                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 27 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    DANIEL C. KISER,

                Petitioner-Appellee,

    v.                                                    No. 00-7030
                                                    (D.C. No. 97-CV-386-S)
    BOBBY BOONE; ATTORNEY                                 (E.D. Okla.)
    GENERAL OF THE STATE OF
    OKLAHOMA,

                Respondents-Appellants.


                            ORDER AND JUDGMENT            *




Before EBEL, KELLY, and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       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 jurisdiction pursuant to 28 U.S.C. §

1291, and we affirm.


                              I. Background Facts

       On the evening of January 9, 1983, one day after his 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 State 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 his competency to stand trial.

After twenty-five days, Mr. Kiser was released from the hospital as competent to

stand trial.

                                        -2-
       The main issue at trial was not whether Mr. Kiser had 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 degree. 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. Kiser sought state post-

conviction relief, alleging that he had new evidence 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 incompetent to testify, the state

court denied relief, concluding that the issue of his sanity had been raised and

ruled on in Mr. Kiser’s direct appeal.

       In his § 2254 federal habeas corpus petition, Mr. Kiser alleged that there

was insufficient evidence for the jury to find he was sane at the time of the

shooting, and the jury relied on incredible and unreliable 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 and granted his habeas petition

on that basis. The district court adopted the findings and recommendation of the

magistrate judge, giving the state 120 days to retry or release Mr. Kiser. The state

appeals.


                                II. Standard of Review

                                            -3-
      The issue before this court on appeal is whether there was sufficient

evidence presented at trial to support the jury’s verdict that Mr. Kiser was sane at

the time he shot Mr. Hines. Under the Anti-Terrorism 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 any claim adjudicated on the

merits in state court unless that adjudication:

      (1) . . . 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) . . . was based on an unreasonable determination 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 court are correct, and places the

burden on the petitioner to rebut that presumption by clear and convincing

evidence. Federal habeas relief may only be granted where

      the state court arrived at a conclusion opposite to that reached by the
      Supreme Court on a question of law; decided the case differently
      than the Supreme Court has on a set of materially indistinguishable
      facts; or unreasonably applied the governing legal principle to the
      facts of the prisoner’s case.



1
       If a claim was not adjudicated on the merits in state court, “and the federal
district court made its own determination in the first 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-
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. Stat. tit. 21,

§ 152. Under this rule,

       [t]he initial burden is on the defendant to establish a reasonable
       doubt as to his sanity. 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.

Clark v. State , 718 P.2d 375, 377-78 (Okla. Crim. App. 1986) (internal citation

omitted). In Oklahoma, it is well established that the 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 is not the province of the [state]

appellate court to weigh the same.”      Id. (quotation omitted).

       In determining the issue of insanity, the jury must consider 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 weight and credibility
       of both expert and lay witnesses in light of the particular facts and
       circumstances shown in the case.

                                             -5-
Id.

      The defense presented expert testimony from Dr. Laurel Van Horn, a

psychologist who had Mr. Kiser in group therapy twice a week during his

eleven-month confinement at Central State Hospital following the shooting.

Dr. Van Horn testified that, at the time of the shooting, Mr. Kiser “was a

borderline personality . . . in the midst of a psychotic decompensation.”

R. Vol. IV at 659. She further defined the diagnosis as one that

      largely involves unstable emotional behavior, marked shifts, going
      from very angry to reasonably normal to angry to depressed.
      Depression is a large component and abandonment depression is a
      large component of the diagnosis. Compulsive acts is another
      component of the diagnosis. It’s primarily a diagnosis for those
      people who are extremely vulnerable, to psychotic decompensation
      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 shot Mr. Hines,

Mr. Kiser was not “in his right mind,” could not “distinguish . . . between right

and wrong,” and was “legally insane.” Id. at 658.

      Dr. James Behrman, a psychiatrist retained by the defense, 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 time




                                         -6-
of the shooting Mr. Kiser did not have control over his 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. Kiser 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 found “[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 specificity. 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 opinion, 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 asked to assess. He stated that



2
       Mr. Kiser alleged in his habeas petition that Dr. Garcia’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 which the jury could have found
Mr. Kiser sane beyond a reasonable doubt, we have no reason to address the
possibility that Dr. Garcia was mentally ill. We also note that Dr. Garcia died in
1986 before his illness could be conclusively diagnosed.

                                         -7-
“[i]t would cost you more money if you want me to find out.” Id. at 821. He

opined that it was not the responsibility of a psychiatrist to make that

determination, and that he had seen very few cases where insanity could be

determined by a psychiatrist who was not present at the time the crime was

committed. Id. at 822. Moreover, he stated that a defense of “temporary

insanity” was “nonsense,” and a “cop out.” 3 Id. at 823, 825. Dr. Garcia testified

that the purpose of his examination of Mr. Kiser was 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 inconsistent. 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 for the first time, and she

admitted that Mr. Kiser was not being treated with anti-psychotic drugs during his



3
      We note that Dr. Garcia’s testimony was often rambling and without
cohesiveness. See, e.g., R. Vol. V at 810-11, 825-26. In fact, the prosecutor
apologized to the jury during his closing argument for his inability to control
Dr. Garcia. Id. at 859.

                                          -8-
stay at Central State Hospital. The state also challenges Dr. Van Horn’s

testimony that, although she was unaware of the facts 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-hour interviews and his

testimony was based on an “irresistible impulse” theory which is not recognized

as a test for insanity in Oklahoma. It argues that his 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 experts was weakened by these

limiting factors, we cannot agree with the state that 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 little professional credibility. All

Dr. Garcia established is a general difference of opinion in the profession as to

diagnosis and treatment. He admitted that he had never 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 over 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 telephone


                                          -9-
call from Mr. Hines during which he told her that Mr. Kiser had called and

threatened him. On January 7, 1983, the day Ms. Lee filed for divorce, she

testified that Mr. Kiser came to her house, would not 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 which 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 divorce. He returned a little later

and kicked in the door. At this point, Mr. Kiser wanted 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 behavior appeared “crazy.” Id.

Vol. IV at 549-50. She was, however, allowed to testify 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,


4
        On appeal, the state appellate court concluded that exclusion of Ms. Lee’s
testimony regarding her opinion of Mr. Kiser’s sanity was error, albeit harmless.
Kiser , 782 P.2d at 410-11.

                                        -10-
J.B. Phillips, testified to a conversation he had with Mr. Hines during which Mr.

Hines confided his concern about a telephone call from Mr. Kiser threatening to

kill him. Id. at 567-68. The state asserts that the testimony of 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 sufficiency of the evidence

supporting the jury’s determination of sanity, the Oklahoma Court of Criminal

Appeals noted that lay witness testimony established 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 car he 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 testimony of each of the

experts.” Id. Declining to reweigh the evidence, the court found 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 great weight to Dr. Garcia’s

testimony, it was clear that he had not evaluated Mr. Kiser to determine his

mental condition at the time of the shooting. The magistrate judge also noted that


                                        -11-
even though the state court found the testimony of the two defense experts to be

weakened on cross-examination, it was clear from the 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 issue 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 testimony.” 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 non-expert witness is competent

to testify to the sanity or insanity of another person, he must show an

acquaintance of such intimacy and duration as to clearly 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. Kiser’s sanity, but only

testified to his very short observation of Mr. Kiser while giving him directions.

J.B. Phillips obviously had never met Mr. Kiser and his only testimony was

concerning Mr. Hines’ recount of a threatening call he received from Mr. Kiser.

On the other hand, Ms. Lee’s testimony that Mr. Kiser’s behavior before and after


                                         -12-
the shooting was “strange” and “abnormal” was based on 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 shooting.

      Here, we determine that the testimony of Drs. Van Horn and Behrman,

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. We

conclude that the district court was correct in its determination that there was

insufficient evidence to support the jury’s determination that Mr. Kiser was sane

at the time of the shooting.




                                         -13-
       Therefore, the judgment of the United States District 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 Petitioner/Appellee For Acquittal

And To Bar Retrial, To Require Expungement And Sealing Of Records, And To

Acquit Petitioner/Appellee Of Bryan County Court Costs And To Require Return

To Petitioner/Appellee Of All Court Costs Paid To Bryan 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




                                        -14-
