* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 27 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

DANIEL C. KISER,

Petitioner-Appellee,

v. BOBBY BOONE; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellants. No. 00-7030 (D.C. No. 97-CV-386-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL, KELLY, and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Respondent-appellant Warden Bobby Boone appeals the district court’s order granting petitioner-appellee Daniel C. Kiser’ s habeas corpus petition brought under 28 U.S.C. § 2254. We have jurisdicti on pursuant to 28 U.S.C. § 1291, and we affirm.

I. Background Facts On the evening of January 9, 1983, one day after hi s former wife, Barbara Lee, filed for divorce, Mr. Kiser drove to the home of her boyfriend, Dewey Glen Hines, and shot him with a .357 revolver. Prior to the shooting, Mr. Hines had called the police and reported a prowler. When the police arrived, Mr. Kiser was outside the home and the police assumed he was the homeowner. Before the police could investigate further, Mr. Kiser walked to the front door and shot Mr. Hines as he opened the door. The police and Ms . Lee witnessed the shooting. After shooting Mr. Hines, Mr. Kiser dropped the gun , fell to his knees, and cried, “Oh, my God.” In May 1983, Mr. Kiser was confined in Central Stat e Hospital for treatment of extreme depression. He remained there for approximately eleven months. On May 2, 1984, the trial court ordered Mr . Kiser committed to Eastern State Hospital on the state’s motion to determine h is competency to stand trial. After twenty-five days, Mr. Kiser was released from the hospital as competent to stand trial.-3-

The main issue at trial was not whether Mr. Kiser h ad killed Mr. Hines, but whether he was sane at the time. The jury rejected Mr. Kiser’s insanity defense and returned a verdict of murder in the first degre e. On direct appeal, the Oklahoma Court of Criminal Appeals determined, inter alia, that the evidence was sufficient to find Mr. Kiser sane at the time of the shooting. Kiser v. State , 782 P.2d 405, 407 (Okla. Crim. App. 1989). Mr. Kis er sought state postconviction relief, alleging that he had new evidenc e that the state’s expert witness as to his sanity, Dr. Garcia, was himself suffering from a mental illness. Without addressing Mr. Kiser’s claim that Dr. Garcia was in competent to testify, the state court denied relief, concluding that the issue of h is sanity had been raised and ruled on in Mr. Kiser’s direct appeal. In his § 2254 federal habeas corpus petition, Mr. K iser alleged that there was insufficient evidence for the jury to find he w as sane at the time of the shooting, and the jury relied on incredible and unr eliable testimony from Dr. Garcia. The magistrate judge found that there was insufficient evidence for a jury to find Mr. Kiser sane beyond a reasonable doubt an d granted his habeas petition on that basis. The district court adopted the find ings and recommendation of the magistrate judge, giving the state 120 days to retry or release Mr. Kiser. The state appeals.

II. Standard of Review1 If a claim was not adjudicated on the merits in state court, “and the federal

district court made its own determination in the fi rst instance, we review the district court’s conclusions of law de novo and its findings of fact, if any, for clear error.” Van Woudenberg ex rel. Foor v. Gibson , 211 F.3d 560, 566 (10th Cir. 2000) (quotation omitted). -4- The issue before this court on appeal is whether th ere was sufficient evidence presented at trial to support the jury’s v erdict that Mr. Kiser was sane at the time he shot Mr. Hines. Under the Anti-Terrori sm and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a writ of habeas corpus may not be issued with respect to anyclaim adjudicated on the merits in state court unless that adjudication: (1) . . . was contrary to, or involved an unreasona ble application of, clearly established Federal law, as determined by t he Supreme Court of the United States; or (2) . . . was based on an unreasonable determinatio n of the facts in light of the evidence presented in the State court proceeding. § 2254(d)(1)-(2). 1 Section 2254(e)(1) further requires a habeas court to presume that factual determinations made by the state courtare correct, and places the burden on the petitioner to rebut that presumption by clear and convincing evidence. Federal habeas relief may only be grante d where the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law; decided the cas e differently than the Supreme Court has on a set of materially i ndistinguishable facts; or unreasonably applied the governing legal principle to the facts of the prisoner’s case.-5-

Van Woudenberg ex rel. Foor , 211 F.3d at 566 ( citing Williams v. Taylor , 120 S. Ct. 1495, 1523 (2000)). We must be convinced that the erroneous or incorrect application of the law was also objectively unreasonable. Williams , 120 S. Ct. at
1521-23.

III. Discussion The M’Naghten rule is the test for sanity in Oklahoma. Okla. St at. tit. 21, § 152. Under this rule, [t]he initial burden is on the defendant to establi sh a reasonable doubt as to his sanity. If the defendant establish es a reasonable doubt of his sanity, the presumption of sanity vani shes and it is incumbent upon the State to prove beyond a reasonab le doubt that the defendant could distinguish between right and wrong at the time of the offense. Clark v. State , 718 P.2d 375, 377-78 (Okla. Crim. App. 1986) (int ernal citation omitted). In Oklahoma, it is well established thatthe issue of insanity at the time a crime is committed is a question of fact for the jury. Id. at 378. “[W]here there is any evidence tending to support the finding it i s not the province of the [state] appellate court to weigh the same.” Id. (quotation omitted). In determining the issue of insanity, the jury mustconsider all of the evidence presented, not merely the testimony of the expert witnesses, and the weight and credibility of expert opinion is for the jury to determine and such testimony is not conclusive even where it is uncontroverted. The jury must determine the weightand credibility of both expert and lay witnesses in light of the pa rticular facts and circumstances shown in the case.-6-

Id. The defense presented expert testimony from Dr. Lau rel Van Horn, a psychologist who had Mr. Kiser in group therapy twi ce a week during his eleven-month confinement at Central State Hospital following the shooting. Dr. Van Horn testified that, at the time of the sho oting, Mr. Kiser “was a borderline personality . . . in the midst of a psyc hotic decompensation.” R. Vol. IV at 659. She further defined the diagnos is as one that largely involves unstable emotional behavior, marke d shifts, going from very angry to reasonably normal to angry to de pressed. Depression is a large component and abandonment dep ression is a large component of the diagnosis. Compulsive acts is another component of the diagnosis. It’s primarily a diagn osis for those people who are extremely vulnerable, to psychotic d ecompensation under situations of separation and loss. Id. She testified that on the night of the shooting, Mr. Kiser had a “disassociated reaction” rendering him “amnesic” with little or no memory of the events of the shooting. Id. at 660-61. She concluded that at the time he shotMr. Hines, Mr. Kiser was not “in his right mind,” could not “d istinguish . . . between right and wrong,” and was “legally insane.” Id. at 658. Dr. James Behrman, a psychiatrist retained by the d efense, testified at trial based on his review of Mr. Kiser’s hospital records and family history and two personal interviews. He agreed with Dr. Van Horn’s assessment that at the time2 Mr. Kiser alleged in his habeas petition that Dr. G arcia’s testimony should

be discounted as unreliable and incredible because Dr. Garcia, himself, was suffering from severe bipolar disorder at the time he testified. As Mr. Kiser points out, this court has previously addressed Dr. Garcia’s illness in relation to testimony offered in court. See Williamson v. Ward , 110 F.3d 1508, 1519 (10th Cir. 1997) (noting that the record contained affidavits describing Dr. Garcia’s behavior as bizarre and stating that, in its severe form, Dr. Garcia’s illness could “impair and distort his diagnostic judgment”). Due to our determination in this case that there was insufficient evidence upon whic h the jury could have found Mr. Kiser sane beyond a reasonable doubt, we have n o reason to address the possibility that Dr. Garcia was mentally ill. We a lso note that Dr. Garcia died in 1986 before his illness could be conclusively diagn osed. -7- of the shooting Mr. Kiser did not have control overhis actions, did not know right from wrong, and was legally insane. Id. Vol. V at 725. The prosecution’s expert witness, Dr. R.D. Garcia, 2 a psychiatrist at Eastern State Hospital, testified that when he saw Mr. Kise r five days after the shooting, he had “no mental disorder.” Id. at 814. When asked, however, whether he found “any evidence of psychosis,” he stated that he foun d “[d]epression reaching psychotic proportions.” Id. at 817. He said that Mr. Kiser was “pleading what they call, post-traumatic amnesia,” either voluntary or involuntary, and was unable to recall the shooting incident with any spe cificity. Id. at 818. Dr. Garcia testified that he saw Mr. Kiser for approximately two to three hours over a three-week period. When asked whether, in his opin ion, Mr. Kiser could distinguish between right and wrong at the time of the shooting, he replied that he did not know because that was not what he was askedto assess. He stated that3 We note that Dr. Garcia’s testimony was often rambl ing and without

cohesiveness. See, e.g., R. Vol. V at 810-11, 825-26. In fact, the prosecut or apologized to the jury during his closing argument for his inability to control Dr. Garcia. Id. at 859. -8- “[i]t would cost you more money if you want me to f ind out.” Id. at 821. He opined that it was not the responsibility of a psyc hiatrist to make that determination, and that he had seen very few cases where insanity could be determined by a psychiatrist who was not present atthe time the crime was committed. Id. at 822. Moreover, he stated that a defense of “t emporary insanity” was “nonsense,” and a “cop out.” 3 Id. at 823, 825. Dr. Garcia testified that the purpose of his examination of Mr. Kiser wa s to determine whether he was competent to stand trial. Id. at 837. Although Dr. Garcia testified that it was possible for Mr. Kiser’s depression and “psychotic break” to render him unable to distinguish between right and wrong, id. at 839, he did not assess Mr. Kiser’s mental state at the time of the shooting, id. at 840. On appeal, the state contends that the testimony of the defense experts, Dr. Van Horn and Dr. Behrman, was weak and inconsis tent. Specifically, the state asserts that Dr. Van Horn’s testimony was weakened because she did not treat Mr. Kiser on an individual basis, she was new to the profession having been licensed in 1979, she was testifying as an expert f or the first time, and she admitted that Mr. Kiser was not being treated with anti-psychotic drugs during his-9-

stay at Central State Hospital. The state also cha llenges Dr. Van Horn’s testimony that, although she was unaware of the fac ts surrounding the shooting incident, they would not alter her opinion. The state contends that Dr. Behrman’s testimony was weakened because his observation of Mr. Kiser was limited to two one-hou r interviews and his testimony was based on an “irresistible impulse” th eory which is not recognized as a test for insanity in Oklahoma. It argues thathis opinion was further eroded when he stated that knowing that Mr. Kiser planned the shooting and showed remorse afterwards could affect his opinion that Mr . Kiser did not know right from wrong at the time of the shooting. Even if we agree that the testimony of these expert s was weakened by these limiting factors, we cannot agree with the state th at Dr. Garcia’s testimony successfully refuted that of Drs. Van Horn and Behrman. It is true that Dr. Garcia attacked their opinions, but he did so with very li ttle professional credibility. All Dr. Garcia established is a general difference of o pinion in the profession as to diagnosis and treatment. He admitted that he had n ever evaluated Mr. Kiser to determine what his mental state was at the time of the shooting. Ms. Lee testified that Mr. Kiser was very upset ove r the pending divorce. Following defense objection and a bench discussion of admissibility, the court allowed Ms. Lee to testify that on January 2, 1983, she had received a telephone4 On appeal, the state appellate court concluded thatexclusion of Ms. Lee’s

testimony regarding her opinion of Mr. Kiser’s sani ty was error, albeit harmless. Kiser , 782 P.2d at 410-11. -10- call from Mr. Hines during which he told her that M r. Kiser had called and threatened him. On January 7, 1983, the day Ms. Le e filed for divorce, she testified that Mr. Kiser came to her house, would n ot let her leave, pulled the telephone from the wall, was “acting very strange,” and threatened to kill himself. R. Vol. III at 513. He had a small gun with him wh ich he kept holding to his head. He remained at her house from 6:30 p.m. to approximately 4:00 a.m. during which period they continued to talk about the divor ce. He returned a little later and kicked in the door. At this point, Mr. Kiser w anted Ms. Lee to go with him to Mr. Hines’ house so he could “shoot [Mr. Hines] in front of [her].” Id. at 517. She managed to calm him down and he eventually left . On cross-examination, she offered that his behavior was “irrational,” that he wasn’t his normal self, and that he needed mental help. Id. at 539. The court sustained the prosecution’s objection to Ms. Lee’s testimony that Mr. Kiser’s b ehavior appeared “crazy.” Id. Vol. IV at 549-50. She was, however, allowed to te stify that his anger was “abnormal.” 4 Id. There was additional lay witness testimony from Mr. Hines’ neighbor, Bill Hawkins, indicating that when Mr. Kiser stopped at his house to ask where Mr. Hines lived, he appeared “nice” and “polite.” Id. at 561. Mr. Hines’ friend,-11-

J.B. Phillips, testified to a conversation he had w ith Mr. Hines during which Mr. Hines confided his concern about a telephone call f rom Mr. Kiser threatening to kill him. Id. at 567-68. The state asserts that the testimony o f Dr. Garcia and the testimony of these lay witnesses was sufficient to rebut the testimony of the two defense experts. We do not agree. In considering Mr. Kiser’s challenge to the suffici ency of the evidence supporting the jury’s determination of sanity, the Oklahoma Court of Criminal Appeals noted that lay witness testimony establishe d that Mr. Kiser threatened to kill Mr. Hines a week before the shooting; he threatened to kill himself the night before the shooting; his wife described “his anger as not normal;” he asked a neighbor where Mr. Hines lived and what kind of carhe drove; and he exhibited remorse after the shooting. Kiser , 782 P.2d at 407. The court found that Dr. Garcia had refuted the testimony of the two defense experts and that “[v]igorous cross-examination revealed the weaknesses in the te stimony of each of the experts.” Id. Declining to reweigh the evidence, the court foun d Mr. Kiser’s sufficiency challenge to be meritless. Id. In recommending that habeas relief be granted, the magistrate judge stated that, although the state appellate court gave greatweight to Dr. Garcia’s testimony, it was clear that he had not evaluated M r. Kiser to determine his mental condition at the time of the shooting. The magistrate judge also noted that-12-

even though the state court found the testimony of the two defense experts to be weakened on cross-examination, it was clear from th e record that the two experts continued to maintain that Mr. Kiser was insane at the time of the crime. He also noted that the lay testimony did not address the is sue of Mr. Kiser’s sanity at the time he shot Mr. Hines. In Oklahoma, “[t]he State can disprove insanity by lay testimony as well as expert testimony, and it is within the province of the jury to disregard the medical evidence and give greater weight to the lay testimo ny.” Cheney v. State , 909 P.2d 74, 86 (Okla. Crim. App. 1995). In McKenzie v. United States , 266 F.2d 524, 526-27 (10th Cir. 1959), we said that “[b]efore a n on-expert witness is competent to testify to the sanity or insanity of another per son, he must show an acquaintance of such intimacy and duration as to cl early indicate that his testimony will be of value in determining the issue .” See also United States v. Madrid, 673 F.2d 1114, 1123 (10th Cir. 1982); United States v. Coleman , 501 F.2d 342, 345 (10th Cir. 1974). Here, Bill Hawkins offered no opinion as to Mr. Kis er’s sanity, but only testified to his very short observation of Mr. Kise r while giving him directions. J.B. Phillips obviously had never met Mr. Kiser andhis only testimony was concerning Mr. Hines’ recount of a threatening cal l he received from Mr. Kiser. On the other hand, Ms. Lee’s testimony that Mr. Kis er’s behavior before and after-13-

the shooting was “strange” and “abnormal” was basedon her intimate relationship with Mr. Kiser as his wife. Finally, although Dr. Garcia disagreed with the professional approach of the two defense witnesses, he did not render an opinion as to Mr. Kiser’s mental state at the time of the s hooting. Here, we determine that the testimony of Drs. Van H orn and Behrman, whose duty it was to determine Mr. Kiser’s mental c ondition, was overwhelming in light of the state’s insufficient and indefinite evidence of his sanity. We conclude that the district court was correct in its determination that there was insufficient evidence to support the jury’s determi nation that Mr. Kiser was sane at the time of the shooting.-14-

Therefore, the judgment of the United States Distri ct Court for the Eastern District of Oklahoma, granting Mr. Kiser habeas corpus relief on the issue of his sanity, is AFFIRMED. Mr. Kiser’s “Motion By Petiti oner/Appellee For Acquittal And To Bar Retrial, To Require Expungement And Seal ing Of Records, And To Acquit Petitioner/Appellee Of Bryan County Court Co sts And To Require Return To Petitioner/Appellee Of All Court Costs Paid To B ryan County Court” is premature and is therefore DENIED without prejudice subject to refiling in the district court.

Entered for the Court

David M. Ebel Circuit Judge