel’s
expressed intentions to stop the man who Mr. Diestel
believed was setting fires, that Mr. Diestel sometimes
was drunk when he reported his hallucinations, and
that Mr. Diestel had not told Atwood that he had
acquired a third gun, the one with which he killed
Casey.
Suzanne Diestel, Mr. Diestel’s younger sister,
testified that she did not believe that he was a violent
person. She said that he began seeing angels about the
time of their father’s death. As she described it, Mr.
Diestel’s discussions of his hallucinations and
obsessions proegressed—first from concern with
vandalism and graffiti, next with concern about a
break-in of his sister’s home, then to “fires and Nero
and angels.” Jd. at 523. From 1994 to 1999 they
worked at the same restaurant; during that period she
worked full-time and he worked part-time. Ms. Diestel
never heard her brother talk about his visions to
others at the restaurant. In 1998 she suggested that he
seek help, which he did. His father-in-law, a
psychiatrist, prescribed Prozac, as did a second
psychiatrist, Dr. Templeton. During this time “he was
very withdrawn, he was very .._ out of it. 1 don’t
believe that he realized that he was crazy.” Id. at 525.
According to Ms. Diestel, her brother quit taking
medication and began drinking heavily at night in
June 1999, continuing for about eight months,
although it did not affect his work. (She insisted,
however, that she had never known him to drink beer.)
He then stopped drinking and smoking and started
going to church. He also isolated himself from others,
18a
or at least from his sister. She recalled one occasion on
which her husband took Mr. Diestel to target practice.
Ms. Diestel said that Mr. Diestel once had a .22 pistol,
which her husband and Atwood had taken from him.
After the shooting, Mr. Diestel made similar
requests of his sister as he had of Atwood—that she
should call the President, and that Mel Gibson and the
author of Embraced by the Light knew of his mission.
She said that Mr. Diestel believed in his mission: “He
was not wrong in his mind, he was not wrong, and
there was no disproving him whatsoever.” Id. at 536.
On cross-examination the state elicited that Mr.
Diestel’s relatives continued to allow him to help take
care of the children of another sister, despite their
concerns about Mr. Diestel’s psychological state, and
that apparently Mr. Diestel could refrain from talking
about his hallucinations when he chose to. Ms. Diestel
agreed that she had never heard him talk of them to
people at work.
The State aiso elicited that Ms. Diestel, like
Atwood, did not report any of her concerns about Mr.
Diestel to the authorities, although the family had
arranged for another sister to be committed because of
mental illness:
Q: Well, ma’am, with respect to your prior
history, would you describe your brother’s
situation as being more extreme and more
concerning than that of your sister?
A: Well, my sister was kind of on the same
wave length, you know, talking to herself
and talking to, you know, people. Like she
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thought she was—it’s different—my sister
thought she was Cinderella.
So nothing concerning the apprehension of
anyone, nothing taking down a demon of
anyone, right?
No.
Your sister never killed anyone, did she?
No, sir.
Yet, you have her committed three separate
times?
Yes, sir.
But your concern was so great for your
brother that you don’t do anything over eight
and a half years to do the same thing for
him, do you, not one thing?
: Well, in California law it’s very hard—
: Ma’am, you don’t know the law. Did you ever
do anything to see that your brother got
committed in... eight and a half years ...?
: Dr. Templeton obviously did not.
Q: Did you?
©
Op OPoOoe
A: No.
Id. at 564-66.
Finally, Ann Diestel, Mr. Diestel’s mother, testified.
She corroborated the other witness’s characterizations
of the progression of Mr. Diestel’s mental illness. On
May 7, 1999, she composed a letter to Dr. Templeton
detailing concerns about Mr. Diestel’s mental health.
But on cross-examination she admitted that the
concerns—except for his alcoholism—came from other
family members, not from her direct observations of
Mr. Diestel. And, like the rest of Mr. Diestel’s family,
20a
she did not report her concerns to the authorities, nor
did she report ongoing concerns to Dr. Templeton or
seek to have Mr. Diestel committed. Also, she admitted
that she had talked to him about his delusions and
hallucinations relating to fires, gangs, and rapes only
twice between 1992 and October 2000, once within six
months of the killing and once several years earlier.
2. Expert Testimony
Mr. Diestel called two expert witnesses, Drs. Terese
A. Hall and John R. Smith, regarding his state of mind
at the time of the shooting. The state presented Dr.
John Arnold Call in rebuttal.
a. Dr. Hall
Dr. Hall, who had obtained a law degree and then
a Ph.D. in clinical psychology, had a private practice in
psychology and served part-time at Eastern State
Hospital as a forensic psychologist. Because she had
examined Mr. Diestel in her capacity as a state
employee, she was not paid to testify.
She testified, based on interviews with Mr. Diestel
and others and a review of Mr. Diestel’s records, that
Mr. Diestel was suffering from a severe mental illness,
“[mjost likely paranoid schizophrenia.” Supp. R. Vol.
IV at 14. Mr. Diestel told her during the examination
that he had been charged with shooting someone; that
“over the last 10 years .. . he had become convinced
that this person was some kind of a demon named
‘Nero’ who had been setting fires and raping women
and committing different acts of vandalism out in
California.” Jd. at 13. He also said that he “had had
2la
visions of angels, and he believed just prior to this time
he had a vision of Jesus himself directing him to go on
a mission to cast down this demon, and that he
traveled to Oklahoma for that pvrpose.” Id. Mr. Diestel
did not say precisely how he planned to “cast down”
the demon, but he said that his goal was to “render
him helpless,” id. at 14, and that Jesus had instructed
him not to kill Casey. He also said that he had been
instructed to subdue Casey quickly “before President
Clinton was out of office because President Clinton
was going to pardon him.” /d.
Dr. Hall told the jury that paranoid schizophrenia
is
a very serious mental illness, probably the most
serious, one of the most serious in any event.
It’s characterized by being out of touch in reality
in a variety of ways, most commonly through
what we call “hallucinations,” that means
hearing things and seeing things that aren’t
really there, such as the voices he heard talking
to him and the visions of angelic beings telling
him things. It’s also characterized most
prominently by delusions, that means false
beliefs about reality that seem very real to the
sick person, such as his belief that there was a
demon named “Nero” committing all these acts
I saw those symptoms and those are the
hallmarks of schizophrenia.
Id. at 15. She also stated that schizophrenia is a
chronic, often lifelong illness; it is treated with
medication, which is often but not always successful.
22a
Dr. Hall further testified that there was no
indication that Mr. Diestel was “malingering.” Jd. at
16. When asked whether “the person suffering from
this illness [is] able to distinguish right from wrong,”
id., Dr. Hall replied, “In areas in which the thinking is
delusional and not based in reality their perceptions of
right and wrong can be affected as well,” id. at 17.
Pressed for a yes-or-no answer, Dr. Hall said, “I guess
it would be it depends. It wouldn’t be a blanket across
the board.” Id. Asked if paranoid schizophrenia
equated to “insanity” in a legal sense, Dr. Hall said,
“You can’t equate the two. You have to ask what effect
the illness had at that particular time on that
particular action.” Jd. 2: 18. But when asked whether
she had “any reason to believe that on [the date of the
murder] Diestel was not insane,”id. at 19, she
answered, “No, I don’t.” And she stated that someone
who is “capable of making plans,” who “understands
instructions given to him,” who is “very calm” and
“quite coherent,” and who has a “total recall later of
what occurred,” could “still be capable of suffering from
paranoid schizophrenia.” Jd. at 20.
On cross-examination Dr. Hall said that she spent
“less than three hours total” with Mr. Diestel, id. at
21, and she admitted that she had never made a
determination of Mr. Diestel’s sanity at the time of the
killing. Cross-examination also established that most
of her information on Mr. Diestel ultimately came from
Mr. Diestel himself. And she agreed with the state
that paranoid schizophrenia does not “in and of itself
lend [sic] one to be insane.” Jd. at 25. Instead, such a
determination “would depend upon the individual facts
of the case” and “upon that person’s actions, their
words, their deeds, observations of others at or near
23a
the time when the real question of insanity comes in.”
Id.
b. Dr. Smith
The second defense expert, Dr. Smith, was a
medical doctor specializing in psychiatry. He had
served as an associate professor of psychiatry at the
University of Oklahoma School of Medicine before
entering private practice in 1970, while maintaining
teaching positions at the medical school and the
University of Oklahoma School of Law. He received a
$2,000 fee from the defense to review Mr. Diestel’s
records and to evaluate him, and an additional $1,500
to testify.
Dr. Smith interviewed Mr. Diestel for
approximately three hours as part of a “comprehensive
psychiatric evaluation.” Supp. R. Vol. V at 6-7. In
reaching a diagnosis of paranoid schizophrenia, which
he called “pretty obvious,” id. at 8, he also spoke with
Mr. Diestel’s mother by phone, reviewed a letter that
she had written to a psychiatrist before the killing
“describing her deep concern in the presence of clear
delusional thinking,” id., and looked at “many other
sources of information,” id. Dr. Smith said that Mr.
Diestel’s account to him of the shooting was consistent
with what “he’s described in his police report.” Jd. at 9.
He elaborated:
{[H]e had come to believe delusionally that Mr.
Casey .. . had, in fact, become the spirit
embodiment of Nero. He had been accumulating
information for several years about fires in
California, reading messages from graffiti and
24a
believing increasingly that Mr. Casey was the
spirit of Nero and that he had to be captured
and in some way brought down. It’s not totally
clear what he delusionally believed that
consisted of, but it seemed to consist of some
sort of exorcism or some sort of ridding him of
demons. He believed that if this was not done
that Nero and the body of Mr. Casey would
bring some extreme destructiveness to the
world and to him and to his family.
Id. Paranoid schizophrenia, Dr. Smith said, often
involves delusions “focus| Jed around certain specific
issues.” Id. Mr. Diestel’s delusions had “evolved over a
long period of time” and had gotten “much worse in
more recent times.” Jd. at 10. This, too, Dr. Smith
added, is consistent with paranoid schizophrenia,
which “is a chronic disease that tends to evolve over a
period of time” and typically comes “later in life.” Id.
Dr. Smith said that Mr. Diestel also suffered from
hallucinations in which he heard supernatural beings
telling him that Casey was evil and a danger to the
world. Mr. Diestel had “always indicated he did not
intend to kill” Casey, but instead “strike him down,
whatever that means.” Jd. at 26. Dr. Smith also
testified that Mr. Diestel’s ability to structure plans
and to recall the events leading up to the killing were
“not only consistent, but . . . ordinary” for a person
suffering from paranoid schizophrenia. Jd. at 14. The
disease “does not interfere with organizational and
cognitional abilities.” Jd. Indeed, many people with the
disease often appear normal, he said, and can plan
activities, hold a job, and so forth.
25a
When asked whether Mr. Diestel “knew right from
wrong” when he shot Casey, Dr. Smith replied as
follows:
Within the context—if you put yourself inside of
Mr. Diestel’s head, believing that you are saving
the world and saving your family because an
evil spirit has inhabited someone and that you
have been dictated to exorci[z]e that evil spirit,
then you can understand that he believed he
was doing the right thing and did not have an
ordinary man’s concept of right and wrong in
relationship, specifically, to Mr. Casey. So at
that moment in time he could not distinguish
because of a severe mental illness between right
and wrong. He believed he was doing the right
thing in relationship to the world and in
relationship to his religious beliefs.
Id. at 16-17.
Asked whether there was “any possibility” that Mr.
Diestel was malingering, Dr. Smith replied:
He was not malingering. There are many issues
that would confirm that. The best test of
malingering is having an expert who knows the
course of the illness, who knows rather what the
patient is demonstrating in the interview,
rather what the history has shown, what
corlolljary information that you have available
shows, confirms your diagnosis. In this case he
was very straightforward, very honest. He told
me what he believed. He was in much better
shape when he told me. He was beginning to
26a
doubt the delusions and beginning to doubt
whether they were really true or not and he was
no longer having hallucinations when I saw
him. There is no question that he is not
malingering.
Id. at 22.
On cross-exemination Dr. Smith volunteered that
he was “not a forensic psychiatrist in the sense of
being Board Certified in forensic psychiatry.” Jd. at 28.
He explained the difference between a forensic
psychiatrist and a treating psychiatrist who provides
therapy: “With an individual patient psychotherapy
it’s an on-going relationship usually. . . . You are
certainly not as alert to issues like malingering,
deception, things of that sort, which you’re very aware
of in a legal evaluation.” Jd. at 31. In contrast, “as a
forensic psychiatrist you spend relatively short periods
of time with a person and your focus is different. You
want to establish competency, you want to establish
the presence or absence of mental illness, things of
that sort.” Id. He acknowledged that it would
ordinarily be unethical to be both the treating
psychiatrist and the forensic psychiatrist for the same
person.
The state questioned Dr. Smith about the
information on which his opinion rested. Dr. Smith
said that there was no need for him to interview Mr.
Diestel more than once because “everything he had
told me was perfectly consistent with all of the other
reports that J read.” Id. at 34. He also testified that
what Mr. Diestel’s mother had told him was based on
“her direct observations of him over time in addition to
27a
things that he has told her.” Jd. at 35. The state then
informed him that she had actually gotten her
information from other people and asked:
Q: So if it’s important to your conclusions that
she observed the information that’s in the
letter and she didn’t actua!ly observe that,
you may have to re-think your conclusions,
won’t you?
Id. at 36. He responded:
A: No, I won’t for several reasons. One, is
because what she descriked there is perfectly
consistent with everything else I know about
him. Also, her source of information about
what was going on with him has been
confirmed by other people who knew him,
including his ex-wife. If that’s where she got
the information it’s confirmed by her and it
is so consistent, in fact, with the information
that’s been supplied by everyone else that
she had correct information wherever she
got it.
Id. When the state suggested that Mr. Diestel was
really the source of all the information about his
illness, Dr. Smith responded:
It comes from Bill Diestel and other people who
observed him and it comes from observable
information in the terms of collecting things
about the fires, which fits with his delusions,
from looking at the books he was carrying,
which fits with his delusions, so that when you
28a
put it all together it’s absolutely confirmatory of
what he said
Id. at 38. Dr. Smith admitted, however, that he could
not determine with certainty whether Mr. Diestel had
been hallucinating, because “he was not hallucinating
at the time I saw him and he told me he was not.” Id.
at 64.
In the same vein, the state questioned Dr. Smith
about the last paragraph of his five-page written
report. It stated:
There is still a good deal of information which I
have not reviewed. This is a preliminary report.
Any additional information I develop from
reading numerous interviews will be included at
a later date. I feel quite confident in my
conclusions at this time and expect that the
additional information will be confirmatory.
Id. at 56 (internal quotation marks omitted). Dr. Smith
testified that the only new information he received
that was “anything but just confirmatory” of his
report, id. at 55, was that police interviews with Mr.
Diestel had elicited that he had owned a gun before
purchasing the one used to shoot Casey (whereas the
report, which is not in the record, evidently indicated
that he had not previously owned a gun). Accordingly,
Dr. Smith said, he “didn’t add any or submit any
additional reports because it was all so confirmatory of
what I already knew and had already reported that I
simply didn’t do anymore [sic] reporting.” Jd. at 56.
29a
The state elicited, however, that the report
contradicted the trial evidence in three other respects.
First, the report stated, contrary to the eyewitness
testimony, “At the time of the arrest it was obvious
that [Mr. Diestel] was severely disturbed.” Jd. at 68
(internal quotation marks omitted). Second, the report
said, again contrary to eyewitness testimony, that Mr.
Diestel had not drunk alcohol for several months
before the shooting. Third, Dr. Smith acknowledged
that the testimony that a member of Mr. Diestel’s
family had taken him to a shooting range was contrary
to his assumptions. Dr. Smith further acknowledged
that although the police reports mertioned the books
about Nero found in Mr. Diestel’s car, there was no
indication that Mr. Diestel had referred to Nero from
the time he left California until the time Dr. Smith
interviewed him on January 31, 2001, more than three
months after the killing.
The state also questioned Dr. Smith about his
conclusion that Mr. Diestel suffered from paranoid
schizophrenia. It examined the meaning of this
diagnosis:
Q: Now, is it your opinion, Doctor, that at the
time Bill Diestel shot Doug Casey that Bill
Diestel knew that he was Bill Diestel?
A: Yes, he knew he was Bill Diestel.
Q: Did he know that Doug Casey was Doug
Casey?
A: He did not know—he knew he was the body
of Doug Casey, but he thought he was
shooting the spirit of Nero.
: But he knew he was shooting a body that he
identified as Doug Casey?
Qr ©
> OP &
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
30a
Yes. Otherwise, he couldn’t have found him
on the internet... .
That at that time he knew he was shooting
a handgun?
Yes, he told me he had a gun in his hand.
He didn’t think he was working the video
clicker and he was just going to turn Doug
Casey’s volume down?
No.
Nothing like that?
No.
He knew it was a handgun?
He knew it was a gun.
And he knew that handguns shoot bullets
out of them?
He obviously did because he shot at him
with the intention of crippling him.
He told you he intended to shoot him?
Nero.
And he knew that when bullets strike a
human being they cause damage?
I didn’t ask him that specifically, but he
knew he could cripple him.
You didn’t ask that. He knew that Doug
Casey was a human being?
Yes, he knew—well, he thought he was the
spirit of Nero. He knew the body was Doug
Casey.
But if he wanted to exorcil[zje this demon
that inhabited Doug Casey—
He had to capture Doug Casey.
The only way a spirit could inhabit a body is
if it’s a human body?
I assume so.
3la
: He didn’t tell you that Doug Casey was, in
fact, Nero?
: He told Dr. Hall something along that line.
: But he didn’t tell you that?
: He told me that he felt that Nero—that
Doug Casey was Nero, that he had to
capture him and in some way talk him out of
it.
: Let’s put it down to this, he didn’t believe in
his mind that Doug Casey was a rabid
200-pound wolf who was attacking him and
he had to protect himself, nothing like that?
: No, no, he did not.
: He knew—
A: I guess he thought he was a beast, but he
was running away from him and not toward
him.
Id. at 61-63.
On redirect examination Dr. Smith said that there
was nothing inconsistent between Mr. Diestel’s not
having proclaimed after the shooting that he had just
killed Nero and Mr. Diestel’s believing that he had
done so. Also, he repeated that at the time of the
shooting Mr. Diestel “thought he was right” and could
not distinguish right from wrong. Id. at 73.
ec. Dr. Call
The state’s expert, Dr. Call, was the only
board-certified forensic psychologist in Oklahoma. He
had a Ph.D. in clinical psychology and a law degree.
He was paid $150 an hour by the state to evaluate Mr.
Diestel and to testify.
32a
Dr. Call reviewed records and interviewed Mr.
Diestel, seven law-enforcement officers, and an
eyewitness to the shooting. He testified that
[i]t is crucial that a Forensic Psychologist in
performing an evaluation of an individual’s
mental state at the time of a crime to interview
individuals who saw the individual at the time
of the crime, shortly before or after and/or
during, if at all possible, so that one can utilize
that data and that information to make a
determination as best one can what their
mental state was.
Supp. R. Vol. VI at 6-7. Dr. Call stated that even if one
suffers from delusions—that is, false beliefs—he might
still know whether something is wrong. Moreover:
Q: In order to make a determination of whether
someone was suffering from a delusion of
mistaken belief or anything like that, it is
important that we look at the individual
facts present at or near the time the act of
which we’re complaining of occurred?
A: Yes.
Id. at 8.
Dr. Call observed that Mr. Diestel made no
statements to suggest that he was operating under
color of law; for instance, his thinking was different
from those who “delusionally think that an individual
needs to be killed and they believe that they have a
warrant for that.” Jd. Rather, he said, Mr. Diestel
made statements to him that would “indicate that he
33a
knew, understood and appreciated what he did out
there that day.” Jd. at 9. In particular, “he indicated
that—in our conversations that he knew he was
shooting a human being who was a citizen of the
United States and he knew that he was operating a
handgun and that he knew that he had, in fact, shot
the victim.” Jd.
Similarly, Dr. Call testified that Mr. Diestel’s
inquiries about Casey’s condition and his statement
that he did not intend to kill him indicated that Mr.
Diestel “understood and appreciated” the act. Id. at 10.
Furthermore, “[h]e indicated to me that he knew that
Doug Casey was the person that he was shooting.” Jd.
The testimony continued as follows:
Q: During the course of your interview and
evaluation, was he clear in his
understanding that not only was he shooting
Doug Casey but that Doug Casey had certain
rights and privileges?
: Yes. He indicated that he had the realization
that, you know, Doug Casey was a human
being and a citizen. He also felt that, like I
say, I explored this with him and he also
believed that Doug Casey was _ the
reincarnation of a Roman emperor. I was
interested in this in particular. It’s not that
he felt that there was a spirit of a Roman
emperor inside of Doug Casey, but that Doug
Casey was a human being who just
happened to also be the reincarnation of
Nero.
34a
Dr. Call agreed that Mr. Dieste] “might have been
suffering from paranoid schizophrenia” when he killed
Casey, but that it is “possible for someone suffering
from a psychos[i]s such as paranoid schizophrenia to
do an act, in this case a criminal act, and know that it
was wrong.” Jd. at 11.
On cross-examination Dr. Call stated that he had
spent two to three hours with Mr. Diestel. His
evaluation report had concluded that “the bulk of the
data indicates that on the day of the homicide Mr.
Diestel could be diagnosed as suffering from paranoid
schizophrenia.” Id. at 15 (quoting report). The
testimony continued:
Q: If the delusions and hallucinations were
directing [Mr. Diestel] . . . on the day that he
committed this crime, would he then have
been able to discern or differentiate between
right and wrong on that day?
: The answer, to that question is yes possibly
and no possibly. It is possible for an
individual to have a command hallucination
or command delusion and to not know if
it’s—
: Would you explain that for the jury? Does
that mean that they’re commanded to do a
certain thing?
: For example, a situation like a command
hallucination, let’s say, you hallucinate a
figure, a person or object, and that figure
tells you to do something, like kill this
person.
Q:
A:
35a
Or to strike down this person or whatever
the terminology might be, right, to cast him
down?
To cast him down, whatever, but theyre
commanding you to do something. Now, on
the one hand it is possible that the
individual could know that doing that is
wrong. I’ve had cases where that’s true. It’s
also where they might not believe that it’s
wrong....
If they have a command hallucination
theyre being directed, but they could know
on the one hand that the direction is wrong
and that the action is wrong and against the
law. On the other hand, in a certain
circumstance they might know and they
might come to the conclusion that, no, it’s
not wrong. If I do this this is the right thing
to do. For example, if theyre doing it under
the color of law. Like maybe they have a
command hallucination of a President
saying, here’s a warrant, go out and kill this
person, execute them because you have a
warrant from the President of the United
States to do so.
: Or that someone was the reincarnation of
Nero, the Devil, and he was being directed to
go and strike this evil person down, wouldn’t
that be one example?
: No. It could be, but then it might not be. It
depends on what the individual actually
thinks when they're doing that. The best
way since we can’t read minds, the way we
figure that out is how they actually commit
36a
the crime, what they do beforehand, during
and after.
Id. at 20-22. Dr. Call also admitted that Mr. Diestel
told him of delusions and hallucinations and that such
reports were “consistent with other information that
he believed that he had this delusion that the
individual and the victim was Nero and a bad person
and that he needed to do something to this fellow.” Jd.
at 30. But he declined to state an opinion on whether
Mr. Diestel was legally sane or not:
Q: Now, I’m going to ask you [about] your final
determination about Mr. Diestel’s mental
state on the day he. . . shot and killed Mr.
Casey, and ask you, if... you don’t conclude
that he was able to discern or differentiate
between right and wrong, do you?
: No. That’s the ultimate legal issue, also
known as the “verdict,” which a jury decides
and not a psychologist or psychiatrist.
: But you don’t say anything about whether he
knew or could have known that what he was
doing was not right?
: Well, if l understand you correctly, he knew
that Mr. Casey did not want to be shot, he
knew that he was shooting Mr. Casey, he
knew that Mr. Casey was a flesh and blood
human being, an American citizen... . That
he also believed that Mr. Diestel was an evil
man, the Roman Emperor Nero
reincarnated, a man who raped a woman
and who set fires in California. . . . It also
indicates that Mr. Diestel was obsessed with
the victim and carried a grudge against Mr.
Be
37a
Casey in part because he assaulted him
years earlier. And the bulk of the data
indicates that on the date of the homicide
Mr. Diestel could be diagnosed as suffering
from paranoid schizophrenia.
Q: So you expressed no opinion whether Mr.
Diestel knew the difference between right
and wrong on the day that he committed this
crime?
A: That’s correct. I don’t have an opinion
because that’s the verdict.
Id. at 31-32.
On redirect examination Dr. Call clarified the
distinction between a medical diagnosis and a legal
conclusion: “paranoid schizophrenia and insanity [are]
two different issues.” Jd. at 34. A finding of paranoid
schizophrenia, he emphasized, does not determine the
ultimate legal question of whether Mr. Diestel could
distinguish right from wrong. He added that revenge
is a common “primary” motive for homicide and that
Mr. Diestel “made comments about Casey which
indicates to me that he was vengeful.” Id. And he
declined to conclude that Mr. Diestel was “compelled”
to kill Casey, id. at 35, distinguishing hallucinations
and delusions from such compulsions. He further
stated that “in my experience, if an individual with
paranoid schizophrenia kills somebody and believes
that they have done a good thing they will say that.”
Id. He saw no evidence that Mr. Diestel had sought
praise. He reiterated that it is possible for a sufferer of
paranoid schizophrenia to commit an act and still
know that it is wrong.
38a
C. State-Court Appeal
Mr. Diestel was convicted at trial and appealed to
the OCCA on May 16, 2002. It affirmed the conviction
in an unpublished opinion, with one judge dissenting.
The court held that the state had presented
substantial evidence that the killing had been for
revenge. It recognized that “(t]he experts in this case
were consistent in their diagnosis that [Mr. Diestel]
suffered from paranoid schizophrenia.” OCCA Op. at
10. (Citations to the OCCA opinion, Aplee. App. at
42-56, will refer to the page numbers of the opinion
rather than those of the appendix.) “However,” it
added, “evidence of a mental disability alone is not
sufficient to establish insanity at the time of the
offense. Testimony in this case established that
paranoid schizophrenia cannot be equated with
insanity.” OCCA Op. at 10 (citation omitted).
In particular, the court characterized Dr. Call’s
testimony as stating that Mr. Diestel’s illness “did not
preclude him from knowing that shooting the victim
was wrong” and that “the best way to determine
whether a person was sane, as in he was aware that
the commission of an act was wrong, was to look at
what the person did before, during, and after the
crime.” Id. at 7. It observed that when the police
apprehended Mr. Diestel, “he never mentioned Nero or
made any reference to his delusions,” and it noted Dr.
Call’s testimony that if Mr. Diestel “had truly believed
he had done a good thing by shooting the victim, he
would have said so.” Jd. The court concluded:
The issue |is}] whether [Mr. Diestel’s} mental
disability so impaired his judgment that, at the
39a
time he killed the victim, he was incapable of
appreciating the nature and consequences of his
acts or knowing right from wrong. A review of
fhis] actions, prior to, during, and after the
crime, shows that he knew right from wrong
and was sane at the time of the crime. [He]
apparently only told family members about his
delusions and hallucinations. Co-workers in
California had never heard those claims, and in
fact testified that [he] was a good employee with
nothing in his demeanor to indicate he was
having any mental problems. [He] left
California specifically to travel to Oklahoma
and find the victim. He obtained a list of golf
courses in order to determine where the victim
worked. [He] purposefully deceived the victim’s
mother in order to locate the victim.
After the shooting, [Mr. Diestel] claimed he
intended only to capture the victim and take
him prisoner. If that were truly [his] intent, he
did not take advantage of the numerous
opportunities to do so-in the restaurant, in the
parking lot. However, instead of taking him
prisoner, [he] shot the victim-not in the legs or
the butt as he claimed was his intent, but in the
back of the neck as the victim was running
away. These actions support an inference that
they were committed with the intent to kill the
victim.
Again, after the shooting, there was no
attempt to take the victim prisoner as he had
collapsed behind the maintenance building out
of [Mr. Diestel’s] view. [Mr. Diestel] merely left
the scene, and did so in acalm manner. When it
became apparent that the authorities were on to
40a
him, [he] pulled his pickup over and exited it
before the officer could even get his car stopped.
Testimony from the arresting officers
established that fhe] admitted shooting the
victim and seemed to have no trouble
understanding what was occurring. This
behavior illustrates that [he] was aware that his
shooting of the victim was wrong.
Further, [his] stories about Nero and the evil
demon did not surface until sometime after the
crime when he was interviewed by the medical
experts. [He] never said anything about the evil
demon to the arresting officers. [His] attempts
to create an excuse that he merely intended to
capture the victim and not kill him supports an
inference that he understood that his actions
were wrong.
After a thorough review of the evidence
presented by both parties, we find {Mr. Diestel]
did not meet his burden of raising a reasonable
doubt as to his sanity at the time of the crime.
The evidence clearly supports the jury’s
determination that fhe] was sane beyond a
reasonable doubt at the time he killed the
victim.
Id. at 10-12.
The OCCA also rejected Mr. Diestel’s argument
that the jury should have been instructed on the
consequences of a_ not-guilty-by-reason-of-insanity
verdict, holding that Oklahoma law did not require
such an instruction.
4la
Il. SUFFICIENCY OF THE EVIDENCE
Evidence of guilt is sufficient if “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.”
Dockins v. Hines, 374 F.3d 935, 939 (10th Cir. 2004)
(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979)). But the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) “adds an additional degree of deference to
state courts’ resolution of sufficiency of the evidence
questions.” Patton v. Mullin, 425 F.3d 788, 796 (10th
Cir. 2005). AEDPA provides:
(d) 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.
28 U.S.C. § 2254(d). Because “[s]ufficiency of the
evidence is a mixed question of law and fact|, wle ask
whether the facts are correct and whether the law was
properly applied to the facts, which is why we apply
both 28 U.S.C. § 2254(d)(1) and (d)(2) when reviewing
42a
sufficiency of the evidence on habeas.” Maynard uv.
Boone, 468 F.3d 665, 673 (10th Cir. 2006). “[T]he
question before us is whether the OCCA’s conclusion
that the evicence was sufficient constituted an
unreasonable application of the Jackson standard.”
Patton, 425 F.3d at 796.
Whether the evidence is sufficient depends, of
course, on what the state is required to prove. See
Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781 (“[Tl]he
standard must be applied with explicit reference to the
substantive elements of the criminal offense as defined
by state law. Whether the State could constitutionally
make the conduct at issue criminal at all is, of course,
a distinct question.”). Under Oklahoma law the
defendant bears “the burden of raising a reasonable
doubt of his sanity at the time of the crime.” OCCA Op.
at 4 (internal quotation marks omitted). If that burden
is met, “it is incumbent upon the State to prove beyond
a reasonable doubt that the defendant could
distinguish between right and wrong at the time of the
offense.” Id. at 4-5 (internal quotation marks omitted).
The final paragraph of the OCCA’s analysis of the
sufficiency of the evidence in this case is somewhat
troubling. The court wrote:
After a thorough review of the evidence
presented by both parties, we find [Mr. Diestel]
did not meet his burden of raising a reasonable
doubt as to his sanity at the time of the crime.
The evidence clearly supports the jury’s
determination that [he] was sane beyond a
reasonable doubt at the time he killed the
victim.
43a
Id. at 12. We do not agree with the first sentence
insofar as it could be read to say that Mr. Diestel failed
to satisfy his burden of presenting sufficient evidence
for a reasonable juror to harbor a reasonable doubt.
But even if the statement in that sentence is
incorrect,’ the next sentence—that the evidence
supports a finding of sanity beyond a reasonable
doubt—correctly addresses the dispositive issue (the
sufficiency of the state’s evidence). Therefore, we must
grant AEDPA deference to the OCCA’s ruling in that
sentence.
The thrust of Mr. Diestel’s insufficient-evidence
argument is that a defense expert, Dr. Smith,
unequivocally testified that Mr. Diestel coulc not
distinguish right from wrong when he killed Casey and
that no other evidence at trial could dissipate the
reasonable doubt created by that testimony. To
evaluate this argument, we must examine the role of
expert opinions regarding insanity in criminal trials.
The general rule is that juries are not bound to
believe opinions of witnesses, even if they are qualified
as experts. See United States v. Oliver, 278 F.3d 1035,
1043 (10th Cir. 2001) (“[I]t is solely within the province
of the jury, to weigh . . . expert testimony.” (internal
quotation marks omitted)); Tenth Circuit Pattern
Criminal Jury Instructions § 1.17 (2005) (“A witness
who has knowledge, skill, experience, training or
education, may testify and state an opinion concerning
' Perhaps the OCCA meant to say only that the evidence did not
persuade the jury to have a reasonable doubt; but we need not
resolve that matter.
44a
such matters. You are not required to accept such an
opinion. You should consider opinion testimony just as
you consider other testimony in this trial.”); Oklahoma
Uniform Jury Instructions-Criminal § 9-42
(“Testimony has been introduced of certain witnesses
who purport to be skilled in their line of endeavor or
who possess peculiar knowledge. ... You may consider
the testimony of these witnesses, and give it such
weight and value as you think it should have, but the
weight and value to be given their testimony is for you
to determine.”). Indeed, a jury instruction appears to
have advised the jurors in this case that they need not
believe experts; in final argument the state said to the
jury: “While we’re on the subject of doctors, remember
Instruction 3. You don’t have to just accept what they
say just because they've got credentials. You don’t
check your common sense at the door.” Supp. R. Vol.
VII at 630-31. (Instruction 3 is not in the record.)
This general rule applies to psychiatric testimony.
Under Oklahoma law, “[a] jury can disregard entirely
the testimony of psychiatric or medical experts and
find sanity from testimony of lay witnesses alone.”
McGregor v. State, 885 P.2d 1366, 1376 (Okla. Crim.
App. 1994). Our own cases have repeatedly held that
juries need not be swayed by expert psychiatric
testimony, regardless of disparities in the number or
thoroughness of experts on either side of a case. For
example, in United States v. Madrid, 673 F.2d 1114
(10th Cir. 1982), we affirmed a conviction for robbery
even though “four of the five experts who expressed
opinions on the issue of sanity concluded that [the
defendant] was not capable of conforming his conduct
to the requirements of the law at the time of the
robbery” and “defense experts examined defendant
45a
numerous times over different periods of several
months,” whereas the state’s expert did not examine
the defendant “until he had been institutionalized and
treated for about one year after the robbery, and his
second examination was over 13 months after the
offense,” Id. at 1123. We held that “the jury could
justifiably have found beyond a reasonable doubt that
Madrid was competent at the time of the robbery,” id.,
based on the testimony of eyewitnesses to the crime,
another lay witness whe observed him planning the
crime, and a state expert who did not believe that the
defendant was schizophrenic.’
Similarly, in United States v. Walker, 524 F.2d
1125 (10th Cir. 1975), the defense expert had spent
more than five hours with the defendant and heard all
the evidence at trial, whereas the state’s expert had
spent only an hour with the defendant and did not
hear other testimony at trial. Yet we rejected the
defendant’s argument that “more weight should be
given to [the defense expert’s] testimony because he
studied [the defendant’s] mental condition in greater
depth.” Id. at 1128-29. We explained that “the
credibility and weight to be given the testimony is not
* Before 1984, “if a federal defendant introduced sufficient
evidence to raise a reasonable doubt as to his sanity, it was
sufficient to create a question for the jury on which the
Government bore the ultimate burden of persuasion beyond a
reasonable doubt.” Dixon v. United States, --- U.S. ----, 126 S.Ct.
2437, 2444, 165 L.Ed.2d 299 (2006). In 1984, however, Congress
changed this burden, “requiring a defendant to prove his insanity
by clear and convincing evidence, 98 Stat. 2057, codified at 18
U.S.C. § 17(b).” Id. at 2445.
46a
a question for an appellate court; that is for the trier of
fact.” Id. at 1129.
And in United States v. Coleman, 501 F.2d 342
(10th Cir. 1974), we upheld a conviction of air piracy
even though the only expert witness to testify
regarding sanity was for the defense. We said, “The
credibility and weight of expert testimony are matters
within the jury’s province and need not be accepted as
conclusive even though uncontradicted by
counter-medical expertise.” Id. at 346; see also Valdez
v. Ward, 219 F.3d 1222, 1238 (10th Cir. 2000)
(“Despite the relative strengths of the expert
testimony, only the fact-finder may determine whether
the defendant was legally sane.”).
Moreover, we should not overemphasize that one
expert, as opposed to the others, expressed an opinion
on the ultimate issue of sanity. Indeed, in federal court
the rules of evidence preclude an expert witness from
offering an opinion that a defendant could or could not
distinguish the difference between right and wrong.
Fed R. Evid. 704(b) states:
No expert witness testifying with respect to the
mental state or condition of a defendant in a
criminal case may state an opinion or inference
as to whether the defendant did or did not have
the mental state or condition constituting an
element of the crime charged or a defense
thereto. Such ultimate issues are matters for
the trier of fact alone.
As we have noted:
47a
The rule prevents a confusing “battle of the
experts” and preserves the decision on the
ultimate issue of state of mind for the jury,
rather than leaving it in the hands of retained
experts. The rule promotes reliability by
preventing testimony on the legal connotations
of a medical diagnosis, a role the American
Psychiatric Association admits’ that
psychiatrists are not qualified to fill.
United States v. Austin, 981 F.2d 1163, 1166 (10th Cir.
1992); see also United States v. Wood, 207 F.3d 1222,
1236 (10th Cir. 2000) (Rule 704(b) is intended to
prevent “intrusion[s] into the province of the jury”).
Another court has similarly written:
The at least theoretical effect of Rule 704(b) is
to make it possible for juries to find a defendant
not guilty by reason of insanity even if no expert
would draw that same conclusion. Conversely,
the rule also permits juries to find a defendant
sane and guilty even if every expert would opine
that the defendant was insane. The purpose of
Rule 704(b) is to have jurors decide whether the
defendant was sane or not without being told
what conclusion an expert might draw.
United States v. West, 962 F.2d 1243, 1247 (7th Cir.
1992). Rule 704(b) did not, of course, apply in Mr.
Diestel’s state-court trial. But when assessing the
reasonableness of the verdict, it is worth noting that
the evidence on which Mr. Diestel most relies would
not even have been admissible in a federal trial.
48a
Turning to this case, there was considerable
testimony from which the jury could reject Dr. Smith’s
opinion and find that Mr. Diestel knew the difference
between right and wrong at the time of the killing.
First, although all three experts agreed that Mr.
Diestel had paranoid schizophrenia, the jury had
reason to doubt the severity of the disorder. Mr.
Diestel’s mother, who expressed grave concern about
her son, said he spoke to her of his delusions relating
to wildfires, gangs, and rapes only twice during an
eight-year period. Mr. Diestel apparently never spoke
of these stories outside his family. And, most tellingly,
the sister and stepbrother to whom he allegedly spoke
about these matters most frequently never sought to
commit him even though they had committed his sister
three times.
The jury also could have questioned Dr. Smith’s
testimony. He was not, like the state’s expert, board
certified for forensic work. And the jury could have
viewed him as pursuing an agenda because of his
unwillingness to adjust his conclusions in light of
evidence contrary to his original understanding of the
facts—such a.: Mr. Diestel’s gun ownership, his use of
alcohol, and his demeanor on the day of the killing.
In addition, Dr. Smith’s expert testimony did not
stand unqualified or uncontradicted by other experts.
Dr. Hall, the other witness for Mr. Diestel, testified
that those who suffer from paranoid schizophrenia
may still be able to tell right from wrong and may be
legally sane. Dr. Call, the only board-certified forensic
psychologist in Oklahoma, said the same. Dr. Call
further testified that if Mr. Diestel had thought that
he had done the right thing, he would have said so, but
49a
those who arrested him testified that he did not brag
or seek praise for his actions. To be sure, Dr. Call
never said that Mr. Diestel was sane, stating instead
that it would be inappropriate for him to offer his
opinion on the issue. But the jury could have been
persuaded by Dr. Call’s respect for his limited role and
the suggestion that Dr. Smith had been
unprofessional.
Furthermore, the events on the day Casey was
killed, as reported by lay witnesses, could be seen as
inconsistent with Mr. Diestel’s defense. See Madrid,
673 F.2d at 1123 (expert’s testimony, coupled with that
of lay witnesses who observed the defendant at the
scene of the robbery and “planning the robbery in
advance,” was sufficient for a jury to find guilt beyond
a reasonable doubt). Eyewitnesses testified that Mr.
Diestel seemed calm and deliberate. (The experts
testified that Mr. Diestel’s schizophrenia did not
necessarily prevent him from implementing complex
plans, but the jury was entitled to draw its own
conclusions from Mr. Diestel’s behavior.) More
importantly, Mr. Diestel’s actions appear inconsistent
with his alleged plan to stop a demon. He had an
opportunity to capture or confront Casey before he shot
him in the parking lot, yet he took no action. When he
finally approached Casey, he said nothing of Nero;
instead, he said “{[D]jo you remember me?” Supp. R.
Vol. II at 303. He shot Casey in the neck, not in the
legs. After the shooting he still failed to apprehend
Casey; he just drove away. And when he was arrested,
he said nothing of Nero or demons. Apparently there
was no testimony or other evidence of his speaking of
Nero from the time he left California until his
interview with Dr. Smith three months later.
50a
We emphasize that the lay witnesses were not
testifying to their opinions of Mr. Diestel’s sanity, but
were providing observations from which others (the
experts and the jury) could draw inferences. To be
sure, lay witnesses alone may be insufficient in some
cases to rebut a particularly strong insanity defense.
See McKenzie v. United States, 266 F.2d 524, 525-26
(10th Cir. 1959) (lay witnesses’ observations of
defendants’ behavior, before and after the crime, were
insufficient to rebut a defense that marshaled seven
physicians and psychologists and “Selective Service
records ... which showed that the defendant had been
rejected for military service . . . because of paranoid
psychosis, and other reasons”). But the general rule is
that lay testimony can suffice. See, e.g., Coleman, 501
F.2d 342. Moreover, the state did not rely on lay
witnesses alone. It called Dr. Call to give expert
guidance to the jury; and both he and Dr. Hall (a
defense witness) testified that a determination
regarding sanity would depend'on the defendant’s
words and behavior at the time of the offense. We note
that the state may satisfy its burden merely by
undermining the defense’s evidence. See United States
v. McGraw, 515 F.2d 758, 760 (9th Cir. 1975) (“Once
the defendant has introduced sufficient expert
testimony to support a reasonable doubt as to sanity,
the government must: (1) introduce its own expert
testimony in rebuttal; or (2) discredit the defendant’s
expert testimony on cross-examination; or (3) rely
upon evidence from which the jury may infer that the
defendant’s expert testimony depends upon an
incorrect view of the facts.” (emphasis added)).
On appeal Mr. Diestel relies principally on Kiser v.
Boone, 4 Fed. Appx. 736, 742 (10th Cir. 2001), an
5la
unpublished decision in which we determined that
there was insufficient evidence of sanity when the
state’s “rebuttal” of the defendant's experts’
“overwhelming” testimony amounted to (1) a
psychiatrist who offered “rambling” testimony, id. at
740 n. 3, with “little professional credibility,” id. at
741, and who had not evaluated the defendai:t to
determine his mental state at the time of the shooting,
id.; (2) a neighbor of the victim who testified that the
defendant appeared “nice” and “polite” when asking
where the victim lived, id. (internal quotation marks
omitted); and (3) a friend of the victim who reported
that the victim was afraid because of a threatening
phone call that he had received from the defendant, id.
Of course, Kiser is not a binding precedent, and we
express no opinion on whether its reasoning is
persuasive. But in any event it is distinguishable in
several respects. For example, unlike the state’s expert
in Kiser, Dr. Call focused on Mr. Diestel’s state of mind
at the time of the offense and provided the jury with a
framework to use the lay testimony in reaching its
conclusion regarding sanity.
Perhaps the real difficulty in Mr. Diestel’s case is in
defining what it means to know the difference between
right and wrong. We do not say that a person cannot
distinguish between right and wrong simply becausc
he believed that the victim had done terrible things
and therefore decided that the world would be better
off without the victim. Every assassin presumably has
such a belief, but not all assassins are legally insane.
The insanity defense is limited to certain types of
delusions. If the killer’s mental illness caused him to
believe that he had a warrant from the President or a
command from God to kill the victim, he did not
52a
believe his deed was “wrong” and the insanity defense
is available. Or if his mental illness caused him to
believe that the victim was not a human being but an
embodied evil spirit, he did not know the nature of his
deed (the murder of a human being) and likewise has
the defense. But a mentally ill person who decided to
kill the victim because of the victim’s imagined
misdeeds may well have understood that the law and
common morality do not permit one person to kill
another for that misconduct; and such a person would
not be legally insane.
This point was recognized at the very outset of the
adoption of the M’Naghten test. The test is generally
formulated, as in Oklahoma, as having two
components. The defendant was legally insane when
the act was committed if “he was suffering from a
mental disease or defect rendering him [1] unable to
differentiate between right and wrong, or [2] unable to
understand the nature and consequences of his act.”
Pugh, 781 P.2d at 844. This proposition is a
paraphrase of the Law Lords’ answer in M’Naghten’s
Case, 8 Eng. Rep. 718 (1843), to two of five
hypothetical questions (the second and third) posed by
the House of Lords about the insanity defense
(apparently because of concerns about the insanity
acquittal of Daniel M’Naghten). The answers to the
first and fourth questions, however, address the point
of concern here. The first question was:
What is the law respecting alleged crimes
committed by persons afflicted with insane
delusion in respect of one or more particular
subjects or persons: as, for instance, where, at
the time of the commission of the alleged crime,
53a
the accused knew he was acting contrary to law,
but did the act complained of with a view, under
the influence of insane delusion, of redressing or
revenging some supposed grievance or injury, or
of producing some supposed public benefit?
Id. at 722 (interhal quotation marks omitted). The
answer was:
[A]ssuming that your Lordships’ inquiries are
confined to those persons who labour under
such partial delusions only, and are not in other
respects insane, we are of opinion that,
notwithstanding the party accused did the act
complained of with a view, under the influence
of insane delusion, of redressing or revenging
some supposed grievance or injury, or of
producing some public benefit, he is
nevertheless punishable according to the nature
of the crime committed, if he knew at the time
of committing such crime that he was acting
contrary to law; by which expression we
understand your Lordships to mean the law of
the land.
Id.
The fourth question was: “If a person under an
insane delusion as to existing facts, commits an offence
in consequence thereof, is he thereby excused?”/d. at
723. The answer was consistent with the first answer:
[T]he answer must of course depend on the
nature of the delusion: but, making the same
assumption as we did before, namely, that he
54a
labours under such partial delusion only, and is
not in other respects insane, we think he must
be considered in the same situation as to
responsibility as if the facts with respect to
which the delusion exists were real. For
example, if under the influence of his delusion
he supposes another mai to be in the act of
attempting to take away his life, and he kills
that man, as he supposes, in self-defence, he
would be exempt from punishment. If his
delusion was that the deceased had inflicted a
serious injury to his character and fortune, and
he killed him in revenge for such supposed
injury, he would be liable to punishment.
Id.
Judge Cardozo, in the famous case of People v.
Schmidt, 216 N.Y. 324, 110 N.E. 945 (1915), addressed
the concern that the answer to the first question was
inconsistent with the M’Naghten test expressed in the
answers to the second and third questions. He found
them compatible:
The answer to the first question, though it
seems to make the knowledge of the law a test,
presupposes the offender’s capacity to
understand that violation of the law is wrong. It
applies only to persons who “are not in other
respects insane.” We must interpret the answer
in the light of the assumptions of the question.
A delusion that some supposed grievance or
injury will be redressed, or some public benefit
attained, has no such effect in obscuring moral
distinctions as a delusion that God himself has
55a
issued a command. The one delusion is
consistent with knowledge that the act is a
moral wrong, the other is not. . . . The real point
of the inquiry was whether a defendant, who
knew that the act was wrong, was excused
because he had an insane belief that either
personal or public good would be promoted by
the deed. There was no thought of any conflict
between the commands of law and morals.
Id. at 948. The one gloss added by Judge Cardozo to
the Law Lords’ answers is that one who knew that
commission of the act was unlawful could still have
been legally insane if he believed that the act was not
contrary to common morality because, say, he thought
that God had commanded it.
The views expressed by the Law Lords and Judge
Cardozo are not mere ancient lore. The Model Penal
Code (the MPC) appears consistent with those views.
MPC § 4.01(1) states: “A person is not responsible for
criminal conduct if at the time of such conduct as a
result of mental disease or defect he lacks substantial
capacity either to appreciate the _ criminality
[wrongfulness] of his conduct or to conform his conduct
to the requirements of law.” The brackets around
wrongfulness reflect that the Code presents two
alternative formulations of the
appreciation-of-right-or-wrong test. The defendant
may “lack [] substantial capacity .. . to appreciate the
criminality. . . of his conduct” or “lack[ ] substantial
capacity ... to appreciate the .. . wrongfulness of his
conduct.” Jd. (emphasis added and brackets omitted).
Of course, if the “criminality” formulation is adopted,
one would not be entitled to the insanity defense
56a
merely because delusions caused him to believe that
the victim had committed such horrible crimes as to be
deserving of death. Even if the defendant thought that
the world would be a better place without the victim,
the defendant would be entitled to the defense only if
he also believed that killing the victim would not
violate the law.
Less obviously, but just as true, the “wrongfulness”
formulation, which accords with Oklahoma law, would
also not be available to one whose delusions related
only to the extent of the victim’s prior misconduct. The
comment to MPC § 4.01 states: “Appreciating
‘wrongfulness’ may be taken to mean appreciating that
the community regards the behavior as wrongful.” Id.
cmt. 3 at 169. In other words, so long as the defendant
appreciated that the community at large would view
the conduct as wrongful, the insanity defense is
unavailable even if the defendant calculated that he
would be performing a public good. The comment
states that the two formulations would be little
different in practice: “Given the seriousness of most
crimes for which the defense of insanity is interposed,
a defendant who appreciates society's moral
disapproval of his conduct will almost always assume
that the conduct is criminal, and vice versa.” Id.*
* The comment offered only two circumstances in which the
difference in the two formulations could be significant:
First, where the wrongfulness standard is taken to
refer to the actor’s own moral perception, then differing
results are conceivable under the two formulations in a
case in which the defendant thinks that an act he knows
to be legally prohibited is commanded by God or otherwise
57a
Turning to this case, the above authorities suggest
that Mr. Diestel would not be entitled to an insanity
defense if his paranoid schizophrenia operated only to
make him believe that Casey was an evil man who
raped women and set fires. If he nevertheless
understood that “the community regards [the murder
of rapists and arsonists] as wrongful,” MPC § 4.01 cmt.
3 at 169, he would be criminally responsible. If,
however, his delusions went further and he thought
that he had a mandate from God or President Clinton
to kill Mr. Casey, or if he believed that Casey was not
ee
morally justified. However, even in such a case, a
defendant in a jurisdiction having the criminality
formulation could probably argue that his capacity to
appreciate the criminality of his conduct was
insubstantial or that he lacked substantial capacity to
conform his conduct to legal requirements.
The second conceivable situation is where the actor
possesses a sense of right and wrong with respect to his
actions, but, as a result of mental defect, is incapable of
grasping the concepts of guvernmental prohibition and
officially imposed sanctions which are implicit in the
notion of criminality. However, in such a case as well, a
defendant in a jurisdiction with the wrongfulness
formulation might argue that, for purposes of determining
criminal responsibility, his capacity for appreciating the
wrongfulness of his conduct was insubstantial, or that, in
light of his inability to understand what the law is, he was
incapable of conforming his conduct to its requirements.
Hence, notwithstanding the theoretical distinction
between the two formulations, it is doubtful whether the
actual result in many cases would turn on which is used.
Id. at 169-170 (footnote omitted).
58a
really a human being and that killing him would only
remove an evil spirit, then he would be legally insane.
The dispositive question, then, is whether the jury
could properly have found beyond a reasonable doubt
that Mr. Diestel did not suffer from one of these
further delusions. Although there was evidence that he
suffered from each of these delusions, that evidence
was much weaker than the evidence that his paranoid
schizophrenia induced delusions that Mr. Casey had
committed numerous rapes and arsons. In our view, :t
was not unreasonable for the OCCA to determine that
there was sufficient evidence for the jury to believe
beyond a reasonable doubt that Mr. Diestel was legally
sane.
Ill JURY INSTRUCTION
At trial Mr. Diestel sought the following jury
instruction:
Under the law of the State of Oklahoma and the
facts in this case, if you find the Defendant,
William James Diestel, guilty of Murder in the
First Degree, you shall fix his punishment as
either, imprisonment for life without parole or
imprisonment for life. If you find the Defendant,
Williams James Diestel, not guilty by reason of
insanity, the Defendant shall be committed to a
State Hospital for the Mentally Ill where he
shall remain until released pursuant to the laws
of the State of Oklahoma.
59a
Aplt. Br. at 27 (internal quotation marks omitted).*
The trial court rejected this instruction and did not
instruct the jury at all on the consequences of a verdict
of not guilty by reason of insanity (an NGI verdict).
The OCCA affirmed the district court’s rejection. Mr.
Diestel contends that denial of the instruction violated
his constitutional right to a fair trial.
Mr. Diestel is entitled to relief only if the OCCA’s
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)\(1). To make this showing,
he must demonstrate that the state court either (1)
“arrived at a conclusion opposite to that reached by the
Supreme Court on a question of law, or decided the
case differently than the Supreme Court has on a set
of materially indistinguishable facts,” or (2) “identified
the correct governing legal principle from the Supreme
Court’s decisions but unreasonably applied this
principle to the facts of his case.” Lee v. Crouse, 451
F.3d 598, 603 (10th Cir. 2006) (brackets and internal
quotation marks omitted).
Mr. Diestel’s precise argument is unclear. He seems
to contend that the OCCA incorrectly applied Shannon
v. United States, 512 U.S. 573, 114 S.Ct. 2419, 129
L.Ed.2d 459 (1994). Shannon was convicted of
unlawful possession of a firearm by a felon, in violation
of 18 U.S.C. § 922(g)(1), after he shot himself in the
chest in the presence of a police officer. At trial
* The proposed instruction does not appear in the record, but the
state does not dispute that it was requested.
60a
Shannon claimed to be insane and unsuccessfully
sought a jury instruction that an NGI verdict would
result in his being involuntarily committed. After
being convicted at trial, he appealed the denial of the
instruction, arguing that both the Insanity Defense
Reform Act of 1984 and “general federal criminal
practice,” id. at 584, 114 S.Ct. 2419, required the
instruction. The Supreme Court rejected both
arguments.
Thus, Shannon decided that an _ instruction
concerning the results of an NGI verdict was not
required. Although the Court recognized that such an
instruction might be necessary in “certain limited
circumstances,” 512 U.S. at 587, 114 S.Ct. 2419, the
only example provided by the Court of such a
circumstance was a statement to the jury by a
prosecutor or witness that the defendant would “go
free” if the jury returned an NGI verdict. Jd. (internal
quotation marks omitted). That circumstance is not
present here. Furthermore, Shannon was interpreting
the requirements of (1) the Insanity Defense Reform
Act of 1984, 18 U.S.C. §§ 17, 4241-4247, a federal
statute governing federal criminal law and procedure,
and (2) “general federal practice” under the Supreme
Court’s “supervisory power over the federal courts,”
Shannon, 512 U.S. at 575, 584, 114S.Ct. 2419. Nather
would govern a state prosecution.
Mr. Diestel argues that Shannon should be
distinguished because Oklahoma juries, unlike federal
juries, have a role in sentencing. But that argument
does not avail him. It would not be enough under
AEDPA for Mr. Diestel to show that a Supreme Court
decision does not contradict his contention. Rather, he
6la
must show that a Supreme Court decision has clearly
adopted his contention. This he has failed to do. The
OCCA’s decision did not contradict or misapply
“clearly established Federal law, as determined by the
Supreme Court of the United States.Ӥ 2254(d)(1).
Therefore, we cannot grant Mr. Diestel relief on this
ground.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district
court’s judgment.
HENRY, J., concurring.
I concur, based upon our standard of review, but
write separately to note that this is a close and
difficult case. The expert evidence in this case is
one-sided, strongly suggesting that Mr. Diestel “was
being directed by hallucinations,” Rec. vol. VI, at 30,
and thus was “incapable of knowing [the]
wrongfulness” of his actions at the time of this tragic
murder..Okla. Stat. Ann. tit. 21, § 152(4). Dr. John
Call, the State’s expert witness, chose not to testify as
to the ultimate issue of fact, although Oklahoma law
allows it. Further troubling is the Oklahoma Court of
Criminal Appeals’ (OCCA) heavy reliance upon lay
testimony of strangers—people who did not know or
had merely had a casual brush with Mr. Diestel. See
Kiser v. Boone, 4 Fed. Appx. 736, 742 (10th Cir. 2001)
(granting habeas relief for insufficiency of evidence
that defendant was sane at the time of the homicide
and noting that “[blefore a non-expert witness is
competent to testify to the sanity or insanity of
another person, he must show an acquaintance of such
62a
intimacy and duration as to clearly indicate that his
testimony will be of vai se in determining the issue”)
(quoting McKenzie v. United States, 266 F.2d 524,
526-27 (10th Cir. 1959)). Finally, I also take this
opportunity to comment on a new and salutary
development in Oklahoma law, which adopts the
instruction Mr. Diestel unsuccessfully requested at
trial, and would have helped in this case.
1. Oklahoma’s Evidentiary Rules
Unlike the Federal Rules of Evidence, Oklahoma
law permits experts to testify as to whether a criminal
defendant did or did not have the requisite mental
state to commit the crime with which he has been
charged. Compare12 Okla. Stat. § 2704 (“Testimony in
the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact.”) with
FED. R. EVID. 704(b) (prohibiting experts from
testifying as to whether a criminal had “the mental
state or condition constituting the mental state
element of the crime charged”). Thus, under Oklahoma
law, “[aJny properly qualified expert testifying in
accordance with the standards governing admissibility
of expert testimony may offer an opinion on the
ultimate issue if it would assist the trier of fact.”
Johnson v. State, 95 P.3d 1099, 1104 (Okla. Crim. App.
2004). Further, under Oklahoma law, “expert
witnesses can suggest the inference which jurors
should draw from the application of specialized
knowledge to the facts.” Romano v. State, 909 P.2d 92,
109 (Okla. Crim. App. 1995). However, Oklahoma law
does not permit “opinion testimony which merely tells
a jury what resuit to reach... .” Id.
cae 63a
Like Mr. Diestel’s expert witnesses, Dr. Therese
Hall and Dr. John Smith, Dr. Call, the State’s expert,
could properly have testified as to whether Mr. Diestel
had the mental capacity to have been. criminally
responsible. See Coddington v. State, 142 P.3d 437, 449
(Okla. Crim. App. 2006) (“Experts for the State
routinely testify to conclusions drawn from their
specialized knowledge even on ultimate issues.”); see
also Lott v. State, 98 P.3d 318, 342-343 (Okla. Crim.
App. 2004) (holding that the State’s expert on sexual
assault could properly testify rape was result of
non-consensual sex and conclude that oral sodomy had
occurred based upon her examination of physical
evidence); Abshier v. State, 28 P.3d 579, 604 (Okla.
Crim. App. 2001) (concluding that the State’s expert
witness could testify that a child was conscious and
crying during beating from defendant based upon his
experience and studies), rev'd on other grounds by
Jones v. State, 134 P.3d 150 (Okla. Crim. App. 2006);
Welch v. State, 2 P.3d 356, 368-369 (Okla. Crim. App.
2000) (holding that the trial court did not err in
allowing detective’s testimony that victim’s death was
not accidental but intentionally inflicted).
Oklahoma law is perhaps superior to the Federal
Rules: it seems to me if a qualified psychologist, or,
better yet, the “only board-certified forensic
psychologist” in the state, Maj. Op. at 1263, has a clear
opinion about whether a person knows the difference
between right or wrong, it may well be helpful to a fair
resolution of the case that he or she express it.’
’ Indeed, it appears that the OCCA believes that Dr. Call has
expressed such an opinion before. See Reid v. Boone, 27 Fed. Appx.
64a
2. Use of lay testimony
I am also troubled by the fact that the OCCA
justified its decision in part by relying on the lay
testimony of people that had no connection with the
defendant at all. We condemned similar evidence in
Kiser v. Boone, 4 Fed. Appx. 736, 742 (10th Cir. 2001).
Although Kiser is unpublished, its reasoning is the
most analogous in our circuit.
In that case, the State’s expert examined Mr. Kiser,
the defendant, who had shot his wife’s romantic
partner one day after his wife filed for divorce, to
determine whether or not Mr. Kiser was competent to
stand trial. The expert did not examine Mr. Kiser to
determine whether Mr. Kiser was sane at the time of
the murder. 7d. at 740. Mr. Kiser presented two
experts, each of whom testified that he did not
appreciate the wrongfulness of his actions at the time
he shot the victim. Jd. at 739. The State relied on lay
witnesses to establish Mr. Kiser’s sanity. A neighbor of
the victim testified that the defendant, whom he had
not previously met, appeared “nice” and “polite” on the
day of the shooting. Jd. at 741. A friend of the victim,
who did not know Mr. Kiser before, testified to a
conversation he had with the victim during which the
959, 962 (10th Cir. 2001) (“Dr. Call testified that, at the time of
the killing, [the defendant] was suffering from a substance
induce(d] psychotic disorder that included hallucinations.
However, Dr. Call further testified that [the defendant] knew that
he was committing a murder and knew that it was wrong.”)
(internal quotation marks and citations omitted).
65a
victim confided his concern about a telephone call from
Mr. Kiser threatening to kill him. Id.
The jury convicted Mr. Kiser of first degree murder,
and the OCCA denied relief, finding Mr. Kiser’s
evidentiary sufficiency challenge to be meritless. 4
Fed.Appx. at 741 (quoting Kiser v. State, 782 P.2d 405,
407 (Okla.Cr.App.1989)). The federal magistrate judge
reviewing Mr. Kiser’s habeas petition recommended
that relief be granted and the district court agreed. Jd.
Reviewing with AEDPA deference, we discounted the
lay testimony provided by the two witnesses who had
“no previous association” with Mr. Kiser. Id. at 742
(citing McKenzie, 266 F.2d at 526-27); see also United
States v. Madrid, 673 F.2d 1114, 1123 (10th Cir. 1982)
(applying McKenzie ); United States v. Coleman, 501
F.2d 342, 345 (10th Cir. 1974) (same).
The Kiser court also rejected the OCCA’s conclusion
that the State expert had refuted the defense experts’
testimony because the State’s expert had
acknowledged that he did not examine the defendant
to ascertain the defendant’s mental state at the time
of the killing. Thus, the panel held that the defense
experts’ testimony “was overwhelming in light of the
state’s insufficient and indefinite evidence of his
sanity.” 4 Fed. Appx. at 741.
In this case, the jury was presented with only
mildly conflicting medical testimony regarding Mr.
Diestel’s condition. Unlike in Kiser, all experts agreed
as to the severity of and the existence of Mr. Diestel’s
paranoid schizophrenia. Admittedly, the State’s expert
in Kiser only evaluated Mr. Kiser for competency, and
here, “Dr. Call focused on Mr. Diestel’s state of mind
66a
at the time of the offense.” Maj. Op. at 1272. However,
Mr. Diestel’s defense seems significantly
stronger-unlike in Kiser, the State’s expert here did
not suggest the defense was a “cop out” or “nonsense.”
4 Fed. Appx. at 740.
Additionally, the State presented no lay testimony
from any witness who had any previous association
with Mr. Diestel before briefly encountering him on
the day of the shooting. We acknowledge, as the State
points out, “[llay witnesses can testify about their
observations of defendants if those observations are
reasonably proximate in time to the proceedings.”
McGregor v. State, 885 P.2d 1366, 1374 (Okla. Crim.
App. 1994). Oklahoma law also allows “[llay witnesses
[to] give an opinion as to whether a defendant knew
right from wrong at the time of crime if the opinion is
rationally based on witness perception and helpful to
a clear understanding of the testimony or
determination of the fact in issue.” 7d. (eu ~hasis
added). “A jury can disregard entirely the testimony of
psychiatric or medical experts and find sanity from the
testimony of lay witnesses alone.” Jd. at 1376.
It is worth noting, however, that in McGregor, a
fellow inmate who had observed the defendant over a
period of time provided testimony regarding the
defendant’s competency. Here, none of the State’s lay
witnesses-had “an acquaintance” with Mr. Diestel of
any “intimacy” over a period of time of any
significance. McKenzie, 266 F.2d at 526.
67a
Given the above and given what Dr. Call said
regarding Mr. Diestel’s mental state,” I cannot say
that, absent AEDPA’s strictures, I could affirm the
OCCA’s legal conclusion that Mr. Diestel was sane at
the time of the crime.
3. Not Guilty by Reason of Insanity Jury
Instruction
Finally, as to the requested jury instruction, the
consequences of a verdict of not guilty by reason of
insanity in Oklahoma is clear: the court
shall thereupon order the defendant committed
to the state hospital for the mentally ill, or other
state institution provided for the care and
treatment of cases such as the one before the
court, until the sanity and soundness of mind of
? Dr. Call’s testimony noted that Mr. Diestel:
had “command delusions,” Supp. Rec. vol. VI, at 21;
suffered from paranoid schizophrenia prior to and on the date
of the homicide, id. at 24, 26. 31, 32;
thought his victim was “Nero reincarnated,” id. at 31;
was “mentally disturbed,” id. at 24;
had a lengthy obsession with the victim, that “even to a
psychologist” would be a “red flag,” id. at 25;
was found not competent to stand trial on Nov. 9, id. at 27;
believed he was being directed by hallucinations, and that “he
believed that he had this delusion that the individual! and the
victim was [sic] Nero and a bad person and that he needed to
do something to this fellow,” id. at 30; or, as he puts it again
“That he also believed that Mr. Casey was an evil man, the
Roman Emperor Nero reincarnated, a man who raped a
woman and who set fires in California.” Jd. at 31.
68a
the defendant be judicially determined, and
such person be discharged from the institution
according to law.
Okla. Stat. Ann., tit. 22, § 925.
Mr. Diestel proposed the following instruction,
which the trial court refused to give:
Under the law of the State of Oklahoma and the
facts of this case, if you find the Defendant,
William James Diestel, guilty of Murder in the
First Degree, you shall fix his punishment as
either, imprisonment for life without parole or
imprisonment for life. If you find the Defendant,
William James Diestel, not guilty by reason of
insanity, the Defendant shall be committed to a
State Hospital for the Mentally Ill where he
shall remain until released pursuant to the laws
of the State of Oklahoma. b
Aple’s App. at 32.
In denying relief on this claim, the Court of
Criminal Appeals quoted from its decision in Ullery v.
State, 988 P.2d 332, 346 (Okla. Crim. App. 1999):
Ullery claims he was denied due process and a
fair trial by the trial court’s refusal to instruct
the jury on the dispositional consequences of a
not guilty by reason of insanity verdict. Ullery
never contested the State’s allegation that he
killed Neal. During individual voir dire counsel
told prospective jurors that Ullery admitted the
killing and relied solely on his insanity defense.
69a
The trial court denied Ullery’s repeated requests
to instruct the jury on the consequences of a
verdict of not guilty by reason of insanity, as
well as his offer of testimony on this issue. . . .
The[ ] trial court based its rulings in a belief
that an instruction on the consequences of a not
guilty by reason of insanity verdict is not
permitted. This Court has held failure to give
such an instruction was not error because the
statutory mandatory commitment procedures are
“merely a procedural statement of disposition
subsequent to the verdict and [are]immaterial to
the process of rendering a verdict concerning the
sanity of the accused.” The United States
Supreme Court held in Shannon v. United
States, (512 U.S. 573, 575 (1994), that federal
law does not require this instruction. The
Supreme Court analogized to the situation
where the State fails to meet its burden of proof
regarding guilt, noting there the system
assumes a juror will vote to acquit even if the
juror is convinced the defendant is dangerous
and should be imprisoned. We decline to revisit
these decisions in this case. This proposition is
denied.
Diestel v. State, No. F-2001-1501 slip op. at 12-13 (filed
Nov. 13, 2002) (quoting Ullery, 988 P.2d at 346)
(emphasis added) (footnotes and some _ internal
citations omitted).
But the distinction between Shannon, which
applied federal law, and Oklahoma law, is noteworthy:
“In reaching its conclusion, the Court noted the
70a
well-established principle that, ‘when a jury has no
sentencing function, it should be admonished to reach
its verdict without regard to what sentence might be
imposed.” Neely v. Newton, 149 F.3d 1074, 1085 (10th
Cir. 1998) (quoting Shannon, 512 U.S. at 579, 114
S.Ct. 2419) (internal quotation marks omitted). Under
Oklahoma law, there is no question that the jury
serves the absolute sentencing function. Moreover, the
jurors in Shannon, unlike the jurors here, were
instructed to disregard the consequences of their
verdict.
In Fears v. State, No. F-2004-1279 (Okla. Crim.
App. filed July 7, 2006),? the OCCA held that “[Jaw,
* Fears was filed after the Magistrate Judge issued her report and
recommendation (April 13, 2006) (which recommended the grant
of habeas relief as to the sufficiency of evidence), and after the
district court filed its order denying federal habeas relief (June
21, 2006). As the State points out, Mr. Diestel did not file an
objection to the magistrate judge’s report and recommendation
regarding the NGRI jury instruction. “{Wle have adopted a firm
waiver rule when a party fails to object to the findings and
recommendations of the magistrate [judge].” Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991).
Under our “firm waiver rule,” a party who fails to file timely
objections to a magistrate judge’s report and recommendation
waives appellate review. Wirsching v. Colorado, 360 F.3d 1191,
1197 (10th Cir. 2004) (internal quotation marks omitted).
The firm waiver rule, however, does not apply (1) when a pro
se litigant was not notified of the time period for filing an
objection and the consequences for failing to do so, (2) when the
interests of justice warrant, or (3) when the party that failed to
object makes a showing of plain error. See Wardell v. Duncan, 470
F.3d 954, 958 (10th Cir. 2006). Here, we granted a certificate of
appealability because Mr. Diestel had “demonstrateld] that
Tla
logic, fundamental fairness and common sense require
that juries be told [of] the consequences of their
verdict, not guilty by reason of insanity.” Jd. slip. op. at
19. As the OCCA points outs, at least twenty-five
states require a jury instruction on the consequences
of a verdict of not guilty by reason of insanity, and
eleven require the instruction by statute. Jd. at 11-13
& nn. 26-27. “In most of these jurisdictions, juries do
not impose sentence.” Jd. at 12-13. The Fears decision,
which I recognize is unpublished and which is not
retroactive to cases on habeas review, laudably
recognizes that Oklahoma jurors imposing sentences
must be informed of accurate information about
sentencing consequences. Id. at 14.
Fears brings Oklahoma law in line with the
recommendations of both the National Alliance of
Mental Illness (NAMI) and the American Bar
Association (ABA). NAMI has long urged the following:
At the very least, judges should be required to
instruct juries .. . as to what will happen to a
defendant found not guilty by reason of
insanity: that they will be hospitalized in secure
facilities for treatment, and if they ever recover
reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong” and therefore made “a
substantial showing of the denial of a constitutional right.” Slack
v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542
(2000); 28 U.S.C. § 2253(c)(2)-(3). There ‘s httle doubt that such
showing, bolstered by the OCCA’s Fears decision, which signifies
a tactical shift in the OCCA’s approach to NGRI jury instructions
requires our review in the interest of justice.
72a
sufficiently to return to the community, they
will be subject to continued monitoring.‘
Similarly, the ABA has concluded that a “court should
instruct the jury as to the dispositional consequences
of a verdict of not guilty by reason of [insanity].” ABA,
Criminal Justice Mental Health Standards § 7-6.8 cmt.
at 342 (1986) (brackets in original). “(JJurors who are
not informed about dispositional consequences will
speculate about the practical results of a
nonresponsibility verdict and, in ignorance of reality,
will convict persons who are not criminally responsible
in order to protect society.” Id. at 345. The ABA
concluded that an instruction was “the most sensible
approach given the potential for prejudice,” id., when
no instruction is provided, and observed the following:
Particularly in cases in which defendants are
charged with violent crimes (which is usually
the case if the nonresponsibility issue is tried to
a jury, as opposed to a judge), juries need to be
told about the effect of a finding of mental
nonresponsibility [insanity] if the possibility of
a serious injustice is to be avoided.
Id. (brackets in original).
In the end, I would prefer that the proposed
instruction had been given, as it seems the “most
* Richard Birkel, Ph.D, NAMI National Director, and Mark
Hardwick, Ph.D., President, NAMI Texas, Change the Law
Instead, available at http://www.namiscc.org/newsletters/
February02/Andrea Yates. htm.
73a
sensible approach” as held in Fears. See slip op. at 19.
I thus agree that, given AEDPA deference, the OCCA
did not unreasonably apply federal law as to the
sufficiency of the evidence regarding Mr. Diestel’s
mental state. I also agree that the OCCA did not
misapply clearly established federal law when it
refused to give the now-approved Fears instruction. If
Mr. Diestel did know the difference between right and
wrong at the time of the horrible murder of Mr. Casey,
Mr. Diestel deserves the sentence he received. If, as
considerable evidence indicates, Mr. Diestel is
seriously mentally deranged, life imprisonment in a
maximum security prison seems unlikely to be an
intelligent choice. Had Fears been the law, we would
have a better idea of what the jury believed to be the
truth.
LUCERO, J., concurring.
I join the majority opinion, save the discussion of
Fed. R. Evid. 704(b) on pages 1269-70, and I join as
well Part 1 of Judge Henry’s concurrence relating to
the applicable Oklahoma evidentiary rule. I write
separately to note my disagreement with reliance on
the Federal Rules of Evidence in evaluating the
sufficiency of the evidence in a state court case. Maj.
Op. at 1269.
It is not ours to speculate about how the evidence
might have been interpreted if the trial had occurred
in federal court. Jd. at 1270 (“[WJhen assessing the
reasonableness of the verdict, it is worth noting that
the evidence on which Mr. Diestel most relies would
not even have been admissible in a federal trial.”).
Although AEDPA requires us to determine if the state
T4a
court decision involves an unreasonable ap tion of
federal |1w, this duty is not an invitation to apply
federal procedural rules to state court proceedings.
Federal Rules of Evidence are irrelevant to this case.
Future litigants should not be able to cite to the
federal rules when arguing the sufficiency of the
evidence in state court proceedings.
As Judge Henry notes, the applicable Oklahoma
evidentiary rule allows experts to testify to ultimate
issues, whereas Rule 704(b) does not. Because Rule
704(b) is both inapplicable and in direct conflict with
the state rule, its citation is'particularly inappropriate.
75a
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 06-7070
(D.C. NO. 03-CV-170-JHP)
[Filed November 1, 2007]
WILLIAM JAMES DIESTEL,
Petitioner-Appellant,
Vv.
REGINALD HINES, Warden,
Lexington Correctional Center,
Lexington, Oklahoma,
Respondent-Appellee.
Before HENRY, LUCERO, and HARTZ, Circuit
Judges.
This case originated in the Eastern District of
Oklahoma and was argued by counsel.
The judgment of that court is affirmed.
Entered for the Court
/s/
ELISABETH A. SHUMAKER, Clerk
76a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
OKLAHOMA
Case No. CIV 03-170-JHP
[Filed June 21, 2006]
WILLIAM JAMES DIESTEL,
Petitioner,
JAMES HINES, Warden,
)
)
)
)
Vv. )
)
)
)
Respondent. )
)
ORDER AFFIRMING IN PART AND
REVERSING IN PART THE FINDINGS
AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
On March 28, 2003, Petitioner William James
Diestel, an inmate currently incarcerated at Lexington
Correctional Center in Lexington, Oklahoma,
commenced this action with the filing of a Petition for
' Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in
this Court. Petitioner challenges his conviction for
T7Ta
First Degree Murder in Marshall County District
Court case number CF-2000-152 on grounds that (1)
the State presented insufficient evidence to prove
beyond a reasonable doubt that Mr. Diestel was sane
at the time of the homicide; and (2) the trial court’s
failure to instruct the jury on the consequence of a not
guilty by reason of insanity (NGRI) verdict violated
Mr. Diestel’s right of due process right and a reliable
determination of guilt.
On March 16, 2006, the United States Magistrate
Judge entered findings and recommendations to the
effect that Ground I warrants habeas corpus relief, but
Ground II does not. The State timely filed Objections
to the Magistrate Judge’s Report on April 12, 2006, in
which the State asserts that the Magistrate Judge
erroneously substituted her judgment for that of the
Oklahoma Court of Appeals instead of applying the
principles of “deference squared” required under law
on habeas review in order to reach her conclusions as
to Ground I. See Torres v. Lytle, No. 03-2098, 90 Fed.
Appx. 288, 290 (10th Cir. Jan. 23, 2004). No objections
were raised as to the Magistrate Judge’s findings on
Ground II, and such findings are therefore adopted by
this Court.
With regard to Ground I, the Magistrate Judge
found that the State did not prove beyond a reasonable
doubt that Petitioner was sane at the time of the
homicide. Specifically, the Magistrate Judge noted that
all three experts at Petitioner’s trial agreed that
Petitioner suffered from paranoid schizophrenia. In
support of Petitioners NGRI defense, one of
Petitioner's two experts noted that Petitioner was
initially found to be incompetent to stand trial. The
78a
expert said that Petitioner was delusional, and that
delusional people may be unable to distinguish right
from wrong. The other of Petitioner's experts
emphatically testified that Petitioner did not know
right from wrong at the time of the shooting.’ In
contrast, the State’s expert expressed no opinion on
the issue.
The Magistrate Judge further found that the
Oklahoma Court of Criminal Appeals’ attempt to
justify the jury’s finding of sanity was contrary to the
evidence and inconsistent with federal law. Under the
M’Naghten test, the NGRI verdict is appropriate if the
defendant (1) cannot appreciate the nature and
consequence of his actions, or (2) cannot differentiate
between right and wrong at the time of the crime. See
Pugh v. State, 781 P.2d 843, 844 (Okla. Crim. App.
1989 (applying Regina v. M’Naghten, 10 Cl. and Fin.
200, 8 Eng. Rep. 718 (1843)). The two prongs are
disjunctive and separate ways of determining that a
defendant is legally insane. Id. at 845. If the defendant
is able to raise some doubt as to his sanity, the burden
shifts to the State to prove beyond a reasonable doubt
1 Dr. Smith testified that “if you put yourself inside of
[Petitioner’s] head, believing that you are saving the world and
saving your family because an evil spirit has inhabited someone
and that you have been dictated to exorcise that evil spirit, then
you can understand that [Petitioner] believed he was doing the
right thing and did not have an ordinary man’s concept of right
and wrong in relationship, specifically, to [the victim]. So at that
moment in time he could not distinguish[,} because of a severe
mental illness[,} between right and wrong. He believed he was
doing the mght thing in relationship to the world and in
relationship to his religious beliefs.”
19a
that the defendant was sane. Clark v. State, 718 P.2d
375, 377-78 (Okla. Crim. App. 1986). Both the
dissenting judge in the Oklahoma Court of Criminal
Appeals’ opinion and the Magistrate Judge on habeas
review found that “the [OCCA] majority opinion’s
statement [that] the ‘Appellant did not meet
burden of raising a reasonable doubt as to his sanity
[at] the time of the crime’ is not only erroneous, it does
not respond to the proposition of error raised.”
Nonetheless, the OCCA concluded, and the Respondent
here urges, that sufficient evidence of Petitioner’s
sanity at the time of the crime was presented to
support the jury’s findings.
“Sufficiency of the evidence can be considered to be
a mixed question of law and fact.” Case v. Mondagon,
887 F.2d 1388, 1392 (10th Cir. 1989), cert. denied, 494
U.S. 1035 (1990). “To be sufficient, the evidence
supporting the conviction must be substantial; that is,
it must do more than raise a mere suspicion of guilt.”
Beachum v. Tansy, 903 F.2d 1321, 1332 (10th Cir.),
cert denied, 498 U.S. 904 (1990). In federal habeas
corpus review of a state court conviction, “the relevant
question is whether, after viewing the evidence in the
light most favorable to the prosccution, any rational
trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson uv.
Virginia, 443 U.S. 307, 319 (1979). Further, “a federal
habeas corpus court faced with a record of historical
facts that supports conflicting inferences must
presume — even if it does not affirmatively appear in
the record — that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to
that resolution.” Jd. at 326.
80a
This Court commends the Magistrate Judge’s
Report and Recommendation as thorough and
thoughtful, and fully agrees with the Magistrate
Judge’s charactcrization of this case as “tragic.”
However, upon full consideration of the issues
presented in the light most favorable to the
prosecution, as required, this Court finds that the
“jury's resolution of the evidence .. . is within the
bounds of reason.” See Grubbs v. Hannigan, 982 F.2d
1483, 1487 (10th Cir. 1993). In so finding, the Court
does not mean to imply that it believes that the
evidence at trial established Petitioner’s sanity beyond
a reasonable doubt, but rather, that it defers to the
jury’s apparent findings on this issue. The Magistrate
Judge’s Report and Recommendation is accordingly
REVERSED insofar as it recommends Petitioner be
granted habeas corpus relief on Ground I.
In support of this ruling, the Court specifically finds
that the jury could have reasonably determined that
Petitioner’s acts constituted an intentional “revenge
killing,” based in part upon testimony that Petitioner
asked the victim, “Do you remember me?” before
shooting him, and that Petitioner’s stories about the
evil spirit of Nero inhabiting the victim’s body did not
surface until some time after the crime when he was
examined by the medical experts. The Court also notes
that even where four out of five experts testify that a
defendant is legally insane, there may still be
sufficient evidence to convict. See U.S. v. Madrid, 673
F.2d 1114, 1123 (10th Cir. 1982); see also Valdez v.
Ward, 219 F.3d 1222, 1238 (10th Cir. 2000) (“Despite
the relative strengths of the expert testimony, only the
fact-finder may determine whether the defendant was
legally sane.”). Such is the case here. In Oklahoma,
8la
“[t]he State can disprove insanity by lay testimony as
well as expert testimony,” and “nothing in the case law
requires the State to produce expert testimony” at all.
See Cheney v. State, 909 P.2d 74, 86 (Okla. Crim. App.
1995). In the instant case, the Oklahoma Court of
Criminal Appeals noted that the State’s expert, while
not specifically opining on Petitioner’s ability to
distinguish right from wrong at the time of the crime,
did state that had Petitioner “truly believed he had
done a good thing by shooting the victim, he would
have said so,” and that he may have been able to
distinguish right from wrong, even in a delusional
state. Thus, the State did offer some competent expert
testimony to refute that put on by Petitioner, as well
as persuasive lay testimony, which the jury could have
judged as sufficient and credible evidence to prove
beyond a reasonable doubt that Petitioner was sane at
the time of the crime. See id. (“The jury is the exclusive
judge of the weight of the evidence and the credibility
of the witnesses’ testimonylI, and a]lthough there may
be conflict in the testimony, if there is competent
evidence to support the jury’s finding, an appellate
court. will not disturb the verdict on appeal.”).
For the reasons stated above, the Court reverses in
part the Report and Recommendation of the United
States Magistrate Judge insofar as it recommends
Petitioner be granted habeas corpus relief on Ground
I. The Report and Recommendation is, however,
affirmed and adopted in all other respects.
Accordingly, the Petition for Writ of Habeas Corpus is
hereby DENIED and this action is DISMISSED.
IT IS SO ORDERED this 21st day of June 2006.
82a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT
OF OKLAHOMA
Case No. CIV 03-170-P
[Filed March 16, 2006]
WILLIAM JAMES DIESTEL'’,
Petitioner,
JAMES HINES, Warden,
)
)
)
)
v. )
)
)
)
Respondent. )
)
REPORT AND RECOMMENDATION
NOW before the Magistrate Judge is petitioner’s
petition for a writ of habeas corpus. Petitioner, an
inmate currently incarcerated at Lexington
Correctional Center in Lexington, Oklahoma, attacks
his conviction in Marshall County District Court Case
' Petitioner's name is incorrectly spelled Dietsel in many
documents in the record.
83a
Number CF-2000-152 for First Degree Murder. He sets
forth the following grounds for relief:
I.
Il.
The respondent concedes that petitioner has
exhausted his state court remedies for the purpose of
federal habeas corpus review and has submitted the
following records to the court for consideration in this
The State presented insufficient evidence to
prove that Mr. Diestel was sane beyond a
reasonable doubt at the time of the homicide.
The trial court should have instructed the
jury on the consequence of a not guilty by
reason of insanity verdict. The failure to so
instruct the jury violated Mr. Diestel’s right
of due process and a reliable determination
of guilt.
matter:
A.
Petitioner's brief in his direct appeal.
B. The State’s brief in petitioner’s direct appeal.
C.
D.
Petitioner’s reply brief in his direct appeal.
Opinion affirming petitioner’s Judgment and
Sentence. Diestel v. State, No. F-2001-1504
(Okla. Crim. App. Nov. 13, 2002).
. Jury instructions in Marshall County
District Court Case Number CF-2000-152.
. Verdict form in Marshall County District
Court Case Number CF-2000-152.
84a
G. State court record and jury trial transcript in
Marshall County District Court Case
Number CF-2000-152.
Facts
The genesis of this tragic case can be traced back to
California in 1989 when William “Bill” Dietsel, the
petitioner, was approximately 21 or 22 years old, and
Doug Casey, the victim, was about 16 years old (Tr. II
444, Tr. IV 587). Doug had been dating a girl for more
than a year when he and his mother went out of town
for a week or two (Tr. II 444). While they were gone,
the girlfriend went out with Bill a couple of times (Tr.
II 444). When Doug and his mother returned to
California, the girlfriend told Doug that Bill was
bothering her and would not leave her alone, so Doug
went to where Bill worked and confronted him (Tr. II
444-45). Doug and Bill got into a fight, and the
authorities became involved (Tr. II 445). Doug’s mother
was called to the hospital because Doug was thought to
have a broken hand (Tr. II 445). The law enforcement
officers asked Mrs. Casey if she wanted to file charges,
because Doug was a minor and Bill was an adult, but
she declined (Tr. IT 445). Mrs. Casey just considered
the incident a teenage confrontation, and she had no
recollection of ever hearing the petitioner’s name again
(Tr. I] 445). The Casey family moved to Oklahoma in
1993, when Doug was about 20 or 21 years old (Tr. I
441, 443).
The Oklahoma Court of Criminal Appeals (OCCA)
set forth the facts of Doug’s Casey’s death in its
Opinion affirming petitioner’s Judgment and Sentence:
85a
[Petitioner] was convicted of the first degree
murder of Doug Casey. On October 27, 2000, at
approximately 11:45 a.m. [petitioner] knocked
on the door of the Casey home in rural Love
County, Oklahoma. Carolyn Casey answered tne
door. [Petitioner] tola her he was a friend of her
son, Doug Casey, and asked if he was at work at
the Chickasaw Pointe Golf Course. Mrs. Casey
confirmed that her son was at work at the golf
course. She inquired of [petitioner’s] identity
more than once. [Petitioner] would only say he
was a friend from California wanting to look her
son up. [Petitioner] left the Casey home in a
bluish-green pickup with California license
plates.
[Petitioner] arrived at the Chickasaw Pointe
Golf Course in Kingston at approximately 1:45
p.m. He went into the pro shop and asked if
Doug Casey was working. [Petitioner] was told
that Casey was on the course mowing.
[Petitioner] then asked what time the victim got
off work. He was told probably around 3:00 p.m.
[Petitioner] walked out of the pro shop with one
of the employees and was directed to the
maintenance building where the victim reported
for work. Instead of walking in that direction, he
went into the golf course restaurant. There, he
sat at the bar and ordered a beer and a
sandwich. While he was there, Doug Casey and
another employee of the course came in for
sodas. The victim was told that someone was
looking for him, however Casey did not know
who it would be. [Petitioner], still sitting at the
bar, held an open newspaper in front of his face,
86a
as if to hide behind it. Doug Casey rernained in
the restaurant only a few minutes before
heading back out to the golf course. [Petitioner]
remained at the bar where he ordered another
beer and ate a hamburger.
At approximately 2:30 - 3:00 p.m., the victim
and fellow employee Terry Gable were in the
maintenance building clocking out for the
weekend. They then walked out to the parking
lot to their cars. Parked next to Casey’s truck
was a bluish-green pickup with California
license plates. As the victim approached his
truck, [petitioner] stepped out between the
vehicles and asked, “do you remember me?” Mr.
Gable heard the victim say “oh shit” and run
from the cars towards the maintenance
building. The victim had run about 20 yards
when [petitioner], bracing himself on his truck,
fired three shots from a semi-automatic pistol.
[Petitioner] stopped, walked forward, and fired
off a second volley of shots. [Petitioner] looked
at his gun, looked at Mr. Gable, looked back at
his gun, then slowly walked back to his truck.
[Petitioner] got inside his truck and drove away
at a normal rate of speed.
The victim had run around the maintenance
building before collapsing. He had been shot in
the back of the neck and his carotid artery had
been severed. Medical emergency personnel
87a
were called and quickly responded to the scene.’
However, efforts to save him failed and Doug
Casey died on the way to the hospital.
Meanwhile, the Kingston Police Department
had been notified of the shooting. [Petitioner’s]
pickup was spotted on Highway 70 headed
towards Ardmore. When Sergeant Remington of
the Kingston Police Department activated his
emergency lights and siren, [petitioner] pulled
over to the side of the road. Before Sergeant
Remington could stop his own _ vehicle,
[petitioner] was out of his truck with his hands
in the air. [Petitioner] complied with Sergeant
Remington’s request to lie on the ground. As he
was being handcuffed, [petitioner] said the only
reason he did it was because he raped a girl and
set a bunch of fires in California. After he
received Miranda warnings, [petitioner]
repeated his statement. He then said he walked
up to the victim, said “do you remember me,”
the victim started running, and he started
shooting. When Sergeant Remington was
updated on the victim’s condition, [petitioner]
asked if he (the victim) was going to be okay.
[Petitioner] said he did not intend to kill the
victim. When officers looked inside [petitioner’s]
pickup, they found a Hornaday 9X18 Makarov
semi-automatic pistol. A bullet
* The first Responder on the scene found Doug bleeding profusely,
but still conscious (Tr. ‘ 427). Doug said he did not know who
shot him or why he was shot. (Tr. II 428, 430).
88a
was in the chamber and 3 more were in the clip.
Another loaded clip was found on the seat nearby.
Diestel v. State, No. F-2001-1501, slip op. at 1-4 (Okla.
Crim. App. Nov. 13, 2002). The state court’s factual
findings are presumed correct unless the applicant
produces clear and convincing evidence to rebut the
presumption. 28 U.S.C. § 2254(e)(1).
Ground I
Petitioner alleges he presented evidence at trial,
through the testimony of his family members and two
expert witnesses, that he was insane at the time of the
homicide. He contends the State failed to produce any
evidence that rebutted the insanity defense to prove
beyond a reasonable doubt that he was sane.
Therese Hall, Ph.D, a forensic psychologist,
evaluated petitioner while he was at Eastern State
Hospital for a pretrial competency evaluation, and she
initially found him not competent to stand trial (Tr. IV
9, 11-12, 27). In her evaluation of petitioner, Dr. Hall
spoke with petitioner, reviewed his medical records,
and interviewed his relatives (Tr. [IV 12-13). Petitioner
told Dr. Hall that over the past ten years he had
become convinced that the victim was a type of demon
named Nero, and Nero had been in California setting
fires, raping women, and committing acts of vandalism
(Tr. IV 13). Petitioner said he had visions of angels,
and Jesus had directed him in a vision to travel to
Oklahoma on a mission to cast down the demon (Tr. IV
13). Petitioner further related that Jesus had told him
not to kill the demon, but to take control of him or
render him helpless (Tr. IV 14). Petitioner's
89a
instructions included acting quickly while President
Clinton still was in office, because Clinton would
pardon him (Tr. IV 14).
Dr. Hall diagnosed petitioner with paranoid
schizophrenia, a very serious mental illness, which she
described as being out of touch with reality, usually
because of hallucinations and/or delusions (Tr. [IV 14-
15). She stated that when an individual is delusional,
his perception of right and wrong can be affected (Tr.
17). Dr. Hall further opined that there was no reason
to believe that petitioner was not suffering from
paranoid schizophrenia on the day of the murder (Tr.
IV 17-18). Although paranoid schizophrenia does not
necessarily equate with being insane, Dr. Hall stated
that she had no reason to believe petitioner was not
insane when he shot and killed the victim (Tr. IV 18-
19, 25, 29). Petitioner’s ability to make and execute
plans for his trip to Oklahoma, to locate the victim,
and to recall details of the events did not preclude the
diagnosis of schizophrenia (Tr. IV 20). On cross
examination Dr. Hall admitted she had told defense
counsel on several occasions that she did not know
whether petitioner was sane at the time of the killing
(Tr. IV 22).
John Smith, M.D., a psychiatrist, testified that he
talked to petitioner’s mother an reviewed a letter she
wrote to a psychiatrist describing petitioner’s delusions
prior to the shooting (Tr. V 3, 8). He also talked with
petitioner about the shooting, reviewed information
about the homicide, and reviewed medical records (Tr.
V 6-9, 37). Dr. Smith stated that petitioner’s
hallucinations and delusions were characteristic of
paranoid schizophrenia (Tr. V 9, 11-12). Petitioner told
90a
Dr. Smith that for several years he had been gathering
information about fires in California, reading messages
from graffiti, and becoming increasingly convinced that
the victim, who was the spirit of Nero, had to be
captured and somehow brought down by some sort of
exorcism or other way of ridding him of demons (Tr. V
9). Petitioner believed that if he did not perform this
task, then Nero and the victim’s body would bring
extreme destructiveness to the world and to petitioner ©
and his family (Tr. V 9). However, petitioner always
indicated he did not intend to kill the victim; instead,
he planned somehow to take him prisoner and strike
him down (Tr. V 26).
Dr. Smith further testified that petitioner’s
planning before the killing and his calmness and
coherence after the killing was consistent and even
ordinary in paranoid schizophrenia (Tr. V 14). He
further explained:
. .. Paranoid schizophrenia, as opposed to
certain other kinds of schizophrenia, does not
interfere with organizational and cognitional
abilities. Perhaps I could best tell you, the DSM-
4 is the Diagnostic Manual of the American
Psychiatric Association, and in the latest edition
this is what they say about the issue: “These
individuals usually show little or no impairment
on neuropsychological or other cognitive
testing.” That means your ability to think and
organize. “Some evidence suggests that the
prognosis for the paranoid type may be
considerably better than the other types of
schizophrenia, particularly with regard to
occupational functioning and capacity for
9la
independent living.” Because there are so many
paranoid schizophrenics who go on working and
who are able as long as they are not living
within the delusional system to go ahead and do
other things that are not so conflictual. It’s very
confusing to people who have not studied
paranoid schizophrenia because the person can
appear in many situations as if they were
normal and they're doing normal things, like
planning, like going to work, but, in fact, their
decision-making, if it’s in relationship to the
delusional system that’s in the brain, is based
on the delusional system. There are many
things and cases where a_e paranoid
schizophrenic either shot or killed someone in
which it took elaborate planning for the killing
and shooting to take place. The most famous one
is when President Reagan was shot by a
paranoid schizophrenic.
(Tr. V 14-15). In response to the question of whether
petitioner knew right from wrong when he shot his
victim, Dr. Smith answered:
Within the context--if you put yourself inside
of [petitioner’s] head, believing that you are
saving the world and saving your family because
an evil spirit has inhabited someone and that
you have been dictated to exorcise that evil
spirit, then you can understand that he believed
he was doing the right thing and did not have
an ordinary man’s concept of right and wrong in
relationship, specifically, to [to victim]. So at
that moment in time he could not distinguish
because of a severe mental illness between right
92a
and wrong. He believed he was doing the right
thing in relationship to the world and in
relationship to his religious beliefs.
Tr. V 16-17 (emphasis added).
According to Dr. Smith, petitioner’s hallucinations
and delusions possibly were exacerbated by Prozac
which was inappropriately prescribed for petitioner in
California and which he was taking at the time of the
shooting (Tr. V 18-19). Dr. Smith was certain
petitioner was not malingering, because petitioner was
very straightforward and honest, and petitioner was
beginning to doubt the truth of his delusions and no
longer was experiencing hallucinations (Tr. V 22, 48).
Dr. Smith testified he could state to a reasonable
medical certainty that “at the time of the shooting
[petitioner] could not distinguish right from wrong”
(Tr. V 72-73).
The State called Dr. John Call, a forensic
psychologist, who specialized in violence issues such as
workplace violence and stalking (Tr. VI 4). He testified
that he interviewed and evaluated petitioner and one
of the witnesses to the shooting (Tr. VI 6). He also had
access to information from a telephone conversation
between petitioner’s sister and an assistant district
attorney (Tr. VI 6). Dr. Call testified he had
information that after the shooting, petitioner asked if
the victim would live, and petitioner stated he did not
intend to kill the victim (Tr. VI 9-10). Dr. Call opined
that. petitioner's statements after the shooting
indicated that petitioner understood and appreciated
what he had done, but petitioner believed the victim
was the reincarnation of Nero (Tr. VI 10). Petitioner
93a
also believed that the victim, a reincarnation of Nero,
had raped a woman, set wildfires in California, and
had vandalized property near petitioner’s places of
employment (Tr. VI 19-20). The available information
supported petitioner’s diagnosis of paranoid
schizophrenia, but it was possible that someone with
the diagnosis could know his act was wrong (Tr. V1 11,
20-22, 24). Dr. Call would not express an opinion about
whether petitioner knew the difference between right
and wrong when he shot the victim, because that was
a decision for the jury (Tr. VI 31- 32). The respondent
claims Dr. Call did not answer the insanity question
because it was an issue for the jury. Petitioner,
however, maintains Dr. Call’s reason was pretextual
because Dr. Call knew that if he answered the
question, it would be adverse to the State.
The respondent alleges the OCCA considered and
found no merit in this claim in petitioner’s direct
appeal, and under the revised federal habeas corpus
statutes, habeas corpus relief is proper only when the
state court adjudication of a 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.
28 U.S.C. § 2254(d).
94a
“Sufficiency of the evidence can be considered to be
a mixed question of law and fact.” Case v. Mondagon,
887 F. 2d 1388, 1392 (10th Cir. 1989), cert. denied, 494
U.S. 1035 (1990). In federal habeas review of a state
court conviction, “the relevant question is 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) (emphasis in original). When reviewing
issues of sanity, “a reviewing court must evaluate the
evidence to determine whether ‘any rational trier of
fact’ could have found the defendant sane beyond a
reasonable doubt.” Valdez v. Ward, 219 F.3d 1222,
1236 (10th Cir. 2000).
The Supreme Court has repeatedly emphasized the
deference the reviewing court owes to the trier of fact
and “the sharply limited nature of constitutional
sufficiency review.” Wright v. West, 505 U.S. 277, 296
(1992) (citing Jackson, 443 U.S. at 319). “[A] federal
habeas corpus court faced with a record of historical
facts that supports conflicting inferences must
presume--even if it does not affirmatively appear in the
record--that the trier of fact resolved any such conflicts
in favor of the prosecution, and must defer to that
resolution.” Jackson, 443 U.S. at 326. The court must
“accept the jury’s resolution of the evidence as long as
it is within the bounds of reason.” Grubbs v. Hannigan,
982 F.2d 1483, 1487 (10 Cir. 1993) (citing United
States v. Edmondson, 962 F.2d 1535, 1548 (10th Cir.
1992)). “To be sufficient, the evidence supporting the
conviction must be substantial; that is, it must do more
than raise a mere suspicion of guilt.” Beachum uv.
Tansy, 903 F.2d 1321, 1332 (10th Cir.), cert. denied,
95a
498 U.S. 904 (1990) (citing United States v. Troutman,
814 F.2d 1428, 1455 (10th Cir. 1987)).
The M’Naughten rule is the test for insanity in
Oklahoma. Okla. Stat. tit. 21 § 152(4). Further, in
Oklahoma it is well established that the issue of
insanity at the time a murder is committed is a
question of fact for the jury. Clark v. State, 718 P.2d
375, 378 (Okla. Crim. App. 1986).
A person is insane when that person is
suffering from such a disability of reason or
disease of the mind that he/she does not know
that his/her acts or omissions are wrong and is
unable to distinguish right from wrong with
respect to his/her acts or omissions. A person is
also insane when that person is suffering from
such a disability of reason or disease of the mind
that he/she does not understand the nature and
consequences of his/her acts or omissions.
Medlock v. State, 887 P.2d 1333, 1342 n.12 (Okla.
Crim. App. 1994).
The Court of Criminal Appeals examined
petitioner’s insanity defense as follows:
[Pletitioner contends the State failed to
prove beyond a reasonable doubt that he was
sane at the time he shot and killed the victim.
In Ullery v. State, 988 P.2d 332, 348 (Okla.
Crim. App. 1999), we addressed the law of
sanity/insanity as it currently exists in
Oklahoma. This Court stated in part:
96a
Oklahoma law exempts from criminal
responsibility those who, at the time of the
crime, are incapable of knowing the
wrongfulness of their act. Criminal
defendants are presumed sane. The
defendant has the burden of raising a
reasonable doubt of his sanity at the time of
the crime. “If the defendant establishes a
reasonable doubt of his sanity, the
presumption of sanity vanishes and it is
incumbent upon the State to prove beyond a
reasonable doubt that the defendant could
distinguish between right and wrong at the
time of the offense.” The jury determines
whether the State has met this burden. We
recognize the general rule that, where any
evidence tends to support the jury’s finding
that the State has met its burden, we will
not disturb that finding on appeal.
988 P.2d at 348. See also Taylor v. State, 881
P.2d 755, 758 (Okla. Crim. App. 1994)
(emphasis added).
The State’s evidence showed the killing in
this case was a “revenge killing.” [Petitioner]
and the victim had known each other in
California approximately 12 years earlier.
Apparently, one time when the victim went out
of town, the young lady he was dating went out
with [petitioner]. When the victim returned to
town, the young lady told him that [petitioner]
was bothering her and wouldn’t leave her alone.
Apparently, the victim went to [petitioner’s]
place of employment and beat him up.
97a
Although the victim eventually moved to
Oklahoma and [petitioner] remained in
California, [petitioner] never forgot the incident.
Staring about 1992, [petitioner] began telling
family members about delusions and
hallucinations he was having which told him to
strike down the victim. However, [petitioner]
never mentioned these hallucinations to co-
workers. [Petitioner] worked at the same
restaurant for eight years starting as a busboy
and advanced to working in the office and
handling the money and making deposits.
Diestel, slip op. at 4-5.
The defense presented several of
{petitioner’s] family members who testified that
shortly after his father’s death in 1992,
[petitioner] said he was visited by angels and
heard voices. As time went on, [petitioner]
talked about the rape of a girl he once dated and
wildfires that had burned in the area.
[Petitioner] never mentioned the victim’s name,
but said the voices and angels were telling him
to strike down the evil demon. [Petitioner] said
he was going to capture the demon with
handcuffs, just like a police officer would do.
[Petitioner’s] brother testified that based upon
|petitioner’s}] statements, he thought [petitioner]
was talking about the guy (the victim) who had
beat him up previously. [Petitioner] also said
that Mel Gibson talked and visited with him to
help him figure out how to get rid of the demon.
[Petitioner] later named the evil demon, Nero,
and said he was a reincarnation of the Roman
Id.
98a
Emperor. Family members said [petitioner]
became more religious, attended church and
read the Bible. Family members said they urged
[petitioner] to get help and for a while he
received medication from his wife’s father who
was a psychiatrist. Family members testified
[petitioner] was a heavy drinker, usually
drinking only rum. They also testified
[petitioner] had a gun, they took it away from
him at one point, but then gave it back. They
subsequently found out he had traded it for a
more powerful gun. They testified that they
never saw him act violently; therefore they
never notified the authorities of his threats to
strike down the evil demon. Family members
also testified that after [petitioner] had been
arrested for the shooting and incarcerated in the
county jail, he called them and asked them to
call the President of the United States to give
him a pardon.
at 8.
Two or three days before the crime,
[petitioner] left California. On October 27, 2000,
he arrived in rural Love County looking for the
victim’s home. He first arrived at the Scott’s
home, southeast of Lake Murray. [Petitioner]
asked Mrs. Scott if she knew where the Casey’s
[sic] lived. She told [petitioner] she thought they
lived north of the water tower and pointed him
in that direction. Mrs. Scott confirmed for
[petitioner] that the whole area was [Route]
HC70. Both Mrs. Scott and Mrs. Casey, who
encountered [petitioner] only a few minutes
99a
later, testified [petitioner] was clean-cut and
nice looking with nothing in his demeanor that
which [sic] would give them cause for concern.
Found in [petitioner’s] pickup after the shooting
was a list of phone numbers to area golf courses.
The victim had previously worked at at least
two of the courses on the list. Prior to going to
the victim’s home, [petitioner] went to the
Lakeview Golf Course in Ardmore, one of the
golf courses on the list, and was told the victim
no longer worked there. [Petitioner] was told the
victim was working at Chickasaw Pointe.
Armed with this information, [petitioner] went
to the Casey home pretending to be a friend of
the victim’s.
Once at the Chickasaw Pointe Golf Course,
[petitioner] specifically sought out the victim. In
one of his later statements to the authorities,
[petitioner] said he did not intend to kill the
victim, but to capture him and take him into
custody. |Petitioner] had an opportunity to do
this in the golf club restaurant, but instead he
hid behind a newspaper when the victim
entered the room. Out in the parking lot,
[petitioner] parked his pickup so as to block any
exit by the victim’s vehicle. When he saw the
victim, he did not make any statements about
Nero or his delusions, but simply asked if the
victim remeinbered him. As the victim ran
away, [petitioner] repeatedly fired at him,
striking him in the back of the neck.
Afi. the shooting, witnesses reported that
[petitioner] calmly left the scene. Wher. sighted
Id.
100a
by the authorities, petitioner was quick to
comply with their orders. When he explained his
actions, he never mentioned Nero or made any
reference to his delusions.
at 5-7.
The experts in this case were consistent in
their diagnosis that ipetitioner] suffered from
paranoid schizophrenia. However, evidence of a
mental disability alone is not sufficient to
establish insanity at the time of the offense.
Medlock, 887 P.2d at 1342 n.12. Testimony in
this case established that paranoid
schizophrenia cannot be equated with insanity.
The issue then becomes’ whether
[petitioner’s] mental disability so impaired his
judgment that, at the time he killed the victim,
he was incapable of appreciating the nature and
consequences of his acts or knowing right from
wrong. A review of [petitioner’s}] actions, prior
to, during, and after the crime, shows that he
knew right from: wrong and was sane at the
time of the crime. [Petitioner] apparently only
told family members about his delusions and
hallucinations. Co-workers in California had
never heard those claims, and in fact testified
that [petitioner] was a good employee with
nothing in his demeanor to indicate he was
having any mental problems. [Petitioner] left
California specifically to travel to Oklahoma and
find the victim. He obtained a lisi of golf courses
in order to determine where the victim worked.
10la
[Petitioner] purposefully deceived the victim’s
mother in order to locate the victim.
After the shooting, [petitioner] claimed he
intended only to capture the victim and take
him prisoner. If that were truly [petitioner’s]
intent, he did not take advantage of the
numerous opportunities to do so--in the
restaurant, in the parking lot. However, instead
of taking him prisoner, [petitioner] shot the
victim--not in the legs or the butt as he claimed
was his intent, but in the back of the neck as the
victim was running away. These actions support
an inference that they were committed with the
intent to kill the victim.
Again, after the shooting, there was no
attempt to take the victim prisoner as he had
coliapsed behind the maintenance building out
of [petitioner’s] view. [Petitioner] merely left the
scene, and did so in a calm manner. When it
became apparent that the authorities were on to
him, [petitioner] pulled his pickup over and
exited it before the officer could even get his car
stopped. Testimony from the arresting officers
established that [petitioner] admitted shooting
the victim and seemed to have no trouble
understanding what was occurring. This
behavior illustrates that [petitioner] was aware
that his shooting of the victim was wrong.
Further, [petitioner’s] stories about Nero and
the evil demon did not surface until sometime
after the crime when he was interviewed by the
medical experts. [Petitioner] never said
102a
anything about the evil demon to the arresting
officers. [Petitioner’s] attempts to create an
excuse that he merely intended to capture the
victim and not kill him supports an inference
that he understood that his actions were wrong.
After a thorough review of the evidence
presented by both parties, we find [petitioner]
did not meet his burden of raising a reasonable
doubt as to his sanity at the time of the crime.
The evidence clearly supports the jury’s
determination that [petitioner] was sane beyond
a reasonable doubt at the time he killed the
victim.
Id. at 10-12.
The Court of Criminal Appeals correctly articulated
the requirement that, once a criminal defendant has
raised the issue of his sanity at the time of the crime,
there no longer is a presumption of sanity, and “it is
incumbent upon the State to prove beyond a reasonable
doubt that the defendant could distinguish beyond
right and wrong at the time of the offense.” Diestel, slip
op. at 4-5 (quoting Ullery, 988 P.2d at 348) (emphasis
added). However, after analyzing the evidence
presented at trial, the conclusion by the Court of
Criminal Appeals was that “/petitioner] didn’t meet his
burden of raising a reasonable doubt as to his sanity at
the time of the crime.” Diestel, slip op. at 12 (emphasis
added). The dissent in the appellate decision pointed
out the error: “The majority opinion’s statement the
‘[Petitioner] did not meet his burden of raising a
reasonable doubt as to his sanity [at] the time of the
crime’ is not only erroneous, it does not respond to the
103a
proposition of error raised.” Diestel, slip op. at 15 n.1
(Chapel, J., dissenting).
In the unpublished opinion of Kiser v. Boone, No.
00-7030, 2001 WL 193876 (10th Cir. Feb. 27, 2001), the
Tenth Circuit Court of Appeals affirmed this court’s
determination that the evidence was not sufficient to
find a petitioner sane beyond a reasonable doubt under
the standard of Jackson v. Virginia. Two defense
experts testified at trial that Mr. Kiser was legally
insane, while the prosecution’s expert witness testified
that he had not examined Kiser for his mental state at
the time of the crime. Kiser, 2001 WL 193876 at *3.
The Tenth Circuit conciuded that the testimony of the
defense experts, “whose duty it was to determine Mr.
Kiser’s mental! condition, was overwhelming in light of
the state’s insufficient and indefinite evidence of his
sanity.” Id. at *5.
After careful review, this court finds that habeas
corpus relief is required in this case. The law on the
insanity defense in Oklahoma is very clear: when the
question of a defendant’s sanity is put at issue, the
State must prove beyond a reasonable doubt that the
defendant was sane at the time of the offense. There is
no question that petitioner suffered from a serious
mental illness prior to the shooting, and that he made
and carried out plans to locate and capture the victim,
who petitioner believed was the incarnation of the
Emperor Nero. Both of petitioner’s expert witnesses
supported the defense of petitioner’s insanity at the
time of the crime. Dr. Hall did not dispute petitioner’s
insanity at the time of the crime (Tr. IV 19), and Dr.
Smith madea strong statement that petitioner’s severe
mental] illness prevented him from distinguishing
104a
between right and wrong when he shot the victim (Tr.
V 17, 72-73). The State’s expert Dr. Call, on the other
hand, did not have an opinion about petitioner’s sanity
at the time of the crime (Tr. VI 32). Therefore, Dr.
Call’s testimony clearly did not overcome the
presumption of sanity, as required by Oklahoma law.
Furthermore, the Court of Criminal Appeals’
attempts to justify the jury's sanity determination also
falls short. The OCCA acknowledged petitioner’s long
history of telling family members about his delusions
and hallucinations, but inexplicably found his failure
to exhibit or articulate these symptoms to his
coworkers was significant. Diestel, slip op. at 10. The
OCCA also took petitioner’s planning and deceit into
account, despite expert testimony that the ability to
plan is common in paranoid schizophrenia. Jd. at 10-
11. According to the OCCA, petitioner’s failure to
capture the victim, as he claimed was the plan,
supported an inference that the crime was committed
with the intent to kill the victim. Id. at 11. However,
petitioner’s intent to kill was not an issue in whether
he was sane when he shot the victim. The OCCA also
gave weight to petitioner’s cooperation with law
enforcement officers after the crime, id., although
there is no explanation of how this is evidence of
sanity, given the expert testimony that petitioner’s
calmness and coherence afier the shooting was
consistent with his mental illness.
Finally, the OCCA points to petitioner’s failure to
tell the arresting officers about Nero as evidence of his
sanity. Id. Those delusions were not revealed until he
was interviewed by medical experts. Id. The OCCA
viewed petitioner's actions after the crime as “attempts
105a
to create an excuse” that he planned to capture, not
kill, the victim, and the OCCA inferred from those
actions that petitioner knew his actions were wrong.
Id. at 11-12. All of the Court of Criminal Appeals’
inferences do not negate the defense experts’ testimony
that petitioner was insane when he shot the victim,
and the inferences do not enhance the prosecution
expert’s lack of opinion regarding sanity. Based on this
analysis, this court finds the evidence was insufficient
under the standard of Jackson v. Virginia, and the
Court of Criminal Appeals’ determination was
inconsistent with federal law, pursuant to 28 U.S.C.
§ 2254(d).
Ground II: Jury Instructions
Petitioner alleges in Ground II that the trial court
should have instructed the jury on the consequences of
a verdict of not guilty by reason of insanity. He
contends that failing to give this instruction violated
his right to a fair trial and a reliable determination of
his guilt, and the failure so infected the entire
proceedings that his conviction violated due process.
He argues that by not telling the jury the consequences
of a not guilty by reason of insanity verdict left the
impression that there was, in fact, no consequence, and
the defendant would be released.
The respondent alleges petitioner’s claim in Ground
II is an issue of state law that i not cognizable in a
federal habeas proceeding. “[It is not the province of a
federal habeas court to reexamine _ state-court
determinations on state-law questions. In conducting
habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws,
106a
or treaties of the United States.” Estelle v. McGuire,
502 U.S. 62, 67-68 (1991) (citing 28 U.S.C. § 2241; Rose
v. Hodges, 423 U.S. 19, 21 (1995) (per curium)).
In a habeas corpus proceeding attacking a state
court judgment based on an erroneous jury
instruction, a petitioner has a great burden.
Lucan v. Tansy, 2 F. 3d 1031, 1035 (10th Cir.
1993), cert. denied, 510 U.S. 1120 (1994). Astate
conviction may only be set aside in a habeas
proceeding on the basis of erroneous jury
instructions when the errors had the effect of
rendering the trial so fundamentally unfair as
to cause a denial of a fair trial. Shafer uv.
Station, 906 F.2d 506, 508 (10th Cir. 1990), cert.
denied, 498 U.S. 961 (1990). “The burden of
demonstrating that an erroneous instruction
was so prejudicial that it will support a
collateral attack on the constitutional validity of
a state court’s judgment is even greater than the
showing required to establish plain error on
direct appeal.” Henderson v. Kibe, 431 U.S. 145,
154 (1977) (footnote omitted). The question in
this proceeding is not whether the instruction is
“undesirable, erroneous, or even ‘universally
condemned,” but whether the instruction so
infected the trial that the resulting conviction
violates due process. Jd. (quoting Cpp uv.
Naughts, 414 U.S. 141, 146 (1973)). “An
omission, or an incomplete instruction, is less
likely to be prejudicial than a misstatement of
the law.” Jd. at 155. The degree of prejudice
from the instruction error must be evaluated in
the context of the events at the trial.
107a
United States v. Fray, 456 U.S. 152 (1982).
MA v. Thomas, 46 F. 3d 979, 984 (10th Cir.), cert.
denied, 514 U.S. 1115 (1995).
The disallowed jury instruction was as follows:
Under the law of the State of Oklahoma and the
facts of this case, if you find the Defendant,
William James Diestel, guilty of Murder in the
First Degree, you shall fix his punishment as
either, imprisonment for life without parole or
imprisonment for life. If you find the Defendant,
William James Diestel, not guilty by reason of
insanity, the Defendant shall be committed to a
State Hospital for the Mentally Ill where he
shall remain until released pursuant to the laws
of the State of Oklahoma.
In denying relief on this claim, the Court of
Criminal Appeals quoted from its decision in Ullery v.
State, 988 P.2d 332, 346 (Okla. Crim. App. 1999):
... Ullery claims he was denied due process and
a fair trial by the trial court’s refusal to instruct
the jury on the dispositional consequences of a
not guilty by reason of insanity verdict. Ullery
never contested the
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