Coghan v. Jordan, 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
SEP 30 1999
PATRICK FISHER
Clerk
CHAD WAYNE COGHAN,

Petitioner-Appellant,
v.
No. 99-6189
LENORA JORDAN,
Respondent-Appellee.
(D.C. No. 98-CV-757-T)

(W.D.Okla.)
ORDER AND JUDGMENT
Before ANDERSON, KELLY and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

Chad Wayne Coghan seeks a certificate of appealability to appeal the
district courts denial of his 28 U.S.C. 2254 motion. We deny a certificate of
appealability and dismiss the appeal.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
In April 1996, Coghan was convicted in Oklahoma state court of second

degree murder for the death of Jodi Lynch, and he was sentenced to fifty years in
prison. He appealed his conviction, arguing: (1) the trial court erred in refusing
to admit hearsay statements of Lynchs child; (2) the court erred in admitting
evidence that Coghan and Lynch used O.J. and Nichole as nicknames; (3)
there was insufficient evidence to convict him of second degree murder; and (4)
his sentence was excessive. The Oklahoma Court of Criminal Appeals summarily
affirmed his conviction.
Coghan filed a state habeas petition in September 1997, alleging (1) the
trial court lacked subject matter jurisdiction; (2) the court erred in admitting
prejudicial testimony without proper foundation; (3) the court failed to instruct
the jury on the material elements of second degree murder; (4) the court gave an
erroneous self defense jury instruction; (5) the court failed to instruct the jury on
second degree manslaughter; and (6) he received ineffective assistance of
appellate counsel. The court denied relief. After a remand for factual findings,
the Oklahoma Court of Criminal Appeals affirmed denial of relief.
Coghan filed his federal habeas petition in June 1998, alleging (1) the trial
court erred in refusing to admit hearsay statements of Lynchs child; (2) the court
erred in admitting evidence that Coghan and Lynch used O.J. and Nicole as
nicknames; (3) the court lacked subject matter jurisdiction; (4) the court erred in
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admitting prejudicial testimony without proper foundation; (5) the court failed to
instruct the jury on the material elements of second degree murder; (6) the court
gave an erroneous self defense jury instruction; (7) the court failed to instruct the
jury on second degree manslaughter; and (8) his sentence was excessive. Over
Coghans objections, the district court adopted the magistrates report and
recommendation and denied relief.
I.
Coghan argues the magistrate erred in finding the statements of Lynchs
four-year-old son did not fall under the excited utterance hearsay exception.
Coghan asserts exclusion of this testimony deprived him of his constitutional
right to obtain witnesses in his favor. To justify habeas relief for an erroneous
evidentiary ruling, Coghan must demonstrate the trial courts evidentiary ruling
rendered the trial so fundamentally unfair as to constitute a denial of federal
constitutional rights.
Cummings v. Evans , 161 F.3d 610, 618 (10th Cir. 1998),
cert. denied , 119 S. Ct. 1360 (1999) (internal quotation omitted).

The testimony showed the child was calmer and no longer in an excited
state when he made the statement. The trial court properly found the statement
did not qualify as an excited utterance for hearsay exception purposes. This
ruling did not violate Coghans constitutional right to present witnesses. Coghan
proffered that the child would testify Lynch was hitting Coghan before he struck
-3-
the fatal blow. Coghan testified at trial that he was acting in self defense, thereby
presenting his defense to the jury.
II.
Coghan argues the trial court erred in admitting evidence that he wrote his
name as O.J. Coghan on the envelope of a letter sent to Lynch. On crossexamination, Coghan testified he had not used a different name in his relationship
with the victim. The trial court allowed the state to rebut by using the envelope.
Coghan testified the name was a joke between Lynch and him. The court
admitted the evidence as going to show his mental intent as to their
relationship. State Transcript II at 106. Coghan asserts admission of this
evidence violated his constitutional right to an impartial jury.
Even if the court improperly admitted the evidence, its admission did not
render the trial fundamentally unfair. The testimony was introduced in response
to Coghans denial of use of a different name in his relationship with Lynch and
was limited in duration. There was no testimony concerning the O.J. Simpson
case or how it might relate to Coghan.
III.
Coghans allegation that the trial court lacked subject matter jurisdiction
because the information was defective is without merit.
See Hall v. State , 312
P.2d 981, 984 (Okla. Crim. App. 1957) (introductory paragraph of information is
-4-
ordinarily equivalent to mere descriptive label; incorrect name given to crime in

introductory paragraph of information is merely an irregularity; court determines
character of offense by considering language in the charging part of information).
IV.
The magistrate found Coghan was barred from arguing lack of foundation
for evidence, failure to instruct on all material elements of the crime, erroneous
self defense jury instruction, and failure to instruct the jury on second degree
manslaughter because he failed to raise the issues in his direct appeal. In
Coghans state habeas case, the court found he waived the issues by not raising
them on direct appeal. We do not review a question of federal law decided by a
state court if the decision rested on a state law ground independent of the federal
question and was adequate to support the judgment.
See Coleman v. Thompson ,
501 U.S. 722, 729 (1991). The state courts refusal to address Coghans federal
claims because he failed to meet a state procedural requirement constitutes an
independent and adequate state procedural ground.
See id. at 729-30.
Habeas review of these issues is precluded unless Coghan can demonstrate

cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Brecheen v. Reynolds , 41 F.3d 1343, 1353
(10th Cir. 1994) (internal quotation omitted). Coghan argues he is entitled to
-5-
relief on these issues because he received ineffective assistance of appellate

counsel. Coghan did not raise the ineffective assistance of counsel claim in his
2254 petition and on appeal he does not allege how his counsel was ineffective.
We will not consider this claim for the first time on appeal.
Coghan does enunciate an argument concerning the jury instruction on the
elements of second degree murder. On habeas review, we consider claims of
constitutional errors in jury instructions de novo.
See Esquibel v. Rice , 13 F.3d
1430, 1431 (10th Cir. 1994). An error in describing an element of the crime is a
trial error, not a structural error, making the error subject to harmless error
analysis. California v. Roy , 519 U.S. 2, 5 (1996). The error must have a
substantial and injurious effect or influence in determining the jurys verdict.
Brecht v. Abrahamson , 507 U.S. 619, 637 (1993). Coghan does not identify
which element the State failed to prove, but again relies on his newly asserted
ineffective assistance of counsel claim. We find no error.
V.
Coghan argues his sentence was excessive because the issues he raised
show a grossly unfair trial that shocks the conscience. We disagree. Coghan has
shown no violation of his constitution rights.
VI.
-6-
We DENY Coghans motion to proceed on appeal in forma pauperis as

moot because he has paid the filing fee. We DENY a certificate of appealability
and DISMISS the appeal. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

CHAD WAYNE COGHAN,

(D.C. No. 98-CV-757-T)

ORDER AND JUDGMENT

Before ANDERSON, KELLY and BRISCOE, Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

In April 1996, Coghan was convicted in Oklahoma state court of second

Cummings v. Evans , 161 F.3d 610, 618 (10th Cir. 1998),

cert. denied , 119 S. Ct. 1360 (1999) (internal quotation omitted).

See Hall v. State , 312

ordinarily equivalent to mere descriptive label; incorrect name given to crime in

See Coleman v. Thompson ,

See id. at 729-30.

Habeas review of these issues is precluded unless Coghan can demonstrate

Brecheen v. Reynolds , 41 F.3d 1343, 1353

(10th Cir. 1994) (internal quotation omitted). Coghan argues he is entitled to

relief on these issues because he received ineffective assistance of appellate

See Esquibel v. Rice , 13 F.3d

We DENY Coghans motion to proceed on appeal in forma pauperis as

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