F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

FEB 27 2001

PATRICK FISHER
Clerk

DANIEL C. KISER,
Petitioner-Appellee,
v.
BOBBY BOONE; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,

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

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This order and judgment is not binding precedent, except under the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 courts

order granting petitioner-appellee Daniel C. Kisers 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 states motion to determine his competency to stand trial.
After twenty-five days, Mr. Kiser was released from the hospital as competent to
stand trial.
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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. Kisers 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 postconviction relief, alleging that he had new evidence that the states expert witness
as to his sanity, Dr. Garcia, was himself suffering from a mental illness. Without
addressing Mr. Kisers 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. Kisers 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
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The issue before this court on appeal is whether there was sufficient
evidence presented at trial to support the jurys 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).

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 prisoners case.

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 courts 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).

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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 MNaghten 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.
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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. Its 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. Kisers hospital records and family history and two
personal interviews. He agreed with Dr. Van Horns assessment that at the time

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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 prosecutions 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

Mr. Kiser alleged in his habeas petition that Dr. Garcias 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. Garcias 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. Garcias
behavior as bizarre and stating that, in its severe form, Dr. Garcias 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.

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[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. Kisers depression and psychotic break to render him unable to
distinguish between right and wrong, id. at 839, he did not assess Mr. Kisers
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 Horns 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

We note that Dr. Garcias 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.

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stay at Central State Hospital. The state also challenges Dr. Van Horns
testimony that, although she was unaware of the facts surrounding the shooting
incident, they would not alter her opinion.
The state contends that Dr. Behrmans 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. Garcias 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
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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 wasnt his normal self, and
that he needed mental help. Id. at 539. The court sustained the prosecutions
objection to Ms. Lees testimony that Mr. Kisers 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,
On appeal, the state appellate court concluded that exclusion of Ms. Lees
testimony regarding her opinion of Mr. Kisers sanity was error, albeit harmless.
Kiser , 782 P.2d at 410-11.

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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. Kisers challenge to the sufficiency of the evidence
supporting the jurys 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. Kisers
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. Garcias
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
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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. Kisers 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. Kisers 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. Lees testimony that Mr. Kisers behavior before and after
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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. Kisers 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. Kisers mental condition, was overwhelming
in light of the states 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 jurys determination that Mr. Kiser was sane
at the time of the shooting.

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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. Kisers 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

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