United States District Court, D. South Carolina
OPINION AND ORDER
Margaret B. Seymour Senior United States District Judge
Petitioner Roger Dale Burke is an inmate in custody of the South Carolina Department of Corrections. Petitioner currently is housed at the Broad River Correctional Institution in Columbia, South Carolina. Petitioner, proceeding pro se, filed a petition for writ of habeas corpus on March 9, 2015, alleging that he is being detained unlawfully. See 28 U.S.C. § 2254.
On June 15, 2000, Petitioner’s wife, Jenny, moved out of their residence and into the home of Petitioner’s brother, leaving behind Petitioner and their three children. Transcript of Record, ECF No. 10-2, 169. Petitioner eventually initiated divorce proceedings and Petitioner and Jenny shared custody of the children.
Petitioner asked his cousins, Marie and Christopher, to stay with him to help with the children. One weekend Jenny picked up the children and learned that Christopher had been molesting her daughter. Id. at 179. After Christopher was arrested, Petitioner received court documents indicating that Jenny intended to remove the children from Petitioner’s home. Id. at 187. On Wednesday, December 19, 2000, Petitioner drove to the residence where Jenny was living with Petitioner’s brother. He parked his car behind the home and entered the front door. Id. at 191-92. After determining no one was home, Petitioner poured a bottle of gasoline on the floor in the bedroom. Id. at 195. He heard a car pull up and realized it was Jenny and the children. Id. at 196. After Jenny and two of the children entered the residence, Petitioner came out from the back of the house and shot Jenny. Id. at 198. Petitioner left the residence with the children. He subsequently returned alone and attempted to burn down the home. Petitioner also transported Jenny’s body to a secluded area and hid it under some brush. Id. at 452-53. According to William Armstrong, M.D., a forensic pathologist, Jenny was shot four times in the body, and one time in the head at very close range. Dr. Armstrong also noted ligature marks around the neck. Id. at 249-54.
Petitioner turned himself in to law enforcement the next day. He was charged with possession of a firearm during commission of a violent crime, in violation of S.C. Code Ann. § 16-23-490; attempted arson, in violation of S.C. Code Ann. § 16-11-190; burglary in the first degree, in violation of S.C. Code Ann. § 16-11-311; and murder, in violation of S.C. Code Ann. § 16-3-10. ECF No. 10-4, 138-155.
Petitioner proceeded to trial on August 23, 24, 25, and 27, 2004, in the Court of General Sessions for Lexington County, South Carolina, before the Honorable Marc H. Westbrook. Petitioner was represented by William N. Nettles, Esquire. The state opened with a description of Petitioner’s actions the day of the crime, as follows in pertinent part:
Ladies and gentlemen, December 19, 2001, was a Wednesday morning. It was a cold December morning, six days before Christmas. It was the last day of school for the kids. They had a half day of school for Christmas break.
Jenny Burke went to pick up her children at school. She took them to the park to play for a little while. Jenny Burke has three children with the [Petitioner]. They are ages ten, six, and four. They played at the park for a while. Then she takes them by the Shumpert’s I.G.A. out in Pelion on the way home and picked up groceries for lunch. After that they go home, they park the car, and the kids get out. Little [daughter A.B.], six year old [A.B.], runs to the back yard to play on the swing, [son D.B.], age four, and [son B.B.], age ten, they get out with their mother. She has got the groceries. They go inside. She sets the bag of groceries down on a table in the house.
At that point from out in the hallway, the [Petitioner] comes out where he had been lying in wait. He had entered her home waiting on her return. She screams for little [B.B.] to call the police. Little [B.B.] is standing there in the same room with his mother, watches his dad pull out a .380-caliber pistol and shoots his mother in the chest. Little [B.B.] grabs his little brother and runs out the front door. He runs to the back yard where [A.B.] is and grabs her. While he is back there, he hears several other shots. While on the inside, the [Petitioner], he shoots Jenny Burke again and again. She falls dead right next to the Christmas tree. The [Petitioner] leaves the house, walks outside, rounds up his children. He gets a station wagon that he has hid behind the house, in between the house and the woods, put them in the car.
As they are driving off, he gives them Hardee’s breakfast biscuits that he had bought earlier in the day. He drives them out to the woods, takes them to a pond that he knew of, a secluded pond in the middle of the woods. They sit around the pond. They eat their Hardee’s biscuits. By now it’s about mid-afternoon. The [Petitioner] gets up and leaves. He gets in the car and leaves his children sitting there by the pond on that cold day. He goes back over to Jenny Burke’s house where her dead body is still lying next to the Christmas tree. He gets her dead body, puts it in the station wagon. He goes in and he tries to burn the house down. He tries to hide what he has done. He puts her body in the station wagon and drives off, drives out in the country, out near Cedar Branch Road. He goes to an old place that he had been before out in the woods and parks the car. He pulls Jenny Burke’s dead body out of the car and drags it over to a cutover. He covers her body up with sticks debris, branches. He leaves her there. He gets back in the car. He drives back over to the pond where he has left his children. He picks his children up, puts them in the car. By now it’s about dark. They drive around. He drives over to his aunt’s house. That’s where he gets out. He leaves his children in the car, no car running, no heat, it’s cold.
Ladies and gentlemen, on December 19, 2001, the [Petitioner] took it upon himself to be the judge of his ex-wife. He was her jury. And when he convicted her, he sentenced her to death.
ECF No. 10-1, 62-65.
Trial counsel opened and addressed the jury regarding the relationship between Petitioner and Jenny, and stated, among other things:
[Petitioner] made some bad decisions. At the end of this case, sadly, sadly, I feel that chances are - and as a matter of fact, I will tell you based on the evidence and based on what you are going to hear [Petitioner] told the police when he turned himself in - . . . you are going to convict him of burglary. You are going to convict him of having a firearm during the course of a violent crime. You are going to do that. You will convict him . . . of arson. And he is all those things, but what he is not is a murderer.
You see, for someone to be convicted of murder, they have got to have a heart devoid of all social duty. [Petitioner] went over to that house and committed a burglary because he wanted to talk about why it was they were going to take away his children. And the situation - and he saw things and he perceived things in that house that caused him, perhaps wrongly, to think and enraged him to such a degree that he made some tragically bad decisions.
. . . .
His wife left him for his brother, and then they were trying to take the kids and move the kids in with his brother. That made a man think not exactly right.
ECF No. 10-1, 67-70.
The state called Scottie Frier, a sergeant with the Lexington County Sheriff’s Department. ECF No. 10-1, 152. Frier testified that he spoke with Petitioner on December 20, 2001, after Petitioner turned himself in. Frier advised Petitioner of his Miranda rights, after which Frier wrote down Petitioner’s confession. Petitioner reviewed and signed the statement as factual. Id. at 174.
The state moved to place the writing into evidence. Trial counsel objected to introduction of the writing as a “statement” because Petitioner did not write it in his own words. Trial counsel argued that the written document was not Petitioner’s written statement, but a police officer’s memorialization of what occurred. Id. 172-73. The trial court ruled that Petitioner ratified the document by signing it, and therefore overruled the objection. Id. at 182. Frier then read the statement to the jury as follows:
I bought a .380 at Moseley’s on Wednesday at approximately 10:40 a.m. I had
applied for the gun on Friday. This was after bond court concerning Christopher and what he did to my little girl. I took the gun to the wash hold and shot it a couple of times. I bought the gun for $150. I called [Jenny] on her cell phone. She said she wasn’t going to come off of the papers. She said, quote, now it’s your turn to pay child support, you son of a bitch, end quote. I went to the house. I went inside her house. She was living with my brother. I got the address from the papers. When I went into the house, I got a Pepsi bottle with some gas in it. I poured the gas on the sofa and in the bedroom.
When . . . Jenny got to the house off of [redacted address], I was in the . . . hallway to the right. I could not be seen when the door was opened. When I came out, Jenny saw me. I said, quote, Jenny, why are you trying to take the kids from me, end quote. She just started screaming. [Son B.B.] was standing there. I pulled the gun out of my hip pocket. Jenny had started to go for the phone when she screamed. I shot Jenny. She grabbed her chest. I think she said, quote [B.B.] call the law, end quote. I shot her, quote, one more or two more times, end quote. It might have even been four, end quote. Quote, she grabbed her chest. She went for the phone. She hit the floor. She tried to get back up. I tried to put the gun to her chest, but I may have hit her in the head, end quote. [B.B.] ran out the back door. I think [Son D.B.] was . . . standing there also. I think [D.B.] saw it. I went outside and told the kids to get in the car. I had backed the car in between the trailer and a tree so she couldn’t see the car.
I took the kids and we ended up at a pond near some woods and ate some food that I had bought at Hardee’s. I told [B.B.] to stay there. I left [B.B.] in charge of the little kids at the pond. . . . I went back to Jenny’s house. I took Jenny out of the house. I put her in the car. I drove out 178 to Samaria. I turned on the concrete road. I went on some dirt roads back to . Then I went to a place I knew before. . . . It is up on Elbert Taylor Road. It is land I knew was there. I went down Elbert Taylor Road to another dirt road, turn right. Go straight. Land on the left. I put Jenny under some pine straw and limbs. I then went back to where the kids where.
ECF No. 10-1, 186-89.
Frier testified that after the first statement, Petitioner guided law enforcement to the location of Jenny’s body. Id. at 191. Petitioner subsequently gave a second interview, which was recorded as follows by Frier:
After I shot and left, I later got worried and I started thinking about what I had done. I decided to go back to the house to remove the body. I thought about burning the house. I thought that it might look like Jenny left with the kids and burned the house.
I started to try and light some wallpaper on fire. I did this when I removed the body. I also wanted to get rid of that blood evidence. That is why I tried to burn the house. The paper was burning when I left. I also picked up about three shell casings. I thought I got them all. I threw them out of the car window, I’m not sure where.
ECF No. 10-2, 19-20.
Trial counsel called several of Petitioner’s friends, who testified that Petitioner loved his children and that the prospect of losing the children “was tearing him apart.” ECF No. 10-2, 57. One witness, Clint Addy, testified that Petitioner lost weight and was “blowing off steam” after Jenny left. Id. at 74. Under cross-examination, Addy testified that several months before the shooting Petitioner talked about killing his wife and placing her in a vat of caustic chemicals to dispose of the body. Id. at 76-78. Addy stated, “I knew that he never meant it because all he ever did was talk junk.” Id. at 78. Addy admitted that after he learned Jenny and the children were missing, but before her body was found, he called law enforcement and reported Petitioner had threatened to place both his wife and his children in the vat. Id. at 80-81.
Petitioner testified in his own behalf. Petitioner’s testimony mirrored that of his confession to Frier, except that he testified he and Jenny had struggled over the gun. Id. at 200. According to Petitioner, he tried to shoot Jenny in the chest, and he did not realize she was shot in the head. Petitioner denied placing the weapon against her head and firing. Id. Petitioner denied that Frier had recorded their entire conversation. Id. at 207. Petitioner testified the he was “in such a state of mind . . . . I could read but it didn’t click. But the way [the document] was written, it’s not the full statement, the conversation we had.” Id. at 208.
Petitioner testified that he was a burglar, that he had attempted to commit an arson, and that he had a firearm in his possession during the course of the crime. Id. Petitioner denied being a murderer. Petitioner testified:
Bad decisions was made. My heart wasn’t a heart of mischief, if I could describe it. I loved them, . . . to the point of making a good man do bad shit. I spoke about they didn’t believe in God. [My brother], he don’t believe in church. . . . But there was a God that day. . . . And it spared by life and it spared [my brother’s life], too.
Id. at 210.
On cross-examination, Petitioner denied trying to clean up the blood after he returned to the residence to retrieve Jenny’s body. ECF 10-3, 18. Petitioner admitted that he picked up three shell casings and then tried to burn the house down. Id. Petitioner was shown a picture of the kitchen sink at the scene of the crime. Petitioner testified:
Q. And it looks that the sink, and I guess the base of the faucet, isn’t ...