F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 30 1999 TENTH CIRCUIT PATRICK FISHER Clerk
CHAD WAYNE COGHAN,
Petitioner-Appellant, v. No. 99-6189 LENORA JORDAN, (D.C. No. 98-CV-757-T) (W.D.Okla.) Respondent-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY and BRISCOE, 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.
Chad Wayne Coghan seeks a certificate of appealability to appeal the
district court’s denial of his 28 U.S.C. § 2254 motion. We deny a certificate of
appealability and dismiss the appeal.
This order and judgment is not binding precedent, except under the *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. In April 1996, Coghan was convicted in Oklahoma state court of second
degree murder for the death of Jodi Lynch, and he was sentenced to fifty years in
prison. He appealed his conviction, arguing: (1) the trial court erred in refusing
to admit hearsay statements of Lynch’s child; (2) the court erred in admitting
evidence that Coghan and Lynch used “O.J.” and “Nichole” as nicknames; (3)
there was insufficient evidence to convict him of second degree murder; and (4)
his sentence was excessive. The Oklahoma Court of Criminal Appeals summarily
affirmed his conviction.
Coghan filed a state habeas petition in September 1997, alleging (1) the
trial court lacked subject matter jurisdiction; (2) the court erred in admitting
prejudicial testimony without proper foundation; (3) the court failed to instruct
the jury on the material elements of second degree murder; (4) the court gave an
erroneous self defense jury instruction; (5) the court failed to instruct the jury on
second degree manslaughter; and (6) he received ineffective assistance of
appellate counsel. The court denied relief. After a remand for factual findings,
the Oklahoma Court of Criminal Appeals affirmed denial of relief.
Coghan filed his federal habeas petition in June 1998, alleging (1) the trial
court erred in refusing to admit hearsay statements of Lynch’s child; (2) the court
erred in admitting evidence that Coghan and Lynch used “O.J.” and “Nicole” as
nicknames; (3) the court lacked subject matter jurisdiction; (4) the court erred in
-2- admitting prejudicial testimony without proper foundation; (5) the court failed to
instruct the jury on the material elements of second degree murder; (6) the court
gave an erroneous self defense jury instruction; (7) the court failed to instruct the
jury on second degree manslaughter; and (8) his sentence was excessive. Over
Coghan’s objections, the district court adopted the magistrate’s report and
recommendation and denied relief.
I.
Coghan argues the magistrate erred in finding the statements of Lynch’s
four-year-old son did not fall under the excited utterance hearsay exception.
Coghan asserts exclusion of this testimony deprived him of his constitutional
right to obtain witnesses in his favor. To justify habeas relief for an erroneous
evidentiary ruling, Coghan must demonstrate the trial court’s evidentiary ruling
rendered the trial “so fundamentally unfair as to constitute a denial of federal
constitutional rights.” Cummings v. Evans , 161 F.3d 610, 618 (10th Cir. 1998),
cert. denied , 119 S. Ct. 1360 (1999) (internal quotation omitted).
The testimony showed the child was calmer and no longer in an excited
state when he made the statement. The trial court properly found the statement
did not qualify as an excited utterance for hearsay exception purposes. This
ruling did not violate Coghan’s constitutional right to present witnesses. Coghan
proffered that the child would testify Lynch was hitting Coghan before he struck
-3- the fatal blow. Coghan testified at trial that he was acting in self defense, thereby
presenting his defense to the jury.
II.
Coghan argues the trial court erred in admitting evidence that he wrote his
name as “O.J. Coghan” on the envelope of a letter sent to Lynch. On cross-
examination, Coghan testified he had not used a different name in his relationship
with the victim. The trial court allowed the state to rebut by using the envelope.
Coghan testified the name was a joke between Lynch and him. The court
admitted the evidence as going “to show his mental intent as to their
relationship.” State Transcript II at 106. Coghan asserts admission of this
evidence violated his constitutional right to an impartial jury.
Even if the court improperly admitted the evidence, its admission did not
render the trial fundamentally unfair. The testimony was introduced in response
to Coghan’s denial of use of a different name in his relationship with Lynch and
was limited in duration. There was no testimony concerning the O.J. Simpson
case or how it might relate to Coghan.
III.
Coghan’s allegation that the trial court lacked subject matter jurisdiction
because the information was defective is without merit. See Hall v. State , 312
P.2d 981, 984 (Okla. Crim. App. 1957) (introductory paragraph of information is
-4- ordinarily equivalent to mere descriptive label; incorrect name given to crime in
introductory paragraph of information is merely an irregularity; court determines
character of offense by considering language in the charging part of information).
IV.
The magistrate found Coghan was barred from arguing lack of foundation
for evidence, failure to instruct on all material elements of the crime, erroneous
self defense jury instruction, and failure to instruct the jury on second degree
manslaughter because he failed to raise the issues in his direct appeal. In
Coghan’s state habeas case, the court found he waived the issues by not raising
them on direct appeal. We do not review a question of federal law decided by a
state court if the decision rested on a state law ground independent of the federal
question and was adequate to support the judgment. See Coleman v. Thompson ,
501 U.S. 722, 729 (1991). The state court’s refusal to address Coghan’s federal
claims because he failed to meet a state procedural requirement constitutes an
independent and adequate state procedural ground. See id. at 729-30.
Habeas review of these issues is precluded unless Coghan “can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Brecheen v. Reynolds , 41 F.3d 1343, 1353
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 30 1999 TENTH CIRCUIT PATRICK FISHER Clerk
CHAD WAYNE COGHAN,
Petitioner-Appellant, v. No. 99-6189 LENORA JORDAN, (D.C. No. 98-CV-757-T) (W.D.Okla.) Respondent-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY and BRISCOE, 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.
Chad Wayne Coghan seeks a certificate of appealability to appeal the
district court’s denial of his 28 U.S.C. § 2254 motion. We deny a certificate of
appealability and dismiss the appeal.
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. In April 1996, Coghan was convicted in Oklahoma state court of second
degree murder for the death of Jodi Lynch, and he was sentenced to fifty years in
prison. He appealed his conviction, arguing: (1) the trial court erred in refusing
to admit hearsay statements of Lynch’s child; (2) the court erred in admitting
evidence that Coghan and Lynch used “O.J.” and “Nichole” as nicknames; (3)
there was insufficient evidence to convict him of second degree murder; and (4)
his sentence was excessive. The Oklahoma Court of Criminal Appeals summarily
affirmed his conviction.
Coghan filed a state habeas petition in September 1997, alleging (1) the
trial court lacked subject matter jurisdiction; (2) the court erred in admitting
prejudicial testimony without proper foundation; (3) the court failed to instruct
the jury on the material elements of second degree murder; (4) the court gave an
erroneous self defense jury instruction; (5) the court failed to instruct the jury on
second degree manslaughter; and (6) he received ineffective assistance of
appellate counsel. The court denied relief. After a remand for factual findings,
the Oklahoma Court of Criminal Appeals affirmed denial of relief.
Coghan filed his federal habeas petition in June 1998, alleging (1) the trial
court erred in refusing to admit hearsay statements of Lynch’s child; (2) the court
erred in admitting evidence that Coghan and Lynch used “O.J.” and “Nicole” as
nicknames; (3) the court lacked subject matter jurisdiction; (4) the court erred in
-2- admitting prejudicial testimony without proper foundation; (5) the court failed to
instruct the jury on the material elements of second degree murder; (6) the court
gave an erroneous self defense jury instruction; (7) the court failed to instruct the
jury on second degree manslaughter; and (8) his sentence was excessive. Over
Coghan’s objections, the district court adopted the magistrate’s report and
recommendation and denied relief.
I.
Coghan argues the magistrate erred in finding the statements of Lynch’s
four-year-old son did not fall under the excited utterance hearsay exception.
Coghan asserts exclusion of this testimony deprived him of his constitutional
right to obtain witnesses in his favor. To justify habeas relief for an erroneous
evidentiary ruling, Coghan must demonstrate the trial court’s evidentiary ruling
rendered the trial “so fundamentally unfair as to constitute a denial of federal
constitutional rights.” Cummings v. Evans , 161 F.3d 610, 618 (10th Cir. 1998),
cert. denied , 119 S. Ct. 1360 (1999) (internal quotation omitted).
The testimony showed the child was calmer and no longer in an excited
state when he made the statement. The trial court properly found the statement
did not qualify as an excited utterance for hearsay exception purposes. This
ruling did not violate Coghan’s constitutional right to present witnesses. Coghan
proffered that the child would testify Lynch was hitting Coghan before he struck
-3- the fatal blow. Coghan testified at trial that he was acting in self defense, thereby
presenting his defense to the jury.
II.
Coghan argues the trial court erred in admitting evidence that he wrote his
name as “O.J. Coghan” on the envelope of a letter sent to Lynch. On cross-
examination, Coghan testified he had not used a different name in his relationship
with the victim. The trial court allowed the state to rebut by using the envelope.
Coghan testified the name was a joke between Lynch and him. The court
admitted the evidence as going “to show his mental intent as to their
relationship.” State Transcript II at 106. Coghan asserts admission of this
evidence violated his constitutional right to an impartial jury.
Even if the court improperly admitted the evidence, its admission did not
render the trial fundamentally unfair. The testimony was introduced in response
to Coghan’s denial of use of a different name in his relationship with Lynch and
was limited in duration. There was no testimony concerning the O.J. Simpson
case or how it might relate to Coghan.
III.
Coghan’s allegation that the trial court lacked subject matter jurisdiction
because the information was defective is without merit. See Hall v. State , 312
P.2d 981, 984 (Okla. Crim. App. 1957) (introductory paragraph of information is
-4- ordinarily equivalent to mere descriptive label; incorrect name given to crime in
introductory paragraph of information is merely an irregularity; court determines
character of offense by considering language in the charging part of information).
IV.
The magistrate found Coghan was barred from arguing lack of foundation
for evidence, failure to instruct on all material elements of the crime, erroneous
self defense jury instruction, and failure to instruct the jury on second degree
manslaughter because he failed to raise the issues in his direct appeal. In
Coghan’s state habeas case, the court found he waived the issues by not raising
them on direct appeal. We do not review a question of federal law decided by a
state court if the decision rested on a state law ground independent of the federal
question and was adequate to support the judgment. See Coleman v. Thompson ,
501 U.S. 722, 729 (1991). The state court’s refusal to address Coghan’s federal
claims because he failed to meet a state procedural requirement constitutes an
independent and adequate state procedural ground. See id. at 729-30.
Habeas review of these issues is precluded unless Coghan “can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Brecheen v. Reynolds , 41 F.3d 1343, 1353
(10th Cir. 1994) (internal quotation omitted). Coghan argues he is entitled to
-5- relief on these issues because he received ineffective assistance of appellate
counsel. Coghan did not raise the ineffective assistance of counsel claim in his
§ 2254 petition and on appeal he does not allege how his counsel was ineffective.
We will not consider this claim for the first time on appeal.
Coghan does enunciate an argument concerning the jury instruction on the
elements of second degree murder. On habeas review, we consider claims of
constitutional errors in jury instructions de novo. See Esquibel v. Rice , 13 F.3d
1430, 1431 (10th Cir. 1994). An error in describing an element of the crime is a
trial error, not a structural error, making the error subject to harmless error
analysis. California v. Roy , 519 U.S. 2, 5 (1996). The error must have a
substantial and injurious effect or influence in determining the jury’s verdict.
Brecht v. Abrahamson , 507 U.S. 619, 637 (1993). Coghan does not identify
which element the State failed to prove, but again relies on his newly asserted
ineffective assistance of counsel claim. We find no error.
V.
Coghan argues his sentence was excessive because the issues he raised
show a grossly unfair trial that shocks the conscience. We disagree. Coghan has
shown no violation of his constitution rights.
VI.
-6- We DENY Coghan’s motion to proceed on appeal in forma pauperis as
moot because he has paid the filing fee. We DENY a certificate of appealability
and DISMISS the appeal. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe Circuit Judge
-7-