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Frank Basil McFARLAND





Classification: Murderer
Characteristics: Rape
Number of victims: 1 +
Date of murder: February 1, 1988
Date of birth: October 7, 1963
Victim profile: Terry Lynn Hokanson (female, 26)
Method of murder: Stabbing with knife 79 times
Location: Tarrant County, Texas, USA
Status: Executed by lethal injection in Texas on April 29, 1998

Supreme Court of the United States

McFarland v. Scott (93-6497), 512 U.S. 849 (1994).

syllabus dissent


Date of Execution:
April 19, 1998
Frank Basil McFarland #963
Last Statement:

I owe no apologies for a crime I did not commit. Those who lied and fabricated evidence against me will have to answer for what they have done. I know in my heart what I did and I call upon the spirit of my ancestors and all of my people and I swear to them and now I am coming home.

Frank Basil McFARLAND

The Euless man convicted in the gruesome 1988 rape and stabbing death of a 26-year-old Arlington woman was executed April 29.

Frank Basil McFarland, who has steadfastly denied any involvement in the attack that left Terry Lynn Hokanson dying in a church parking lot with 79 knife wounds, was the 1st Texan in modern history to be executed for a murder committed in Northeast Tarrant County.

Evidence at trial indicated that McFarland met Hokanson at the now-defunct Centerfold Club in Arlington, where she worked as a shoeshine valet, on Feb. 1, 1988. The pair went out dancing that evening.

Later, Hokanson was found severely wounded but alive at a Hurst parking lot and told police that 2 men had attacked her. The 26-year-old woman was still alive after the attack and was found by teen-agers as she staggered from behind a church in Hurst, a suburb northeast of Fort Worth.

Date of Birth October 7, 1963
Defendant's Race White
Criminal History juvenile offense of sexual assault
Execution Date April 29, 1998
TDCJ Number 963
Age - time of crime 24
Age - time of execution 34
Date of Crime 02/01/88
County Tarrant County (Northeast)
Victim(s) Terry Hokanson
Race of Victim(s) White

Relationship to Defendant

N/A - met her in a topless club, he was a patron, she was a shoe shine girl.
Offense Alleged capital murder in the course of committing aggravated sexual assault.
Actual Allegations Intentionally causing the death of Terry Hokanson by stabbing her in the course of committing the offense of aggravated sexual assault.

Met Hokanson at a topless bar and arranged to meet her to party afterwards.

Along with Michael Wilson, McFarland took her in his truck to Hurst Park where she was raped and stabbed 43 times and then left to die behind a church under construction.

County where tried Tarrant county - commenced October 26, 1989, verdict November 13, 1989
Trial Judge Hon. Don Leonard, Judge Presiding, Criminal District Court # 3, Tarrant County, Texas, 76196

Prosecutor(s) (name, address and telephone)

Clair Theodore and Ken Dies Assistant US DA's, Southern District of Texas, 910 Travis, Suite 1500, Houston, Texas.

Defense Attorney(s) (name, address, and telephone)

Hon. Tolly Wilson, 112 North Beach, Fort Worth, Texas, 76111Sharen Wilson, 400 The Professional Building, 303 West 10th St, Fort Worth, Texas, 76102
Plea Not Guilty
Racial Makeup of Jury ?
Convicted of (statute) capital murder - TX. Pen. Code. Ann. s.19.03 (a) (2)
Confession? No.

Testimony of Revill – Wilson's girlfriend re: confession by Wilson implicating McFarland. Suggestion this testimony could have been due to a deal with the authorities re: Revill's illegal immigrant status.

Before Wilson's funeral Detectives Blue and Teague had a telephone conference with Revill during which she did not implicate Wilson or McFarland.

Investigator Craig Teague admitted Revill's status as an illegal immigrant was discussed when a videotape of her story re: Wilson's alleged confession was made.

Alleged confession of Wilson to Mark Leonard Noblett re: Wilson and McFarland stabbing a woman in a church parking lot.
Accomplice(s) Wilson - later murdered before McFarland's trial
Eyewitness(es) not specifically BUT

Angela Autrey - saw victim leave club with 2 men.

Cheryl Kepp - owner of club saw Victim leave with two men, one of whom she said was Timothy Todd Tickle.

Warren, Mires and Rich - three boys who saw white car with red roof drive away and then saw Victim before she died.

Scientific Evidence Special Agent Blythe - FBI's Microscopic Analysis Unit - analyzed the hair samples found in the victim's hands and found that they were not consistent with the known hairs of Wilson/McFarland.

Testimony that the DNA from semen found on the victim matched McFarland's semen, but 6% of the Caucasian population would also have the same characteristics.

Evidence that McFarland had hair on the back seat of his car which matched the rabbit hair coat worn by victim - but McFarland's girlfriend had a rabbit hair coat she had previously worn in the truck.
Jail House Snitch? NO - but police informant - Mark Noblett testified against McFarland(worked as police informant in other cases)
Defendant Testimony? Defense presented no testimony or evidence

Exculpatory Evidence Offered?


Additional Punishment evidence by State

Witnesses testified about McFarland's bad character which should have been inadmissible in guilt phase of trial
Mitigating Evidence by Defense Suzie Weber - testified she lived with McFarland since 1986 and never had any serious problems.

No legal consequences to McFarland as a result of attack on Ruth McGuire - Juvenile offense.

Mental Retardation, Mental Illness, and/or neurological damage?

Sentencing Date: November 15,1989 – Jury decided. November 27, 1989 – sentence passed.

State's appellate attorney

Defense appeal cites Ken Dies and Clair Theodore - BUT State's reply is done by: Tim Curry, C. Chris Marshall and Edward L. Wilkinson of The Office of the Criminal D. A. Tarrant County, Texas, 76196
Defendant's Attorney Jack V. Strickland and Michael Logan Ware, The Bryce Building, 909 Throckmorton St., Fort Worth, Texas 76102, Telephone: 817-338-1000.
Date appellate brief filed Nov. 13, 1991
Grounds Raised No innocence claim, but note failure to put on mitigating evidence.
Date of opinion September 23, 1992 opinion by Campbell J. Overstreet and Benavides JJ concur Clinton J dissents Baird J not participating.
Opinion citation McFarland v. State, 845 F.2d 824 (1992)
Cert to S. Ct? Denied petition for writ of certiorari - June 7, 1993

Writ Attorney (name address & telephone)

Danny D. Burns -115 North Henderson St., Fort Worth, Texas 76102, Tel: 817-870-1544
Appointed, retained or volunteer? Appointed

Grounds for Alleged Ineffective Assistance of Counsel.

Need for further discovery and investigation:

Prosecution's suppression of exculpatory evidence and subordination of perjured testimony.

Failure to preserve meritorious claim re: hearsay testimony

Failure to object to prosecution's use of applicant's post-arrest silence.

Objection to State innuendo that McFarland was involved with Wilson's murder

Possibility one of State's witnesses - BAKER - was offered deals by the State on his theft case (pending at time of McFarland's trial) in return for his testimony against McFarland

Prosecution didn't make statements of Rich and Mires available to defense (although Warrant was given)

Police Officer Oringderff who took statements from dying victim did not testify at trial even though he was available to do so.

Another witness - PARSONS - who also worked at club later identified the two men seen on the night of the murder and got boss to card them - one of them was Timothy Todd Tickle.

Meyers - police officer on the crime scene omitted to put in report boy's apparent mention of "blue" car, and said boys didn't refer to white thunderbird with red top - (referred to in boys statements)

Timothy Todd Tickle testified he didn't know victim - but was at the club on the night of the murder.
Writ Judge Don Leonard District #3, Tarrant County, TX
Date of Decision November 15,1995 - denied first Writ of habeas corpus; April 29, 1998 -denied; Second Writ of habeas corpus
Decision Denied
Cert to S.Ct.? Yes - filed Feb. 13, 1996 - placed on docket Feb 21st 1996 - denied April 29 1996.
Developed by: Defense counsel and Texas Resource Center
Presented to: TX C.C.A.
Summary: Case based on:

Hearsay evidence - alleged statements of a dead man

Circumstantial evidence

DNA evidence which only limited semen donor to 6% of the Caucasian population.

Post-trial investigation

Revealed Noblett (prosecution star witness) offered perjured testimony about Wilson pointing a gun at him.

State suppressed Noblett's history as police "snitch" and Noblett's criminal history.

York – man present in motel room at time of alleged confession by Wilson to Noblett could have testified as to his lack of knowledge of it.

Victim stated she hadn't met assailants before and evidence that she already knew McFarland and Wilson.

Sworn statements from Mires and Rich were not given to Defense - that victim said she didn't know guys who killed her and she got in the car and took off - not that she met them at a club. "She thought she recognized them" were her words - not "she thought she knew them." Suggests mistaken identity - statements are exculpatory and refute states theory of the case.

Constitutional obligation and Brady violation by prosecution for not disclosing these statements.

Boys (Warran, Mires and Rich) could also have testified they saw a white (not a blue) car at the crime scene. (not a blue car - McFarland's car was blue and the prosecution's theory of the case involved a blue car)

No evidence the boys ever said they saw a blue car - perjured testimony of PO (previously mentioned)

Applicant's girlfriend owned a rabbit hair jacket that could have explained the presence of rabbit hair in McFarland's car

Frank Basil McFARLAND


On April 29, 1998, the State of Texas, with the acquiescence of the federal government, executed Frank Basil McFarland by lethal injection. The state and federal governments failed to ensure McFarland's right to a fair and impartial trial by not providing effective counsel, withholding exculpatory evidence, permitting perjured testimony, making deals with witnesses, and using jailhouse informants. The unfair trial and refusal of the state to hear new evidence resulted in McFarland's execution.


On February 1, 1988, Terry Hokanson, a shoeshine girl at a topless bar, was seen near a parking lot by three boys. She called for help, stumbled, and fell to the ground. She had been stabbed repeatedly. Before she died, she told the boys that she thought she had known her assailants, but realized she did not know them when she accepted an invitation to get in their car and go partying. She was quite conscious. She gave her name and other details to a police officer, who inadvertently arrived at the scene of the crime while on routine patrol. McFarland was arrested over a month later.

Salient Issues

  • The state withheld evidence regarding the victim's dying declarations at the crime scene: Three boys found her and two of these boys spoke with her. The one who did not was the only one to testify at trial.

  • The two boys who spoke with the victim gave sworn oral statements and written statements just after the murder that were suppressed by the state and discovered seven years later through a Freedom of Information request.

  • All three boys saw a white car in the area; only one testified and he mentioned a white car.

  • Six state witnesses (5 police officers and one police dispatcher) testified that the boys said they saw a blue car, thereby perjuring themselves. McFarland's car was blue.

  • DNA testing by an FBI specialist on hair found in the victim's hands was inconsistent with that of McFarland or his co-defendant.

  • DNA testing on hairs found in McFarland's car was consistent with those from a rabbit skin coat worn by the victim. Semen in victim was consistent with McFarland and 6% of the Caucasian population in the U.S.

  • The state's star witness had warrants out for his arrest for parole violation. After McFarland was convicted, they were dismissed. This witness gave testimony about why he returned to testify and about a conversation he had with McFarland's co-defendant. This testimony was rebutted in affidavits by the witness' own mother and a witness to the conversation, Larry York. Neither was called to testify. The star witness had previously been a police informant.

  • Another state witness had a pending arrest warrant which was later dismissed; when the warrant was recalled, the reason given was "key witness in a murder prosecution in Texas."

  • McFarland's co-defendant was murdered a month after Hokanson. Throughout McFarland's trial, prejudicial statements were made by the prosecution that McFarland might have been involved in this murder. The actual murderer was convicted years later and had no connection to McFarland.

  • The police officer that spoke with the victim before her death was hypnotized to "enhance" his recall of her statements. He then claimed she had said, "two white men she met at the club had raped and stabbed her."

  • Another police officer testified that the victim did know McFarland previous to the murder; she did not name him before she died, bolstering the defense position that her assailants were unknown to her.

  • The deceased co-defendant's girlfriend gave hearsay testimony that she had heard her boyfriend talk about the fact that he and McFarland killed a girl. She had not mentioned this in earlier statements.

  • The state presented evidence about McFarland's character and acts of misconduct that should have been deemed inadmissible in the guilt/innocence phase of the trial.

  • Defense counsel failed to present evidence that the victim knew McFarland previously, that McFarland's girlfriend also had a rabbit skin coat and had been in his car, and that two witnesses could have impeached star witness testimony.

The Trial

Michael Wilson, McFarland's co-defendant, was killed a month after Terry Hokanson. Two witnesses came forward and testified that Wilson had "confessed" to his involvement in the Hokanson murder and had implicated McFarland as the killer. One was Wilson's girlfriend, Rachel Revill, who was an illegal immigrant, and the other was Mark Noblett, a known police informant who was able to walk away from an arrest warrant a day after the trial ended. Noblett gave perjured testimony about Wilson's confession that could have been rebutted by his own mother and Larry York, who were not called to testify. Both Revill and Noblett were questionable witnesses. The prosecution used Wilson's murder in the trial to suggest the possible involvement of McFarland in another violent crime, although McFarland was never formally charged.

Of the people who spoke with the victim before her death, two boys who had provided sworn statements during the investigation were never called by the state to testify. Furthermore, the state failed to turn the boys' statements over to the defense as exculpatory evidence. Neither boy ever mentioned a blue car, only a white car. Yet, five police officers and a dispatcher testified at trial that the boys had seen a blue car. A police officer used hypnosis to elicit quite different testimony from the original sworn statements.

Forensic evidence showed that McFarland was in a group of 6% of Caucasians in the U.S. who could have left semen in the victim. Hair in her hands was not from Wilson or McFarland, according to tests available at that time. The hair from a rabbit skin coat found in McFarland's car could have been from the victim's coat. It was not until sentencing that it was brought out that McFarland's girlfriend had a similar coat.

McFarland was convicted and sentenced to death.


In 1993, McFarland had an execution date and no lawyer because Texas law at that time did not require the state to provide legal representation after his first automatic appeal. He contacted the now defunded Texas Resource Center, and they agreed to help him find counsel. State and federal courts, including the Fifth Circuit Court of Appeals, denied him both appointment of counsel and a stay of execution without the filing of a habeas petition. Hence, he filed a pro se writ of habeas corpus. The U.S. Supreme Court stayed the execution and ordered federal courts to appoint him habeas counsel. State courts and the Court of Criminal Appeals denied both the petition for writ of habeas corpus and requests for discovery on November 15, 1995. Petition for writ of certiorari was filed in 1995 and a Motion for Certificate of Probable Cause to Appeal in April 1998. All were denied and McFarland chose not to file a Clemency Petition.


Frank McFarland was executed despite compelling evidence of his innocence and evidence that his trial was unfair. His trial counsel failed to raise issues that would have been exculpatory. This occurred at the same time that the state suppressed evidence favorable to McFarland. Perjured testimony from police officers, key witnesses, and the use of an informant enabled the state to gain a conviction and death sentence.

Frank Basil McFARLAND

A man who raped and killed a woman by stabbing her 79 times was executed by injection Wednesday.

Frank McFarland, 34, was the 3rd Texas inmate to receive lethal injection in 8 days and the 6th this year.

He was condemned for the Feb. 1, 1988 death of Terri Lynn Hokanson. The 26-year-old woman was still alive after the attack and was found by teen-agers as she staggered from behind a church in Hurst, a suburb northeast of Fort Worth.

In a final statement, he reiterated his claim of innocence.

"I owe no apology for a crime I did not commit," McFarland said.

McFarland finished his statement by saying "Loch sloy." Family members told reporters the term is a battle cry for the McFarland clan in Scotland.

McFarland has said he was framed.

Prosecutors said the right man was punished.

"It's too bad the system doesn't have an eye for an eye and a tooth for a tooth," said Kenneth Dies, who handled the case and now an assistant U.S. attorney in Houston. "He should die by stab wounds 79 times. That young lady never had a chance."


How many innocent people did he execute?

By Rev. Jon Paul Sydnor

No, you can’t have your DNA testing.

On February 1, 1988 Terry Hokanson was stabbed repeatedly. Before dying she stumbled into a parking lot, called for help, and was assisted by three boys and then a police officer. She told two of the boys that she thought she had known her assailants when she went for a ride with them, but that when she got into the car she realized that she did not know them. When the officer arrived, she gave her name and other details of the case to him before dying. One month later, Frank Basil McFarland was arrested for the crime. The other suspect, Michael Wilson, had been killed between the time of the murder and any arrest.

Two witnesses testified that, before his death, Mr. Wilson told them that he and Mr. McFarland had committed the crimes. Both witnesses were subject to pressure from law enforcement officials: Rachel Revill (Mr. Wilson’s girlfriend) was an illegal immigrant and Mark Noblett walked away from an arrest warrant for a probation violation a day after the trial ended. In a sworn affidavit, Mark Noblett’s own mother rebutted his testimony, but she was not called to testify.

A witness to the conversation who would have rebutted Mr. Noblett’s testimony, Larry York, was also not called to testify, calling into question the competence of Mr. McFarland’s attorneys. Another witness for the prosecution had a pending arrest warrant which was dismissed after trial; the reason given for the dismissal was “key witness in a murder prosecution in Texas.”

During the trial, the prosecution suggested that Mr. McFarland might have been involved in Mr. Wilson’s murder. The real murderer was apprehended and convicted years later and had no connection with Mr. McFarland.

The two boys who had spoken with Ms. Hokanson before she died were not called to testify. Only the boy who had not spoken with her was called to testify. The sworn statements of the two boys who had spoken with her, which suggested the innocence of Mr. McFarland, were never given to the defense by the state.

In those statements, both boys mentioned seeing a white car at the scene of the crime. But at trial, five police officers and a dispatcher testified that the boys had seen a blue car. Mr. McFarland’s car was blue. The two boys’ sworn oral and written statements were suppressed by the state for seven years, until they were recovered under the Freedom of Information Act.

A police officer testified at trial that Ms. Hokanson and Mr. McFarland knew each other before the incident. This seemed like a somewhat strange claim. One would assume that, had Ms. Hokanson known Mr. McFarland, she would have named him as her murderer before she died. But Ms. Hokanson did not name the murderer prior to her death, bolstering the defense’s claim that the assailant was unknown to the victim.

Analysis of semen found in the victim could have come from Mr. McFarland or from 6% of the Caucasian population in the U.S. Rabbit hair in Mr. McFarland’s car could have come from the victim’s own coat or from the coat of Mr. McFarland’s girlfriend, but it was not mentioned at trial that his girlfriend owned and wore a rabbit hair coat. DNA testing on hair found in the victim’s hands was inconsistent with that of Mr. McFarland or his co-defendant.

As Mr. McFarland’s execution neared, no further DNA analysis was performed on evidence recovered from the victim although such analysis was requested by defense attorneys. This analysis could have ascertained Mr. McFarland’s guilt or innocence due to dramatic improvements in forensic technology between the time of his trial and the time of his execution. Despite the lack of this crucial and conclusive evidence, Governor George W. Bush signed Mr. McFarland’s death warrant and he was executed on April 29, 1998.


For the Fifth Circuit

No. 96-10955

FRANK BASIL McFARLAND, Petitioner-Appellant

Appeal from the United States District Court for the Northern District of Texas


February 13, 1998

Before DAVIS, JONES, and DUHE, Circuit Judges.

DUHE, Circuit Judge.1

Frank Basil McFarland, a Texas death row inmate, seeks a certificate of probable cause or, in the alternative, a certificate of appealability permitting him to appeal the district court's denial of his request for a writ of habeas corpus and its lifting of its stay of execution. The district court granted leave to proceed in forma pauperis on appeal but declined to issue a certificate of probable cause ("CPC").

McFarland filed his habeas petition in the district court on April 3, 1996. In Lindh v. Murphy, 117 S.Ct. 2059, 2068 (1997), the Supreme Court held that the amendments to 28 U.S.C. § 2254 contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), do not apply to cases pending on the April 24, 1996, effective date of the Act. See also Nobles v. Johnson, 127 F.3d 409, 412-13 (5th Cir. 1997); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997).

Because McFarland filed his habeas petition before the effective date of the AEDPA, we review his petition under the pre-AEDPA version of § 2254. See 28 U.S.C. § 2254 (West 1994); cf. 28 U.S.C. § 2254 (West Supp. 1997).

Under the pre-AEDPA standards, we review a state court's determination of mixed questions of law and fact de novo. Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997). State court factual findings are entitled to a presumption of correctness, unless certain enumerated deficiencies in the state court proceedings become apparent. See 28 U.S.C. § 2254(d)(West 1994); see also Livingston v. Johnson, 107 F.3d 297, 302-303 (5th Cir.), cert. denied, 118 S.Ct. 204 (1997).

Based on these standards, we find that McFarland has failed to make a "substantial showing of a denial of [a] federal right." Barefoot v. Estelle,463 U.S. 880, 893 (1983)(internal quotes and citation omitted); Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997). We therefore deny his request for a CPC.


McFarland was convicted of capital murder and sentenced to death in accord with the findings of a Texas jury that he stabbed Terry Hokanson to death with a knifelike object while committing or attempting to commit aggravated sexual assault. We do not here recite the details of his crime, for they may be found in the opinion of the Texas Court of Criminal Appeals. McFarland v. State, 845 S.W.2d 824, 828-30 (Tex. Crim. App 1992) (en banc) cert. denied,508 U.S. 963 (1993). We give only the following brief summary to put the issues raised by this application into factual context.

On February 1, 1988, McFarland and his friend Wilson went to Centerfolds topless bar where the victim, Hokanson, worked. The two men sent a drink over to her, and a waitress, Joann Alexander, later introduced them. McFarland, Wilson, the victim, and Alexander planned to go to Manhattan's bar later in the evening, but Alexander changed her plans. Several employees at Manhattan's remembered seeing a woman who fit Hokanson's description arrive alone and leave with two men. Her car was found in the parking lot of the bar the next morning.

Two or three hours after the victim left Manhattan's bar with the two men, three teenaged boys, Mires, Rich, and Warren, heard a scream coming from a public park. One of them saw a car driving away. They continued to walk and noticed someone stumbling in a "drunk manner." The person was Hokanson with blood on her face and in need of help. Warren ran for help, and Hokanson told Rich and Mires that she had been sexually assaulted and stabbed.

Police Officer Rainey happened upon the scene, and the two boys told him that the victim had been sexually assaulted and stabbed. Officer Rainey saw blood on her face and jacket and a deep cut on her hand. The victim told Officer Rainey that two white men, whom she had met at the club where she worked, had raped and stabbed her. Officer Rainey later remembered the full name of the club when he was placed under hypnosis.

Police searched the area and found Hokanson's purse, shoes, watch, and one earring in a pool of blood. There was a five hundred foot long trail of blood leading from her belongings to the spot where she was discovered.

Rachael Revill was Wilson's girlfriend. On the night of Hokanson's death, Wilson and McFarland left her apartment together in McFarland's car and later returned together. Upon their return, Revill noticed what appeared to be blood on Wilson's pants and an apparent gash on McFarland's hand. Wilson gathered his bloodstained clothes and left with McFarland to burn them. Wilson later told Revill that he and McFarland "had to get rid of a girl" because she knew too much about their drug business. He insisted to her that McFarland had actually killed the victim.

Wilson contacted Mark Noblett, an acquaintance of his and McFarland, and told Noblett about the crime and that he was afraid of McFarland. Noblett agreed to meet Wilson the next day, but Wilson did not keep the appointment. Wilson was later found dead.

After exhausting state remedies, McFarland sought habeas and related relief in the district court, which granted leave to proceed in forma pauperis, appointed counsel, allowed the filing of an amended application for habeas, and granted a stay of execution.

The district court concluded that each claim raised had been adjudicated on the merits either on McFarland's direct appeal or during his state application for habeas relief.


I. Ineffective Assistance of Counsel

McFarland contends that trial counsel was ineffective in that he failed: to call Rich and Mires as defense witnesses to testify that they saw a white car, not a blue car, at the crime scene; to object to inadmissible hearsay testimony that non-testifying parties saw a blue car at the crime scene; to offer exculpatory evidence that McFarland's girlfriend owned a rabbit-hair jacket; to object to evidence of McFarland's bad character and prior misconduct; to present evidence that Hokanson knew McFarland and may have used illicit drugs with him before the murder; to object to the prosecutor's comments on McFarland's post-arrest silence; to investigate and call Larry York and Jennie Noblett as witnesses to impeach Mark Noblett's testimony; to investigate and present evidence of Mark Noblett's criminal history, his status as a police informant, and his motive to give false testimony at trial; and to present evidence of Joann Alexander's criminal history to impeach her credibility.

To support his ineffective assistance claim, McFarland must establish the two well-known components of Strickland v. Washington,466 U.S. 668, 687 (1984): that counsel's performance was deficient and that the deficient performance prejudiced the defense. Our scrutiny of counsel's performance is deferential, id. at 689, and there is a strong presumption that assistance was adequate and that all significant decisions were made in the exercise of reasonable professional judgment. Id. at 690.

A. Failure to call witnesses

McFarland contends his counsel was ineffective in failing to call numerous witnesses. At the close of the state's case, McFarland testified concerning the decision to rest without presenting evidence. McFarland agreed that he had discussed his options with counsel on that day and that they had jointly decided not to present any evidence. The trial judge questioned McFarland about his decision, and McFarland indicated that he understood his decision and did not wish to change his mind and call witnesses.

The state habeas court found that McFarland "agreed with his trial counsel, on the record at the close of the defense's case in chief, not to call any witnesses for the defense." McFarland makes no showing, therefore, that the failure to call the witnesses was the result of deficient performance by counsel.

Despite the foregoing, we have examined in detail each claim of ineffectiveness for failure to call witnesses and find no merit to any. Petitioner has not shown that Rick, Mires, Warren, Weber, Bergeron, Jennie Noblett, or York, the witnesses not called, were available to testify and, had they been called, would have testified in his behalf. McCoy v. Cabana, 794 F.2d 177, 183 (5th Cir. 1986). Counsel's lengthy argument in brief is based on surmise and conjecture and is not evidence of what testimony the witnesses would have given had they been called.

B. Failure to preserve evidentiary error concerning a blue car

McFarland claims that the testimony of five police officers and a police dispatcher concerning the oral statement of the boys who found the victim that they had seen a blue or dark colored vehicle near the crime scene was inadmissible hearsay. We need not analyze the trial court's rulings and counsel's specific objections in any detail because, even assuming that counsel's failure to make objections was deficient performance, McFarland has not demonstrated prejudice, as required by Strickland. It was of no importance to the outcome of the trial whether the boys saw a blue car in the vicinity of the crime or not. There was testimony that there was a red and white car, and the warrants to search McFarland's car and to search and arrest McFarland were based upon information obtained from interviews from several sources, not simply the statement of the boys. McFarland therefore cannot demonstrate prejudice from counsel's alleged errors; consequently, his claim must fail.

C. Failure to object

McFarland next posits that counsel failed to raise a proper objection during the guilt/innocence phase of the trial to Joann Alexander's testimony that he threatened to rape her. He acknowledges that counsel successfully objected on the grounds that this testimony was "highly prejudicial and totally irrelevant" but complains that counsel did not object to the state's closing argument that the victim did not receive "the warning that Joann got" from McFarland. The prosecutor was referring to Alexander's testimony, to which defense counsel had successfully objected, that, at one point, McFarland had threatened to rape Alexander if she got into his car with him. The court had sustained counsel's objection and directed the jury to disregard this evidence.

Assuming without deciding that counsel should have objected to the prosecutor's statement, there has been no showing of prejudice; that is, no showing that, on the record as a whole, the error was "so serious as to deprive McFarland of a fair trial, a trial whose result is reliable." See Strickland, 466 U.S. at 687.

The prosecutor was discussing evidence found in McFarland's car, which had not been connected to the victim, and opined that it was perhaps from some other woman who entered his car, and with whom McFarland had had a sexual relationship. McFarland cannot demonstrate that the prosecutor's offhand, but arguably improper, reference to Alexander's testimony deprived him of a fair trial; absent a showing of such prejudice, this claim must also fail.

D. Butler's Testimony

During the guilt/innocence phase of the trial, Melvin Butler testified that, sometime after the murder, he spoke with McFarland at the bar where the victim had worked and that McFarland told him that he had killed before. On cross examination Butler admitted that both were drinking heavily and that he thought McFarland was simply bragging to impress Butler. Defense counsel chose to crossexamine Butler rather than to object to the direct testimony. The cross examination was effective and was a reasonable trial strategy.

E. Prosecutor's Comments

During closing argument at the punishment phase, the prosecutor commented about McFarland's involvement in drug dealing and patronage of topless clubs. McFarland claims that his counsel should have objected to the argument and to the admissibility of evidence that he dealt in drugs. Counsel did object to the drug evidence in a pretrial motion and was overruled. Failure to object again when the evidence was introduced is not error. Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994). The prosecutor's comments were based on the admitted evidence and were thus not subject to objection.

F. Comments on Silence

McFarland argues that the prosecutor's remarks concerning McFarland's and Wilson's failure to cooperate with the police before McFarland's arrest was inadequate performance that resulted in prejudice. Arguably, counsel should have objected because it was possible that the comments could have been interpreted to refer to post-arrest silence and not simply pre-arrest failure to cooperate. See Doyle v. Ohio,426 U.S. 610, 617-18 (1976). But, put into context of the entire trial, this alleged error could not have undermined the reliability of the trial's outcome. Earlier, the prosecutor had carefully limited his discussion to the prearrest period. The most reasonable interpretation of the questionable comments, then, is that they referred to instances before arrest. Thus, McFarland has not demonstrated that, but for counsel's failure to object, there was a reasonable probability that the result of the guilt-innocence phase would have been different. See Strickland, 466 U.S. at 694.

G. Criminal Histories for Impeachment

McFarland contends that counsel should have impeached State witnesses Noblett and Alexander with their criminal histories to demonstrate that they had motives for testifying for the State other than the reasons they gave. The record demonstrates that McFarland suffered no prejudice from counsel's asserted errors.

The criminal histories of both witnesses were brought out in their testimony in such detail as to permit the jury to fairly evaluate their credibility. Further cross-examination on the subject would have only been cumulative.

II. Brady Claim

McFarland alleges several due process violations for failure to comply with Brady v. Maryland,373 U.S. 83 (1963). First, he asserts that the State suppressed the statements of Mires, Rich and Warren and that these statements contain exculpatory evidence concerning the identity of the victim's assailant. The state court ruled that the defense was aware before trial that the three had given statements; the allegedly critical language from the statements was quoted verbatim in an affidavit supporting a search warrant that the defense had; and counsel had the names, addresses, and phone numbers of the witnesses and was able to make effective use of the information during trial. McFarland has pointed to no irregularity in the state court proceedings that would impugn these factual findings. Furthermore, our own review of the record convinces us that the allegedly suppressed evidence is not exculpatory at all. See 28 U.S.C. § 2254(d)(West 1994); Livingston, 107 F.3d at 302-03.

Next McFarland complains that the State suppressed evidence of three outstanding warrants for the State's witness Noblett.

McFarland argues that these warrants showed bias of the witness and that the charges were all dismissed after the witness testified.

The state court found that the State had made no agreement to provide leniency to Noblett in exchange for his testimony.

McFarland makes no showing that would call this finding into question. The finding was the result of a hearing conducted on McFarland's motion for a new trial based on the same allegations.

Finally, McFarland alleges that the State violated Brady by failing to disclose an agreement to give leniency to Alexander in exchange for her testimony. His proof of the agreement is the affidavit of a Florida prosecutor that, at the request of federal and state prosecutors in Texas, he dismissed Alexander's probation and recalled a warrant for her arrest; and that the request was made as a result of Alexander's cooperation in a murder case.

The state habeas court found that the State was unaware at trial of an outstanding warrant for Alexander in Florida and that the State had made no offer to or agreement with her regarding her testimony. The record fully supports this finding. The prosecutor did, after the trial, learn that Alexander had been incarcerated in Texas on a warrant, and did, at the request of Alexander's husband, attempt to obtain her release on Thanksgiving day. He was unsuccessful. McFarland presents no convincing argument that the state court's factual findings are not entitled to their statutory presumption of correctness. See 28 U.S.C. § 2254(d)(West 1994).

For the foregoing reasons, we find that McFarland has failed to establish that the state suppressed exculpatory evidence in violation of Brady.

III. Other Due Process Violations

There was testimony from the investigating officers at the scene and from the police dispatcher that one or more of the three boys who discovered the victim said that they had seen a blue car near the scene. McFarland claims that the boys said they saw a white car. Our review of the record shows that the police testimony was not perjured, although it may have been mistaken.

Regardless, the testimony was not material to anything.

Mark Noblett returned from the Bahamas where he was living and testified for the state against McFarland. His reason for doing so, he said, was that his mother had sent him a newspaper clipping about the murder, and he recalled the information he had received from Wilson, McFarland's accomplice.

McFarland claims that this testimony was perjured; that Noblett's real reason for returning was to obtain leniency from the state for his own problems with the law, and because he was a "snitch" for the state. On this record, we find that Noblett's motive for returning to testify was not material (his legal problems were made known to the jury) and that his testimony concerning his motives was not perjured.

As his final effort to find perjured testimony, McFarland claims that Alexander's testimony that she introduced the victim to McFarland on the date of the murder was false. He claims that Alexander admitted to an investigator that she made the introduction two days before the murder. However, McFarland offers no proof of any kind of this admission.

For his final claim of due process violation, McFarland contends that his rights were violated by the admission of certain evidence concerning the death of Wilson, his accomplice in this crime, and by the prosecutor's closing argument concerning Wilson's death. He argues that the State violated his due process rights by introducing evidence that Revill and Wilson were afraid of McFarland; that Wilson wanted Noblett to assist in informing the police about McFarland's role in the death and rape of Hokanson; and that Wilson was the victim of a homicide.

"[E]ven the erroneous admission of prejudicial testimony does not justify habeas relief unless it is material in the sense of a crucial, critical, highly significant factor." Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983) (internal quotes and citations omitted). Petitioner must demonstrate that the error made the trial fundamentally unfair. Bagley v. Collins, 1 F.3d 378, 380 n. 2 (5th Cir. 1993). Our review of the record convinces us that McFarland has not carried this burden. Revill testified that Wilson cautioned her not to let McFarland know that she knew about the rape and murder because McFarland would hurt her.

On cross-examination, defense counsel brought out that Revill did not tell the police of this on her initial contact with them. On redirect Revill stated that when she heard that Wilson had been killed she thought she would be next. There was no objection. She was then asked if she learned McFarland's whereabouts at the same time she learned of Wilson's death. There was no objection.

While this testimony may have been important, its admission was not error. Wilson confessed to his involvement in the crimes against Hokanson and was dead. There was no fundamental unfairness in permitting Revill to testify to her reasons for coming forward with the information.

In his summation of the evidence, the prosecutor made reference to this testimony. It was not error to do so since the evidence was properly admitted. Even if the evidence had not been properly admitted, we must view the prosecutor's remarks in the context of the entire trial to determine if they were a "crucial, critical, highly significant factor in the jury's determination of guilt." Ortega v. McCotter, 808 F.2d 406, 410-11 (5th Cir. 1987).

The district court ruled that the prosecutor's remarks did not rise to this level of importance, and our independent review of the record convinces us that it was correct.

IV. Hypnotically-enhanced Testimony

Over objection, the State introduced the hypnotically-enhanced testimony of Officer Rainey concerning his conversation with the victim at the scene shortly before her death. McFarland contends that his rights under the Due Process and Confrontation Clauses were infringed by admission of this testimony.

He claims that: the examiner's independence was questionable because he was trained by and worked for the State and spoke with two of the investigating officers before the interview; the examiner failed to keep appropriate records; and the examiner allowed other officers to participate in the interview. The record does not support these claims. The evidentiary hearing conducted by the trial court out of the jury's presence in response to McFarland's objection establishes fully the propriety of the conduct of the interview and the competence of the interviewer.

Without hypnosis, Officer Rainey recalled that the victim said the name of her place of employment. He remembered that the first part of the name was "Center", but could not recall the last part.

Under hypnosis he recalled that it was "Centerfold". He also recalled that the victim said that she had first met her attackers that night.

McFarland did not demonstrate to the trial court, and has not demonstrated to us, that this testimony was in any way untrustworthy. As noted, the record clearly shows that the interviewer was qualified and had no investigative responsibility in the case, no outside influence was exercised in the interview and it was conducted in accord with all applicable principles.

V. Confrontation Clause

Mark Noblett and Rachel Revill gave hearsay testimony concerning Wilson's statements that implicated McFarland in the crime. He claims that this violated his rights under the Confrontation Clause and that the Court of Criminal Appeals erred when it rejected this claim. He argues that Wilson's statements were not against Wilson's penal interest as the court found, but were self-serving because Wilson was seeking Noblett's help with the police in connection with his own problems.

The Sixth Amendment right to confrontation does not preclude admission of all hearsay testimony. Cupit v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994). Hearsay is admissible if it bears adequate indicia of reliability, and contains "particularized guarantees of trustworthiness." Sherman v. Scott, 62 F.3d 136, 140 (5th Cir. 1995), cert. denied, 116 S.Ct. 816 (1996). "[T]hese `particularized guarantees of trustworthiness required for admission under the Confrontation Clause drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief.'" Id. (quoting Idaho v. Wright,497 U.S. 805, 820 (1990)). "Finally, `[if] the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule [and the Confrontation Clause] do []not bar admission of the statement at trial.'" Id.

Revill's and Noblett's testimony was significant evidence against McFarland. They testified that Wilson told them that he and McFarland had to get rid of the victim, and that Wilson was now dead. Revill testified that Wilson returned to Revill's apartment immediately after the crime, changed clothes, burned the clothes he had been wearing, and later told her what happened to the victim.

Revill was Wilson's girlfriend, and it is reasonable that he would confide in her under the circumstances. Even though Revill was afraid of McFarland, she did not agree to speak with the police until she knew Wilson was dead and McFarland had gone to the east coast after she moved from Texas to Maryland.

Noblett testified that he knew Wilson and McFarland from frequenting the club where the victim worked. He said that, shortly after the murder, Wilson called and set up a meeting with him. At the meeting Wilson was terrified, very nervous, and apprehensive. Wilson told Noblett that he and McFarland had left the club with the victim and that a rape and murder had occurred.

Wilson wanted to turn himself in to police and sought Noblett's help in doing this.

The totality of the circumstances under which Wilson made the statements to Revill and Noblett render him particularly worthy of belief, and the admission of the hearsay thus did not violate the Confrontation Clause.

VI. Cumulative Effect

McFarland seeks a new trial because of the claimed cumulative effect of the alleged errors.

As we have shown, McFarland has not: demonstrated error, shown that the State offered perjured testimony, proven that it suppressed evidence, nor demonstrated that he was deprived of the effective assistance of counsel. Accordingly, his claim fails.

VII. Miscellaneous

We have carefully reviewed McFarland's Penry claim relative to the jury charge, his claim of counsel's failure to introduce evidence of a rabbit fur coat, and his claims relative to discovery, and the record related to each, and we find all to border on the frivolous and do not discuss them.


McFarland has completely failed to make a substantial showing of the denial of a federal right. Accordingly, we deny his request for a certificate of probable cause and vacate his stay of execution.



1Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.



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