                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           NOV 28 1997
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    JESSE WATSON,

                Petitioner-Appellant,

    v.                                                    No. 97-5040
                                                    (D.C. No. 96-CV-460-B)
    BOBBY BOONE; ATTORNEY                                 (N.D. Okla.)
    GENERAL OF THE STATE OF
    OKLAHOMA,

                Respondents-Appellees.




                              ORDER AND JUDGMENT *



Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.



         After examining appellant’s brief and the 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); 10th Cir. R. 34.1.9.

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      This order and judgment is not binding precedent, except under the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.
      Petitioner Jesse Watson, appearing pro se, appeals the district court’s denial

of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Our

jurisdiction arises under 28 U.S.C. § 2253. Because Watson filed his habeas

petition in the district court on May 22, 1996, we review his petition under

28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996)

(effective April 24, 1996). See Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997).

      Under AEDPA, a federal court may not grant a writ of habeas corpus with

respect to any claim that was rejected on the merits by a state court unless the

state court’s adjudication resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established federal law, as determined by

the Supreme Court, or 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). We grant petitioner’s application for a

certificate of appealability and we affirm. 28 U.S.C. § 2253(c).


                                    Background

      Petitioner was convicted of robbery with a firearm, unlawful wearing of

a mask while in commission of a felony, felonious possession of a firearm, and

possession of a police radio while in commission of a felony. He appealed his

conviction to the Oklahoma Court of Criminal Appeals, which reversed on the

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felonious possession of a firearm count, and summarily affirmed on all other

claims. Petitioner sought post-conviction relief in Oklahoma state court, which

was denied. On May 22, 1996, petitioner filed his petition for a writ of habeas

corpus in the district court, raising eight grounds for relief, all of which had been

raised in Oklahoma state court. The district court denied habeas relief, and

concluded petitioner should not be granted a certificate of appealability.

       Petitioner asserts that three of his claims warrant a certificate of

appealability: (1) an instruction violated his presumption of innocence because it

assumed as fact that he had departed from the crime scene; (2) the trial court

erred in refusing to give his requested instruction cautioning the jury on

identification testimony; and (3) several comments by the prosecutor denied him

a fair trial.


                               The Flight Instruction

       The challenged flight instruction, a standard Oklahoma jury instruction,

permits the jury to consider evidence of defendant’s departure from the crime as

a circumstance tending to prove guilt. The introductory paragraph of the

instruction states, “[e]vidence has been introduced of the defendant’s departure

shortly after the alleged crime was committed. You must first determine whether

this action by the defendant constituted flight.”



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      After petitioner’s state appeal, the Oklahoma Court of Criminal Appeals

concluded that because this instruction assumes the defendant to have committed

the crime, it was fundamental error to give it unless the defendant had either

admitted to the alleged crime or otherwise placed himself at the scene, but

interposed a plea of self-defense or otherwise testified at trial explaining his

departure. Mitchell v. State, 876 P.2d 682, 684-85 (Okla. Crim. App. 1993),

as corrected by 887 P.2d 335 (Okla. Crim. App. 1994). However, the court later

held that the rule in Mitchell was an interpretation of state law, did not create any

new constitutional rights, and, therefore, only applied prospectively. See Richie

v. State, 908 P.2d 268, 276 (Okla. Crim. App. 1995), cert. denied, 117 S. Ct. 111

(1996); Rivers v. State, 889 P.2d 288, 292 (Okla. Crim. App. 1994).

      Petitioner did not place himself at the scene of the crime and claims that

giving this instruction violated his constitutional presumption of innocence.

Assuming there is a constitutional error, an issue we do not decide, the effect of

the instruction on the jury’s verdict is subject to a harmless error analysis.

Several Supreme Court decisions have held that instructions that erroneously

created a presumption with respect to a factual element of the crime, though




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unconstitutional, could be harmless error. See Carella v. California, 491 U.S.

263, 266 (1989) (instruction erroneously created a presumption as to a factual

issue, case remanded for harmless error determination under Chapman v.

California, 386 U.S. 18 (1967)); Rose v. Clark, 478 U.S. 570, 579-82 (1986)

(same); Sandstrom v. Montana, 442 U.S. 510, 526 (1979) (same); see also

California v. Roy, 117 S. Ct. 337, 339 (1996) (per curiam) (instruction that

erroneously defined the crime held to be “trial error,” rather than a “structural”

error); Pope v. Illinois, 481 U.S. 497, 502-04 (1987) (instruction provided

improper standard for determination of factual issue, remanded for harmless

error determination).

      The proper harmless error standard on collateral review is whether,

considering the record as a whole, the error “had substantial and injurious effect

or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.

619, 638 (1993); see also Roy, 117 S. Ct. at 338 (same). We have carefully

reviewed the record in this case and are satisfied from the evidence presented at

trial that the challenged instruction did not substantially influence or taint the

jury’s verdict. Ample evidence was submitted of petitioner’s guilt of the robbery

charge, including an eyewitness who identified him as being at the scene of the

robbery, eyewitnesses who identified him as the passenger in the car which fled

the robbery scene, and other strong circumstantial evidence pointing to him as


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the robber. We therefore find that petitioner is not entitled to habeas relief

on this ground. See Nguyen v. Reynolds, No. 96-5254, 1997 WL 693685, at *17-

18 (10th Cir. Nov. 7, 1997).


                      Cautionary Identification Instruction

      Petitioner claims eyewitness evidence was sufficiently weak that it was

error for the trial court to deny his request to caution the jury as to the use of

eyewitness identification testimony. As the district court ruled, under Oklahoma

state law, this instruction is only to be given where there is a serious question

concerning the reliability of the identification, see McDoulett v. State, 685 P.2d

978, 980 (Okla. Crim. App. 1984). We have reviewed the record and find no

error in the trial court’s refusal to give the instruction.


                        Claims of Prosecutorial Misconduct

      Petitioner claims several comments by the prosecutor deprived him of a

fair trial. Review of prosecutorial misconduct on habeas relief is limited to

the question of whether the challenged statements “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.”

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In evaluating whether

improper prosecutorial comments render a defendant’s trial fundamentally unfair,

the court views the comments within the context of the trial as a whole. United


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States v. Young, 470 U.S. 1, 11-12 (1985). The court considers “the pertinent

surrounding circumstances at trial, including the strength of the state’s case

relating to the petitioner’s guilt, and the prejudice, if any, attributable to the

prosecutor’s comments.” Brecheen v. Reynolds, 41 F.3d 1343, 1355 (10th Cir.

1994) (internal quotation and citation omitted).

      Petitioner first claims as error what he characterizes as the prosecutor’s

attempts to define reasonable doubt. The prosecutor asked jurors during voir dire

not to impose a heavier burden on the state than reasonable doubt, and described

certain examples, which he asked the jurors to agree would place a higher burden

on the state than the reasonable doubt standard. Oklahoma has held that it is error

for the trial judge or prosecutor to try to define reasonable doubt. See Williams

v. State, 658 P.2d 499, 500 (Okla. Crim. App. 1983). However, the prosecutor’s

statement did not misstate the burden of proof, nor did his attempted definition

“create[] such confusion and uncertainty in the minds of the jury so as to render

the verdict possibly unfair and violative of defendant’s right to a fundamentally

fair trial.” Jones v. State, 554 P.2d 830, 835 (Okla. Crim. App. 1976). Thus, we

find no constitutional error in the prosecutor’s remarks.

      Petitioner next claims the prosecutor attempted to convey to the jury that

the presumption of innocence was eliminated at the end of testimony, prior to

deliberations. The prosecutor opened his rebuttal closing argument with the


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statement, “[t]he defense is right, the defendant is presumed to be innocent.

It’s now time to lift that presumption. It’s time to make that go away.”

Tr. at 408.

      It is settled law that “[t]he presumption of innocence . . . remains with the

accused throughout every stage of the trial, including, most importantly, the jury’s

deliberations, and . . . is extinguished only upon the jury’s determination that guilt

has been established beyond a reasonable doubt.” Mahorney v. Wallman, 917

F.2d 469, 471 n.2 (10th Cir. 1990) (emphasis in original). In Mahorney, the

prosecutor made misstatements concerning the presumption of innocence during

voir dire and closing arguments, and his closing argument comments conveyed to

the jury that the presumption of innocence had been eliminated prior to

deliberations. Id. at 471. We granted habeas, finding that the prosecutor’s

comments negated the defendant’s constitutionally rooted presumption of

innocence. Id. at 473-74.

      We do not condone the prosecutor’s remarks in this case. However, the

comments in Mahorney were more egregious and pervasive than here. 1


1
        In Mahorney, the prosecutor stated, “I submit to you, under the law and the
evidence, that we are in a little different position today than we were in when we
first started this trial and it was your duty at that time, under the law of this land,
as you were being selected as jurors, to actively in your minds presume that man
over there not to be guilty of the offense of rape in the first degree, but you know,
things have changed since that time. I submit to you at this time, under the law
                                                                          (continued...)

                                          -8-
Further, the jury was properly instructed as to the presumption of innocence and

the state’s burden of proof. Given this, we conclude the challenged remark did

not so undermine petitioner’s presumption of innocence as to deny him a

constitutional protection. Cf. Mahorney, 917 F.2d at 473.

      Finally, petitioner complains about the prosecutor’s comment that the jury’s

sentence should put petitioner “out of the game” and about other sentencing-

related comments. Petitioner misunderstands that these comments were made at

the sentencing stage of the trial, after the jury had reached a guilty verdict. Thus,

the comments were not error.

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




1
 (...continued)
and under the evidence, that presumption has been removed, that the presumption
no longer exists, that that (sic) presumption has been removed by evidence and he
is standing before you now guilty.” Mahorney, 917 F.2d at 471.


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