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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 I’m
cynical enough to doubt anything. Everyone agrees. This man murdered
Wanda Neafus. So why am I telling you about him?
Cleary’s execution gives me a chance to discuss
capital punishment without addressing all the unrelated topics most
pundits bring up. Cleary isn’t a minority being railroaded by the
legal system. Cleary isn’t unjustly imprisoned, awaiting execution
for a crime he didn’t commit. Cleary isn’t 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 aren’t arguing against
capital punishment at all. They are arguing against an unfair legal
system, and that’s an entirely different issue. I’ll 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, I’m 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 can’t 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 “Survivor: Darwinian Capitalism.”
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, § 701.7, and First Degree Burglary After
Former Conviction of Two Felonies in violation of 21 O.S.1991, §
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. § 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.
