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Goode v. Carpenter

United States Court of Appeals, Tenth Circuit

April 29, 2019

CLARENCE ROZELL GOODE, JR., Petitioner - Appellant,
v.
MIKE CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee.

          Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:11-CV-00150-GKF-FHM)

          Thomas D. Hird, Assistant Federal Public Defender (Emma V. Rolls, Assistant Federal Public Defender, with him on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.

          Jennifer L. Crabb, Assistant Attorney General (Joshua L. Lockett, Assistant Attorney General, and Mike Hunter, Attorney General of Oklahoma, on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

          Before BRISCOE, HARTZ, and PHILLIPS, Circuit Judges.

          HARTZ, CIRCUIT JUDGE.

         Clarence Rozell Goode, Jr., who was convicted of first-degree murder and sentenced to death by the State of Oklahoma, appeals the denial by the United States District Court for the Northern District of Oklahoma of his application for relief under 28 U.S.C. § 2254. Goode's application raises two claims: (1) a claim under Brady v. Maryland, 373 U.S. 83 (1963), that the State suppressed material information about the corrupt conduct of Jeff Henderson, one of its investigating officers, and (2) an ineffective-assistance-of-counsel claim with numerous subclaims. Because none of Goode's claims merits relief under § 2254, we affirm the district court's denial of the application.

         I. BACKGROUND

         The strength of the evidence of Goode's guilt is important in resolving several issues on appeal, in particular the Brady issue. We therefore review that evidence in some detail.

         During the overnight hours of August 25-26, 2005, intruders entered the home of Mitch Thompson and his wife Tara Burchett-Thompson at 9707 North 112th East Avenue in Owasso, Oklahoma. (For convenience we will refer to it as Tara's home.) Tara's ten-year-old daughter Kayla, who lived with her grandmother Brenda Smalygo at a separate address, happened to be staying with her mother that night. All three occupants were murdered. The crime was discovered about 9:00 a.m. on August 26, when Ms. Smalygo learned that Kayla was not in school and came by the house to check on her. She observed that the garage door was open, as was the door from the garage into the house. She found Tara and Kayla nonresponsive in the bedroom and called the police, who later found Mitch's body in that room.

         Evidence recovered from the crime scene and forensic examination showed that the victims had been killed by shots from three firearms-a .22, a 9mm, and a .357. Seven .357 casings and seven 9mm casings were found at the crime scene. A .22 caliber projectile was found in a dresser drawer. In addition, six projectiles were found in and under the bed. The ballistics expert determined that at least three of those projectiles came from the .357, and one came from the 9mm. The origin of the other two projectiles could not be determined.

         Mitch was shot at close range once in the upper back and once in the cheek. No bullets were recovered from his body, but one of the .357 projectiles found under the bed was directly beneath his head.

         Tara's body had 10 gunshot wounds: three on the head, two on the chest, one on the abdomen, two on the leg, one through the arm, and one through the hand. The medical examiner observed that five or six shots entered and fully exited her body. Four bullets were recovered from Tara's body-one from her head and three from her body cavity-all of which came from the 9mm gun. One of the .357 projectiles was found beneath her head.

         Kayla was shot once in the head, once in the back, and three times in the hip. Three bullets lodged near her hip were recovered; one came from a .22, and two were from the 9mm. Kayla's head wound was not attributed to a particular weapon, but seven 9mm casings were found, and seven 9mm shots were accounted for. And the wound was not of the distinctly smaller sort attributable to a .22. Based on the above evidence, the State theorized that shots from the .357 gun caused the head wounds of all three victims.

         Three neighbors testified for the prosecution at trial. James Deeter said that at 12:12 a.m. on August 26 he took out his garbage and noticed that the Thompsons' garage door was open, but the interior door from the garage into the house was "definitely closed." Trial Tr. Vol. III at 606. He and his wife both described loud barking coming from the side of their yard adjacent to Tara's home at about 12:45 a.m. Another neighbor was awakened close to that time but could not state the cause.

         A possible motive for the murders was a feud involving Mitch. On one side of the feud were Mitch and a family friend, J.R. Hoffman, who usually spent the night at Tara's home or the home of Mitch's parents. On the other side were Mitch's sister Michelle Chastain; his cousin Ronald Thompson (called "Bunny," because he was born on Easter), who lived with Michelle; and Goode, who was Michelle's boyfriend. At trial, Michelle and Bunny testified to the events of the feud, with some corroboration from others, including a statement by Goode to the police. The gist of the events is not disputed and was endorsed in the defense closing argument.

         About July 14, 2005, Goode gave J.R. money to run an errand for him in Claremore, Oklahoma. J.R. borrowed Michelle's car for the trip. He wrecked the car and was arrested for driving under the influence. When they learned that J.R. was in jail, Mitch's mother and Bunny bailed him out. Goode and Bunny retrieved the car, which was badly damaged.

         Two weeks later, Bunny and Goode confronted J.R. at the home of Mitch's parents. Goode demanded that J.R. pay for the damage to the car, J.R. refused, and Goode punched him in the mouth. Goode and Bunny left and went to Michelle's house. Goode's friend Damos "Peanut" Joseph came to that house and gave Goode a handgun, which Goode tucked into his pants. Meanwhile, Mitch's mother drove J.R. to Tara's house because he was drunk and acting erratically.

         Later that night, Michelle heard a knock at her door. She and Bunny went to answer it and found Mitch accompanied by J.R. and armed with a baseball bat. Mitch began attacking Bunny with the bat. He was badly beating Bunny when Michelle called for Goode, who emerged from a bedroom carrying a gun. Michelle had never seen Goode with a gun before that night and did not know where he obtained it.

         Goode ordered everyone outside. But Mitch continued to beat Bunny, while J.R. pointed at Goode and yelled "I want this motherfucker right here." Trial Tr. Vol. V at 1022. About this time, Peanut joined the group in the yard. Goode handed Peanut his gun and engaged in a fistfight with J.R, which he won. An ambulance was called for Bunny, who suffered a broken rib from the beating with a bat.

         After this incident, Mitch called the child-welfare division of the Oklahoma Department of Human Services (DHS) to say that Michelle had not reported the income of people living in her home. DHS initiated an investigation and scheduled a home visit. Mitch also called the dental office where Michelle worked and said that she was involved with drugs, causing her to be fired. He similarly attempted to get Goode fired from his job as an aide at Brookhaven Hospital by reporting to the hospital that he was selling drugs, but this effort was unsuccessful.

         At Goode's trial, two witnesses gave accounts of the murders. One, Bunny Thompson, confessed to participating in the crime. On August 25 he reported to his usual job as a cart puller at Walmart. Because his car was inoperable, he was driven to work by his uncle, Mitch's father. Not long before 10:00 p.m. his boss told him to leave the store, but did not fire him, for taking Xanax at work. Bunny tried calling Michelle to pick him up but could not reach her, so he called Goode to get a ride home. Goode said he was already coming to Walmart and could pick him up. He arrived at Walmart with Kenneth "Fu Fu" Johnson in Johnson's white four-door Mercury Marquis. The two men did some shopping at the store and then connected with Bunny, who had never met Johnson before.

         Bunny got in the car with Goode and Johnson. He sat in the back, Goode sat in the front passenger seat, and Johnson drove. As they departed, Goode told Bunny they were going to "take care of some business." Trial Tr. Vol. V at 909-10. He gave Bunny a .22 gun and latex gloves. At trial Bunny first described the gloves as "yellow ones, like the doctors use" but then said they were clear. Trial Tr. Vol. V at 910. Johnson had a 9mm gun and Goode had a .357. Bunny put on the latex gloves, and Johnson and Goode put on both latex gloves and another set of gloves, which Bunny first described as "[l]ike batting gloves" and then as "painter gloves" that were "blue on the outside." Trial Tr. Vol. V at 911-12. Bunny testified that they then drove straight to Tara's home, though the State said that the murders did not occur until later that night. Bunny said that when he left Walmart with Goode and Johnson, he took some ecstasy in Johnson's car, which, combined with Xanax, muddled his recall.

         When the three men arrived at Tara's house, Bunny rang the doorbell. Getting no response, he went through the open garage door and kicked in the interior door to the house. He went to the left, heading for the room where J.R. regularly stayed. Goode and Johnson went to the right, to Mitch and Tara's bedroom. Bunny heard gunshots coming from that bedroom and went there, where he found Goode and Johnson shooting. Johnson held his gun to Bunny's head and demanded that he start shooting or he would "be next." Trial Tr. Vol. V at 917-18. Bunny fired three or four shots into the wall over the bed. He admitted that he "might have shot" Kayla in the hip as he "raised up the gun." Trial Tr. Vol. V at 923. Bunny then ran out of the home, with Goode and Johnson behind him.

         The three headed to the home of "Peanut" Joseph. While driving there on Highway 169, they threw their gloves out the car windows. Upon arriving at Peanut's, Goode told Bunny to "get rid of the bullets" from his gun. Trial Tr. Vol. V at 925. Bunny gave his gun to Goode and then tossed what he said were the bullets "outside in a field." Trial Tr. Vol. V at 925. (It is possible that Bunny was referring to the casings, not the bullets themselves. The .22 was the only gun used in the murders to retain its casings; the other two firearms were automatic weapons, so their casings were automatically discharged upon firing.)

         Later that morning, Bunny awoke at Michelle's house, where someone picked him up and took him to his sister's home. The next day, August 27, Bunny confessed to his sister "what all happened," and she drove him to the police station.[1] Trial Tr. Vol. V at 929.

         In his interview with the police, Bunny at first denied involvement in the shootings. Although he admitted that he got in the car with Goode and Johnson, he said that after they pulled into Tara's neighborhood and showed him the gloves and guns, he got out of the car but did not enter Tara's home. Then he admitted entering Tara's home but claimed he did not have a gun. He initially said that Johnson kicked in the door to the home, but then admitted that he was the one who had done so. He then modified his account once again, admitting to using a .22 caliber gun to fire shots into a wall at the home. And when officers told Bunny that a .22 bullet was recovered from Kayla's hip, he admitted that one of his shots might have hit her. In exchange for Bunny's testimony, the State withdrew the death penalty in his case.

         The other account of the murders came from Michelle Chastain, who described two occasions on which Goode confessed to the murders. Goode woke her up at her home at 4:18 a.m. on August 26. He rubbed her face and then went to the other side of the bed. Michelle told him she had called and left messages on his phone several times that evening and accused him of being with another woman. They argued until Goode shouted out, "I just shot your fucking brother, is that what you wanted to hear?" Trial Tr. Vol. V at 1043.

         Michelle did not take his statement about her brother seriously because Goode immediately changed the subject, talking about jerseys that his "cousin" Fu Fu (Johnson) had given him. About this time, Michelle heard the microwave in the kitchen and assumed it was Bunny. But Goode explained that it was Johnson, who then came to the bedroom. Michelle got out of bed and Goode introduced Johnson to her as his cousin. Michelle had never met Johnson before that night. Johnson asked Michelle to get Bunny's stuff out of his car. She followed Goode and Johnson outside and saw a four-door vehicle, which she had never seen until that night, parked curbside with Bunny lying beside it unconscious. She took Bunny's bag out of the backseat of the car and helped take Bunny to the guest room, where he often stayed.

         Sometime before 6:00 a.m., Johnson left, followed shortly thereafter by Goode. Before he left, Goode told Michelle to watch the news. Michelle did not know how Goode got home; she did not recall seeing Goode's truck outside her house, but said it was possible the truck was there. Later that morning, Goode, his friend Peanut, and another man came to Michelle's to help clean up her home for the DHS inspection scheduled for that day. Goode then left to visit his brother in prison.

         Michelle learned of the murders the early afternoon of August 26 when Detective Jeff Felton and a police chaplain came to her home. Until then she had not known that anyone had actually been killed. She soon learned that her father had suffered a heart attack upon hearing of the murders, and she went to the hospital to be with him. While there, she spoke with Detective Felton and Officer Mike Denton. During this time, Goode called her to say she was "making him nervous." Trial Tr. Vol. V at 1059. She said nothing to the police implicating Goode.

         She again spoke with Goode in the early morning hours of August 27. After he threatened to come to the hospital, she agreed to meet him at a Denny's restaurant instead. At Denny's, Goode told Michelle that her brother was a "punk and a coward" and further described the murders. Trial Tr. Vol. V at 1061. Goode told Michelle that on the night of the murders he, Johnson, and Bunny went to Tara's home and waited outside for the occupants to fall asleep. The garage door had been left open. When they decided to go in, Bunny kicked in the door from the garage to the house, leaving a footprint. Bunny was supposed to go to J.R.'s room, but instead came up behind Goode and Johnson and shot Kayla. As they were leaving the home, Goode heard something move. He turned on the lights and saw Mitch-who had previously been shot-trying to crawl away. Goode went over to Mitch and demanded that he look him in the eye, but he did not do so. He told Mitch that he should have "never snitched" on him and he should "die like a bitch." Trial Tr. Vol. V at 1062. He then shot Mitch again. Goode claimed that he shot Mitch eight times and that Johnson shot Tara. He and Johnson would have shot Bunny, but he took off running. Goode had a shotgun and Bunny had a .22.

         Michelle gave two recorded statements to the police. On August 27 the police asked to speak with her, and she came to the police department. She was first interviewed by Detective Sonya DeArmond, who was essentially stalling for time until Officer Denton-who had been at the crime scene and was thus familiar with the case- returned to the police department from another assignment. DeArmond asked Michelle about the baseball-bat incident, and she said that Goode did not have a gun during that encounter. She did not tell DeArmond about Goode's confession or his involvement in the murders, or that she had seen Goode during the early morning hours of August 26. Denton continued the interview once he arrived at the police department.

         Because the audio quality of the August 27 interview was poor, Denton interviewed Michelle again on August 30. (Denton did not testify about what Michelle told him on August 27.) At this interview-which occurred after Goode had been arrested-Michelle told Denton of Goode's confession to her. At trial the defense pointed to several inconsistencies between what she said at her August 30 interview and her trial testimony. In the interview, for instance, Michelle said that she first saw Bunny on August 26 when she woke up in the later morning hours, not when she went outside to Johnson's car. Also, she said that Goode confessed to her at her home, and they went to Denny's only after his confession. On the other hand, there is one indication that she was not distorting her account of the confession to fit what she later learned about the crimes: during the interview she expressed surprise at Goode's claim that he had shot Mitch eight times, because she had seen on the news that it was Tara, and not Mitch, who had been shot multiple times.

         The accounts of the murders given by Michelle and Bunny were corroborated by a variety of other evidence at trial. To begin with, a Walmart security video showed Goode, Johnson, and Bunny leaving the store where Bunny worked at about 10:00 p.m. on the night of August 25. They departed in a white four-door vehicle that looked like Johnson's Mercury Marquis.

         Also supportive were records of Goode's cell-phone activity, which were obtained by an investigator for the defense at least five months after the murders and introduced by the defense at trial. They showed very frequent calls throughout August 25, but no activity from 11:48 p.m. to 1:03 a.m. The call at 1:03 a.m. was placed to the phone of Damos "Peanut" Joseph, who, according to Bunny's statement to the police a few days after the murders, was the person with whom the murder weapons were left promptly after the crime.

         Detective William Mozingo, who investigated the murders, provided corroboration on three points. Two involved the crime scene. He testified that officers found a partial footprint on the door from the garage into Tara's house, corroborating Bunny's testimony and Goode's confession to Michelle that Bunny kicked in the door to the home. And he said that he observed two small holes in the wall in the Thompsons' bedroom, supporting Bunny's account that he shot the .22 into the bedroom wall.

         The third item of corroborating evidence related to the gloves mentioned by Bunny. On August 30 officers searched a four-mile stretch of Highway 169 for "[a] latex glove and blue knobby work glove." Trial Tr. Vol. VI at 1263. In a grassy area near an offramp from the highway, Mozingo found a "blue and white work glove," a "latex glove," and a "blue and white work glove encased in a latex glove," supporting Bunny's account that these types of gloves were worn the night of the murders and were thrown out the car window as they left for Peanut's house.[2] Trial Tr. Vol. VI at 1264, 1266-67. Other officers found a portion of a latex glove on the front floor mat of Johnson's Mercury Marquis, and a box of latex gloves in the bed of Goode's truck under a locked cover.[3] Goode had access to latex gloves as part of his job with Brookhaven Hospital.

         Further corroborating Bunny's account was the testimony of Officer Jeff Henderson. (Goode's Brady claim concerns impeachment of this testimony.) He said that on August 29 he went with other officers to Peanut Joseph's home because of information received from Bunny. He found two .22 casings and one live .22 round in the vacant lot across from Peanut's home.

         Forensic evidence partially corroborated Michelle's account of how Goode described his role in the murders. First, a shot was fired through Mitch's cheek at close range, which fit with Michelle's testimony that Goode said he hovered over Mitch and demanded that he look him in the eye as he shot him. Also, seven .357 casings were found at the crime scene, nearly matching Goode's statement to Michelle that he fired his gun eight times (although Michelle reported that Goode told her he had used a shotgun, not a .357). Finally, Goode told Michelle that Johnson shot Tara, and four bullets from the 9mm-the gun Bunny said was used by Johnson-were found in her body.

         In addition, a defense witness, Penny Avans, supported the State's theory of the case in important respects. Penny, a friend of Goode and Michelle, was called to testify that Michelle had told her she wanted to kill Mitch after he got her fired and called child services, and that she had heard Michelle tell Bunny where Mitch kept a gun in his home.[4] But her account of what happened the night of the murders is generally consistent with the other descriptions. She stated that she was at Michelle's home the evening of August 25, that Goode left around 6:00 or 6:30 p.m., saying that he was going to "take care of some business," Trial Tr. Vol VII at 1497-98, and that when she left Michelle's near 12:10 a.m., Goode had not returned. She also said that Michelle called her at 3:18 a.m. and told her that she should come over because Goode had brought a good-looking guy named Fu Fu (Johnson) to her home. (Michelle, however, denied making that call.) And Penny said that she went to Michelle's house later that morning to pick up Bunny. When asked whether she thought of Bunny as someone who is easily led by others, she said she did.

         Goode did not testify but he gave a statement to police the afternoon of August 28, less than three days after the murders. Detective Mozingo, who interviewed Goode, testified to the content of his statement. Goode admitted that he and Johnson picked up Bunny from Walmart on the night of August 25 in Johnson's white vehicle. He referred to Johnson as his cousin and said that though they were not actually related they had grown up together. Goode's mother, whom Goode lived with, lived across the street from Johnson's grandmother. Goode said that he and Johnson were reconnecting on the night of the murders after not seeing each other for a year or two.

         Goode at first told police that after he and Johnson picked up Bunny from Walmart, Bunny asked to be dropped off in Mannford (a community about 38 miles away) at the home of a woman who was either his girlfriend or his wife (Goode was unsure who exactly the person was). Johnson drove, and Bunny provided directions. He and Johnson dropped Bunny off (he did not specify where), and Johnson then drove Goode home, where the two conversed. Goode said that he needed to go home because he and his mother were going to visit his brother in prison the next day.

         After a break in the interview, however, Goode changed his story. Explaining that he now remembered what had occurred less than three days before, he claimed that after he and Johnson picked up Bunny from Walmart, Johnson dropped Goode at his truck, and Goode drove home. Johnson then took Bunny-whom he had met for the first time that night-to Michelle's house. Back at home, Goode later received a call from Johnson telling him that there was something wrong with Bunny, and Goode then met Bunny and Johnson at Michelle's. When Goode arrived, Bunny "was fucked up," so he pulled Bunny out of Johnson's car and attempted to bring him into the home. Trial Tr. Vol. VI at 1284.

         According to Mozingo, Goode "stated that he couldn't see Bunny doing anything like [the murders] . . . . [H]e said something to the effect of he don't have it in him or he don't - doesn't have the heart for it." Trial Tr. Vol. VI at 1287-88.

         Goode was asked whether he knew Peanut (the person with whom Bunny said the trio stashed their weapons after the murders). He responded that he "kn[ew] a lot of Peanuts." Trial Tr. Vol. VI at 1284. Also, Goode admitted that J.R. had wrecked Michelle's car, that he had previously been involved in a fistfight with J.R., and that Mitch had attempted to get him fired from his job and had successfully gotten Michelle fired.

         Goode called two alibi witnesses, but neither could account for his whereabouts after midnight on August 25. Goode's mother saw him at home before 8:00 p.m. on August 25 but knew nothing of his whereabouts thereafter. She said that she had planned to go with Goode to visit his brother in prison early the next morning but admitted that they left for the visit later than expected because she was waiting on Goode.

         Ruby Gilyard-the partner of Goode's imprisoned brother who lived with Goode's mother-testified that she saw Goode at his home the night of the murders. He left at 8:00 p.m., but then returned about 11:00 p.m. They conversed for a short time before she went to shower and get ready for bed. When she got out of the shower, she heard Goode rummaging through his things in another room. She did not see or hear from Goode the rest of the night. Neither ...


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