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Norman Richard CLEARY

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: December 6, 1991
Date of birth: February 15, 1966
Victim profile: Wanda Neafus, 44 (housekeeper)
Method of murder: Shooting
Location: Tulsa County, Oklahoma, USA
Status: Executed by lethal injection in Oklahoma on February 17, 2004
 
 
 
 
 
 

Summary:

Wanda Neafus was working as a housekeeper at a home in the upper-class Maple Ridge neighborhood in Tulsa when Cleary and accomplice Kenneth Chandler arrived.

The two men had already knocked on at least two other doors, looking for a home to burglarize. But when Neafus saw a gun fall from Chandler's coat, the men panicked and plans changed.

Cleary led Neafus around the house at gunpoint and finally shot her when she didn't have the combination to a basement safe.

She was found later that Dec. 6, 1991, slumped in a chair. She had been shot five times in the face, neck and head. A medical examiner testified that several of the shots were from close range.

The only items the homeowners determined missing were Neafus' purse and a cane the family had purchased at the Smithsonian Institution. According to testimony, Chandler fled as Cleary was about to pull the trigger. Chandler was sentenced to life in prison for his role.

Cleary had previously been convicted of assault and battery with a dangerous weapon, robbery, and first-degree burglary, all stemming from an attack on an eighty-seven year old woman in her home. Cleary had also previously been convicted of several additional first-degree burglaries.

Citations:

Cleary v. State, 942 P.2d 736 (Okl.Cr. 1997) (Direct Appeal).
Cleary v. Oklahoma, 118 S.Ct. 1528 (1998) (Cert. Denied).
Cleary v. Mullin, 62 Fed.Appx. 243 (10th Cir. 2003).
Cleary v. Mullin, 124 S.Ct. 825 (2003) (Cert. Denied).

Final Meal:

Two foot-long chili-cheese hot-dogs, a large chocolate malt, a large vanilla malt and six pieces of extra crispy chicken -- two breasts, two thighs and two legs.

Final Words:

"Again, I'd like to apologize to my victim's family, to tell them how sorry I am for the pain I've caused them. I hope that someday they can forgive me. For my family, just thank you for loving me. Thank you and God bless you."

ClarkProsecutor.org

 
 

Oklahoma Department of Corrections

Inmate: NORMAN R. CLEARY
ODOC#: 138383
OSBI#: 531528
FBI#: 133012DA7
Birthdate: 02/15/1966
Race: White
Sex: Male
Height: 5 ft. 8 in.
Weight: 180 pounds
Hair: Black
Eyes: Blue
County of Conviction: Tulsa
Location: Oklahoma State Penitentiary, Mcalester

 
 

Texas, Oklahoma Execute Killers; Child Killer Tells Ex-Wife to Rot in Hell

The DeathHouse.com

February 17, 2004

McAlester, Okla. - Convicted killers in Oklahoma and Texas were executed by lethal injection Tuesday night. Cameron Todd Willingham went to the Texas death house just after 6 p.m. for the murder of his three children. Willingham was convicted of setting a fire at his home that killed the children, including one-year-old twins. But before he received the lethal injection, he looked toward his ex-wife and mother of the three children he had killed and said, "I hope you rot in Hell, bitch." The woman was witnessing the execution. Willingham, who claimed he was innocent, was pronounced dead at 6:20 p.m., seven minutes after the lethal dose of chemicals began.

In Oklahoma, Norman Cleary, 48, went to the death house for the murder of a housekeeper who was working at a Tulsa home Cleary and a friend targeted for a burglary. In return for a death sentence and lethal injection, Cleary had taken a purse and a walking cane during the 1991 burglary in Tulsa.

Kills Three Children

The fire that Willingham was convicted of setting occurred two days before Christmas in 1993 in Coricana. Prosecutors charged that Willingham was trying to cover up abuse of the children. Killed were Amber Louis Kuykendall, 2, Karmon Diane Willingham and Kameron Marie Willingham, one-year-old twins. Willingham's case is notable, critics of the death sentence had stated, because of the use of a controversial psychiatrist to predict that Willingham would be a future danger to society - one of the requirements for a death sentence in Texas.

The psychiatrist, James Grigson, who testified on future dangerousness in many death penalty cases in Texas, was later expelled from the American Psychiatric Association in 1995. In more than 100 of the 167 cases he testified in, he predicted the defendant would kill gain.

Road To Death House Cleary's road to the Oklahoma death house began with a home break-in in Tulsa in 1991. The victim, Wanda Neafus, was shot shot five times. Another man involved in the burglary, Kenneth Chandler, was tried separately and sentenced to life in prison. Cleary, who was on parole at the time of the murder, was executed two days after his 48th birthday. The burglary and murder occurred Dec. 6, 1991.

State and federal court documents stated that Cleary, Chandler and another man were driving in Tulsa. Cleary, who had an extensive record of burglary and assault, and Chandler decided to burglarize a home. The third man refused to take part in the burglary and got out of the truck. Cleary and Chandler drove through the Maple Ridge area searching for a home of burglarize. They rang doorbells to try to to find a vacant home.

Neafus answered the door at the third house they tried. However, a handgun Chandler was carrying slipped out from under his coat. Believing they had been found out, the men pushed open the door and went into the house. They took Neafus to the basement, where Cleary shot her five times in the face and neck, prosecutors said. They key evidence against Cleary was a confession and incriminating conversations he had with his former girlfriend. She testified that Cleary told her he had killed the housekeeper. The girlfriend later claimed she lied about one of the conversations.

After being found guilty of the murder, Cleary's criminal record helped the jury decide that he was a future danger and deserved a death sentence. Prison records show that Cleary had been previously convicted of assault and battery, robbery by fear and first degree burglary. These convictions stemmed from an attack on an elderly victim, who he had beaten. Cleary had also been convicted previously of burglary and attempted burglary. He was on parole at the time of the murder of Neafus.

At his trial, Cleary's lawyer tried to show that the convicted killer had an abusive childhood. A juvenile case worker who had known Cleary said as a child, Cleary frequently ran away form home.

 
 

Oklahoma Attorney General News Release

News Release - W.A. Drew Edmondson, Attorney General

Execution Date Set for Cleary 01/05/2004 The Oklahoma Court of Criminal Appeals today set Feb. 17 as the execution date for Tulsa County death row inmate Norman Richard Cleary, Attorney General Drew Edmondson said. Edmondson requested the date Dec. 1 after the United States Supreme Court denied the inmate's final appeal.

Cleary was convicted and sentenced to death for the Dec. 6, 1991, murder of Wanda Neafus, 44. Cleary shot Neafus five times as he attempted to burglarize the home where she was working as a housekeeper.

 
 

ProDeathPenalty.com

Convicted killer Norman Richard Cleary is set to be executed February 17th. The 36-year-old from Tulsa County lost his final appeal last month to the US Supreme Court. The Oklahoma Court of Criminal Appeals set his execution date.

Cleary was sentenced to death for killing Wanda Neafus. Wanda was a housekeeper, and she was shot 5 times in 1991 during an attempted burglary at a home where she worked. In the early afternoon of December 6, 1991 Norman Richard Cleary, Kenneth "KC" Chandler, and another man drove around Tulsa in Cleary's truck.

The third man was looking for a job; Cleary and Chandler wanted to burglarize a home. The other man wanted no part of the burglary and was dropped off at a shopping mall. Cleary and Chandler drove through Maple Ridge and cased the neighborhood.

They knocked on the door of two homes, and when the residents answered from upstairs windows, they asked for the address of a fictitious person. Housekeeper Wanda Neafus answered the door of the third home.

The handgun Chandler was carrying slipped out from under his coat, and believing they had been found out, the men pushed open the storm door and came into the house. They took Wanda to the basement where Cleary shot her five times in the face and neck. On their way out, they took Wanda's purse, and a cane with an eagle hand grip from the hall tree.

At the capital sentencing proceeding, the jury found four aggravating factors: 1) Cleary was a continuing threat to society; 2) he had killed the victim to avoid being arrested and prosecuted for the burglary; 3) he had a previous violent felony conviction; and 4) he committed this murder while he was serving a prison sentence for a previous felony conviction.

The State established that Cleary had previously been convicted of assault and battery with a dangerous weapon, robbery by fear and first-degree burglary, all stemming from an attack on an eighty-seven year old woman in her home, during which the elderly victim was beaten bloody about her head and face.

Cleary had also previously been convicted of several additional first-degree burglaries or attempts to commit first-degree burglary. In fact, Cleary killed Wanda Neafus while he was still on parole for an earlier conviction. And while in prison, he had stabbed another inmate. Cleary's parole officer believes Cleary poses a threat to society, regardless of whether he is in or out of prison.

 
 

National Coalition to Abolish the Death Penalty

Norman Cleary, OK - Feb. 17, 6 PM CST

The state of Oklahoma is scheduled to execute Norman Cleary, a white man, Feb. 17 for the 1991 death of Wanda Neafus in Tulsa county. Mr. Cleary and another man, Kenneth Chandler, were looking to burglarize a house. They went to the door and the housekeeper, Ms. Neafus, answered. She was taken to the basement and shot five times. Mr. Cleary maintains that Chandler was responsible for the murder; he did not know that Mr. Chandler was going to kill her and was not in the room when the shooting occurred. Mr. Cleary has written to the family of Ms. Neafus, expressing grave remorse.

The state of Oklahoma has executed 69 people since 1990. Please contact Gov. Henry and urge him to grant a moratorium on Oklahoma executions and commute the death sentence of Norman Cleary.

 
 

Killer to Die Tonight

By Doug Russell - McAlester News Democrat

Tuesday, February 17, 2004

More than 12 years later, the good memories are still strong, but so is the horror. Members of Wanda Neafus' family plan to be at Oklahoma State Penitentiary tonight to witness the execution of Norman Richard Cleary, the man who killed her on Dec. 6, 1991.

"No one can take her place," said Becky Flippin, a sister of the murder victim. "I became a grandmother after Wanda was killed. That was hard. "I wanted to call her up and talk with her, but she wasn't there." Before her death, Neafus had always been there when anyone needed her, family members said. "We were a close family," said Anita Wilson, another of Neafus' sisters. "We still are, but it's not the same. "Something's always missing."

For the family, that absence is kind of like the lakeside lot on Lottawatah Road near Checotah. The 24-foot storage shed that had been converted into a cabin was just right for Wanda Neafus and her family. The small kitchenette was just fine for cooking up the fish the family members caught.

The loft was plenty large for her son Jason to sleep in and the downstairs area also had an area that served as a bathroom. The lot was a family place, full of laughter and happy memories - for both her immediate family and the families of her brothers and sisters. The family doesn't go there anymore. "The place was sold after that," Wilson said. "There were just too many memories."

Jerry Neafus, Wanda's husband for almost 26 years, is in poor health and doesn't sleep well. "My dad says he won't feel good or rest until Cleary is dead," said Gerri Morris, the couple's daughter. "None of us will."

 
 

Use of death penalty dehumanizes society

By Fletcher Christensen - Oklahoma Daily

February 17, 2004

On Dec. 6, 1991, Norman Richard Cleary shot and killed Wanda Neafus during the commission of a burglary. In 1993, an Oklahoma court sentenced Cleary to death by lethal injection. Tonight, that execution will be carried out. Cleary is guilty as sin. The courts know it. The press knows it. Even I know it, and Iím cynical enough to doubt anything. Everyone agrees. This man murdered Wanda Neafus. So why am I telling you about him?

Clearyís execution gives me a chance to discuss capital punishment without addressing all the unrelated topics most pundits bring up. Cleary isnít a minority being railroaded by the legal system. Cleary isnít unjustly imprisoned, awaiting execution for a crime he didnít commit. Cleary isnít a nice man who was driven by circumstances to acts he despises. Cleary is a murderer and a thief.

Those who argue that capital punishment is wrong because we risk killing innocent people arenít arguing against capital punishment at all. They are arguing against an unfair legal system, and thatís an entirely different issue. Iíll discuss that another time. The crux of the capital punishment question is this: Is it right for society to kill its members? And the answer is no. Seriously, people, why are you even thinking about this one?

Human society is supposed to be the highest achievement of our species. Society forms the groundwork for our cooperative existence. Society is the final arbiter of right and wrong, the conscience we all share. What message is sent by a society that willfully kills its own when they disobey the will of the whole? Kill the outsider. Kill the interloper. He who obeys not my laws, him shall I destroy.

What surprise, then, to learn that capital punishment is not a deterrent to crime. Government reports consistently show higher murder rates in states with the death penalty. California has shown an increase in the number of criminal homicides in the months following an execution. Surveys find that two-thirds of U.S. police chiefs and four-fifths of criminologists do not believe capital punishment is an effective deterrent. Some of you, Iím sure, still support capital punishment because it saves the taxpayers money. First, thank you very much for finally attaching a monetary value to human life. Second, any real examination of the research reveals that it actually costs more to execute a criminal than to imprison him for life.

Think about it: Death penalty cases are higher-profile and receive more appeals than any other criminal cases. Since most death-row inmates canít afford counsel, the government pays the salaries of the public defenders, prosecutors and judges. Phillip Cook of Duke University has shown that North Carolina spends an average of $4 million a year just keeping prisoners on death row.

So why does our society participate in this farce? Because, overwhelmingly, Americans support the death penalty. We like killing our own. Be it a thirst for vengeance or a fear of our fellow men, we want to see those around us dead. The more people we kill, the less competition we face, the better our chances of success in life. Welcome to ďSurvivor: Darwinian Capitalism.Ē

Tonight, Norman Richard Cleary leaves the tribe. What do we gain by killing him? Nothing. What do we lose? Our humanity.

 
 

Cleary Executed For 1991 Murder; Death Row Inmate Uses Final Moments To Apologize To Victim's Family

Channel 5 Oklahoma.com

February 17, 2004

McALESTER, Okla. -- In his final moments, Norman Richard Cleary expressed his grief to the family of the woman he killed and his love for his family. Cleary, convicted in 1993 for the murder of Tulsa housekeeper Wanda Neafus, was put to death Tuesday at the Oklahoma State Penitentiary. He died at 6:14 p.m., three minutes after he was given the first of three injections. It was only two days after his 38th birthday.

Cleary's parents, his sister, two friends and two spiritual advisers attended the execution as witnesses. As they walked into the execution room, the group wiped away tears and tried to contain their sorrow, telling one another, "it's going to be all right." "Again, I'd like to apologize to my victim's family, to tell them how sorry I am for the pain I've caused them," Cleary said in his final statement. "I hope that someday they can forgive me. "For my family, just thank you for loving me. Thank you and God bless you." As he finished speaking, Cleary turned left to look at his family. Several of the witnesses said, "I love you."

Cleary sniffled as the injections began and lay motionless with his eyes closed until a doctor pronounced him dead. His family consoled one another by telling each other, "he's free." Cleary had also apologized to the family of his victim, Wanda Neafus, and asked their forgiveness at his clemency hearing last week.

Neafus' family members, who watched from a separate room, chose not to speak with reporters after the execution. Neafus' sister, Anita Wilson, said days earlier that the family wasn't prepared for forgiveness. "They say that he has turned his life around and found God, which is wonderful," said Wilson, 40, of Bixby, "but he has to pay a price here on Earth." Wilson had said she expected most of Neafus' family to be at the prison Tuesday.

Neafus was working at a home in the upper-class Maple Ridge neighborhood in Tulsa when Cleary and accomplice Kenneth Chandler arrived. The two men had already knocked on at least two other doors, looking for a home to burglarize. But when Neafus saw a gun fall from Chandler's coat, the men panicked and plans changed.

Cleary, who was 25 years old at the time, led Neafus around the house at gunpoint and finally shot her when she didn't have the combination to a basement safe. She was found later that Dec. 6, 1991, slumped in a chair. She had been shot five times in the face, neck and head. A medical examiner testified that several of the shots were from close range.

Wilson said she couldn't understand why anyone would kill her sister, who she remembered as "very, very loving. Sweet as she could be. Wouldn't hurt nobody for nothing." The only items the homeowners determined missing were Neafus' purse and a cane the family had purchased at the Smithsonian Institution.

According to testimony, Chandler fled as Cleary was about to pull the trigger. Chandler was sentenced to life in prison for his role. As his last meal, Cleary requested two foot-long chili-cheese hot-dogs, a large chocolate malt, a large vanilla malt and six pieces of extra-crispy chicken - two breasts, two thighs and two legs.

He was the second person executed by Oklahoma this year. Tyrone Peter Darks was put to death last month for the 1994 shooting death of his ex-wife, Sherry Goodlow. Hung Thanh Le is scheduled to die Feb. 26 and a March 9 execution is scheduled for David Jay Brown.

There were 14 executions in Oklahoma last year. There are currently 92 men and no women on the state's death row.

 
 

Tulsa killer Cleary executed by state

KOTV-TV Tulsa

AP - February 17, 2004

McALESTER, Okla. (AP) -- Norman Richard Cleary was put to death Tuesday for the 1991 shooting death of a Tulsa housekeeper. Cleary was pronounced dead at 6:14 p.m., said Jerry Massie, spokesman for the Oklahoma Department of Corrections. Cleary, 38, was convicted in 1993 for the murder of Wanda Neafus, 44, who worked as a housekeeper at a Tulsa home Cleary and an accomplice were trying to burglarize.

On Dec. 6, 1991, Cleary and Kenneth Chandler knocked on the doors of several homes in the upper-class Maple Ridge neighborhood in Tulsa before ending up at the home of Richard Schafer, where Neafus was working.

The two men had intended to simply rob the house, according to court testimony, but a gun fell out of Chandler's coat and the situation quickly changed. Cleary led Neafus around the house at gunpoint and finally shot her when she didn't have the combination to a basement safe, authorities have said. Neafus was found slumped over in a chair. She had been shot five times in the face, head and neck. Neafus' purse and a cane that had been purchased at the Smithsonian Institution were the only items homeowners determined had been stolen.

Prosecutors claimed Cleary acted so Neafus could not identify him to police. Public defenders had argued that Cleary was unable to make quick decisions properly because of childhood abuse and an accident in which he was hit by a car. They claimed he should be given clemency because his trial attorney failed to present that evidence.

Cleary was the second person executed by the state of Oklahoma this year. Tyrone Peter Darks was put to death last month for the 1994 shooting death of his ex-wife, Sherry Goodlow. Hung Thanh Le is scheduled to die Feb. 26 and a March 9 execution is scheduled for David Jay Brown. As his last meal, Cleary requested two foot-long chili-cheese hot-dogs, a large chocolate malt, a large vanilla malt and six pieces of extra crispy chicken _ two breasts, two thighs and two legs.

 
 

Oklahoma Coalition to Abolish the Death Penalty

"Doing Justice," by Lyndia Faihtinger.

Letter to the Editor, Houston Press

October 18, 2002

O' mother of mine: The past seems to come alive for me ["Justice for Some," by Scott Nowell, October 3]. I have a son on death row in the Oklahoma state prison. When I think of him, the past is all I have. I believe that the justice system, though flawed, is the best there is in the world. And I always believed in the death sentence for those that have taken a life. If you take a life, you should forfeit your own, but in a civil manner. Since the conviction of my son, I have had reason to change my belief in that the person who suffers is not the only one who is put to death, but also the family of that person.

Since my son has been on death row he has found a new way and a new life. He has found God and unlike many jailhouse conversions has become a minister to others and has started to console me and his family. He says that the thought of spending a lifetime in the prison is more frightening to him than his death. He says he knows where he is going and is looking forward to it. The only regret he has, besides for his victim, is the pain and suffering his death will leave behind. His father and I and his siblings are the ones condemned to a life sentence of suffering and grief. He will be at rest and in the forgiving arms of God.

He told me that when God forgave him for the life he had taken, he -- on his own -- wrote to the family of his victim and told them that he knew they may never forgive him and he well understood that, that he just wanted to tell them how sorry he was. He said that the only way he could expect God to forgive him was for him to ask for the forgiveness of the family of his victim. He felt he owed the family of the victim his profound remorse, and just feeling it was not enough; he must tell them.

I understand that, but I need to ask a question: Who tries to ease the pain for the parents of the condemned? Who tells us that they are sorry and remorseful for the death of our child? Does the state consider us, the parents, siblings and family of the condemned, as victims? No, they do not. But as surely as I live and breathe, we are the victims who have all the grief and none of the closure. The death sentence should be left behind as cruel and uncaring. To say the death sentence is a deterrent to others committing the same crime is simply moronic.

For a country as great as the USA to carry on an outdated and cruel practice is also moronic. I feel that the system must be changed and enlightened and move forward, not backward as the death sentence has taken us. When the date for my son's execution arrives, I will be there, and the last face he sees will be mine, the first face he saw at birth. Will I ever get over the injustice, grief and sorrow my own country condemns me to live with for the rest of my life? No. And it will carry over unto the next generation.

Lyndia Faihtinger, Mother of Norman R. Cleary
Stockton, California.

 
 

Killer Gets No Mercy From Clemency Board

By Doug Russell - McAlester News-Capital & Democrat

Friday, February 13, 2004

Apology not accepted - Moments before the Oklahoma State Pardon and Parole Board voted 4-1 to deny clemency for Norman Richard Cleary, the 37-year-old inmate said he wanted to face his victim's family and apologize. The family wanted no part of it.

Without facing family members, he apologized anyway. "I've had a lot of time to think about it and I understand what I did to my victim's family," Cleary said in a soft voice. "I understand what a horrible thing I did to the Neafus family and I hope someday they can forgive me. "I'm very sorry for my actions." But forgiveness is out of the question for now. "Even though God says I'm supposed to forgive, that's a little hard," said Bixby resident Anita Wilson.

Cleary is scheduled to be executed Tuesday for the Dec. 6, 1991, murder of Wanda Neafus, Wilson's sister. "I miss her tremendously," Wilson said. "She was more than just a sister. She was my best friend." Wilson said she and Neafus had been working together on stuffed animals for some of the younger family members that year. "I had to finish them by myself. That was hard."

Cleary's federal public defender, Kristi Christopher, told the Pardon and Parole Board that Cleary should not be executed because he suffered from brain damage and his attorneys through his trial and appeals process had been ineffective. "The question this board needs to consider is not whether he's been through the process, but whether the process he's been through justifies his execution," she said. Christopher had four other attorneys and a neuropsychologist present arguments to bolster her statement.

Sid Conway, an assistant public defender from Tulsa County who said she was "peripherally involved" in Cleary's trial, called the case a train wreck. "The law presupposes that in a capital case everybody is going to do their job," she said. "That didn't happen in this case. We didn't do our job." Dr. Michael Gelbort said Cleary was like a combat veteran who couldn't react appropriately in panic situations. He said Cleary had been abused and suffered brain damage and was unable to adjust to rapidly changing situations.

But Assistant Attorney General Robert Whittaker called Gelbort's statements "garbage." Whittaker said that, whether intentionally or not, Gelbort had taken information out of context to fit his brain damage theory. Cleary had several previous convictions for burglary, including one in which he severely beat an 87-year-old woman, Whittaker said. "He learns. He learns you don't leave a victim behind that can identify you."

When Cleary and a co-defendant forced their way into the home in which Neafus was working as a housekeeper, then forced her to walk around the home at gunpoint, there was no panic, Whittaker said. He added panic didn't make Cleary force her into a the basement and shoot her multiple times. "It was not a panic. It was choice."

 
 

Cleary v. State, 942 P.2d 736 (Okl.Cr. 1997) (Direct Appeal).

Defendant was convicted, following jury trial in the Tulsa County District Court, B.R. Beasley, J., of first-degree murder and first-degree burglary after former conviction of two felonies. Following sentencing stage of trial, jury found four aggravating circumstances and recommended sentence of death for murder and ninety-nine years' imprisonment for burglary. Defendant appealed. The Court of Criminal Appeals, Lane, J., held that: (1) nondiscriminatory reason offered by prosecution for peremptory strike of African-American venireman was supported by evidence in record; (2) evidence was sufficient to establish first-degree burglary elements of breaking and presence of person in home; (3) letters written by defendant's cellmate on defendant's behalf were admissible; (4) probative value of styrofoam wig head pierced with foot-long dowels was not substantially outweighed by danger of unfair prejudice resulting from its admission into evidence; (5) trial court's failure to sua sponte instruct jury that merely standing by does not make someone principal was not plainly erroneous; (6) pattern jury instruction which permitted conclusion that any act of physical force by which obstruction to entry was removed constituted sufficient "breaking" to support first-degree burglary conviction was correct statement of law; (7) aggravating factor of "while serving a sentence of imprisonment on conviction of a felony" was properly applied to defendant on parole at time of murder; (8) jury instructions on consideration of mitigating circumstances did not violate due process; (9) trial court was required to provide sentencing phase jury with written copy of instruction concerning balancing of aggravating and mitigating factors; (10) trial court's failure to do so was harmless error; (11) prosecutor's expression during closing argument of opinion as to defendant's guilt did not contribute to verdict and was therefore harmless; and (12) statutorily mandated review of imposition of death penalty revealed no error warranting reversal or modification. Affirmed. Lumpkin, J., concurred in results, with separate opinion in which Johnson, J., joined.

LANE, Judge.

Norman Richard Cleary was convicted of First Degree Murder in violation of 21 O.S.1991, ß 701.7, and First Degree Burglary After Former Conviction of Two Felonies in violation of 21 O.S.1991, ß 1431 in Tulsa County District Court Case No. CF-91-5395, the Honorable B.R. Beasley presiding.

Following the sentencing stage of trial the jury found four aggravating circumstances: (1) continuing threat, (2) avoiding arrest or prosecution, (3) prior felony conviction involving violence, and (4) murder committed while serving a term of imprisonment. The jury recommended a sentence of death for the murder and ninety-nine years imprisonment for the burglary.

Co-defendant Kenneth Chandler was tried separately and sentenced to life imprisonment. Judgment and sentence has been affirmed by unpublished opinion. (F-92-1234, Jan. 18, 1995).

FACTS

In the early afternoon of December 6, 1991 Norman Richard Cleary, Kenneth "KC" Chandler, and Jack Bell drove around Tulsa in Cleary's truck. Bell was looking for a job; Cleary and Chandler decided to burglarize a home. Bell wanted no part of the burglary and was dropped off at a shopping mall.

Cleary and Chandler drove through Maple Ridge and cased the neighborhood. They knocked on the door of two homes, and when the residents answered from upstairs windows, they asked for the address of a fictitious person. Housekeeper Wanda Neafus answered the door of the third home.

The handgun Chandler was carrying slipped out from under his coat, and believing they had been found out, the men pushed open the storm door and came into the house. They took Neafus to the basement where Cleary shot her five times in the face and neck. On their way out, they took Neafus' purse, and a cane with an eagle hand grip from the hall tree.

* * *

Cleary filed a motion for new trial after his former girlfriend, Corlea Corbell, who testified to three separate incriminating conversations with Cleary, recanted her testimony regarding one of the conversations. After trial and before sentencing, Corbell contacted the public defender's office and told an investigator and counsel that she had lied about the third conversation. The trial court denied the motion following a hearing which was held immediately prior to sentencing.

* * *

We examine the content of Corbell's testimony to determine the probable effect of the recantation. Corbell testified the first conversation with Cleary occurred at the Swingers club a few days after the murder. Corbell's sister Sally, who was Chandler's girlfriend, told Corbell that Chandler had killed a woman. Corbell immediately took Cleary behind the bar and asked him "... what was going on?" He told her Sally's statement was true, but that Chandler had not "shot the lady," he had. He also told Corbell he shot the victim in the neck and head and gave the .22 hand gun to a friend named Mike.

The second conversation took place at the home of Corbell's mother and involved Corbell, Cleary and Chandler. Chandler explained how they approached the house and rang the doorbell. Cleary detailed the two prior stops and said he "shot the lady."

The conversation came to an abrupt halt when Sally came in yelling she didn't want to hear any more about it. Corbell testified she overheard the third conversation between Cleary and Chandler at the Fountains bar. Cleary made fun of Chandler and called him a "pussy" for running up the stairs when Cleary fired the shots.

At the hearing on the motion for new trial Corbell testified she did not hear the third conversation, but had been told about it by someone else. She also testified Cleary may not have told her that he killed the victim to avoid being identified, but she was confused, and he may well have told her that. Corbell adamantly maintained these were the only problems with her testimony.

* * *

The record makes clear that no trial error caused passion, prejudice, or any other arbitrary factor to infect this trial. First-stage instructions were given correctly, and the jury returned a verdict of guilty. This verdict was amply supported by the record.

The jury was properly instructed on four aggravating circumstances: 1. The defendant was previously convicted of a felony involving the use or treat (sic) of violence to the person; 2. The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; 3. The murder was committed by a person while serving a sentence of imprisonment for conviction of a felony; and 4. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

The jury found all four aggravating circumstances, and the record contains sufficient evidence to support each finding. Mitigation included evidence of serious emotional and physical violence and abuse which Cleary endured as a child, early drug usage, and the fact Chandler received a life sentence for this crime. When we independently weigh the mitigating evidence against the aggravating circumstances which were each proven beyond a reasonable doubt, we find the jury's determination that, beyond a reasonable doubt, the aggravating circumstances outweigh the mitigating circumstances is amply supported by the record. Finding no error warranting reversal or modification, Judgment and Sentence of the District Court of Tulsa County is AFFIRMED.

 
 

Cleary v. Mullin, 62 Fed.Appx. 243 (10th Cir. March 27, 2003).

Before TACHA, Chief Judge, BALDOCK and MURPHY, Circuit Judges.

Following affirmance of his conviction and Oklahoma death sentence, 942 P.2d 736, the district court denied defendant habeas relief, and he appealed. The Court of Appeals, Tacha, Chief Judge, held that defendant's attorneys' representation at capital sentencing proceeding was not constitutionally ineffective because counsel failed to investigate and present several additional family members testimony. Affirmed.

Petitioner-appellant Norman Richard Cleary appeals the district court's decision denying him habeas relief, see 28 U.S.C. ß 2254, from his Oklahoma death sentence. The evidence at trial established that Cleary and a co- defendant knocked on the door of the home where Wanda Neafus was working as a housekeeper. Planning to burglarize the home, Cleary and his accomplice pushed their way inside the house when Neafus opened the front door. Cleary then took Neafus to the basement, where he shot her five times, killing her. Cleary and his co-defendant then left, taking Neafus's purse and a walking cane.

The jury convicted Cleary of both first-degree malice murder and first-degree burglary. Here, Cleary challenges only his death sentence, arguing that his trial attorneys' representation at the capital sentencing proceeding was constitutionally deficient because counsel failed to investigate and present expert psychological evidence in mitigation and should have had several additional family members testify on Cleary's behalf.

We decline to address Cleary's challenge to the lack of a psychological expert, however, because Cleary has never specifically raised that particular claim until now. See, e.g., Hooker v. Mullin, 293 F.3d 1232, 1241 n. 7 (10th Cir.2002) cert. denied, 537 U.S. 1165, 123 S.Ct. 975, 154 L.Ed.2d 903 (2003)

Cleary did previously raise, in his state post-conviction application, his claim that defense counsel should have had additional family members testify on his behalf. Although the state appellate court deemed Cleary to have procedurally defaulted that claim, the State does not reassert that procedural- default defense here. We will, therefore, consider this claim's merit. See, e.g., id. at 1238 n. 4, 1244. In doing so, we will review de novo the district court's decision denying habeas relief because the state appellate court never addressed this claim's merit.

* * *

For these reasons, we AFFIRM the district court's decision denying Cleary habeas relief.

  


 

Norman Richard Cleary

 

 

 
 
 
 
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