                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         SEP 16 2002
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

    LARRY KENNETH JACKSON,

                Petitioner - Appellant,

    v.                                                 No. 01-6131
                                                 (D.C. No. CIV-99-539-M)
    MIKE MULLIN, Warden,                             (W.D. Oklahoma)
    Oklahoma State Penitentiary,

                Respondent - Appellee.


                            ORDER AND JUDGMENT          *




Before EBEL , Circuit Judge, BRORBY , Senior Circuit Judge, and     MURPHY ,
Circuit Judge.


         Larry Kenneth Jackson was convicted by an Oklahoma trial court of the

first degree murder of his girlfriend Wendy Cade and sentenced to death. The

Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction and

sentence. Jackson v. State, 964 P.2d 875 (Okla. Crim. App. 1998) (per curiam),

cert. denied, 526 U.S. 1008 (1999). That court also denied post-conviction relief.




*
      This order and judgment is not binding precedent, except under the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.
Jackson v. State, No. PC-97-1349 (Okla. Crim. App. Nov. 20, 1998). Thereafter,

Jackson filed a federal habeas petition, and the federal district court denied relief.

      That court granted a certificate of appealability (COA) on one issue:

whether the trial court’s refusal to instruct on the defenses of voluntary and

involuntary intoxication violated Jackson’s constitutional rights. At a case

management conference, this court granted a COA on an additional issue:

whether the trial court’s refusal to allow voir dire concerning the prospective

jurors’ attitudes toward intoxication defenses violated Jackson’s constitutional

rights. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c),

we affirm the denial of habeas relief on both issues.

FACTS

      Cade died in a room at the Oklahoma City Motel 6 on September 6, 1994,

due to a laceration to her neck that severed her jugular veins. It is undisputed that

Jackson, an inmate at the Joseph Harp Correctional Center, killed her.

       Jackson and Cade had maintained a relationship while Jackson was

incarcerated. She visited him at the prison on Sundays, and at least twice outside

the prison when he was with a prison work crew. Jackson believed they would

marry after his release, but Cade was engaged to and living with Victor Dizer, the

father of some of her children, and was attempting to change her relationship with




                                          -2-
Jackson. Apparently, Jackson and Cade had ongoing arguments about this

relationship change.

      On September 6, Jackson was assigned to a work crew delivering and

installing office/modular furniture at the Jim Thorpe state office building in

Oklahoma City. That day, Cade also went to the building, and the two left in her

Jeep. Sometime before going to the motel, Jackson purchased a quart of beer at

a convenience store. At the same time, Cade went to a nearby liquor store and

purchased a fifth of liquor called Alize, which was a mixed drink of passion fruit

juice and cognac. Jackson drank all of the Alize and half of the quart of beer and

had two puffs on a marijuana cigarette before entering the motel room. While in

the room, the two had sexual intercourse and fought. Jackson claimed he

“blimped out.” He remembered leaving the motel in Cade’s Jeep, having an

accident and abandoning the Jeep. Later that day, a highway patrol trooper found

the Jeep.

      After abandoning the Jeep, Jackson next remembered waking up in a field

and walking until he met two men. He obtained a ride from them to the

apartments where his sister worked. He arrived about 6:00 or 6:30 p.m. Dorothy

Leffette, the sister of one of the men, let him stay with her until morning.

      On September 7, Dizer and Martha Gulley, Cade’s mother, went to the area

where the Jeep was found. Noticing the nearby Motel 6, they went there and


                                          -3-
learned Cade had rented a room. After being notified, the police checked the

room and found Cade’s body lying against the bed. She had sustained over thirty

cuts. The entire bathroom floor, apart from the shower, was covered with blood.

It appeared a struggle had occurred in the bathroom, and Cade had been moved

from the bathroom to the bedroom. There was some blood on the bedroom carpet,

but little blood on Cade’s nude body. The police found a box cutting knife

wrapped in a wash cloth and stuck between the mattress and box springs of the

bed.

       The police located Jackson at Leffette’s apartment. In the room where the

police arrested Jackson, they found Cade’s jewelry, watch, and keys to her Jeep.

Jackson admitted to police officers that if Cade was dead, he did it, but he did not

intend to kill her, did not want to talk about the details of the killing, and did not

remember much about what happened in the motel room.

       At trial, Jackson’s defense was that he killed Cade without malice

aforethought because he had blacked out due to intoxication and being upset.

Rejecting the lesser included offense of manslaughter, the jury found Jackson

guilty of first degree murder.

STANDARDS OF REVIEW

       Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), if a claim is adjudicated on the merits in state court, a petitioner


                                           -4-
is entitled to federal habeas relief only if he can establish that the state court

decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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)(1),

(2). The AEDPA also requires federal courts to presume state court factual

findings are correct and places the burden on the petitioner to rebut that

presumption by clear and convincing evidence.        Id. § 2254(e)(1). If a state court

did not decide a claim on its merits, this court reviews the district court’s legal

conclusions de novo and its factual findings, if any, for clear error.     McCracken v.

Gibson , 268 F.3d 970, 975 (10th Cir. 2001),      petition for cert filed , (U.S. May 17,

2002) (No. 01-10302).

ANALYSIS

I. Failure to Instruct on Voluntary and Involuntary Intoxication

       Jackson argues the trial court denied him due process and his Sixth, Eighth,

and Fourteenth Amendment rights by refusing to instruct the jury, as he requested,

on voluntary and involuntary intoxication. He claims the jury instructions did not

reflect his intoxication defense, despite his offering ample evidence to support the

defense.




                                            -5-
       Jackson fails to cite Supreme Court precedent establishing a constitutional

mandate for intoxication instructions.     1
                                               Supreme Court precedent instead suggests

there is no such mandate.     See generally Montana v. Egelhoff , 518 U.S. 37, 39-40,

43, 51, 56 (1996) (holding Montana statute precluding consideration of voluntary

intoxication in determining existence of mental state which is element of criminal

offense does not violate Due Process Clause);         Taylor v. Withrow , 288 F.3d 846,

851 (6th Cir. 2002) (citing   Egelhoff for proposition that states have great latitude

in formulating defenses to crimes),      petition for cert. filed,   (U.S. Aug. 28, 2002)

(No. 02-6153).

       The alleged error in jury instructions is reviewable, therefore, in the context

of the entire trial, only for the denial of fundamental fairness and due process.

See Henderson v. Kibbe , 431 U.S. 145, 156-57 (1977) (pre-AEDPA);              Foster v.

Ward , 182 F.3d 1177, 1193 (10th Cir. 1999) (same);           Tyler v. Nelson , 163 F.3d

1222, 1227 (10th Cir. 1999) (same);       see also Kentucky v. Whorton , 441 U.S. 786,

789-90 (1979) (per curiam) (reviewing totality of circumstances to decide if



1
        To support an intoxication instruction, Jackson cites Mathews v. United
States , 485 U.S. 58, 63 (1988), which held that “[a]s a general proposition
a defendant is entitled to an instruction as to any recognized defense for which
there exists evidence sufficient for a reasonable jury to find in his favor.” The
decision in Mathews , however, was not based on the Constitution or federal
habeas corpus principles. Rather, it was based on federal common law and rules
and the Supreme Court’s supervisory power over direct appeals. We therefore
conclude the holding in Mathews does not control this habeas case.

                                               -6-
defendant received constitutionally fair trial where presumption of innocence

instruction was not given). “[T]he burden on a petitioner attacking a state court

judgment based on a refusal to give a requested jury instruction is especially great

because ‘“[a]n omission, or an incomplete instruction, is less likely to be

prejudicial than a misstatement of law.”’”         Tyler , 163 F.3d at 1227 (quoting

Maes v. Thomas , 46 F.3d 979, 984 (10th Cir. 1995) (quoting          Henderson , 431 U.S.

at 155)). As a predicate to deciding whether the trial court’s refusal to instruct on

intoxication violated Jackson’s constitutional rights by rendering his trial

fundamentally unfair, this court can examine relevant Oklahoma law.          2



      In Oklahoma, juries may consider voluntary intoxication to determine if

a defendant had the intent to commit first degree murder.          See Bland v. State ,

4 P.3d 702, 715 (Okla. Crim. App. 2000),       cert. denied , 531 U.S. 1099 (2001);

Fitzgerald v. State , 972 P.2d 1157, 1174 (Okla. Crim. App. 1998);          Lamb v. State ,

767 P.2d 887, 889-90 (Okla. Crim. App. 1988). The OCCA, in              Jackson , 964 P.2d

at 891-92, clarified Oklahoma law concerning presentation of an intoxication

defense. That court noted that the trial judge first had a duty to decide whether



2
       This court does not “reexamine state-court determinations on state-law
questions;” rather, this court “is limited to deciding whether [Jackson’s]
conviction violated the Constitution, laws or treaties of the United States.” See
Estelle v. McGuire , 502 U.S. 62, 67-68 (1991); see also King v. Champion ,
55 F.3d 522, 527 (10th Cir. 1995) (“This court may not correct errors of state law
made by state courts.”).

                                             -7-
the defense was adequately raised such that it warranted instruction.   Id. at 891.

“When sufficient, prima facia evidence is presented which meets the legal criteria

for the defense of voluntary intoxication, or any other defense, an instruction

should be given.”   Id. at 892. “A defense of voluntary intoxication requires that a

defendant, first, be intoxicated and, second, be so utterly intoxicated, that his

mental powers are overcome, rendering it impossible for a defendant to form the

specific criminal intent or special mental element of the crime.” Id.; see also

Frederick v. State, 37 P.3d 908, 942 (Okla. Crim. App. 2001) (holding mere

consumption of alcohol and marijuana is insufficient to raise voluntary

intoxication defense without showing consumption prevented defendant from

forming premeditated intent); Bland, 4 P.3d at 718 (upholding trial court’s refusal

to give voluntary intoxication instruction because defendant gave detailed account

of circumstances surrounding crime).

       Applying these standards, the OCCA found that Jackson failed to present

sufficient, prima facie evidence to support giving a voluntary intoxication

instruction:

              We find that Jackson has failed to present evidence that his
       mental powers were so overcome through intoxication that he could
       not form the specific intent to kill. Expert testimony revealed that if
       a person consumed as much alcohol as Jackson claimed to have
       consumed, he would be in a stupor with markedly diminished
       awareness of things going on around him and have diminished ability
       to focus attention and would have severely impaired motor


                                            -8-
      functioning. However, Jackson’s testimony revealed that he did not
      suffer from these conditions.

             Jackson testified that he was aware of things going on around
      him just before and just after the murder. Jackson told Dr. Donica
      that he and Cade were physically fighting in the motel room, they
      interrupted their fighting long enough to make up and have sex, then
      they began hitting each other again. Jackson said he went into the
      bathroom to put on his clothes and Cade came in and started hitting
      him, they both fell to the floor, they both got up, continuing to hit
      each other, then Cade fell to the floor. He left the bathroom and sat
      on the bed, when he went back into the bathroom he saw Cade laying
      on the floor with blood on her. He told [Dr.] Donica that he was
      frightened so he got his clothes on and left. This testimony belied
      Jackson’s defense that he was so intoxicated he could not form the
      requisite intent to kill.

Jackson, 964 P.2d at 892. 3

      In light of the high standards imposed by AEDPA, we conclude that the

failure to give a voluntary intoxication instruction did not render Jackson’s trial

fundamentally unfair. The only evidence in this case supporting a voluntary

intoxication defense is the various statements of Jackson. Jackson’s statements,



3
       Jackson submits the OCCA’s disbelief of his defense caused the court to
engage in review held erroneous in      Hogan v. Gibson , 197 F.3d 1297 (10th Cir.
1999). Hogan , however, is distinguishable. In that case, the OCCA determined
a lesser included offense instruction was unnecessary because sufficient evidence
supported the malice murder conviction.       Id. at 1305. This court held that
determination did not satisfy the requirements of      Beck v. Alabama , 447 U.S. 625,
627 (1980), which requires a court instead to decide whether the defendant
presented sufficient evidence to warrant giving a lesser included offense
instruction. Hogan , 197 F.3d at 1305-06. Unlike in       Hogan , the OCCA in this
case did assess whether Jackson presented sufficient evidence to warrant
intoxication instructions.   See Jackson , 964 P.2d at 892.

                                          -9-
however, were conflicting. During his September 7, 1994, interview with police

detectives, Jackson did not indicate he was too intoxicated to remember the

killing. Although he mentioned drinking in passing, he stressed that he was

angry, on edge and had “blimped out.” On September 16, 1994, Jackson told an

Oklahoma Department of Corrections’ internal affairs investigator that he had one

beer and smoked marijuana and felt “messed up” from them. On June 24, 1995,

Jackson told Dr. Donica about drinking half a quart of 3.2 beer and taking two

puffs from a marijuana cigarette. According to Dr. Donica, this small amount of

beer would have decreased Jackson’s inhibitions against aggressiveness, mildly

impaired his intellectual functioning, and mildly to moderately diminished his

awareness of what he was doing and what was happening. Dr. Donica, however,

did not say Jackson was intoxicated.

      Only later did Jackson indicate he was intoxicated. Fourteen months after

the crime, Jackson remembered consuming the Alize.     On November 27, 1995,

Jackson, for the first time, mentioned to Dr. Donica that he drank the bottle of

liquor. From this new information, Dr. Donica estimated Jackson’s blood alcohol

to have been 0.20 from 11 a.m. to 12:30 p.m., 0.19 at 3 p.m., and 0.12-0.13 at

6:30 p.m. With a blood alcohol of 0.20 or higher, Dr. Donica stated a person may

be in an alcoholic stupor with markedly diminished awareness of anything going

on around him and severely impaired motor functioning. At trial, Jackson


                                        -10-
testified that although he was not sure, he guessed he was drunk and could not

remember the killing both because he was upset and under the influence of

intoxicating alcohol.   Leffette, who first saw Jackson about 6:00 or 6:30 p.m. on

the day of the murder, testified that he was acting fine, did not smell of alcohol

and did not appear intoxicated or under the influence of drugs.

       As the OCCA determined, the evidence did not suggest Jackson was in such

an alcoholic stupor. All of the evidence established that Jackson did consistently

remember after drinking where he went, getting into a fight with Cade, grabbing

her around the neck, leaving the motel, waking up in the field, asking for a ride,

and telling the driver where he wanted to go. Further, Jackson specifically

remembered that while they were in the motel room, Cade ate the chicken she

bought at a fast food restaurant; they had sex; they talked about their relationship;

she got more aggressive as they talked; she followed him into the bathroom

raving, hollering, screaming, kicking and striking him; he hit her to contain

her; and he grabbed her and pulled her towards him after she came into the

bathroom. Thus, Jackson remembered the details of the events before and after

the murder, suggesting he had control of his mental faculties, had coherent

decision-making ability, and was not in a state of intoxication such that his

judgment was impaired.




                                         -11-
      Jackson asserts the OCCA’s dissent correctly decided this case. The

dissent criticized the majority for (1) failing to find sufficient evidence to support

a prima facie case of intoxication; (2) weighing the evidence; and (3) using an

incorrect test by reciting that Jackson had not proved his defense beyond a

reasonable doubt. Jackson, 964 P.2d at 902-03 (Lane, J., dissenting).

      The first criticism is addressed by the prior discussion. Contrary to the

dissent’s assertion, the majority did not weigh the evidence. See id. at 892

(recognizing trial court should not weigh evidence). Nor did the majority require

Jackson to prove his defense beyond a reasonable doubt to obtain instructions on

that defense. While the majority noted that recent Oklahoma law required

a defendant to raise a reasonable doubt about his ability to form requisite criminal

intent, the majority further expressed concern that the test was too stringent.

Id. at 891-92. The majority therefore clarified that if there was sufficient,

prima facie evidence presented, which met the legal criteria for voluntary

intoxication, then the trial court must give a voluntary intoxication instruction.

Id. at 892.

      Before this court, Jackson argues in only very general terms that he was

also entitled to instructions on involuntary intoxication. Neither the OCCA nor

the federal district court specifically addressed the issue. Involuntary intoxication

is a complete defense if the defendant is so intoxicated he cannot distinguish


                                         -12-
between right and wrong. Jones v. State, 648 P.2d 1251, 1258 (Okla. Crim. App.

1982). “Involuntary intoxication results from fraud, trickery or duress of another,

accident or mistake on defendant’s part, pathological condition or ignorance as to

effects of prescribed medication.” Patton v. State, 973 P.2d 270, 290

(Okla. Crim. App. 1998). No evidence in this case supported giving an

involuntary intoxication instruction. Jackson himself testified he assumed the

Alize contained alcohol because it came from a liquor store.

      Given the context of this case, the trial court’s failure to instruct on

intoxication did not rise to the level of error rendering the trial fundamentally

unfair. See Maes , 46 F.3d at 985. Accordingly, the OCCA’s decision was not

unreasonable.   See 28 U.S.C. § 2254(d).

II. Voir Dire

      Jackson argues the voir dire process precluded him from seating a fair and

impartial jury because he did not have an opportunity to ask about any bias and

hostility toward his diminished capacity/voluntary intoxication defense and he

could not determine which jurors to remove with peremptory challenges.           He,

therefore, asserts the trial court denied him his constitutional right to be tried in a

fundamentally fair proceeding.

      Our resolution of the first issue dictates the outcome of this issue.

Nonetheless, upon consideration of the merits, we further conclude the OCCA’s


                                         -13-
decision that the voir dire was constitutionally proper was not contrary to or

an unreasonable application of clearly established Supreme Court precedent.

See id. § 2254(d)(1).

       “This court’s review of the state trial court’s voir dire is ‘limited to

enforcing the commands of the United States Constitution.’”         Neely v. Newton ,

149 F.3d 1074, 1083-84 (10th Cir. 1998) (quoting        Mu’Min v. Virginia , 500 U.S.

415, 422 (1991)) (pre-AEDPA);       see also Sallahdin v. Gibson , 275 F.3d 1211,

1222 (10th Cir. 2002). The underlying purposes of voir dire are to pick an

impartial jury and to assist counsel’s exercise of peremptory challenges.      Mu’Min ,

500 U.S. at 431. Thus, inquiry is permitted to determine if prospective jurors

have any bias, opinion or prejudice that would affect fair determination of the

trial issues. Neely , 149 F.3d at 1084 (citing    Mu’Min , 500 U.S. at 422).

       “[T]he trial court[, however,] retains great latitude in deciding what

questions should be asked on     voir dire .” Mu’Min , 500 U.S. at 424; see also

Rosales-Lopez v. United States    , 451 U.S. 182, 189 (1981) (plurality).   “To be

constitutionally compelled, . . . it is not enough that [certain] questions might be

helpful. Rather, the trial court’s failure to ask these questions must render the

defendant’s trial fundamentally unfair.” Mu’Min, 500 U.S. at 425-26; see also

Ristaino v. Ross, 424 U.S. 589, 594-95 (1976) (“The Constitution does not always

entitle a defendant to have questions posed during voir dire specifically directed


                                           -14-
to matters that conceivably might prejudice veniremen against him. . . . Thus, the

State’s obligation to the defendant to impanel an impartial jury generally can be

satisfied by less than an inquiry into a specific prejudice feared by the

defendant.”) (footnote omitted).

      Addressing whether the trial court allowed Jackson “sufficient voir dire to

determine if there were grounds to challenge a particular juror for cause and to

intelligently exercise his peremptory challenges,” the OCCA determined:

      [T]he trial court did not abuse its discretion in disallowing Jackson’s
      questions regarding his theory of defense. The questions were an
      effort to test jurors’ willingness to accept his theory of defense rather
      than to test their impartiality. Ultimately, instructions on voluntary
      intoxication were not given. Therefore, defense counsel’s proposed
      questions would only have confused the jury.

Jackson , 964 P.2d at 883.

      This determination was not contrary to or an unreasonable application of

clearly established Supreme Court precedent.    See 28 U.S.C. § 2254(d)(1).

Although the trial court refused to allow Jackson to question the venire panel

about his specific defense or its underlying facts, the trial judge did give him

latitude to ask the panel whether they would believe the testimony of

psychologists or psychiatrists. And Jackson’s counsel did ask the prospective

jurors whether they would give credit or weight to psychology and psychiatry

experts and whether they would follow the instructions. Jackson, therefore, did

have an opportunity to ascertain bias or prejudice on the part of the prospective

                                         -15-
jurors. Cf. Sellers v. Ward , 135 F.3d 1333, 1341-42 (10th Cir. 1998) (upholding

trial court’s refusal to allow defendant to ask prospective jurors if they would find

specific facts mitigating);   McQueen v. Scroggy , 99 F.3d 1302, 1328-29 (6th Cir.

1996) (upholding trial court’s refusal to allow specific question concerning

intoxication as mitigating evidence because it implicated legal standard and when

counsel was able to ask other questions concerning juror’s attitudes concerning

alcohol). Further, the permitted questioning was sufficient to allow Jackson to

exercise intelligently his peremptory challenges.

       Even assuming additional questions may have been helpful, in light of the

high standards set by the Supreme Court cases and the great amount of deference

given to trial courts, Jackson has not met his burden of showing the trial court

unconstitutionally restricted his voir dire by refusing to allow him to question the

prospective jurors about intoxication, thereby rendering his trial fundamentally

unfair. See Mu’Min , 500 U.S. at 425-26; Neely , 149 F.3d at 1084. Accordingly,

the OCCA’s determination was not contrary to or an unreasonable application of

clearly established Supreme Court precedent.     See 28 U.S.C. § 2254(d)(1).




                                          -16-
     The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED.

                                                 Entered for the Court



                                                 Michael R. Murphy
                                                 Circuit Judge




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