Executed June 26, 2007 06:19 p.m. CDT by Lethal Injection in Oklahoma
27th murderer executed in U.S. in 2007
1084th murderer executed in U.S. since 1976
2nd murderer executed in Oklahoma in 2007
85th murderer executed in Oklahoma since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Jimmy Dale Bland
W / M / 39 - 49
|Doyle Windle Rains
W / M / 62
Bland had killed before. In 1975, he was convicted of manslaughter for killing a soldier and kidnapping the soldier's family. He served 20 years of a 60-year sentence.
Bland v. State, 4 P.3d 702 (Okla.Crim. 2000) (Direct Appeal).
Bland v. Sirmons 459 F.3d 999 (10th Cir. 2006) (Habeas).
Hot and spicy chicken breast, two slices of sausage pizza with extra cheese, a slice of German chocolate cake, a pint of French vanilla ice cream and a Dr. Pepper.
“I'm sorry for what happened. I love you all. I love you all. I’m ready."
Oklahoma Department of Corrections
Inmate: JIMMY D BLAND
Birth Date: 09/26/1957
Height: 5 ft. 11 in.
Weight: 185 pounds
County of Conviction: Till
Date of Conviction: 02/06/98
Location: Oklahoma State Penitentiary, Mcalester
"Terminally Ill Man Executed; Death Penalty Opponents Say Terminally Illl Prisoners Should Be Allowed to Die of Natural Causes," by Scott Michaels. (June 27, 2007)
A terminally ill death row inmate who had less than a year to live was executed Tuesday evening in Oklahoma, sparking a new debate over whether sick inmates should be put to death or allowed to die of natural causes.
Jimmy Dale Bland, 49, was killed by lethal injection shortly after 6 p.m. Tuesday in the Oklahoma State Penitentiary, soon after the Supreme Court rejected his last, 11th-hour appeal. Bland had a fatal case of lung cancer that had spread to his brain, and had undergone radiation treatment and chemotherapy, his lawyer, David Autry, told ABC News. Bland would have died in six months, Autry said. "It's pointless to execute this guy," Autry said. "He was going to be dead in a few short months anyway."
Though there are no reliable statistics on how many terminally ill inmates are currently on death row in the nation's prisons, Bland appears to be one of the few inmates this close to dying of natural causes to be executed in the United States, death penalty advocates say.
His case has outraged death penalty opponents, who argue that the justice system should show mercy to death row inmates who are already dying an usual issue that is likely to appear before courts and clemency boards more frequently as the death-row population ages. "We will certainly see more of these cases," said Richard Dieter, the director of the Death Penalty Information Center in Washington, D.C. "This is going to be happening more and more."
'He Didn't Deserve to Go That Way'
In 1996, Bland was sentenced to death for shooting Doyle Windle Rains, formerly the popular mayor of tiny Manitou, Okla., in the back of the head with a .22-caliber rifle. When he was captured, Bland told police he thought Rains, who'd often hired him as a handyman, had cheated him out of some money.
Bland had killed before. In 1975, he was convicted of manslaughter for killing a soldier and kidnapping the soldier's family. He served 20 years of a 60-year sentence. Bland had been out of prison for less than a year when he killed Rains.
Rains "was always jovial and always laughing," Barbara Tucker, a childhood friend, told ABC News. "He didn't deserve to go that way. He was too good to people."
The Same as Any Other Inmate?
Rains' family, victims advocates and the state of Oklahoma have little sympathy for Bland and say his illness should not excuse his crimes. "If Jimmy Bland wanted to die of natural causes he shouldn't have shot Mr. Rains in the back of the head," said Assistant Oklahoma Attorney General Seth Branham. "He's in the same position as any other inmate from the state's perspective," Branham said. "Capital punishment prevents death by natural causes."
Rains' stepchildren had a similar reaction at a clemency hearing earlier this month. "He's had enough compassion. He's had enough mercy," Gary Stringer, Rains' stepson-in-law, told the board. The board unanimously rejected Bland's request.
But, death penalty reformers argue that society does not gain anything from executing a dying man, and that Bland should have been granted clemency or granted a stay by the courts. Bland had argued that executing the terminally-ill violates the Eighth Amendment's ban on cruel and unusual punishment.
"No one is going to argue that he's still dangerous," said Dianne Rust-Tierney, director of the National Coalition to Abolish the Death Penalty. "There is something unsettling about the government doggedly getting its pound of flesh whether or not it matters anymore."
Ken Rose, director of the Center for Death Penalty Litigation in North Carolina, said execution would not serve any societal purpose, and that the government should show mercy to someone like Bland who is already suffering and dying.
"The execution just adds to that in a macabre way," he said.
An Aging Death-Row Population
Death penalty experts expect that Bland's situation will become more common as the nation's death row population ages. At the end of 1995, there were 40 death row inmates over the age of 60. By the end of 2005, the latest date for which statistics are available, that number had grown to 137 inmates, according to the Bureau of Justice Statistics. In that time, the country's total death row population rose by 200, to 3,254.
It is now typical to spend more than 10 years on death row, with many of the condemned serving more than 20 years before their executions, according to the Death Penalty Information Center.
As a result, there are more and more geriatrics on the nation's death rows. Clarence Ray Allen, 76, was executed last year after spending 23 years on California's death row. He was blind, nearly deaf and used a wheelchair, according to court records.
Allen and several other older inmates had tried to avoid their executions based on their old age or infirmities with little success in the courts. While the Supreme Court -- in some instances -- has been willing to rein in the death penalty as applied to juveniles or the mentally retarded, it has not been sympathetic to claims that executing the elderly or the ill violates the Eighth Amendment's ban on cruel and unusual punishment.
"Those claims uniformly have failed," said Jonathan Turley, a constitutional law professor at George Washington University School of Law.
The Supreme Court rejected Allen's appeal, though Justice Stephen Breyer filed a dissent, saying: "Petitioner is 76 years old, blind, suffers from diabetes and is confined to a wheelchair, and has been on death row for 23 years. I believe that in the circumstances he raises a significant question as to whether his execution would constitute cruel and unusual punishment. I would grant the application for stay." None of those other inmates were as close to death as Bland, his lawyers say, adding that his case presented the courts with a novel legal issue.
The Supreme Court rejected Bland's appeal, and, Turley said, is unlikely to grant a similar one in the future. "For the court to say you can't execute him because he's terminally ill comes close to rejecting the death penalty as a concept," said Turley, who heads the law school's Project for Older Prisoners.
It would be too difficult for courts to decide who is "too sick" to be executed, Turley said. Inmates also are only aging and facing more terminal illnesses because they have been granted a lengthy appeals process, Turley said.
If Bland had won, "it could result in more people dying," Turley said, as legislatures would move to shorten death penalty appeals. Ironically, had Blands been granted an appeal, it could have done "a great disservice to a lot of prisoners."
If they do not succeed in the courts, terminally-ill inmates would be good candidates for clemency boards, said the Death Penalty Information Center's Dieter, adding that many states seem to want to avoid executing unusually old death row inmates.
"What is being gained here other than a measure of revenge?" he said.
"Oklahoma: Terminally ill man executed in Oklahoma." (Associated Press)
McALESTER, Okla. — An Oklahoma death row inmate who was dying of cancer was executed Tuesday after his final bid for a reprieve was denied by the U.S. Supreme Court.
Jimmy Dale Bland, a two-time killer who shot his 62-year-old employer in the back of the head 11 years ago, became the second person executed by the state this year. “I’m sorry for what happened,” Bland said in brief remarks to his family members, including his mother, brother and two sisters, who witnessed Bland’s execution at the Oklahoma State Penitentiary. Prison officials declined to identify them.
Much of what Bland said to his family was inaudible because of a defect in the death chamber’s public address system. “I love you all. I love you all,” Bland said looking toward his family members. He then turned to prison officials in the death chamber and said: “I’m ready.”
Bland, 49, was terminally ill with advanced lung cancer that had spread to his brain and his hip bone, according to his attorney, David Autry, who also witnessed the execution. Bland received radiation and chemotherapy treatment, and his doctors said he had as little as six months to live.
Bland appeared pale as officials began administering a lethal dose of chemicals into his tattooed left arm. He closed his eyes and breathed heavily for a few seconds and then turned ashen as the drugs took effect. “He’s in heaven,” Bland’s brother whispered. His mother and sisters wept softly as a physician declared Bland dead at 6:19 p.m.
Bland’s execution was opposed by anti-death penalty groups who said executing a terminally ill man was pointless and raised ethical issues. Autry had asked the Supreme Court to block Bland’s execution and decide whether executing a terminally ill inmate violates the Constitution’s prohibition against cruel and unusual punishment. The court denied the request late Tuesday afternoon, said Charlie Price, spokesman for the Oklahoma Attorney General’s Office.
Bland was sentenced to death for the Nov. 14, 1996, murder of Doyle Windle Rains, who was shot in the back of the head in his garage with a .22-caliber rifle. Members of the victim’s family as well as the family members of Bland’s first victim, Raymond Prentice, who was shot to death in 1975, also witnessed the execution.
Prentice’s family members said afterward they felt sorry for Bland’s family but were happy that the death sentence was carried out. “It’s about 32 years past due,” said Ronnie Prentice, the first victim’s son. They also said they did not accept Bland’s expression of remorse. “He never had remorse,” said Jackie Barker, Raymond Prentice’s sister-in-law. “He didn’t have remorse the first time. He didn’t have remorse the second time.” Bland spent 20 years of a 60-year sentence in jail after pleading guilty to manslaughter and kidnapping charges in Raymond Prentice’s death. He had been out of prison less than a year when he was accused of killing Rains.
“If they’d have kept him in jail, the second man would not have been killed,” Barker said. Members of Prentice’s family said they were not troubled by Bland’s medical condition. “We’ve had cancer in our family,” said Traci Cox, Prentice’s niece. “He had the easy way out. He didn’t have to suffer.” Members of Rains’ family declined to speak with reporters following the execution. Bland is the first terminally ill inmate to face execution in the state.
In August 1995, convicted killer Robert Brecheen, 40, was executed by lethal injection following an apparent attempt to take his own life with a drug overdose. Bland was arrested two days after Rains’ death for driving under the influence while driving a vehicle owned by Rains. Bland, who did construction and handyman work for Rains, confessed to killing Rains and hiding his body.
The first person put to death by the state this year was Corey Duane Hamilton, 38, on Jan. 9 for the execution-style slaying of four fast-food employees during a robbery in 1992. An Aug. 21 execution is scheduled for death row inmate Frank Duane Welch, who was convicted of murder in the 1987 death of 29-year-old Jo Talley Cooper at her Norman home.
Oklahoma Attorney General (Press Release)
News Release 05/16/2007
W.A. Drew Edmondson, Attorney General
Execution Date Set for Bland
The Oklahoma Court of Criminal Appeals yesterday set June 26 as the execution date for Tillman County death row inmate Jimmy Dale Bland, Attorney General Drew Edmondson said.
Bland, 49, was convicted of the Nov. 14, 1996, murder of Doyle Windle Rains, 62.
Bland was arrested for driving under the influence on Nov. 16, 1996. At the time of the arrest, he was driving a vehicle owned by Rains. He later confessed to killing Rains at Rains’ residence and hiding his body in a nearby field.
The attorney general’s office requested the execution date April 23 after the U.S. Supreme Court rejected Bland’s final appeal.
Edmondson said his office attempts to notify victims’ family members regarding upcoming executions, but they have been unable to locate the family of Doyle Windle Rains. Under Oklahoma law, certain victim family members are permitted to witness executions, if they so desire. Family members are asked to contact Allyson Carson at (405) 522-4397.
Bland would be the second person executed in Oklahoma this year. There are currently no other executions scheduled.
"Terminally ill two-time murderer put to death," by Jaclyn Cosgrove. (6/27/2007)
McALESTER -- A two-time murderer whose cancer put him in the national spotlight because of the ethics of executing a terminally ill person was put to death Tuesday at the Oklahoma State Penitentiary.
Jimmy Dale Bland, 49, was executed for killing Doyle Windle Rains, 62, of Tillman County. The lethal injection was administered at 6:12 p.m., and Bland was pronounced dead at 6:19 p.m.
Before the execution, Bland said a few things, but much of what he said could not be heard because the sound system between the execution chamber and the viewing chamber was not working properly. "I'm sorry for what happened," he could be heard saying to his family. "I love you all." His mother, two sisters, a brother and a spiritual adviser witnessed his execution.
When he shot Rains in 1996, Bland had been out of prison less than a year. He had served about 20 years of a 60-year sentence for killing Raymond Prentice of Grandfield and kidnapping Prentice's wife and son in 1975.
The killing that put him on death row happened after Rains hired Bland to help him do construction work. On Nov. 14, 1996, Rains let Bland borrow his Cadillac to visit his girlfriend in Oklahoma City. When Bland returned to Rains' home in Manitou, the two men began arguing, and Bland shot Rains in the back of the head with a .22-caliber rifle. He then took Rains' body to a creek and left it there under some logs.
Rains, the former mayor of Manitou, was a compassionate, friendly man who was always willing to help anyone, Christina Stringer, his foster daughter, said at the prison before the execution. "He helped Jimmy when no one else would have anything to do with him," Stringer said. She said she had tried not to judge Bland on his past. "Windle taught me to try to find good in everyone," Stringer said. "I didn't know much about the first killing he (Bland) had committed. I just knew he was a kid and Windle was giving him a second chance."
Raymond Prentice's son, Ronnie Prentice, was 3 or 4 years old when he was kidnapped but says he remembers most of what happened the night his father was killed. "One of the things I remember is when he (Bland) dragged my dad in the house -- when he drug him in by his boots -- and I remember all the blood," Ronnie Prentice said before the execution, which he attended. "I remember my mom hollering, my mom asking him, of course, to cover him up because I was right there."
Bland was 17 at the time. He was diagnosed with lung cancer last year, records show. Since then, he has had radiation and chemotherapy treatments.
Ronnie Prentice said he was angered to learn that Bland might not be executed because of his cancer. "He killed two men -- cold-blooded -- kidnapped me and my mom, shot at all the cops during that, threatened to shoot me, threatened to shoot my mom," he said, "and we want to keep him around?"
Bland's request for a stay of execution based on his terminal cancer was filed June 14, and on Friday, the Oklahoma Court of Criminal Appeals voted 3-2 against a stay. The U.S. Supreme Court denied his request for clemency Tuesday afternoon.
"Execution set for terminally ill inmate." (AP Jun. 27, 2007 02:31: AM)
OKLAHOMA CITY (AP) -- An Oklahoma death row inmate who is dying of cancer was scheduled to be executed Tuesday barring an 11th hour reprieve from the U.S. Supreme Court. Jimmy Dale Bland, a two-time killer who shot his 62-year-old employer in the back of the head 11 years ago, has received radiation and chemotherapy for advanced lung cancer that has spread to his brain and his hip bone, according to his attorney, David Autry.
Bland's doctors have said he has as little as six months to live, and death penalty opponents questioned the need to execute a death row inmate who is going to die soon anyway.
"This is a pointless exercise," said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty in Washington. "This is the kind of thing that continues to undermine public confidence in the death penalty."
Prosecutors have said Bland's medical condition is not grounds for clemency. The victim's relatives, including stepdaughter Christina Stringer and her husband, Gary Stringer, have said Bland, 49, does not deserve to die of natural causes.
Autry has asked the U.S. Supreme Court to block Bland's execution, scheduled for 6 p.m. at the Oklahoma State Penitentiary in McAlester, and decide whether executing a terminally ill inmate violates the Constitution's prohibition against cruel and unusual punishment. The court had not ruled on the request Tuesday afternoon.
Bland's execution could turn into a catastrophe if the veins in his arms where a lethal dose of chemicals will be injected have been compromised by his chemotherapy treatments, Autry said. U.S. District Judge Stephen P. Friot denied a stay on Monday based on allegations that the state's lethal injection method unconstitutionally causes excruciating pain.
The five-member Oklahoma Pardon and Parole Board unanimously rejected Bland's request for clemency on June 12.
On Friday, the Oklahoma Court of Criminal Appeals voted 3-2 to deny a stay, with the majority writing that prohibiting the execution of a terminally ill person "would mean the death sentence could not be carried out before the natural expiration of a person's life."
In a dissenting opinion, Judge Charles Chapel of Tulsa said a stay should be granted to protect "the dignity of society itself from the barbarity of exacting mindless vengeance."
Bland is the first terminally ill inmate to face execution in the state. In August 1995, convicted killer Robert Brecheen, 40, was executed by lethal injection following an apparent attempt to take his own life with a drug overdose.
Bland was sentenced to death for the Nov. 14, 1996, murder of Doyle Windle Rains, who was shot in the back of the head in his garage with a .22-caliber rifle. Bland was driving a vehicle owned by Rains when he was arrested for driving under the influence two days later. Bland, who did construction and handyman work for Rains, confessed to killing Rains and hiding his body.
Bland also spent 20 years of a 60-year sentence in jail after pleading guilty to manslaughter and kidnapping charges in 1975. He had been out of prison less than a year when he was accused of killing Rains.
Bland will be the second person executed in Oklahoma this year. Corey Duane Hamilton, 38, was executed on Jan. 9 for the execution-style slaying of four fast-food employees during a robbery in 1992.
"Terminally ill killer executed." (The Associated Press Wed June 27, 2007)
McALESTER — An Oklahoma death row inmate who was dying of cancer was executed Tuesday after his final bid for a reprieve was denied by the U.S. Supreme Court.
Jimmy Dale Bland, a two-time killer who shot his 62-year-old employer in the back of the head 11 years ago, became the second person executed by the state this year. "I'm sorry for what happened,” Bland said in brief remarks to his family members, including his mother, brother and two sisters, who witnessed Bland's execution at the Oklahoma State Penitentiary. Prison officials declined to identify them.
Much of what Bland said to his family was inaudible because of a defect in the death chamber's public address system. "I love you all. I love you all,” Bland said looking toward his family members. He then turned to prison officials in the death chamber and said: "I'm ready.”
Bland, 49, was terminally ill with advanced lung cancer that had spread to his brain and his hip bone, said his attorney, David Autry, who also witnessed the execution. Bland received radiation and chemotherapy treatment, and his doctors said he had as little as six months to live.
Bland appeared pale as officials began administering a lethal dose of chemicals into his tattooed left arm. He closed his eyes and breathed heavily for a few seconds and then turned ashen as the drugs took effect.
"He's in heaven,” Bland's brother whispered. His mother and sisters wept softly as a physician declared Bland dead at 6:19 p.m.
Bland's execution was opposed by anti-death penalty groups who said executing a terminally ill man was pointless and raised ethical issues.
Autry had asked the Supreme Court to block Bland's execution and decide whether executing a terminally ill inmate violates the Constitution's prohibition against cruel and unusual punishment. The court denied the request late Tuesday afternoon, said Charlie Price, spokesman for the Oklahoma attorney general's office.
Bland was sentenced to death for the Nov. 14, 1996, murder of Doyle Windle Rains, who was shot in the back of the head in his garage with a .22-caliber rifle. Members of the victim's family as well as the family members of Bland's first victim, Raymond Prentice, who was shot to death in 1975, also witnessed the execution.
Prentice's family members said afterward they felt sorry for Bland's family but were happy that the death sentence was carried out. "It's about 32 years past due,” said Ronnie Prentice, the first victim's son.
Bland is the first terminally ill inmate to face execution in the state.
National Coalition to Abolish the Death Penalty
Jimmy Dale Bland, OK, June 26
Do Not Execute Jimmy Dale Bland!
Oklahoma has scheduled the execution of Jimmy Dale Bland on June 26 for the November 1996 murder of Doyle Windle Rains.
The state of Oklahoma should not execute Bland for his role in this crime. Executing Bland would violate the right to life as declared in the Universal Declaration of Human Rights and constitute the ultimate cruel, inhuman and degrading punishment. Furthermore, Bland claims prosecutorial misconduct and ineffective assistance of counsel.
Please write to Gov. Brad Henry on behalf of Jimmy Dale Bland!
Bland v. State, 4 P.3d 702 (Okla.Crim. 2000) (Direct Appeal).
Following jury trial before the District Court, Tillman County, Richard B. Darby, J., defendant was convicted of first-degree malice aforethought murder and sentenced to death. Defendant appealed. The Court of Criminal Appeals, Lumpkin, V.P.J., held that: (1) prosecutor's use of peremptory challenges to excuse two Hispanic jurors did not violate Batson; (2) defendant's absence from portion of in-chambers individual voir dire did not violate his due process or statutory rights; (3) evidence of intent was sufficient to sustain malice murder conviction; (4) exclusion of portions of defense psychologist's proposed testimony was proper on relevancy grounds; (5) arrest warrant for lesser crime was supported by probable cause for its issuance; (6) defendant was not entitled to instruction on voluntary intoxication or lesser offense of second degree depraved murder; (7) no instructional error occurred; (8) misstatements in prosecutor's closing argument did not require relief under cumulative error doctrine; (9) counsel was not ineffective; and (10) imposition of death penalty was supported. Affirmed; application for hearing denied.
LUMPKIN, Vice Presiding Judge:
Appellant Jimmy Dale Bland was tried by jury and convicted of First Degree Malice Aforethought Murder (21 O.S.1991, § 701.7), Case No. CF-96-90, in the District Court of Tillman County. The jury found the existence of two(2) aggravating circumstances and recommended the punishment of death. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.FN1
Appellant's Petition in Error was filed in this Court on August 5, 1998. Appellant's brief was filed April 20, 1999. The State's brief was filed August 9, 1999. Appellant's reply brief was filed August 30, 1999. The case was submitted to the Court August 26, 1999. Oral argument was held November 2, 1999.
Appellant was convicted of the pre-meditated murder of Doyle Windle Rains. The victim was a longtime resident of Manitou, Oklahoma. He was retired and worked handyman jobs in the area. In November 1996, the victim worked at the Horton family ranch in Tillman County building dog pens and erecting a chain link fence. The victim had hired Appellant to assist him in the job. On November 12, 1996, Appellant and the victim were paid $882.00 for their work. Based upon a prior agreement, the check was made out to Appellant. Between 2:30 p.m. on November 12 and 2:30 p.m. on November 13, 1996, Appellant and the victim cashed the check at the First Southwest Bank in Frederick, Oklahoma.
On November 14, 1996, Appellant drove the victim's Cadillac to Oklahoma City to see Connie Lord, his girlfriend. While in Oklahoma City Appellant spent almost all of the cash in his possession, approximately $380.00. Most of this money was spent on drugs, some of which Appellant and Lord ingested at the time. Appellant left Oklahoma City later that afternoon. Lord gave him $10.00 so he could return home. Appellant drove to the victim's home where he shot and killed him. Appellant retrieved the keys to the victim's pickup from the victim's front pants pocket. He loaded the victim's body into the pickup and drove to a rural area where he deposited the body and covered it with logs and leaves. Appellant returned to the victim's home where he spent the night.
On November 15, 1996, Appellant returned to the home he shared with his mother, Ruby Hess, in Davidson, Oklahoma. Appellant was driving the victim's Cadillac. Appellant said he was going to work with the victim. Instead, Appellant switched vehicles and drove the victim's pickup to Oklahoma City. Meeting Connie Lord, he told her he had killed the victim. Later that evening, Lord phoned her sister, Frances Lewis, and asked her to call Hess to check on the victim's welfare. Hess and the victim were dating and had discussed marriage. As a result of her conversation with Lewis, Hess phoned the Tillman County Sheriff.
On November 17, 1996, Sheriff Billy Hanes went to the victim's residence. No one answered his knock at the front door. He noticed the victim's Cadillac in the driveway, but did not see the pickup. Sheriff Hanes then went out to the property where the victim ran cattle, but again found no sign of the victim. Returning to the victim's home, Hanes, with the assistance of agents from the Oklahoma State Bureau of Investigation (O.S.B.I) entered the house and observed several spots of blood on the garage floor. Sheriff Hanes subsequently listed the victim and his pickup on the NCIC register of missing persons. With that entry, anyone who had any contact with the victim or his pickup were to contact Sheriff Hanes.
On November 16, 1996, Appellant, driving the victim's pickup, was involved in a one-car accident near Stroud, Oklahoma. Appellant had driven the pickup off the side of the road. Appellant was arrested for driving under the influence. Appellant was subsequently released on bond, but not before the arresting trooper noticed Appellant had over $300.00 in cash on his person. Appellant was taken to the Econo-Lodge in Chandler, Oklahoma, where he paid for his room with a one hundred ($100.00) dollar bill. On November 17, 1996, Humberto Martinez picked up Appellant from the Econo-Lodge and drove him to the home of James Baker in Oklahoma City. Appellant was subsequently located by the authorities at Baker's home and arrested on November 20, 1996. Initially arrested for the unauthorized use of the victim's pickup, Appellant was taken to the Tillman County Sheriff's office where he confessed to killing the victim and hiding his body. Appellant took officers to the rural area where he had left the body. The body was badly decomposed. However, an autopsy was subsequently performed and the cause of death was found to be a bullet wound to the back of the head.
Appellant admitted to shooting the victim, but claimed he did not intend to kill him. Appellant stated he had borrowed the victim's Cadillac and while it was in his possession, the car had a flat tire. Appellant changed the tire but in so doing, damaged the hubcap. When he returned the car to the victim and explained the situation, Appellant said the victim became very angry. Appellant said the victim's anger escalated to the point where he took a swing at Appellant. Appellant said he was not sure if the victim actually struck him. He said he thought he may have kicked the victim. Both men fell to the floor. Appellant said that a gun he had been carrying, wrapped up in a pair of coveralls, fell to the ground. Appellant said he picked up the gun and fired one shot, hitting the victim in the back of the head. Appellant said he attempted to clean up the garage area where the altercation had taken place. He then took the victim's body to a field and covered it with a pile of logs.
* * *
FIRST STAGE ISSUES
In his third assignment of error, Appellant challenges the sufficiency of the evidence supporting his conviction, arguing that the evidence was insufficient to prove malice aforethought. Appellant contends that both his videotaped confession and his trial testimony showed that he did not intend to kill the victim, but only reacted by shooting the victim when the victim attempted to assault him. Appellant argues there was a complete lack of direct evidence provided by the State to support the intent element, therefore the evidence must be reviewed under the test used in cases of circumstantial evidence, i.e., the State's evidence must exclude any other reasonable hypothesis except that of guilt. Smith v. State, 695 P.2d 1360, 1362 (Okl.Cr.1985).
In reviewing the evidence supporting a conviction, we look to the evidence in its entirety in determining which standard of review to apply. Here, the evidence of Appellant's commission of the offense was both direct and circumstantial. Therefore, we review that evidence under the standard set forth in Spuehler v. State, 709 P.2d 202, 203-204 (Okl.Cr.1985); “whether after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the essential elements of the crime beyond a reasonable doubt.”FN4 This Court will accept all reasonable inferences and credibility choices that tend to support the verdict. Washington v. State, 729 P.2d 509, 510 (Okl.Cr.1986).
FN4. I continue to urge my colleagues to reject the unsupported dichotomy of tests relating to sufficiency of the evidence. See White v. State, 900 P.2d 982, 993-95 (Okl.Cr.1995) (Lumpkin, J. specially concurring). However, in this case the correct test is applied regardless of the method with which it is invoked.
It is uncontroverted that Appellant shot and killed the victim, then disposed of his body. The only controverted issue is his intent. Title 21 O.S.1991, § 701.7.(A) defines malice aforethought murder: A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof. (emphasis added).
“A design to effect death [ i.e., premeditation] is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed.” 21 O.S.1991, § 702. See also Hooks v. State, 862 P.2d 1273, 1280 (Okl.Cr.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994). Premeditation sufficient to constitute murder may be formed in an instant Boyd v. State, 839 P.2d 1363, 1367 (Okl.Cr.1992), cert. denied, 509 U.S. 908, 113 S.Ct. 3005, 125 L.Ed.2d 697 (1993) or it may be formed instantaneously as the killing is being committed. Allen v. State, 821 P.2d 371, 374 (Okl.Cr.1991). Malice aforethought may be proved by circumstantial evidence. Cavazos v. State, 779 P.2d 987, 989 (Okl.Cr.1989).
The evidence in this case showed that Appellant had told Connie Lord, on several different occasions, that he was going to kill the victim. The evidence also showed Appellant was unhappy with the victim in that he felt he was left to do work that both he and the victim were to do together and that he felt he was not adequately compensated for that work. The victim was shot once, in the back of the head. Appellant was seen the day following the murder in possession of the victim's pickup, the victim's billfold (according to Connie Lord), at least $200.00 in cash, and $125.00 worth of crank. Appellant had only $20.00 in his possession one day previously. Money the victim had received in Appellant's presence three days before the murder was never found. And finally, Appellant told Connie Lord he had killed the victim, not that he had accidentally shot him.
Appellant contends that because portions of Connie Lord's testimony were discredited, because witnesses testified that she was not trustworthy, and because she was rewarded for her cooperation with the authorities in arresting and prosecuting Appellant, her testimony could not support the conviction. The record reflects that portions of Lord's testimony were discredited and two (2) defense witnesses testified she was not particularly truthful. However, it was never shown that she was rewarded for her cooperation with the authorities. In fact, as a result of telling the police about Appellant's confession, Lord was detained on an outstanding warrant and jailed on forgery and drug possession charges.
“The credibility of witnesses and the weight and consideration to be given to their testimony are within the exclusive province of the trier of facts and the trier of facts may believe the evidence of a single witness on a question and disbelieve several others testifying to the contrary.” McDonald v. State, 674 P.2d 1154, 1155 (Okl.Cr.1984) citing Smith v. State, 594 P.2d 784 (Okl.Cr.1979) quoting from Caudill v. State, 532 P.2d 63 (Okl.Cr.1975). Although there may be conflict in the testimony, if there is competent evidence to support the jury's finding, this Court will not disturb the verdict on appeal. Enoch v. State, 495 P.2d 411, 412 (Okl.Cr.1972). Here, the jury heard both Connie Lord's testimony and the attempts by the defense to discredit her. The jury apparently gave greater weight to her testimony than the defense attempts at impeachment. Sufficient evidence was presented to prove that Appellant acted with malice aforethought when he killed the victim. After reviewing the evidence in the light most favorable to the State, we find a rational trier of fact could have found the existence of the essential elements of first degree malice aforethought murder beyond a reasonable doubt. This proposition of error is denied.
In his fifth proposition of error, Appellant contends the trial court erred in finding that defense witness Dr. Sally Church, Ph.D. in Educational Psychology, could not testify concerning the effect Appellant's chemical dependency had on his ability to form the intent to kill. Prior to trial, Appellant filed a Supplemental Discovery notice which included expected testimony from Dr. Church in both stages of trial. Dr. Church's anticipated first stage testimony addressed Appellant's chemical dependency, how that chemical dependency caused an extreme and violent reaction from Appellant when provoked, and other aspects of his personality profile. The State filed a Motion in Limine seeking to prohibit any defense testimony regarding “any evidence elicited from defense experts that invade the province of the jury, and is more prejudicial than probative.” After hearing arguments, the trial court, relying on Hooks v. State, 862 P.2d 1273 (Okl.Cr.1993), sustained the State's motion “as far as testimony regarding the ultimate issue of intent whether this Defendant could or did form any intent to kill.... ”
Appellant now argues on appeal the trial court's decision was an abuse of discretion and deprived him of his rights to present a full defense. He asserts that Dr. Church's testimony regarding his chemical dependency and how it affected him when he was provoked by the victim would have greatly assisted the jury, especially when they considered the first degree manslaughter instructions. Relying on White v. State, 973 P.2d 306 (Okl.Cr.1998), Appellant argues it was reversible error for the trial court to exclude Dr. Church's testimony.
Initially, Appellant's argument that the trial court excluded Dr. Church's testimony is misleading. The trial court's ruling did not exclude the testimony or prevent the witness from testifying, but merely limited the scope of the expert's opinion. It was defense counsel who decided not to call Dr. Church as a witness during the guilt phase of trial based upon the trial court's ruling.
In Hooks this Court stated “[w]hen, as in this case, a defendant attempts to elicit expert testimony on the issue of whether he or she possessed the requisite intent to commit the crime in question, such testimony should be excluded.” 862 P.2d at 1279. Voluntary intoxication has long been recognized as a defense to the crime of First Degree Malice Murder. White, 973 P.2d at 311 citing Cheadle v. State, 11 Okla.Crim. 566, 149 P. 919 (1915). However, as discussed in the section of this opinion on first stage jury instructions, specifically Proposition IV, Appellant was not entitled to that defense as he did not establish a prima facie case of the elements of that defense. See White, 973 P.2d at 312-13. (Lumpkin, J., specially concurring). Therefore, as voluntary intoxication was not a cognizable defense in this case, opinion testimony from an expert concerning Appellant's chemical dependency was not admissible as to the issue of guilt.
In White, the evidence supported the voluntary intoxication defense. However, testimony from the defendant's mental health expert was excluded by the trial court due to a discovery violation. On appeal, this Court found that exclusion of that testimony was too severe a sanction as it denied Appellant the ability to present the foundation of his voluntary intoxication defense. The Court stated:
Appellant established, if believed, that he was intoxicated after he ingested six valium tablets and drank vodka the afternoon preceding the homicide. He further testified that he never intended to kill Iwanski and that he could not remember significant portions of the evening of the homicide. Dr. Murphy would have explained the second component of the voluntary intoxication defense, i.e. how Appellant's intoxication affected his mental state and prevented him from forming malice aforethought. Such evidence is critical to establish the defense of voluntary intoxication. Id. at 311. The Court further stated that “[a]lthough Dr. Murphy's opinion would have embraced an ultimate issue to be decided by the trier of fact, it was not prohibited by Hooks....” Id. Regardless of the ability of the expert to explain the possible effects of alcohol or other substances on the body, the expert opinion could not include whether Appellant did or did not have the intent to kill at the time of the homicide. Id. That is a decision for the jury under the law and evidence presented.
In the present case, Appellant established, if believed, that he had ingested cocaine the day he confronted the victim. However, he testified to the details of the shooting and never once indicated that he could not remember shooting the victim or any of the surrounding events. While he denied having the premeditated intent to kill the victim, he did not claim nor did the evidence show that his denial was based upon being so intoxicated that he could not have formed the intent to kill. See Jackson v. State, 964 P.2d 875, 892 (Okl.Cr.1998). Therefore, any testimony by Dr. Church as to the effect Appellant's chemical dependency could have had on the formation of his intent to kill would not have been relevant to an issue before the jury. See 12 O.S.1991, § 2401.
Additionally, Dr. Church's testimony would not have been relevant in proving the lesser included offense of first degree manslaughter. An element of first degree heat of passion manslaughter is adequate provocation. 21 O.S.1991, § 711. This element is not a subjective test of reasonableness, but an objective test. See Valdez v. State, 900 P.2d 363, 377 (Okl.Cr.), cert. denied, 516 U.S. 967, 116 S.Ct. 425, 133 L.Ed.2d 341 (1995). Dr. Church's proposed testimony was not that Appellant was acting as a reasonable person at the time of the homicide, but that his chemical dependency at the time caused him to act to an extreme degree when provoked. Accordingly, her testimony would not have been relevant to an issue before the jury and therefore would not have been admissible. See 12 O.S.1991, §§ 2401, 2402.
The decision to limit the scope of Dr. Church's expert opinion did not deny Appellant the right to fully present his defense. Appellant presented evidence which showed the killing occurred during a scuffle with the victim and that Appellant's response was not the result of premeditation, but rather a heat of passion reaction to the victim's provocation. Evidence was also introduced as to his ingestion of cocaine the day of the murder and drug induced paranoia. The trial court's ruling did not prohibit any testimony by Dr. Church concerning Appellant's chemical dependence, only testimony on the ultimate issue of intent. Therefore, despite the trial court's ruling, Appellant was able to fully present his defense that he lacked the necessary intent to commit first degree premeditated murder. Accordingly, this assignment of error is denied.
Appellant contends he was denied a fair trial by the admission of gruesome photographs in his tenth assignment of error. At trial, counsel objected to State's Exhibits 4A, 4B, 5, 6A, and 6B. The trial court admitted all of the exhibits except for 6B, finding it was gruesome. Appellant now argues the trial court erred in its ruling as Exhibit 6A was just as gruesome as 6B and the other photos were not relevant to any issues in the case as he did not contest the fact the victim died from a single gunshot wound.
The admissibility of photographs is a matter within the trial court's discretion. Absent an abuse of that discretion, this Court will not reverse the trial court's ruling. Conover v. State, 933 P.2d 904, 913 (Okl.Cr.1997). Photographs are admissible if their content is relevant and unless their probative value is substantially outweighed by their prejudicial effect. Id. When the probative value of photographs is outweighed by their prejudicial impact on the jury-that is the evidence tends to elicit an emotional rather than rational judgment by the jury-then they should not be admitted into evidence. Id.
The photographs in the present case were 8” x 14” color views of the log pile under which the body was found (Exhibits 4A and 4B), and the body once the logs had been removed (Exhibits 5 and 6A). The photos were relevant as they corroborated testimony that the body was found under a pile of logs and that the victim suffered a single gunshot wound to the head. That Appellant may not have contested this evidence at trial is irrelevant. It remains the State's burden to prove, first, the corpus delicti, and second, that the crime was committed by the accused. Neill v. State, 896 P.2d 537, 551-552 (Okl.Cr.1994). Pictures of the murder victim are always useful in establishing the corpus delicti of the crime. Id.
Appellant further complains that a view of the victim's head in an advanced state of decomposition in Exhibit 6A is unnecessarily gruesome. The victim's head is not visible in 6A. Only the back of the head is visible in Exhibit 5 and the photo is not so gruesome or “so repulsive as to be inadmissible.” Thomas v. State, 811 P.2d 1337, 1345 (Okl.Cr.1991), cert. denied, 502 U.S. 1041, 112 S.Ct. 895, 116 L.Ed.2d 798 (1992). Accordingly, we find the photographs in this case relevant and any prejudicial effect does not outweigh their probative value. This assignment of error is denied.
Appellant contends in his ninth assignment of error that his arrest for unauthorized use of a motor vehicle was illegal and the evidence obtained as a result was inadmissible. Prior to trial, Appellant filed a motion to suppress the arrest arguing it was illegal as not founded upon probable cause and because it was merely a subterfuge for investigating Appellant for the homicide. This motion was overruled. These objections are now raised again on appeal.
Initially, Appellant argues the information in the affidavit supporting the arrest warrant was insufficient to establish probable cause. Appellant contends the only way Sheriff Hanes could have had probable cause to believe that he was in the unauthorized possession of the victim's vehicle was to believe Connie Lord's statement that Appellant had killed the victim. He argues that information from Connie Lord was unreliable. In support of his argument, Appellant urges this Court to abandon the “totality of the circumstances” test in reviewing affidavits for probable cause and return to the standard set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, (1969).
In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) the United States Supreme Court rejected the two-pronged test of Aguilar and Spinelli for determining probable cause for a totality of the circumstances test. This Court adopted Gates and the totality of the circumstances test in Langham v. State, 787 P.2d 1279, 1280-81 (Okl.Cr.1990). We are not persuaded to revisit the issue and will analyze the affidavit in this case under the totality of the circumstances. See Gregg v. State, 844 P.2d 867, 874 (Okl.Cr.1992); Newton v. State, 824 P.2d 391, 393 (Okl.Cr.1991).
Under the totality of the circumstances approach, the task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a air probability that contraband or evidence of a crime will be found in a particular place. Langham, 787 P.2d at 1281 citing Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332-33, 76 L.Ed.2d at 548. “The existence of probable cause is a common sense standard requiring facts sufficient to warrant a man of reasonable caution in the belief that an offense has or is being committed.” Mollett v. State, 939 P.2d 1, 7 (Okl.Cr.1997), cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998) quoting United States v. Wicks, 995 F.2d 964, 972 (10th Cir.1993). A magistrate's finding of probable cause is to be given great deference. Id. The duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Langham, 787 P.2d at 1281.
In the present case, the affidavit submitted to the magistrate provided: 1) on November 17, 1996, Sheriff Hanes received a missing persons report from Ruby Hess concerning the victim; 2) Sheriff Hanes checked the residence of the victim and discovered he was not there; 3) Sheriff Hanes also discovered the victim's pickup was missing; 4) Sheriff Hanes interviewed several relatives and neighbors of the victim's who advised him the victim never let anyone drive his new pickup; 5) Connie Lord had advised the OSBI that Appellant was in possession of the victim's pickup and that Appellant had stated he had killed the victim and taken his pickup and billfold; and 6) on November 16, 1996, the victim's pickup was involved in an accident in which Appellant was the driver and the victim was not present. This information was sufficient for the magistrate to find probable cause existed to issue an arrest warrant for Appellant for the unauthorized use of the victim's vehicle.
Further, we find Ms. Lord's statements sufficiently reliable as they were corroborated by her presence with Appellant in the victim's pickup and evidence that Appellant did in fact have an accident while driving the pickup. The information in the affidavit does not have to be sufficient to sustain a conviction, but only to establish probable cause that a crime had been committed and that Appellant was involved in the crime. See Mollett, 939 P.2d at 7. Here, the statements in the affidavit met that standard and the trial court properly overruled the motion to suppress.
Appellant also argues the arrest was pretextual and a subterfuge designed to facilitate a “fishing expedition” for the State into suspicions that the victim had been murdered. At the suppression hearing, Sheriff Hanes testified he did not believe he had sufficient information to establish probable cause for the homicide at the time he prepared the affidavit for the arrest warrant. Further, the warrant was sought after receiving information from the sheriff's office in Chandler concerning the one car accident involving Appellant and the victim's pickup. While Sheriff Hanes may have had a suspicion that Appellant was involved in the disappearance and possible murder of the victim, this did not preclude him from arresting Appellant for the unauthorized use of the victim's pickup, a crime for which the Sheriff did have probable cause to believe Appellant had committed. Here, the arrest warrant was obtained and served during the regular course of police work. Therefore, any inquiries into ulterior motives of the arresting officers is not relevant as their conduct in executing a properly obtained arrest warrant was justified. See Lyons v. State, 787 P.2d 460, 463 (Okl.Cr.1989). Accordingly, this assignment of error is denied.
FIRST STAGE JURY INSTRUCTIONS
In his fourth proposition of error, Appellant attacks the trial court's failure to sua sponte instruct the jury on voluntary intoxication. Reviewing for plain error only, we find none. Cheney v. State, 909 P.2d 74, 90 (Okl.Cr.1995).
In Jackson v. State, 964 P.2d 875, 892 (Okl.Cr.1998), cert. denied, 526 U.S. 1008, 119 S.Ct. 1150, 143 L.Ed.2d 217 (1999) we stated that an instruction on voluntary intoxication should be given “[w]hen sufficient, prima facia evidence is presented which meets the legal criteria for the defense of voluntary intoxication, ...” 964 P.2d at 892. The Court further stated: In clarifying this test, we now apply this test to the facts of this case. A defense of voluntary intoxication requires that a defendant, first, be intoxicated and, second, be so utterly intoxicated, that his mental powers are overcome, rendering it impossible for a defendant to form the specific criminal intent or special mental element of the crime. OUJICR(2d) 8-36 & 8-39 (1996). Id. In applying this test in Jackson, the Court found the defendant failed to present evidence that his mental powers were so overcome through intoxication that he could not form the specific intent to kill. The evidence in the present case warrants a similar finding.
Although evidence was presented by both the State (through Connie Lord) and the defense (from Appellant) that Appellant had ingested drugs the day of the murder, the evidence did not support a finding that his mental powers were so overcome through that drug use so that he could not form the specific intent to kill. Appellant testified that he had come down from his “drug high” by the time he arrived at the victim's residence. Further, Appellant testified in detail to his actions and thoughts from the point he arrived at the victim's home until the time he disposed of the body. He said that immediately after he shot the victim, he felt for a pulse. Upon realizing the victim was dead, Appellant testified “[i]t tore me up pretty bad.” Such a detailed account of the circumstances surrounding the murder defeats his claim to a voluntary intoxication defense. As we stated in Turrentine:
We find that Appellant's detailed description of the murders and the surrounding circumstances demonstrates that he was in control of his mental faculties and was not in the advanced state of intoxication he attempts to assert. His ability to recount these details undermines his claim on appeal that he was so intoxicated at the time of the murder that he could not have formed the intent to kill. Accordingly, the trial court, in a proper exercise of its judicial duty, found insufficient evidence to warrant an instruction on the defense of intoxication. 965 P.2d at 969 (internal citations omitted).
Accordingly, we find no error in the trial court's failure to submit a instruction on voluntary intoxication to the jury, and this assignment of error is denied.
Appellant contends in his sixth assignment of error the trial court erred in failing to sua sponte instruct the jury on the offense of first degree manslaughter by resisting criminal attempt. Again, reviewing for plain error only, we find none. Cheney, 909 P.2d at 90.
In a criminal prosecution, the trial court has the duty to correctly instruct the jury on the salient features of the law raised by the evidence without a request by the defendant. Atterberry v. State 731 P.2d 420, 422 (Okl.Cr.1986). This means that all lesser forms of homicide are necessarily included and instructions on lesser forms of homicide should be administered if they are supported by the evidence. Shrum v. State, 991 P.2d 1032 (Okl.Cr.1999).FN5 However, the failure to object to the instructions (as in this case) waives the issue on appeal. Id. at 1036.
FN5. While I disagree with this Court's failure to adhere to precedent in Shrum, I accede to its application in this case based upon the doctrine of stare decises. Shrum, 991 P.2d at 1037 (Lumpkin, V.P.J. concurring in result).
In determining whether the lesser form of homicide is supported by the evidence so as to warrant a jury instruction, this Court has reviewed evidence of lesser offenses in several different manners. In Malone v. State, 876 P.2d 707, 711-712 (Okl.Cr.1994), the Court said “... the trial court must instruct the jury on every degree of homicide where the evidence would permit the jury rationally to find the accused guilty of the lesser offense and acquit him of the greater.” The Court also said “[t]he trial court must determine as a matter of law whether the evidence is sufficient to justify the submission of instructions on a lesser included offense to the jury.” 876 P.2d at 712. In Boyd v. State, 839 P.2d 1363, 1367 (Okl.Cr.1992), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 775 (1990) we again said the trial court is to determine whether the evidence was sufficient as a matter of law to warrant the instruction, however, “[t]he trial court is to instruct the jury on every degree of homicide which the evidence in any reasonable view suggests.” See also Jackson v. State, 554 P.2d 39, 43 (Okl.Cr.1976); Miles v. State, 41 Okla.Crim. 283, 273 P. 284 (1929). In Rawlings v. State, 740 P.2d 153, 160 (Okl.Cr.1987) we said “an instruction on a lesser included offense need only be given when there is evidence that tends to prove the lesser included offense was committed.” While in Tarter v. State, 359 P.2d 596, 601 (Okl.Cr.1961), this Court relied on Welborn v. State, 70 Okl.Cr. 97, 105 P.2d 187, and stated:
“In a prosecution for murder, the court should instruct the jury on the law of each degree of homicide which the evidence tends to prove, whether it be requested on the part of the defendant or not, and it is the duty of the court to decide, as a matter of law, whether there is any evidence that would tend to reduce the degree of the offense to manslaughter in the first degree.”
In order to clear up any confusion caused by this prior case law and to have a uniform standard of review, we find the test to be used in determining whether evidence of a lesser form of homicide or lesser included offense is sufficient to warrant a jury instruction should be no different from the test used to determine when the evidence is sufficient to warrant a jury instruction on the defendant's theory of defense. In Jackson, 964 P.2d at 892, this Court held that the test to be used in determining whether the evidence warranted an instruction on voluntary intoxication should be no different from the test used on any other defense. “When sufficient, prima facia evidence is presented which meets the legal criteria for the defense of voluntary intoxication, or any other defense, an instruction should be given.” Id. “Sufficient in this context simply means that, standing alone, there is prima facia evidence of the defense, nothing more.” Id. at 904 fn. 5. See also White, 973 P.2d at 312 (Lumpkin, J., specially concurring) quoting Michigan v. Lemons, 454 Mich. 234, 562 N.W.2d 447, 454 (1997) (“before a defendant is entitled to an instruction on the defense ..., he must establish a prima facie case of the ... elements of that defense.”) Prima facie evidence is defined as:
Evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient ... to sustain a judgment in favor of the issue which it supports. Id.
It is the trial judge's responsibility to determine whether prima facie evidence of the lesser offense has been presented to warrant the instruction. Omalza v. State, 911 P.2d 286, 303 (Okl.Cr.1995) (jury instructions are a matter committed to the sound discretion of the trial court).
In the present case, Appellant sought an instruction on the offense of first degree manslaughter by resisting criminal attempt. Title 21 O.S.1991, § 711(3) provides in pertinent part: Homicide is manslaughter in the first degree in the following cases: 3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.
Here, the only evidence supporting Appellant's claim to this instruction is his testimony that the victim assaulted him and that he shot the victim in response to the assault. Appellant argues that his statement is sufficient to warrant the instruction. In Newsted v. Gibson, 158 F.3d 1085, 1092 (10th Cir.1988) the Tenth Circuit concluded that when the only evidence supporting the appellant's claim to an instruction on a lesser form of homicide was his own self-serving statements and those statements were contradictory and inconsistent with the other evidence presented at trial, the evidence was insufficient to warrant the jury instruction. The Court stated “[t]he evidence is simply insufficient for a reasonable jury to concluded that Mr. Newstead acted in a heat of passion.” Id.
In the present, the evidence showed the victim was shot once in the back of the head. This fact would suggest the victim had turned away from Appellant and does not support Appellant's allegation that he was being assaulted by the victim or that he was resisting a criminal attempt by the victim at the time of the shooting. Appellant's self-serving statement does not present sufficient evidence to establish a prima facie case of first degree manslaughter by resisting criminal attempt and is therefore insufficient to warrant a jury instruction on that offense. This assignment of error is denied.
In Proposition VIII, Appellant argues the trial court erred in failing instruct the jury on second degree murder. Appellant's requested instruction was refused by the trial court.
Murder in the second degree occurs “[w]hen perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.” 21 O.S.1991, § 701.8(1). We have held that this statute is applicable where there is no premeditated intent to kill any particular person. Boyd, 839 P.2d at 1367. Appellant contends that had the jury received an instruction on Second Degree Murder they could have concluded that he did not intend to kill the victim. We disagree.
As discussed in Proposition III, premeditation sufficient to constitute murder may be formed in an instant. Id.; 21 O.S.1991, § 703. The evidence presented at trial does not support the conclusion that Appellant acted without any premeditated design to effect death. We have held that where there is no evidence to support a lower degree of the crime charged or lesser included offense, it is not only unnecessary to instruct thereon, the court has no right to ask the jury to consider the issue. Boyd, 839 P.2d at 1367. Accordingly, we find no error in the trial court's failure to give an instruction on second degree murder. This assignment of error is denied.
SECOND STAGE ISSUES
In his fifteenth assignment of error, Appellant contends his rights to a fair and reliable sentencing proceeding were compromised by the introduction of testimony concerning crimes which occurred twenty years ago. To support the aggravating circumstances of “prior violent felony” and “continuing threat”, the State introduced evidence of Appellant's convictions in 1975 for manslaughter and kidnapping. In pre-trial motions, the defense moved to prohibit admission of that evidence arguing it was inflammatory and unfairly prejudicial. Defense counsel sought to limit presentation of the evidence regarding the prior homicide to a showing of the weapon used by Appellant and how the homicide was committed. The trial court overruled the motion. Appellant again raised the motion during trial, arguing he would stipulate to the basic facts of the prior homicide and kidnapping but he did not want to go into any details and retry the prior case. The trial court overruled the objection, finding the State's evidence was not a re-trial of the prior case. Now on appeal, Appellant raises four challenges to the trial court's ruling.
In presenting evidence of the prior homicide and kidnapping, the transcript of the preliminary hearing testimony given by the homicide victim's wife in 1975 was read. The witness, Mrs. Prentice, passed away prior to the 1998 trial in this case. In his first challenge to the trial court's ruling, Appellant contends Mrs. Prentice's testimony was hearsay, without an exception, and its admission deprived him of his rights of confrontation and cross-examination. This objection was not raised at trial, therefore we review only for plain error.
Appellant concedes the testimony was admitted into evidence pursuant to 12 O.S.1991, § 2804(B)(1). That section provides: B. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: 1. Testimony given as a witness at another hearing of the same or another proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered or, in a civil action or proceeding, a predecessor in interest had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination; ... (emphasis added).
Appellant now challenges the “similar motive” requirement arguing he did not have a similar motive in cross-examining Mrs. Prentice as the prior testimony was taken at a preliminary hearing where the burden of proof is substantially lower than that required at trial. Appellant directs us to Honeycutt v. State, 754 P.2d 557, 560 (Okl.Cr.1988) wherein this Court stated:
This Court has never defined the word “motive” as used in Section 2804(B)(1). However, we believe that this word should be used in its ordinary sense. That is, “motive” is the moving power which prompts a person to act in a certain way. Black's Law Dictionary 914 (5th Ed.1979)....
In Honeycutt, the defendant was charged and convicted of rape, sodomy and kidnapping. By the time of Honeycutt's trial, the victim had been murdered by co-defendant McBrain. The victim's testimony given at McBrain's preliminary hearing was read into evidence at Honeycutt's trial. On appeal, this Court found the testimony properly admitted under section 2804(B)(1) because Honeycutt had a motive similar to that of his co-defendant in cross-examining the unavailable witness. Neither Honeycutt nor McBrain argued that they did not commit the assaults upon the victim, instead, both relied on the defense of consent inasmuch as they both argued the victim had consented to the sexual activity.
Appellant directs our attention to United States v. DiNapoli, 8 F.3d 909, 912 (2nd Cir.1996) where the Second Circuit Court of Appeals interpreted the “similar motive” requirement of Federal Rules of Evidence 804(b)(1) (identical to 12 O.S.1991, § 2804(B)(1)). The court said the test in determining whether there was a similar motive must turn “not only on whether the questioner is on the same side of the same issue at both proceedings, but also on whether the questioner had a substantially similar interest in asserting that side of the issue.” In DiNapoli, the prior testimony at issue was given at a grand jury proceeding, and the court held, in part, that because of the reduced burden of proof at the grand jury proceeding, a similar motive between questioning witnesses at the grand jury level and at the actual trial might not exist.
Appellant's reliance on DiNapoli is misplaced. The federal grand jury scheme is very different from our state preliminary hearing scheme. In the federal grand jury process, facts and evidence are presented to the grand jury so that a determination might be made by the jurors as to whether the accused should be charged with a criminal offense in a criminal indictment. The accused does not have the right to counsel and there is no cross-examination of witnesses. In Oklahoma, a preliminary hearing is held after criminal charges have been filed by the district attorney. The purpose of a preliminary hearing is to establish probable cause that a crime was committed and probable cause that the defendant committed the crime. 22 O.S.Supp.1994, § 259. The defendant has the right to counsel and witnesses may be cross-examined. The difference between the federal system and our state system distinguishes DiNapoli from the present case.
While we find DiNapoli is not determinative of the case at hand, it is instructional in that the federal court has said the “similar motive” analysis must be fact specific, and that forgone opportunities for cross-examination do not demonstrate a lack of similar motive. 8 F.3d at 914-15. It is merely a factor to be weighed in assessing whether a similar motive exists. The nature of the proceedings and the cross-examination at the prior proceeding will be relevant though not conclusive on the ultimate issue of similarity of motive. Id. at 915. “A purely tactical decision not to develop particular testimony despite the same issue and level of interest at each proceeding does not constitute a lack of opportunity or dissimilar motive for purposes of Rule 804(b)(1).” United States v. Bartelho, 129 F.3d 663, 671 n. 9 (1st Cir.1997).
Despite the difference in the burden of proof requirements in our state preliminary hearing and trial, this Court has allowed testimony from a preliminary hearing to be introduced at trial when the witness is unavailable. See Honeycutt, 754 P.2d at 560; Newsted v. State, 720 P.2d 734, 741 (Okl.Cr.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). In the present case, Appellant was represented by counsel at the prior proceeding and counsel cross-examined Mrs. Prentice. However, Appellant discounts his opportunity to confront the witness arguing that the cross-examination did not address the kidnapping and ensuing police chase, theorizing he knew he was going to be bound over on the murder charge so why spend time on the other charges at preliminary hearing, and that most of the cross-examination was irrelevant to the charges he was facing. A review of the cross-examination of Mrs. Prentice indicates counsel raised a defense of intoxication. Questions posed to the witness concerned her observation that Appellant may have been intoxicated at the time of the incident. Questions were also posed concerning the witness' knowledge of events surrounding the death of her husband when she in fact did not actually witness the events immediately preceding his death.
In cross-examining Mrs. Prentice at the preliminary hearing in 1975, Appellant was concerned with discrediting her testimony and reducing his culpability based upon his level of intoxication. Appellant did not contest his commission of the offenses, but only his level of culpability. The record shows Mrs. Prentice was in an adjoining room in her home when she heard gunshots. She was then ordered to drive Appellant away from the scene. Accompanied by her young son, Mrs. Prentice drove Appellant through town, but was eventually pursued by police and rescued as Appellant was apprehended. Had a trial taken place on the charges,FN6 Appellant's motive would have been the same-to discredit the witness and lessen his culpability based upon a defense of intoxication. Furthermore, if Mrs. Prentice was available to testify in Appellant's trial for the murder of Doyle Windle Rains, Appellant's motive would have been similar-to discredit her testimony as to the shooting based upon the fact she did not witness the actual shooting and lessen his culpability to the entire incident through a defense of intoxication. The failure of counsel to more thoroughly cross-examine Mrs. Prentice on the kidnapping and ensuing police chase does not constitute a lack of opportunity to question the witness or indicate a dissimilar motive for purposes of Section 2804(B)(1).
FN6. After the preliminary hearing, Appellant pled guilty to a reduced charge of first degree manslaughter and to the kidnapping as charged.
Further, the great majority of Mrs. Prentice's testimony as to the circumstances surrounding the shooting of her husband and her kidnapping was relevant in proving the aggravating circumstances alleged. The only portion that might not have been relevant was testimony that Appellant also threatened to shoot and did shoot at her brother when he approached her home prior to her kidnapping. However, this incident came out as Mrs. Prentice was explaining the circumstances comprising the events which lead to the charges against Appellant. Accordingly, we find the “similar motive” requirement of Section 2804(B) has been met in this case and the preliminary hearing testimony of Mrs. Prentice was properly admitted.
Appellant next contends it was fundamentally unfair to allow the State to essentially retry him for twenty year old crimes for which the evidence was stale and crucial witnesses unavailable. To support his argument, Appellant relies on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). In Gardner, the Supreme Court ruled that due process was violated when the judge relied, in part, on confidential portions-information not disclosed to the defense or his counsel-of a pre-sentence investigation report in sentencing the defendant. 430 U.S. at 358, 97 S.Ct. 1197 at 1205. In the present case, Appellant was sentenced for the prior offenses in 1975 and remained incarcerated until approximately 1994 or 1995. Approximately four months prior to trial, the State filed a More Definite and Certain Statement of Allegations Set Forth in Bill of Particulars in Re Punishment in which the evidence to support the aggravating circumstances was set out. Specifically included was evidence as to the homicide of Raymond Prentice and the kidnapping of Brenda Prentice, including the preliminary hearing testimony of Mrs. Prentice. Here, Appellant had notice of the evidence to be used against him, unlike the situation in Gardner.
In Brewer v. State, 650 P.2d 54, 62 (Okl.Cr.1982), cert. denied, 459 U.S. 1150, 103 S.Ct. 794, 74 L.Ed.2d 999 (1983) this Court held that when the State alleges the aggravating circumstance of prior violent felony, it has the burden of presenting sufficient information concerning the prior conviction to prove its contention. If the defendant enters into a stipulation regarding the violent nature of the prior conviction, details of the prior conviction may still be presented in order to support the aggravating circumstance of “continuing threat”. Smith v. State, 819 P.2d 270, 277 (Okl.Cr.1991) cert. denied, 504 U.S. 959, 112 S.Ct. 2312, 119 L.Ed.2d 232 (1992). This Court has placed no age limits on the prior convictions that may be used to support the aggravator.
Here, the details of the prior homicide were relevant in establishing the violent nature of the crime. Evidence of that crime, prior sworn testimony from the victim's wife, a certified copy of the judgment and sentence, and testimony from the sheriff and assistant district attorney involved in the capture and prosecution of Appellant, did not constitute a re-trial of the twenty year old crime. Appellant had notice of the evidence along with the opportunity to rebut, deny or explain the evidence surrounding the prior conviction. To exclude the evidence merely because it was twenty years old would deprive the sentencer of highly relevant information concerning the defendant in violation of Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Accordingly, we find no error.
Appellant next argues evidence that the prior conviction was originally charged as first degree murder and then reduced to first degree manslaughter was extremely prejudicial and improperly admitted. This information was related to the jury when the Tillman County Court Clerk was called to the stand and asked to identify State's Exhibit 50A, the Judgment and Sentence from the prior conviction. Defense counsel's objection to the testimony was overruled.
The mention of the prior conviction having originally been charged as first degree murder was harmless. Appellant was in fact charged and ordered to stand trial on first degree murder but was able to reduce the charge to manslaughter through a plea agreement.FN7 The jury was clearly informed that the prior conviction was for first degree manslaughter. Appellant's argument that the mere mention of the original murder charge weighed more heavily in the jurors' minds than the manslaughter conviction is pure speculation in light of the evidence of Appellant's own conduct during the commission of the prior crime. Appellant has failed to show any prejudice and we find the testimony harmless beyond reasonable doubt.
FN7. In McCarty v. State, 977 P.2d 1116, 1125 (Okl.Cr.1998), cert. denied, 528 U.S. 1009, 120 S.Ct. 509, 145 L.Ed.2d 394 (1999) we found the “prior violent felony” aggravator supported by evidence of a conviction for second degree rape which had been reduced through a plea bargain from a charge of first degree rape.
Finally, Appellant challenges the use of the prior convictions to support both the continuing threat and prior violent felony aggravators. This Court has upheld the use of the same act or course of conduct to support more than one aggravating circumstance where the evidence shows different aspects of the defendant's character or crime. Turrentine, 965 P.2d at 978; Paxton v. State, 867 P.2d 1309, 1325 (Okl.Cr.1993), cert. denied, 513 U.S. 886, 115 S.Ct. 227, 130 L.Ed.2d 153 (1994); Pickens v. State, 850 P.2d 328 (Okl.Cr.1993), cert. denied 510 U.S. 1100, 114 S.Ct. 942, 127 L.Ed.2d 232 (1994); Green v. State, 713 P.2d 1032 (Okl.Cr.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 165 (1986). Our explanation in Paxton applies to the present case. We stated:
Here, the aggravating circumstance of prior violent felony conviction is supported by the judgment and sentence for manslaughter. This evidence is indicative of Appellant's violent criminal history. When punishment is determined for Appellant's present conduct, the consideration of his past acts, together with his current conduct, shows that the death penalty is the only appropriate sentence. On the other hand, the underlying facts of the manslaughter conviction support the aggravator of “continuing threat” by showing Appellant's propensity for violence and future dangerousness and the need to protect society from his probable future conduct. 867 P.2d at 1325. Here, the aggravators found by the jury do not cover the same aspect of Appellant's character or his crime. Accordingly, we find no error in the admission of the prior first degree manslaughter conviction to support the “prior violent felony” aggravator and the details of that offense, together with the details of the kidnapping to support the “continuing threat” aggravator. This assignment of error is denied.
Appellant raises several challenges to the “continuing threat” aggravator in his sixteenth assignment of error. Initially, he challenges the constitutionality of the aggravator. He recognizes this Court has previously rejected his arguments but urges this Court to reconsider its position. We have reviewed Appellant's argument and are not persuaded to revisit the issue. See Turrentine, 965 P.2d at 979; Johnson v. State, 928 P.2d 309, 316 (Okl.Cr.1996) and cases cited therein.
Appellant next challenges the “continuing threat” jury instruction, Oklahoma Uniform Jury Instruction-Criminal No. 4-74. His argument is twofold. First, he argues the instruction failed to properly set forth the requirement that the jury had to find that the defendant would commit “future acts of violence”. He contends that by failing to require the jury to focus on the future threat of violence, an essential element of the aggravating circumstance was omitted from the jury's consideration. Secondly, Appellant asserts the use of the term “probability” is confusing and causes the instruction to be overbroad in its application. He argues that “probability” is a statistical term and the “use of the term ‘probability’ in [the statutory] sentencing scheme violates the statistical rule of probability.”
Oklahoma Uniform Jury Instruction Criminal No. 4-74, given to the jury in Instruction No. 42 provides: The State has alleged that there exists a probability that the defendant will commit future acts of violence that constitute a continuing threat to society. This aggravating circumstance is not established unless the State proved beyond a reasonable doubt: First, that the defendant's behavior has demonstrated a threat to society; and Second, a probability that this threat will continue to exist in the future. (O.R.398).
The Legislature set forth the aggravating circumstance of “continuing threat” in 21 O.S.1991, § 701.12(7). That provision reads: “[t]he existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society....” Instruction No. 42, set forth in the language of the statute, is a correct statement of the law which properly channels the discretion of the jury. Hawkins v. State, 891 P.2d 586, 596 (Okl.Cr.1994), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995).
In Short v. State, 980 P.2d 1081 (Okl.Cr.), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (1999) the first part of Appellant's argument was specifically raised and addressed by this Court. In rejecting this challenge to OUJI-CR (2d) 4-74 we stated: Appellant also challenges the use of Instruction No. 4-74, OUJI-CR (2d). He contends that instead of limiting the aggravating circumstance of “continuing threat”, the instruction actually broadens its application by leaving out any reference to violence. A review of the instruction does not support Appellant's argument. The first paragraph of the instruction explicitly refers to the allegation that there exists a probability that the defendant will commit future acts of violence. That the subsequently listed two criteria which must be proven do not mention violence does not negate the burden on the State to prove a probability that the defendant will commit future acts of violence that constitute a continuing threat to society as listed in the first paragraph. Reading the instruction in its entirety, it is clear the State had the burden of proving the defendant had a history of criminal conduct that would likely continue in the future and that such conduct would constitute a continuing threat to society. Accordingly, we reject Appellant's challenge to Instruction No. 4-74, OUJI-CR (2d). This assignment of error is therefore denied. 980 P.2d. at 1103-04. The same analysis applies in Appellant's case.
In response to the second portion of Appellant's argument, in Nguyen v. Reynolds, 131 F.3d 1340, 1354 (10th Cir.1997) the Tenth Circuit said:
The fact that Oklahoma chooses to grant a sentencing jury wide discretion to make a predictive judgment about a defendant's probable future conduct does not render the sentencing scheme in general, or the continuing threat factor in particular, unconstitutional. Although this predictive judgment is not susceptible of “mathematical precision,” we do not believe it is so vague as to create an unacceptable risk of randomness. To the contrary, we believe the question of whether a defendant is likely to commit future acts of violence has a “common-sense meaning” that criminal juries are fully capable of understanding.
We agree with this conclusion and do not find it necessary to engage in Appellant's exercise of analyzing the terms of the statute within the “statistical rules of probability”. Neither the rules of mathematics nor statistics apply in a criminal trial. We find the jury instruction, set out in the language of the statute, is a correct statement of the law and properly channels the jury's discretion. Accordingly, we reject Appellant's challenges to OUJI-CR (2d) 4-74, and this assignment of error is denied.
In his seventeenth assignment of error, Appellant notes that the Judgment and Sentence reflects that he was convicted of both malice aforethought murder and felony murder. Appellant asserts that as the jury found him guilty of malice aforethought murder, the reference to felony murder was a scrivener's error which should be corrected. The State does not dispute this claim. A review of the record supports Appellant's contentions. Therefore, the trial court is ordered to correct the judgment and sentence to reflect the jury's verdict by striking the reference to a conviction for felony murder.
CLAIMS OF PROSECUTORIAL MISCONDUCT
In his seventh proposition of error, Appellant argues the prosecutor's comments during closing argument prevented the jury from fully considering his affirmative defense of first degree manslaughter. Appellant concedes the jury instructions regarding consideration of first degree murder and first degree heat of passion manslaughter were proper under McCormick v. State, 845 P.2d 896 (Okl.Cr.1993).FN8 However, he argues the prosecutor's comments to the effect that the jury could not consider the offense of first degree manslaughter until it had found reasonable doubt for the offense of first degree murder were improper. We review the prosecutor's comments for plain error only as no contemporaneous objection was raised at trial. It is a well established rule of this Court that defense counsel must object, in a timely manner, to objectionable statements. Failure to do so waives all but plain error. Smallwood v. State, 907 P.2d 217, 229 (Okl.Cr.1995); Simpson v. State, 876 P.2d 690, 693 (Okl.Cr.1994).
FN8. In McCormick this Court held that when the lesser included offense of manslaughter is not simply as an alternative to the charge of murder, but an affirmative defense to the crime charged by the State, jury instructions should indicate that proof of the two crimes should be examined together rather than individually in order to ensure that appropriate burdens of proof are allocated. 845 P.2d at 899-901.
Having reviewed the prosecutor's comments, we find any misstatements could not have affected the outcome of the trial. The jury was properly instructed as to the manner in which the offenses were to be considered. Specifically, Instruction No. 36 informed the jury they were to consider all three offenses.FN9 Further, the jury was told that all of the rules of law by which they were to weigh the evidence and determine the facts at issue were contained in the written instructions. (O.R. 351, Instruction No. 1). The language used by the trial court in setting out the offenses for the jury's consideration clearly set forth the differing intent requirements of the two offenses, i.e., a murder conviction required proof of a deliberate intent to kill while manslaughter should be found if the killing was done without a design to effect death. The instructions given to the jury did not preclude their consideration of the offense of first degree manslaughter. Appellant has failed to show that the jury did not follow their written instructions. See Jones v. State, 764 P.2d 914, 917 (Okl.Cr.1988) (the presumption is that jurors are true to their oaths and conscientiously follow the trial court's instructions). Any comments to the contrary by the prosecutor were not so egregious as to have denied Appellant a fair trial or to have affected the outcome of the trial.
FN9. Instruction No. 36 provided in pertinent part: If you have any reasonable doubt as to which offense the defendant may be guilty of, Murder First Degree (Premeditated), and/or Murder First Degree (Felony Murder), or Manslaughter First Degree by Dangerous Weapon (Heat of Passion), you may find him guilty only of the lesser offense, Manslaughter First Degree by Dangerous Weapon (Heat of Passion). If you have a reasonable doubt as to the guilt of the defendant on all such offenses, you must find him not guilty of any crime.
In his eleventh assignment of error, Appellant alleges that various instances of prosecutorial misconduct, both first and second stage, deprived him of a fair trial. We will address the claims in the order that Appellant has raised them in his appellate brief. We begin our review by reiterating the well established rule that error alone is insufficient to require reversal. Appellant must show not only that error occurred but that the resulting prejudice from the error was such that reversal is warranted. Smallwood, 907 P.2d at 228; Crawford v. State, 840 P.2d 627, 634 (Okl.Cr.1992); Harrall v. State, 674 P.2d 581, 583 (Okl.Cr.1984). Further, we note that many of the instances of alleged misconduct did not receive contemporaneous objections. Therefore, unless specifically noted otherwise, we review for plain error only.
Appellant initially contends in subproposition XIA that the prosecutor improperly stated that he was lying or that he was a liar. It is well established that it is improper to call a witness or a defendant a “liar” or to say that he or she is “lying.” Smallwood, 907 P.2d at 229. Nevertheless, it is permissible to comment on the veracity of a witness when such is supported by the evidence. Id. Here, such comments were proper in light of Appellant's own testimony that statements he had made to his mother and the police were not truthful. We find no error here.
In subproposition XIB, Appellant contends the prosecution demeaned his mitigating evidence, arguing it was not worthy of consideration. He further argues the prosecution misstated the law by arguing that Appellant's mitigation evidence actually proved the aggravating circumstances. Appellant relies on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) wherein the Supreme Court stated that persuading the sentencer to ignore mitigating evidence is error. Of the seven comments Appellant has challenged, only one was met with an objection.
This Court has held a prosecutor has the right to discuss evidence during the second stage in arguing for an appropriate punishment. Mayes v. State, 887 P.2d 1288, 1322 (Okl.Cr.1994), cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995). We have also held that evidence used in mitigation can also be used in aggravation. Medlock v. State, 887 P.2d 1333, 1349 (Okl.Cr.1994), cert. denied, 516 U.S. 918, 116 S.Ct. 310, 133 L.Ed.2d 213 (1995). Here, the jury was appropriately instructed as to the mitigating evidence and was not in any way precluded from considering any and all mitigating evidence.FN10 See Hamilton v. State, 937 P.2d 1001, 1010-11 (Okl.Cr.1997), cert. denied, 522 U.S. 1059, 118 S.Ct. 716, 139 L.Ed.2d 657 (1998). We find no error.
FN10. Instruction No. 45 stated in pertinent part: Mitigating circumstances are those which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame. The determination of what circumstances are mitigating is for you to resolve under the facts and circumstances of this case.
Appellant also claims the prosecutor mislead the jury about its responsibilities with regard to the death sentence in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell, the Supreme Court stated that the constitution prohibits imposition of a death penalty which rests on a “determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.” 472 U.S. at 320-30, 105 S.Ct. at 2633-40. Here, the prosecutor never intimated in any way that the ultimate responsibility for determining the proper sentence rested anywhere other any the jury. See Bryson v. State, 876 P.2d 240, 252 (Okl.Cr.1994), cert. denied, 513 U.S.1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995).
Appellant next argues in subproposition XIC that the prosecution improperly argued the jury had a civic and moral duty to return a conviction of first degree murder and impose the death sentence. Only one of the six instances of alleged misconduct drew an objection. Reviewing the comments in their entirety and in context, we find no error. The prosecutor focused on the jury's duty to serve and render a verdict based upon the evidence. The comments did not suggest that the jury's only moral course was to impose the death penalty. See Hamilton, 937 P.2d at 1010. Further, we have previously found no error in the prosecutor's acknowledging to the jury the difficulty of their task and asking them seriously to consider the punishment options available. Cargle v. State, 909 P.2d 806, 824 (Okl.Cr.1995), cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996). The comments here are not equivalent to those in other cases which we have held to be improper and prejudicial as playing on societal alarm or as inflaming the passions or prejudices of the jury. See Jones v. State, 610 P.2d 818, 820 (Okl.Cr.1980). The comments focused on the duty of the jurors to serve and render a verdict based upon the evidence. It did not convey the message that they must find the Appellant guilty based on emotional reaction. Pickens v. State, 850 P.2d 328, 342-343 (Okl.Cr.1993), cert. denied, 510 U.S. 1100, 114 S.Ct. 942, 127 L.Ed.2d 232 (1994).
Appellant argues in subproposition XID that the prosecutor improperly evoked sympathy for the victim in both first and second stage closing arguments. It is improper for the prosecution to ask jurors to have sympathy for victims. Tobler v. State, 688 P.2d 350, 354 (Okl.Cr.1984). However, the prosecution, as well as the defense, has the right to discuss fully from their standpoint the evidence, and the inferences and deductions arising therefrom. Carol v. State, 756 P.2d 614, 617 (Okl.Cr.1988). The comments here were based on the evidence and not merely appeals for sympathy.
In subproposition XIE, Appellant contends the prosecution improperly requested the jury to compare his life in prison to the plight of the victim. During the second stage closing argument, the prosecutor stated: Maybe the Defendant will be in prison, maybe he will be behind that concrete and those jail bars with his T.V. and his cable and good food. But one thing for sure-Windle Rains won't be here and his family won't be able to be with him, they won't be able to share holidays with him. And Doyle Rains won't get that final visit with him that he hoped for. (Tr.VII, 200).
Counsel is not to compare the plight of the victim and his or her survivors to the advantages of a live defendant in prison. Short, 980 P.2d at 1104; Le v. State, 947 P.2d 535, 554 (Okl.Cr.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998); Duckett v. State, 919 P.2d 7, 19, (Okl.Cr.1995), cert. denied, 519 U.S. 1131, 117 S.Ct. 991, 136 L.Ed.2d 872 (1997). However, under the evidence in this case, we cannot find the comments affected the sentence.
In subproposition XIF, Appellant argues the prosecution improperly demeaned and ridiculed him during first and second stage closing argument. We have reviewed the comments noted by Appellant and while we find that some of the comments certainly tested the bounds of proper argument in personal criticism of the Appellant, we do not find that Appellant was unduly prejudiced by the comments or that these comments affected the verdict or the sentence in this case. Tibbs v. State, 819 P.2d 1372, 1380 (Okl.Cr.1991).
In subproposition XIG Appellant also argues the prosecutor improperly argued facts not in evidence. These comments will be reviewed under the well established rule that a minor misstatement of fact will not warrant a reversal unless, after a review of the totality of the evidence, it appears the same could have affected the outcome of the trial. See Hartness v. State, 760 P.2d 193 (Okl.Cr.1988); Aldridge v. State, 674 P.2d 553 (Okl.Cr.1984).
Initially, Appellant directs us to a comment concerning eye glasses discovered near the victim's body. The prosecutor commented that the eye glasses belonged to the victim and their location near the body was evidence of a struggle. No witness identified the eye glasses as belonging to the victim. However, their close proximity to the body could raise a reasonable inference that they belonged to the victim. Any misstatement could not have affected the outcome of the trial.
Next, Appellant complains about the prosecutor stating that Connie Lord's testimony about Appellant having the victim's wallet was corroborated by Trooper Fisher. Reviewing the prosecutor's statements, we do not find the prosecutor ever stated that Trooper Fisher said he saw Appellant with the victim's wallet. The prosecutor reviewed what each witness had said about the wallet, and commented only that while in Chandler, the trooper saw Appellant with lots of money. The statements of the prosecutor were properly based on the evidence.
Appellant further argues that during second stage closing argument the prosecutor improperly argued that robbery was the motive for the killing. Appellant contends that since the jury had acquitted him of the felony murder charge, to continue to argue that Appellant committed the murder in order to rob the victim was a misstatement of the evidence and mislead the jury as to the inference it could draw. We find the prosecutor's comments were reasonable inferences based on the evidence. Further, as a conviction for either malice aforethought murder or felony murder makes a defendant death eligible, any error in the prosecutor's comments could not have mislead the jury as to the inferences or conclusions it could draw from the evidence.
Finally, in subproposition XIH, Appellant argues the absence of contemporaneous objections to some of the prosecutor's remarks does not constitute waiver of prejudice due to the combined effect of the erroneous arguments. “Allegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect was such [as] to deprive the defendant of a fair trial.” Duckett, 919 P.2d at 19. We have thoroughly reviewed all of the challenged comments in this case, and while some of the comments may have been improper, the cumulative effect of any inappropriate comments was not so egregious as to deprive Appellant of a fair trial. Accordingly, this assignment of error is denied.
In his twelfth assignment of error, Appellant contends the prosecution improperly shifted the responsibility of imposing the death sentence from the jury onto Appellant and others in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). This is a continuation of the argument raised above, with Appellant directing us to two additional comments which he claims relieved the jury of its responsibility to evaluate the propriety of the death sentence in Appellant's case. Reviewing these comments for plain error only as no contemporaneous objections were raised, we find nothing in the comments which mislead the jury in an attempt to insulate them from their decision or which sought to give the jury a view of its role in the capital sentencing proceeding that was “fundamentally incompatible with the Eighth Amendment's heightened ‘need for reliability in the determination that death is the appropriate punishment’ ” in this particular case. Bryson, 876 P.2d at 252 quoting Caldwell, 472 U.S. at 340, 105 S.Ct. at 2645, 86 L.Ed.2d at 246. See also Walker v. State, 887 P.2d 301, 322 (Okl.Cr.1994), cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995). Further, in light of the explicit instructions given to the jury during second stage concerning their consideration of the sentencing options, nothing in the prosecutor's argument can be said to have diverted the jury from its “awesome responsibility.” Pickens, 850 P.2d at 343 quoting Caldwell, 472 U.S. at 330, 105 S.Ct. at 2640. Accordingly, this assignment of error is denied.
In his thirteenth assignment of error, Appellant contends the prosecutor improperly commented on his post-arrest silence and the trial court erred in failing to grant a mistrial. We are directed to the prosecutor's cross-examination of Appellant and first stage closing argument. The record shows no objections were raised during the State's cross-examination of Appellant therefore we review only for plain error.
On direct examination, Appellant admitted he tried to cover up the fact that he had killed the victim and that he had lied about the incident for a period of time. On cross-examination, the prosecutor asked Appellant why he did not come forward with the truth prior to being arrested. Appellant cannot now complain about the prosecutor's examination as any error was invited by Appellant opening up the topic of his pre-arrest silence on direct examination. See Teafatiller v. State, 739 P.2d 1009, 1010-11 (Okl.Cr.1987).
During first stage closing argument, the prosecutor commented on Appellant's post-arrest silence by stating in part “then how do you explain his silence once Agent Briggs arrested him?” Defense counsel objected and requested a mistrial. The trial court sustained the objection and admonished the prosecutor to refrain from commenting on the defendant's post-arrest silence. The motion for a mistrial was overruled and the jury was admonished to disregard the comments of the prosecutor “in regard to the defendant's silence or non-silence prior to his beginning to make the voluntary statement to Agent Goss.” Further, the prosecutor was admonished to cover up those sections of a chart prepared by the State which reflected Appellant's post-arrest silence.
Generally, the prosecution may not comment on the defendant's post-arrest silence. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976); Parks v. State, 765 P.2d 790, 793 (Okl.Cr.1988). However, error may be harmless where there is overwhelming evidence of guilt and the defendant is not prejudiced by the error. White v. State, 900 P.2d 982, 992 (Okl.Cr.1995). Error may also be “cured” where the trial court sustains the defendant's objection and admonishes the jury. Id. In this case, any error was cured by Appellant's objection and the trial court's admonishment to the jury to disregard the comment. Accordingly, this assignment of error is denied.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
In his fifteenth assignment of error, Appellant asserts he was denied the effective assistance of counsel by counsel's failure to: 1) request jury instructions on voluntary intoxication and first degree manslaughter while resisting criminal attempt; 2) adequately investigate, prepare and present evidence available evidence during both stages of trial; 3) preserve the record; and 4) object o instances of prosecutorial misconduct.
An analysis of an ineffective assistance of counsel claim begins with the presumption that trial counsel was competent to provide the guiding hand that the accused needed, and therefore the burden is on the accused to demonstrate both a deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Strickland sets forth the two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. First, the defendant must show that counsel's performance was deficient, and second, he must show the deficient performance prejudiced the defense.FN11 Unless the defendant makes both showings, “it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687, 104 S.Ct. at 2064. Appellant must demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. at 688-89, 104 S.Ct. at 2065. The burden rests with Appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., 466 U.S. at 698, 104 S.Ct. at 2070, 80 L.Ed.2d at 700. This Court has stated the issue is whether counsel exercised the skill, judgment and diligence of a reasonably competent defense attorney in light of his overall performance. Bryson v. State, 876 P.2d 240, 264 (Okl.Cr.1994), cert. denied 513 U.S.1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995).
FN11. In explaining the prejudice prong of Strickland, this Court has previously relied on Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993) to the extent that an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. Our reliance upon Lockhart's analysis into the fundamental fairness of the trial to explain one prong of the Strickland test was based upon language from Strickland that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result,” 466 U.S. at 686, 104 S.Ct. at 2064, and “[s]econd, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 466 U.S. at 694, 104 S.Ct. at 2064. However, recently in Williams v. Taylor, 120 S.Ct. 1495 (2000) the Supreme Court backed away from its emphasis on the fundamental fairness of the trial analysis of the prejudice determination. The Court stated that an analysis of the prejudice prong was to focus solely on whether there was a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. Therefore, pursuant to Williams, our analysis of an ineffective assistance of counsel claim is based solely upon the two prong test set forth in Strickland, and our prejudice determination is based upon whether the outcome of the trial would have been different by for counsel's unprofessional errors.
When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Id. at 697, 104 S.Ct. at 2069. Appellant's claim regarding counsel's failure to request jury instructions on voluntary intoxication and first degree manslaughter while resisting criminal attempt can be disposed of based upon a lack of prejudice. As discussed in Propositions IV and VI, such instructions were not supported by the evidence, therefore Appellant would not have received the instructions even if counsel had requested them. Therefore, defense counsel's failure to request the instructions, did not constitute ineffective assistance. Valdez, 900 P.2d at 388.
Appellant next complains trial counsel did not conduct a worthwhile investigation into his case as evidenced by his failure to: 1) question available witnesses regarding their knowledge of relevant facts; 2) fully investigate State's witnesses regarding the veracity of their testimony; 3) prepare to fully present all available evidence of Appellant's state of drug induced intoxication during first stage; 4) fully prepare to investigate and defend against the introduction of evidence of the prior conviction during second stage; and 5) constructively use testimony from Dr. Church regarding Appellant's drug addiction as mitigation evidence during second stage.
In support of these arguments, Appellant directs us to affidavits accompanying the application for evidentiary hearing on sixth amendment claims. The affidavits filed in support of a request for an evidentiary hearing are not considered, by reason of their filing with this Court, part of the trial record. See Dewberry v. State, 954 P.2d 774, 776 (Okl.Cr.1998). If the items are not within the existing record, then only if they are properly introduced at the evidentiary hearing will they be a part of the trial court record on appeal. Id. Here, as the information contained in these affidavits is not properly before the Court at this time, and as Appellant has failed to develop his arguments in his appellate brief, without citation to the affidavits, he has effectively waived review of those arguments. We have consistently held that we will not review allegations of error which are neither supported in the record or by legal authority. Fuller v. State, 751 P.2d 766, 768 (Okl.Cr.1988); Wolfenbarger v. State, 710 P.2d 114, 116 (Okl.Cr.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2915, 91 L.Ed.2d 544 (1986). The affidavits will be considered when we address the application for evidentiary hearing on sixth amendment claims.
Appellant next argues counsel was ineffective for failing to preserve the record with an offer of proof as to Dr. Church's expected testimony. Appellant contends that without such a record, this Court cannot adequately conduct its mandatory sentence review. As discussed in Proposition V, the trial court properly limited the scope of Dr. Church's testimony. In the Supplemental Notice of Discovery from Defense filed with and considered by the trial court, defense counsel set out a summary of Dr. Church's anticipated first and second stage testimony. This is a sufficient record from which this Court can conduct its mandatory sentence review. Appellant has failed to show any prejudice by counsel's conduct.
Appellant further finds counsel ineffective for failing to object to inadmissible evidence. Specifically, he directs our attention to the instances of alleged prosecutorial misconduct discussed in Propositions VII, XII, XIII, and XI. As discussed in those propositions of error, most of the prosecutorial comments now complained of on appeal were proper comments on the evidence. Therefore, there is not a reasonable probability that had counsel raised objections that the result of the trial would have been different. See Workman v. State, 824 P.2d 378, 383 (Okl.Cr.1991), cert. denied, 506 U.S. 890, 113 S.Ct. 258, 121 L.Ed.2d 189 (1992).
Appellant also finds counsel ineffective for failing to lodge the appropriate objection to the admission of evidence of his prior conviction. However, as this evidence was properly admitted, see Proposition XV, Appellant cannot show any resulting prejudice. See Roney v. State, 819 P.2d 286, 288 n. 1. (Okl.Cr.1991).
Having thoroughly reviewed the record, and all of Appellant's allegations of ineffectiveness, we have considered counsel's challenged conduct on the facts of the case as viewed at the time and have asked if the conduct was professionally unreasonable and, if so, whether the error affected the jury's judgment. Le, 947 P.2d at 556. Defense counsel's performance in this case did not “so undermine[ ] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. Appellant has failed to meet his burden of showing a reasonable probability that, but for any unprofessional errors by counsel, the result of the trial would have been different as any errors or omissions by counsel did not influence the jury's determination of guilt or decision to impose the death sentence. Accordingly, we find that Appellant was not denied effective assistance of counsel and this assignment of error is denied.
Filed with the direct appeal is an Application for Evidentiary Hearing on Sixth Amendment Claims and Motion to Supplement, pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2000). Appellant asserts in the Application that counsel was ineffective in failing to investigate and utilize available evidence. Attached to the Application are twelve (12) affidavits.
Rule 3.11(B)(3)(6) allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to “utilize available evidence which could have been made available during the course of trial....” Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains “sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.” Rule 3.11(B)(3)(b)(i).
In his brief in support of the application, Appellant initially asserts that trial counsel failed to constructively use testimony from Dr. Church regarding Appellant's drug addiction as mitigation evidence during second stage. In her affidavit, Exhibit A, Dr. Church provides an extensive description of Appellant's history of drug abuse and its relevance to the homicide. The record reveals that Dr. Church's testimony at trial was well developed and she was given every opportunity to explain her diagnosis. As discussed in Proposition IV certain conclusions reached by Dr. Church were inadmissible opinion testimony. That appellate counsel would have developed the testimony differently is not grounds for finding trial counsel ineffective. While Appellant may wish trial counsel had done things differently, “[e]ven the best criminal defense attorneys would not defend a particular client in the same way.” Hooper v. State, 947 P.2d 1090, 1115 (Okl.Cr.1997), cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998) quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Accordingly, Appellant has failed to show any deficient performance.
Appellant next argues counsel failed to conduct an adequate investigation into the allegation that he was in possession of the victim's brown wallet. In support of this argument, Appellant relies on the affidavit of Trooper J.D. Fisher (Exhibit E) and the OSBI interview with Mike Simmons (Exhibit H). In his affidavit, Trooper Fisher states, in part, that he discovered only one wallet on Appellant, a biker or Harley billfold which snapped. Appellant argues that if defense counsel had adequately interviewed Trooper Fisher he would have discovered the Trooper did not discover a brown (the victim's) wallet in Appellant' possession. As for Mike Simmons, Appellant argues that counsel failed to present evidence to impeach Simmons' trial testimony that he had seen Appellant in possession of two billfolds while at the Econo-Lodge in Chandler, with one being a brown billfold. In his interview with the OSBI, Simmons does not make any reference to the billfolds.
Any failure by trial counsel to further investigate and examine Trooper Fisher or Mike Simmons about the victim's wallet was not indicative of ineffective assistance of counsel. Contrary to Appellant's contention, his credibility as a witness was not tied to the missing brown wallet. Appellant's credibility was called into question by his own statements-both pre-trial and during trial. Further, the evidence showed that Appellant was seen in possession of a large amount of cash immediately after the murder (the day after he had spent all of the money previously in his possession) and that the victim's brown wallet was never found. Even if defense counsel had presented additional testimony concerning whether the brown wallet was actually in Appellant's possession, there is not a reasonable probability that had he done so the result of the proceeding would have been different.
Appellant also argues trial counsel should have more fully investigated the veracity of Connie Lord. He directs us to the affidavit of Rhonda Oneal, the custodian of records at the Oklahoma County Jail (Exhibit B), which states that Lord was incarcerated in the Oklahoma County Jail on November 19, 1996, and remained incarcerated for approximately seventy-five (75) days. Lord testified at trial that she had been incarcerated prior to trial and was still incarcerated at the time of trial. Further, two witnesses testified that Lord was not truthful. Any failure to further challenge Lord's veracity was not indicative of ineffectiveness as there no indication that such testimony would have impacted the outcome of the trial.
Next, Appellant contends counsel was ineffective for failing to fully present all available evidence of his drug induced intoxication. He directs us to the affidavits from Connie Lord (Exhibit C), Larry J. Mills (Exhibit F), J. Arden Blough, M.D. (Exhibit G), and Humberto Martinez (Exhibit D). In each of these affidavits the affiant refers to Appellant's drug use immediately prior to the murder and after the murder. Lord stated that Appellant had injected cocaine the day he confronted the victim. Martinez stated that when he picked Appellant up at the motel in Chandler on November 17, 1996, he thought Appellant “had done enough dope to kill a normal person.” Mills, the paramedic who responded to the scene of Appellant's accident with the victim's pickup truck in Chandler, stated that Appellant said he had the accident because he was injecting speed and had been on a “couple day high.” Blough, the attending physician who treated Appellant when he was taken to the Stroud Memorial Hospital, stated that in his opinion, Appellant's conduct and reactions were consistent with recent drug use. The failure to present this evidence did not impact the outcome of the trial.
Evidence was presented at trial that Appellant had ingested drugs the day of the murder. Lord testified that she and Appellant had injected cocaine the day of the murder. Martinez testified he and Appellant had purchased drugs on November 15, 1996. However, in light of Appellant's own detailed statements about the murder and the circumstances immediately preceding and following the murder, additional evidence of his drug use would not have warranted a jury instruction on voluntary intoxication or had any impact on the outcome of the first stage of trial.
Appellant further claims counsel was ineffective for failing to fully investigate and utilize available evidence in the second stage of trial to counter the State's evidence in aggravation. Specifically, he asserts counsel inadequately defended against the evidence of his prior conviction. He directs us to newspaper articles written at the time of the prior offense which state that Appellant may have fired his gun at pursuing officers but it was only in response to the officers shooting at him (Exhibits J and K).
The record reveals that counsel strenuously objected to the introduction of evidence regarding Appellant's prior conviction. In an attempt to keep from the jury the details of the prior crime, counsel offered to stipulate to the weapon used and the manner in which the homicide was committed. Further, the jury was informed the prior conviction was for first degree manslaughter, not murder. In light of the proper admission of the details of the crime (to support the “continuing threat” aggravator) any additional evidence which counsel might have produced would not have lessened the severity of the prior crime. Any additional evidence counsel might have presented (as Appellant now suggests from other witnesses to the crime or forensic testing on the fired shells) would not have been found sufficiently mitigating by a reasonable juror to outweigh the evidence in aggravation. We find counsel adequately defended against the prior conviction.
While Appellant has provided a great deal of information in his affidavits, we find he has failed to set forth sufficient evidence to warrant an evidentiary hearing. He has failed to show by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to utilize or identify the complained-of evidence. Short, 980 P.2d at 1108-1109. Accordingly, we decline to grant Appellant's application for an evidentiary hearing.
ACCUMULATION OF ERROR CLAIM
In his eighteenth assignment of error, Appellant contends that, even if no individual error merits reversal, the cumulative effect of such errors warrants either reversal of his conviction or a modification of his sentence.
This Court has repeatedly held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Ashinsky v. State, 780 P.2d 201, 209 (Okl.Cr.1989); Weeks v. State, 745 P.2d 1194, 1196 (Okl.Cr.1987). However, when there have been numerous irregularities during the course of a trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors is to deny the defendant a fair trial. Bechtel v. State, 738 P.2d 559, 561 (Okl.Cr.1987). While certain errors did occur in this case, even considered together, they were not so egregious or numerous as to have denied Appellant a fair trial. Therefore, no new trial or modification of sentence is warranted and this assignment of error is denied. Short, 980 P.2d at 1109; Patton v. State, 973 P.2d 270, 305 (Okl.Cr.1998), cert. denied, 528 U.S. 939, 120 S.Ct. 347, 145 L.Ed.2d 271 (1999).
MANDATORY SENTENCE REVIEW
Pursuant to 21 O.S.1991, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of the aggravating circumstances as enumerated in 21 O.S.1991, § 701.12. Turning to the second portion of this mandate, the jury found the existence of two (2) aggravating circumstances: 1) the defendant was previously convicted of a felony involving the use of threat of violence to the person; and 2) there was an existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, § 701.12(1)(7). Each of these aggravators was supported by sufficient evidence.
“When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, the proper test is whether there was any competent evidence to support the State's charge that the aggravating circumstance existed.” Romano, 847 P.2d at 387. “In making this determination, this Court should view the evidence in the light most favorable to the State.” Id. To prove the “prior violent felony” aggravator, the State is required to go beyond simple proof that a defendant in a capital case had a prior felony conviction to establish the aggravating circumstance. Brewer, 650 P.2d at 62. The State must additionally prove that the prior felonies involved the use or threat of violence to the person. Id. Here, the judgment and sentence and the evidence surrounding the commission of the prior homicide indicating the use of violence were sufficient to support the aggravator. See Smith, 819 P.2d at 279.
To support the aggravator of continuing threat, the State must present evidence showing the defendant's behavior demonstrated a threat to society and a probability that threat would continue to exist in the future. Hain v. State, 919 P.2d 1130, 1147 (Okl.Cr.), cert. denied, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996). A finding that the defendant would commit criminal acts of violence that would constitute a continuing threat to society is appropriate when the evidence establishes the defendant participated in other unrelated criminal acts and the nature of the crime exhibited the calloused nature of the defendant. Battenfield v. State, 816 P.2d 555, 566 (Okl.Cr.1991), cert. denied, 503 U.S. 943, 112 S.Ct. 1491, 117 L.Ed.2d 632 (1992). To prove this aggravating circumstance, this Court has held “the State may present any relevant evidence, in conformance with the rules of evidence, ... including evidence from the crime itself, evidence of other crimes, admissions by the defendant of unadjudicated offenses or any other relevant evidence.” Id.
In the present case, evidence of Appellant's criminal history, which included a prior homicide,and the callousness in which he committed the murder in this case before taking the victim's keys from his pants pockets and spending the night in the victim's home, after disposing of the body, is sufficient to support this aggravator. See Hain, 919 P.2d at 1147-48 (in determining the callousness of the crime, the defendant's attitude is critical to the determination of whether he poses a continuing threat to society.) This evidence shows Appellant has a propensity toward violence which makes him a continuing threat to society.
Turning to the mitigating evidence. Appellant presented six (6) witnesses: his mother, the jailer at the Tillman County Jail, a counselor from Lilly Correctional Center, the coordinator of sentence administration for the Department of Corrections, Dr. Church, and by stipulation, Frances Lewis, Connie Lord's sister. These witnesses testified that Appellant has suffered from mental disorders including post-traumatic stress disorder, schizoid personality disorder, attention deficit disorder and drug dependency; he has a learning disability which impairs his ability to focus on the big picture; he has expressed great remorse over the killing of the victim; he accepts responsibility for the killing; the circumstances of the homicide indicate Appellant was not cruel or vicious; Appellant has been helpful to those who have had difficulty in life; he has adapted well to incarceration in the past and is not likely to cause problems in prison; his abilities are affected by his below normal intelligence; Appellant was profoundly and traumatically affected by his father's injury, mental impairment and subsequent separation from the family; he has been a good worker and a loving family member; Appellant will not be released if his sentence is life without parole; and the homicide was committed at a time when Appellant's judgment was impaired because of drugs. This evidence was summarized into fifteen (15) factors and submitted to the jury for their consideration as mitigating evidence, as well as any other circumstances the jury might find existing or mitigating.
Upon our review of the record and careful weighing of the aggravating circumstances and the mitigating evidence, we find the sentence of death to be factually substantiated and appropriate. Under the record before this Court, we cannot say the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 O.S.1991, § 701.13(C), in finding that the aggravating circumstances outweighed the mitigating evidence. Accordingly, finding no error warranting reversal or modification, the JUDGMENT and SENTENCE for First Degree Murder is AFFIRMED and the APPLICATION FOR EVIDENTIARY HEARING ON SIXTH AMENDMENT CLAIMS IS DENIED.
Bland v. Sirmons 459 F.3d 999 (10th Cir. 2006) (Habeas).
Background: Following affirmance of his first-degree murder conviction and death sentence on direct appeal, 4 P.3d 702, and denial of postconviction relief, petitioner sought writ of habeas corpus. The United States District Court for the Western District of Oklahoma, Tim Leonard, J., denied relief, and petitioner appealed.
Holdings: The Court of Appeals, McConnell, Circuit Judge, held that:
(1) due process did not require state court instruction that jury could not find habeas petitioner guilty of first-degree murder unless state disproved affirmative defense beyond reasonable doubt;
(2) prosecutorial argument that misstated jury instructions by purportedly inviting jury first to consider murder charges and “then only look at the manslaughter” did not deny petitioner a fundamentally fair trial;
(3) failure in to instruct on second form of manslaughter in addition to heat-of-passion manslaughter did not violate Beck v. Alabama requirement;
(4) petitioner was not deprived of defense to which he would have been entitled under law as it existed at time of his offense in violation of ex post facto prohibition;
(5) prosecutor's arguments did not diminish jury's responsibility for imposition of death penalty;
(6) single reference to petitioner's post- Miranda silence was harmless;
(7) prosecutor's comments in argument did not rise to level of due process violations; and
(8) counsel was not ineffective. Affirmed.
McCONNELL, Circuit Judge.
Jimmy Dale Bland, an inmate on death row in the Oklahoma State Penitentiary, appeals the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr. Bland was convicted of one count of first-degree malice-aforethought murder. The jury found the existence of two aggravating factors and recommended that he be sentenced to death. The trial court adopted the jury's recommendation, and the Oklahoma Court of Criminal Appeals affirmed. Bland v. State, 4 P.3d 702, 709 (Okla.Crim.App.2000). The state courts denied his requests for post-conviction relief. Mr. Bland now appeals the district court's denial of his habeas petition, challenging aspects of both the guilt and sentencing phases of his trial. For the reasons set forth below, we affirm the decision of the district court.
A. The Crime
On November 14, 1996, Jimmy Dale Bland shot and killed Doyle Windle Rains in Mr. Rains's garage in Manitou, Tillman County, Oklahoma. Bland, 4 P.3d at 709. He had been out of prison less than a year. He had served almost twenty years of a 60-year sentence for killing a man and kidnapping the victim's wife and son. Tr. Jury Trial, Day Seven, at 39-45, 55, 62-64, 107. At trial, Mr. Bland admitted killing Mr. Rains, but defended on the ground that the killing was neither malice-aforethought murder nor felony murder. Bland, 4 P.3d at 710.
According to the government's evidence, Mr. Bland worked for Mr. Rains doing miscellaneous construction and handyman jobs. Id. at 709; Tr. Jury Trial, Day Five, at 33. Mr. Rains was romantically involved with Mr. Bland's mother. Tr. Jury Trial, Day Five, at 26. Although Mr. Bland testified that the two men were “pretty good friends,” id. at 27, their financial relations, as well as Mr. Rains's relationship with Mr. Bland's mother, were sources of friction. Mr. Bland was chronically short of money, which he used to feed his drug habit. See id. at 79. Mr. Rains would allocate their earnings between the two of them, usually keeping well more than half for himself. See id. at 35-36. On at least one occasion, Mr. Bland told his girlfriend, Connie Lord, that he planned to kill Mr. Rains, and said that he would dispose of the body by placing it in a well and putting cement on it. Tr. Jury Trial, Day Four, at 68, 73-74.
On November 14, 1996, Mr. Rains lent Mr. Bland his Cadillac so that Mr. Bland could drive to Oklahoma City and visit Ms. Lord. Bland, 4 P.3d at 709. During the visit, Mr. Bland spent nearly all of the cash he brought with him, most of it on drugs, which he and Ms. Lord immediately ingested. Id. Ms. Lord gave Mr. Bland $10.00 so that he could return home. Id. On the way home, Mr. Bland stopped and consumed the remaining drugs he had purchased in Oklahoma City. Tr. Jury Trial, Day Five, at 41. On his return to Manitou, before going home, Mr. Bland drove to Mr. Rains's home to return the Cadillac. Bland, 4 P.3d at 709. He brought a .22-caliber bolt-action rifle, concealed in a roll of coveralls. Id. Angry with Mr. Rains and desperate for cash, Mr. Bland shot Mr. Rains in the back of the head. Id. Mr. Bland then loaded Mr. Rains's body into a pickup truck, washed out the garage area where the killing had occurred, drove to a rural area, and “[d]umped [the] body in a creek and covered it up,” hoping that no one would find it. Tr. Jury Trial, Day Five, at 67-68; Bland, 4 P.3d at 709.
Mr. Bland offers a slightly different story. According to his testimony at trial, he had taken the rifle with him on his trip to Oklahoma City, in accordance with his usual practice. Tr. Jury Trial, Day Five, at 53. It was still with him in the Cadillac when he arrived at Mr. Rains's home. Id. Although Mr. Rains had given Mr. Bland the gun to “[s]hoot frogs or snakes or whatever,” Mr. Bland did not want Mr. Rains to know that he “was carrying it around driving [Mr. Rains's] car.” Id. at 54. To ensure that Mr. Rains did not see the weapon, Mr. Bland removed it from the vehicle, rolled it into a pair of coveralls, and carried it under his arm. Id. at 53-54. The two men got into a fight over a damaged hubcap on the Cadillac. Id. at 60. While in Mr. Rains's garage, Mr. Rains took a swing at Mr. Bland, and Mr. Bland then “leaned back and kicked [Mr. Rains's] leg out from under him,” at which point both men fell down. Id. at 62-63; Bland, 4 P.3d at 710. When Mr. Bland fell, “the coveralls fell out from under [his] arm,” then “[t]he gun fell out and [he] just picked it up and fired.” Tr. Jury Trial, Day Five, at 63; Bland, 4 P.3d at 710.
Whatever the precise sequence of events at Mr. Rains's home, Mr. Bland admits that he loaded the body into a pickup truck, drove to a remote area, dumped the body into a creek, and covered it with logs. Bland, 4 P.3d at 710. When he was apprehended by law enforcement several days later, he had over $300 in cash on his person, presumably taken from Mr. Rains. Id. He then returned to Mr. Rains's home and spent the night there. Bland, 4 P.3d at 709. He told his mother the next day that he had gone to work with Mr. Rains. Id.
It was several days before Mr. Bland was apprehended. On a tip from Ms. Lord, conveyed through her sister, Tillman County law enforcement officials visited and searched Mr. Rains's home, discovered that Mr. Rains and his pickup were missing, and observed blood on the garage floor and on a spray washer they found in the garage. Id.; Tr. Jury Trial, Day Three, at 75. They listed Mr. Rains and his pickup on the NCIC register of missing persons. Bland, 4 P.3d at 709-10. On November 16, Mr. Bland drove Mr. Rains's truck off the side of the road between Stroud and Chandler, Oklahoma. Tr. Jury Trial, Day Four, at 29-30. He was arrested for driving under the influence, and released on bond. Bland, 4 P.3d at 710.
At this point, law-enforcement officials had drawn no connection between Mr. Bland and the disappearance of Mr. Rains. Shortly thereafter, however, the sheriff in Chandler contacted the sheriff's office in Tillman County regarding the NCIC listing for the missing truck. Tr. Jury Trial, Day Three, at 81-82. A warrant was issued for the arrest of Mr. Bland for the unauthorized use of a motor vehicle. Id. at 83. On November 20, law enforcement officials located and arrested Mr. Bland at a friend's home, where he was hiding in a closet. Id. at 116-20. Neither then, nor during his previous encounter with law enforcement in connection with the drunk-driving accident, nor in an earlier conversation with his mother, did Mr. Bland explain the circumstances of Mr. Rains's death.
Mr. Bland was taken to the Tillman County sheriff's office, where he confessed to killing Mr. Rains. Bland, 4 P.3d at 710. Mr. Bland took officers to the creek where he had dumped Mr. Rains's body. Id. Although the body was badly decomposed, an autopsy established that the cause of death was a bullet wound to the back of the head. Id.
B. Judicial Proceedings
At trial, Mr. Bland admitted that he shot Mr. Rains, but claimed that he never intended to kill him. Id. The State argued that Mr. Bland committed the murder with malice aforethought and as part of the commission of a felony, namely robbery. The State's theory was that Mr. Bland killed Mr. Rains to obtain money to purchase drugs, or alternatively that Mr. Bland intended to kill Mr. Rains for several months prior to the actual murder because Mr. Bland was displeased with his employment arrangement and troubled by Mr. Rains's romantic relationship with his mother. Defense counsel stipulated that Mr. Bland was guilty of first-degree heat-of-passion manslaughter. Defense counsel also contended that Mr. Bland was under the influence of drugs when he killed Mr. Rains.
The jury convicted Mr. Bland only of first-degree malice-aforethought murder. Id. at 709; O.R. Vol. II, Doc. 383-84. At the sentencing phase, the Bill of Particulars charged that the crime committed by Mr. Bland should be punished by death due to the existence of three aggravating circumstances: (1) Mr. Bland “was previously convicted of a felony involving the use or threat of violence to the person”; (2) the “murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution”; and (3) the “existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” O.R. Vol. I, Doc. 7.
To establish these aggravating factors, the prosecution presented evidence about the circumstances of Mr. Bland's prior kidnapping and manslaughter convictions. The prosecution showed that Mr. Bland, while intoxicated, arrived at Raymond Prentice's home, waited for Mr. Prentice to appear on the front porch, and shot Mr. Prentice three times. Tr. Jury Trial, Day Seven, at 63-64. Mr. Bland then went inside, found Mrs. Prentice and her three-year old son, and ordered them into a car. Id. at 38, 45, 64. Before they could leave the Prentice home, however, Mrs. Prentice's brother came to the door. Id. at 44. Mr. Bland fired numerous shots at her brother, but did not kill him. Id. Mr. Bland then kidnapped Mrs. Prentice and her son. Id. at 45. The ordeal ended in a shootout between Mr. Bland and the police. Id. at 48. The prosecution also focused on the heinous nature of both crimes and the short period of time between Mr. Bland's release and his second killing. See id. at 158, 191.
After evidence was presented at the sentencing phase, the court struck the “committed for the purpose of avoiding or preventing a lawful arrest” aggravating circumstance. Id. at 145. The jury found the existence of the remaining two aggravating circumstances and sentenced him to death. Id. at 206; O.R. Vol. III, at 411-12.
The OCCA affirmed Mr. Bland's conviction and sentence. Bland, 4 P.3d at 735. The United States Supreme Court denied Mr. Bland's petition for writ of certiorari on January 8, 2001, Bland v. Oklahoma, 531 U.S. 1099, 121 S.Ct. 832, 148 L.Ed.2d 714 (2001) (mem.), and the OCCA denied post-conviction relief in an unpublished opinion on June 26, 2000, Bland v. State, No. PCD-99-1200 (June 26, 2000). On November 26, 2001, Mr. Bland filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma.
The district court denied the petition on December 14, 2004, but granted a certificate of appealability on six grounds: (1) jury instructions and prosecutorial argument regarding the lesser included offense of first-degree manslaughter; (2) prosecutorial argument diminishing the jury's sense of responsibility for a death verdict; (3) Mr. Bland's absence from a portion of voir dire; (4) prosecutorial comments on Mr. Bland's post-arrest silence; (5) prosecutorial misconduct; and (6) ineffective assistance of counsel. R. Docs. 61, 71; Br. of Pet./Aplt. Attach. 5. On March 17, 2005, in a case management order, this Court granted a certificate of appealability as to two additional issues: (1) whether the state court deprived Mr. Bland of “a fair trial by refusing to submit an instruction on the offense of ‘manslaughter by resisting criminal [attempt]’ ”; and (2) whether the district court should have granted an evidentiary hearing on whether Mr. Bland was denied the effective assistance of counsel. Case Mgmt. Order, Mar. 17, 2005, at 1-2; Br. of Pet./Aplt. Attach. 6.
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3. Prosecutorial Misstatements
We turn now to Mr. Bland's argument that the prosecutors misstated the jury instruction regarding the lesser included offense, and thus violated due process. To prevail on a claim based on improper remarks by the prosecutor, a petitioner generally must demonstrate that the remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); see also Le v. Mullin, 311 F.3d 1002, 1013, 1018 (10th Cir.2002) (requiring a showing that the trial was “fundamentally unfair” where the prosecutor's comments appeared to contradict the jury instructions). Because the OCCA considered this claim, AEDPA standards of review apply, and we may reverse only if the OCCA's decision was “legally or factually unreasonable.” Gipson v. Jordan, 376 F.3d 1193, 1197 (10th Cir.2004) (internal quotation marks omitted).
During closing argument, the prosecution argued that the jury need not consider the lesser included offense of first-degree manslaughter if the jury found beyond a reasonable doubt that the defendant is guilty of first-degree murder. Tr. Jury Trial, Day Six, at 8, 10. The defense did not object to the argument at trial, but Mr. Bland now contends that the argument violated Oklahoma law and misstated the jury instructions by inviting the jury first to consider the murder charges and “then only look at the manslaughter” if the jury was unable to find murder beyond a reasonable doubt. Id. at 106.
Reviewing for plain error, the OCCA found none. Both defense counsel and the prosecution reminded the jury to refer to the written instructions during deliberations. See id. at 9 (State's closing argument) (“Read the Instructions, study them.”); id. at 59 (Defendant's closing argument) (“I want you back in the jury room[,] as I know you will[,] to read all of the instructions.”). Mr. Bland has conceded that the written instructions provided to the jury were in accord with McCormick, the controlling OCCA precedent. See Bland, 4 P.3d at 726; Br. of Appellant, OCCA Case No. F-98-152, at 34. One instruction provided that “[i]f you have a reasonable doubt of the defendant's guilt of the charges of MURDER FIRST DEGREE (PREMEDITATED) AND MURDER FIRST DEGREE (FELONY MURDER), you must then consider the charge of MANSLAUGHTER FIRST DEGREE BY DANGEROUS WEAPON (HEAT OF PASSION).” O.R. Vol. II, at 374. Another instruction explained:
If you have a reasonable doubt as to which offense the defendant may be guilty of, Murder First Degree (Premeditated), and/or Murder First Degree (Felony Murder), or Manslaughter First Degree by Dangerous Weapon (Heat of Passion), you may find him guilty only of the lesser offense, Manslaughter First Degree by Dangerous Weapon (Heat of Passion). * * * If you find the defendant guilty of one or both of the charges of Murder First Degree ..., then you may not also render a verdict on the lesser offense of Manslaughter First Degree by Dangerous Weapon (Heat of Passion). Id. at 381. Based on its review of the record, the OCCA found no evidence that the jury did not follow the written instructions. Bland, 4 P.3d at 726. Moreover, the OCCA concluded that the prosecutor's comments “were not so egregious as to have denied [Mr. Bland] a fair trial or to have affected the outcome of the trial.” Id.
We have carefully examined the record in light of petitioner's arguments, and cannot say that the OCCA's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as reflected in the decisions of the United States Supreme Court. Although the prosecutor in this case did misstate the jury instructions, both defense counsel and the prosecution reminded the jury that it should refer to the written instructions during deliberations. The jury is presumed to follow its instructions, Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000), even when there has been misleading argument. See Boyde v. California, 494 U.S. 370, 384, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (explaining that “arguments of counsel generally carry less weight with a jury than do instructions from the court”); Lingar v. Bowersox, 176 F.3d 453, 460-61 (8th Cir.1999) (“When counsel misstates the law, the misstatement is harmless error if the court properly instructs the jury on that point of law or instructs that the attorneys' statements and arguments are not evidence.”). Furthermore, there was strong evidence that Mr. Bland was guilty of malice-aforethought murder rather than heat-of-passion manslaughter: that Mr. Bland's grievances against the victim were long-standing, that he told his girlfriend he was going to murder Mr. Rains months before doing so, that he went to Mr. Rains's home with a .22-caliber rifle hidden in his coveralls, that he shot Mr. Rains in the back of the head, that he stole money from Mr. Rains, and that he took elaborate steps to hide the body, much as he had told his girlfriend he would. In light of these considerations, the OCCA's decision was not an unreasonable application of clearly established federal law.
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C. Argument Diminishing the Jury's Sense of Responsibility
Mr. Bland next claims that comments made during the prosecution's closing argument at the sentencing phase of the trial diminished the jury's sense of responsibility for imposing the death penalty, in violation of Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). He points in particular to two arguments. During his closing argument, one prosecutor argued:
Their attorney tells you that we want you to kill him. Let's get one thing straight. I didn't ask to be here, you didn't ask to be here. If he gets the death penalty you don't kill him and I don't kill him. He's put himself in that position by what he's done and by what he's done in the past. He's forced me, he's forced [the other prosecutor], he's forced you and I because of what he did and who he is to decide under the law whether he qualifies for and deserves the death penalty. There is nothing sinister or shameful about that. The death penalty is perfectly legal and a[sic] appropriate punishment under the State laws, you have to decided [sic] whether this case and this Defendant merit the death penalty. If you so decide then you haven't killed anybody, you've simply followed the law that the Court set out for you. Tr. Jury Trial, Day Seven, at 160. In a separate closing argument another prosecutor argued:
If the Defendant gets the death penalty it's not you or I that kill him.... He's the one that's forced you and I because of what he did and who he is to be in this position that we're in today.... Ladies and gentlemen, there is nothing shameful about that, about having to make that decision. The death penalty is a perfectly legal and appropriate sentence under the laws of the State of Oklahoma. And you must decide whether this case and this Defendant merits [sic] the death penalty. And if you so decide that then you are here in this position not because of anything that you or I have done, but because this Defendant chooses not to live by the rules of society and the laws of the State of Oklahoma. You will not have killed anyone. You will simply have followed the law that the Court has given you, nothing more and nothing less. Id. at 192-94. The defense did not object to either argument at trial, but Mr. Bland contended on direct appeal that these arguments violated Caldwell.
Reviewing for plain error, the OCCA rejected this argument because “the prosecutor never intimated in any way that the ultimate responsibility for determining the proper sentence rested anywhere other [than] the jury.” Bland, 4 P.3d at 727. The district court likewise denied Mr. Bland's request for habeas corpus relief on this claim, finding that the prosecutor's comments, viewed as a whole, did not mislead jurors or attempt to diminish their responsibility for a death sentence.
Under Caldwell, a death sentence is unconstitutional if the determination was “made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.” Caldwell, 472 U.S. at 328-29, 105 S.Ct. 2633. In reviewing a prosecutor's closing argument, however, we place isolated comments within the context of the entire closing argument to determine whether the jury has been misled about its role in rendering a death verdict. See Neill v. Gibson, 278 F.3d 1044, 1059 (10th Cir.2001). It is therefore significant that, in addition to the remarks quoted above, the first prosecutor also said: “You, the Jury, have the final say. You're the people on whether [sic] this unsuspecting world is kept safe from Jimmy Dale Bland. It's a sobering thought considering having to assess the death penalty.” Id. at 164. The second prosecutor reminded the jury, “[y]ou decide what the price is for shooting a defenseless sixty two year old man in the back of the head,” id. at 197, and clarified that “[y]ou have the final say on whether Tillman County and the world is [sic] kept safe from Jimmy Bland in the future,” id. at 198.
Viewing the prosecutors' arguments in context, we do not believe that they violated Caldwell-let alone that the OCCA's conclusion was contrary to, or involved an unreasonable application of, Caldwell. At worst, the prosecutors' comments may have suggested that Mr. Bland was responsible for his own predicament. That was not the vice of Caldwell: in that case, the jury was induced to believe that some other governmental decisionmaker would ultimately decide, and bear the responsibility for deciding, whether the defendant should be executed. See Caldwell, 472 U.S. at 325-26, 105 S.Ct. 2633. Nothing in Caldwell suggests that there is anything wrong with a jury being reminded that capital punishment is ultimately a result of the defendant's own actions. See Coleman v. Brown, 802 F.2d 1227, 1240-41 (10th Cir.1986) (distinguishing between the argument in Caldwell, which suggested to the jury that “someone else now has control over the defendant's fate,” and an argument that brings into focus “that defendant is responsible for his own plight”). Likewise, the prosecutor's comment that the jury, in rendering a death verdict, would “simply have followed the law” did not alleviate the jury's ultimate responsibility for rendering a death verdict. See Parks v. Brown, 860 F.2d 1545, 1549 (10th Cir.1988) (en banc) (finding that the prosecution's statement that “[s]o all you are doing is you're just following the law, and what the law says.... The law does all of these things, so it's not on your conscience” did not reduce the jury's sense of responsibility for rendering a death sentence), rev'd on other grounds sub nom., Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990).
That the prosecutors' remarks did not diminish the jury's sense of ultimate responsibility is especially evident when these statements are placed in the context of the entire sentencing phase. See id. at 1550 (“In evaluating the challenged statements, it is necessary to examine the context in which they were made.”). The prosecution's opening statement emphasized to the jurors that they could “assess a penalty of death if you feel it is the appropriate punishment for what the Defendant did.” Tr. Jury Trial, Day Seven, at 19. Defense counsel also argued that the decision to impose a death sentence fell to the jury and that jurors “can't ever say the law made [them] do or the Judge made [them] do it, or the prosecution made [them] do it.” Id. at 181. Even the prosecutors' closing arguments had an underlying theme that the jury, and no one else, must make the decision to impose a death sentence. See id. at 164, 197-98. Finally, the instructions provided to the jury underscored the jury's responsibility in rendering a verdict: “It is now your duty to determine the penalty to be imposed for this offense.” O.R. Vol. III, at 394. Given these constant reminders that the jury was solely responsible for the sentence imposed, we cannot find that the prosecutors' isolated remarks diminished the jurors' sense of ultimate responsibility for the sentencing decision. The OCCA decision therefore was not contrary to, and did not involve an unreasonable application of, Caldwell.
* * *
F. Claims of Prosecutorial Misconduct
Mr. Bland next argues that several of the prosecutors' remarks deprived him of a fair trial at both stages of his trial. In addition to the prosecution's role in the errors alleged above, he raises six additional claims of prosecutorial misconduct: (1) improperly arguing that he is a liar; (2) demeaning and ridiculing him; (3) demeaning his mitigating evidence; (4) telling the jury it had a civic and moral duty to convict and sentence him to death; (5) urging a death sentence based on sympathy for the victim; and (6) arguing facts not in evidence. Mr. Bland contends not only that each instance of misconduct is sufficient to violate his right to due process, but that even if each comment is found to be harmless, the cumulative effect of the errors warrants relief.
The OCCA rejected each of Mr. Bland's claims of prosecutorial misconduct on the merits. The court found that it was not improper for the prosecution to comment on the veracity of Mr. Bland's testimony by calling him a liar, and that the prosecution did not improperly demean the mitigating evidence, suggest that the jury's only moral course was to return a conviction, or evoke sympathy for the victim. Bland, 4 P.3d at 727-28. Although the OCCA did note that the prosecution inappropriately compared the plight of the victim to Mr. Bland's life in prison and that the prosecutorial argument ridiculing Mr. Bland “tested the bounds of proper argument,” it deemed both errors harmless based on the substantial evidence supporting the jury's verdict. Id. at 728. Likewise, the OCCA held that even if the prosecution did erroneously argue facts not in evidence, “[a]ny misstatement could not have affected the outcome of the trial.” Id.
In rejecting Mr. Bland's claim of prosecutorial misconduct, the OCCA applied the standard for adjudicating allegations of prosecutorial misconduct set forth in its prior decisions. Id. at 729 (citing Duckett v. State, 919 P.2d 7, 19 (Okla.Crim.App.1995), for the proposition that “[a]llegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect was such [as] to deprive the defendant of a fair trial”) (internal quotation marks omitted). Because this standard is the same as that under federal law, see Patton v. Mullin, 425 F.3d 788, 811 (10th Cir.2005), we apply the deferential AEDPA standard of review, and examine whether the OCCA's decision was an unreasonable application of the standard.
Where prosecutorial misconduct does not implicate a specific constitutional right, improper remarks require reversal of a state conviction only if the remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643, 94 S.Ct. 1868. To determine whether a trial is rendered fundamentally unfair, we examine the entire proceeding, “including the strength of the evidence against the petitioner, both as to guilt at that stage of the trial and as to moral culpability at the sentencing phase” as well as “[a]ny cautionary steps-such as instructions to the jury-offered by the court to counteract improper remarks.” Le, 311 F.3d at 1013. “[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (internal quotation marks omitted). The ultimate question is whether the jury was able to fairly judge the evidence in light of the prosecutors' conduct. Having already considered those claims of prosecutorial misconduct that infringed on a specific constitutional right and were not subject to the fundamental fairness test, see Paxton v. Ward, 199 F.3d 1197, 1217 (10th Cir.1999), we now consider whether the other allegations of prosecutorial misconduct, individually or cumulatively, deprived Mr. Bland of a fair trial.
1. Characterizing Mr. Bland as a Liar
Mr. Bland argues that it was inappropriate for the prosecution during closing argument in the guilt phase of trial to refer to him as a liar. Although labeling a defendant a “liar” is often “unnecessary” and “unwarranted,” United States v. Nichols, 21 F.3d 1016, 1019 (10th Cir.1994), we have held that referring to testimony as a lie is not per se prosecutorial misconduct, United States v. Robinson, 978 F.2d 1554, 1567 (10th Cir.1992). On the contrary, it is permissible for the prosecution to comment on the veracity of a defendant's story. United States v. Hernandez-Muniz, 170 F.3d 1007, 1012 (10th Cir.1999). We have therefore rejected claims of prosecutorial misconduct where the prosecution referred to a defendant as a liar on account of irreconcilable discrepancies between the defendant's testimony and other evidence in the case. See id.; Nichols, 21 F.3d at 1019.
Here, the prosecution did not derive its characterization of Mr. Bland as a liar through inferences, but instead reminded the jury that Mr. Bland admitted during cross-examination that he lied to his mother and the authorities before putting forth the story he told in court. For example, in response to Mr. Bland's testimony that he did not take Mr. Rains's billfold, the prosecution argued: Simmons found him with a brown billfold with the money in it. Now who do you think is lying? I think you know. It's the same person who's been lying all along, he lied to his mother, he lied to Agent Goss and who didn't tell anything to Agent Briggs or to any of the other police officers. He's admitted he's lied. He got up here and told you he's lied. And now he's still lying about the billfold. Tr. Jury Trial, Day Six, at 35-36. The prosecution also challenged the credibility of Mr. Bland's testimony, arguing that Mr. Bland has “got a motive or reason to lie” to spare himself the death penalty. Id. at 93. These references to Mr. Bland's veracity, even if excessive, were permissible in light of Mr. Bland's own testimony. The OCCA's rejection of this claim of prosecutorial misconduct therefore was not an unreasonable application of clearly established federal law.
2. Demeaning and Ridiculing Mr. Bland
During closing argument at both phases of trial, the prosecution referred to Mr. Bland as a “sniffling ... coward[ ],” a “heartless and vicious killer,” and a “violent and evil man.” Tr. Jury Trial Day Six, at 38; Tr. Jury Trial, Day Seven, at 165, 199. These pejoratives were unnecessary and inappropriate. See Le, 311 F.3d at 1021 (“Personal attacks by a prosecutor are improper.”). Nonetheless, in light of the overwhelming evidence supporting both aggravating factors and the relative dearth of evidence on mitigating circumstances, we agree with the OCCA that the comments did not deprive Mr. Bland of a fair trial.
In his closing argument, Mr. Bland conceded one aggravator-that he was previously convicted of a violent felony, namely kidnaping and first-degree manslaughter. Tr. Jury Trial, Day Seven, at 179. Mr. Bland has spent all but one year of his adult life in prison, and during that time he perpetrated two homicides. There was evidence that Mr. Bland abuses drugs and alcohol, and his expert psychiatrist, Dr. Sally Church, testified that substance abuse contributes to his violent tendencies. Id. at 137. Although Mr. Bland presented testimony that he was never violent or threatening during his previous twenty years in jail, the prosecution revealed on cross-examination that the prison guard and prison counselor testifying were not very familiar with Mr. Bland's conduct in prison. Id. at 86, 93. Furthermore, there was evidence that Mr. Bland abused cocaine while in prison, id. at 93, which, as noted, contributes to his violent tendencies. In contrast, Mr. Bland's mitigating evidence was weak. Although the defense attempted to establish that Mr. Bland would be a good, non-violent prisoner, and sought to attribute his violence to unfortunate childhood events, there was little positive testimony regarding Mr. Bland's character because he had been out of prison for such a short period of time when he killed Mr. Bland. The OCCA's decision therefore did not unreasonably apply clearly established federal law.
3. Demeaning the Mitigating Evidence
Mr. Bland next claims that the prosecution improperly demeaned his mitigating evidence by suggesting that the jury ignore mitigating evidence and by recharacterizing the mitigating evidence as evidence in aggravation. Referring to various mitigating evidence, the prosecutor rhetorically asked, “Do we as a society or as a system of justice let those things act a[sic] shield from accepting the full responsibility for his actions[?]” Tr. Jury Trial, Day Seven, at 163. The prosecutor also referred to Mr. Bland's mitigating evidence as “excuses,” and suggested that the difficulties in Mr. Bland's life, about which an expert testified, were the “kind of things that make criminals out of ordinary citizens.” Id. at 187.
As long as the jury is properly instructed on the use of mitigating evidence, the prosecution is free to comment on the weight the jury should accord to it. See Fox v. Ward, 200 F.3d 1286, 1299 (10th Cir.2000). Mr. Bland does not contest the propriety of the mitigating evidence instruction, which provided, in pertinent part, that “[t]he determination of what circumstances are mitigating is for you to resolve under the facts and circumstances of this case.” O.R. Vol. III, at 401. The prosecutors, while critical of Mr. Bland's mitigating evidence, never told the jury it could not consider Mr. Bland's mitigating evidence. The challenged prosecutorial argument was consistent with the jury instructions and bore only on the weight of the evidence.
Nor was it misconduct for the prosecution to suggest that some mitigating evidence helped to establish that Mr. Bland would pose a continuing threat to society. Evidence can be both mitigating and aggravating, and the prosecution is free to explain to the jury how mitigating evidence tends to prove the existence of an aggravating factor. See Penry v. Lynaugh, 492 U.S. 302, 324, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); Mann v. Scott, 41 F.3d 968, 979-80 (5th Cir.1994). The prosecutor's remarks on Mr. Bland's mitigating evidence therefore did not constitute misconduct that deprived Mr. Bland of a fair trial.
4. Appeal to Civic and Moral Duty
Mr. Bland next challenges the prosecutor's argument about the jury's civic duty. He claims that in the guilt phase, the prosecutor argued in closing that the jury had a civic duty to convict Mr. Bland. Our review of the record, and especially the portion of the transcript to which Mr. Bland refers, does not indicate any such argument in the first phase of trial. However, in the second phase, the prosecutor argued:
If you give him anything other than the death penalty you don't know what will happen to him or what opportunities he will get to hurt other people. You have one sentence option available to you that you will know, you've got one option and one option only that guarantees that he's not going to hurt anybody else or kill anybody else. You, the Jury, have the final say. You're the people on whether [sic] this unsuspecting world is kept safe from Jimmy Dale Bland.... We talked earlier about citizenship in our great country and how sometimes it comes with a price. There are times it's part of our civic and moral duties of citizenship that we're called upon to face unpleasantly, unpleasant and difficult tasks. You're [sic] got one of those tasks facing you today. Tr. Jury Trial, Day Seven, at 164; see also id. at 198-99. As we have stated numerous times, “[i]t is improper for a prosecutor to suggest that a jury has a civic duty to convict.” Thornburg v. Mullin, 422 F.3d 1113, 1134 (10th Cir.2005); see also Malicoat v. Mullin, 426 F.3d 1241, 1256 (10th Cir.2005); Spears v. Mullin, 343 F.3d 1215, 1247 (10th Cir.2003); Le, 311 F.3d at 1022 (explaining that such comments are “ ‘offensive to the dignity and good order with which all proceedings in court should be conducted’ ” (quoting Viereck v. United States, 318 U.S. 236, 248, 63 S.Ct. 561, 87 L.Ed. 734 (1943))). That is not what the prosecutor did in this case. The civic duty to which the prosecutor referred was not the duty to convict, or to return a death sentence, but rather the duty to decide whether to sentence Mr. Bland to death. While the prosecutor's argument may have come close to the line, we do not believe he crossed it.
5. Sympathy for the Victim
Mr. Bland argues that the prosecution's closing arguments improperly evoked sympathy for the victim, Mr. Rains, and that the prosecution improperly contrasted Mr. Rains's death with Mr. Bland's life in prison. As to the more general appeals for sympathy, Mr. Bland points to one comment at each phase of the trial. During the first phase, the prosecution said:
Ladies and gentlemen, on November the 14th, 1996, Jimmy Bland wrote the ending to the story of Windle Rains' life. And today you have the chance to write the end of the story of Windle's death. Does Windle's murderer go free? Does he get off with a lesser charge because no one's here to speak for Windle as to what happened? You have the power to decide how the story of Windle's life and death will end. Tr. Jury Trial, Day Six, at 133. At the sentencing phase, the prosecution “recommend[ed] for the murder of Windle Rains that [the jury] sentence this Defendant to death by lethal injection” because Mr. Bland would be “getting no more or less than he deserves for what he did to Windle.” Tr. Jury Trial, Day Seven, at 201. We cannot say that these statements were intended to evoke sympathy for the victim, as they were statements based on the jury's obligation to consider the evidence and render a verdict.
The prosecution's comparison of Mr. Bland's life in prison with Mr. Rains's death, however, was inappropriate. We regret to observe that in death-penalty case after death-penalty case, Oklahoma prosecutors have made speeches to the jury making light of the penalty of life in prison to demonstrate that the only proper punishment for a defendant's crime was death. In this case, the terminology of choice was:
Maybe the Defendant will be in prison, maybe he will be behind that concrete and those jail bars with his T.V. and his cable and good food. But one thing ... is for sure, Windle Rains won't be here and his family won't be able to be with him, they won't be able to share holidays with him. And Doyle Rains won't get that final visit with him that he hoped for. Id. at 200. As we have said many times, it is prosecutorial misconduct for the prosecution to compare the plight of the victim with the life of the defendant in prison. See, e.g., Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir.2002); Le, 311 F.3d at 1015-16. “It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion,” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion), and comparisons such as those made here call into question the integrity of the criminal justice system.
Although we emphatically do not condone the prosecution's remarks, we must uphold the sentencing determination if we cannot conclude that the comments deprived Mr. Bland of a fundamentally fair trial. Le, 311 F.3d at 1016. There was substantial evidence demonstrating the existence of both aggravating factors and relatively little evidence establishing mitigating circumstances. Prosecutors should be aware that arguments of this sort, while unnecessary to obtain a proper verdict, create grave risk of upsetting an otherwise unobjectionable verdict on appeal or on collateral review. It is time to stop. Unable to conclude that the comments affected the outcome of the trial, however, we find that the OCCA's judgment finding the error harmless was not an unreasonable application of clearly established federal law.
6. Arguing Facts not in Evidence
Finally, Mr. Bland claims that the prosecution argued facts not in evidence during both phases of trial. During the guilt phase, the prosecution argued that a pair of eyeglasses at the scene of the crime belonged to Mr. Rains. Tr. Jury Trial, Day Six, at 22. We perceive no error. Although no direct testimony established that the eyeglasses belonged to Mr. Rains, his ownership of the eyeglasses was a permissible inference to draw from the evidence. As this Court has held, “[a] prosecutor may comment on and draw reasonable inferences from evidence presented at trial.” Thornburg, 422 F.3d at 1131. The photograph of the crime scene depicted eyeglasses lying near the creek where Mr. Bland disposed of Mr. Rains's body, and Sheriff Hanes testified that the glasses were found “just a little ways from the pile of wood” in which Mr. Rains's body was found. Tr. Jury Trial, Day Three, at 87, Ex. 2B. Considering the proximity of the eyeglasses to Mr. Rains's body, it was not unreasonable for the OCCA to conclude that the evidence permitted a reasonable inference that the glasses belonged to the victim.
Even if the prosecution's argument about the eyeglasses were not a reasonable inference from the evidence, this misstatement did not deprive Mr. Bland of a fair trial. The presence of the glasses did not necessarily discredit Mr. Bland's story that he and Mr. Rains struggled. It was entirely possible for the jury to believe that Mr. Bland and Mr. Rains struggled, but that Mr. Rains's glasses did not fall off until Mr. Bland took Mr. Rains's body to the creek. Such a theory is consistent both with the evidence and with Mr. Bland's testimony. Thus, even if the prosecution erroneously attributed the glasses to Mr. Rains, the error did not render the trial fundamentally unfair.
At the sentencing phase, the prosecution argued that Mr. Bland killed Mr. Rains during a robbery. Tr. Jury Trial, Day Seven, at 155. Mr. Bland contends that this line of argument was impermissible, as the jury did not reach a verdict as to felony murder. Because the jury did not convict Mr. Bland on the felony-murder charge, which was predicated on the theory that Mr. Bland killed Mr. Rains in the course of a robbery, it was inappropriate for the prosecution to argue during the sentencing phase that Mr. Bland killed Mr. Rains during a robbery. However, the error did not render Mr. Bland's sentencing fundamentally unfair because the nature of the murder (felony murder or malice-aforethought murder) did not affect his eligibility for the death penalty, and whether Mr. Bland robbed Mr. Rains during or after the murder did not affect either the aggravating factors or mitigating circumstances.
7. Cumulative Error
We now address whether the above errors, considered cumulatively, deprived Mr. Bland of a fair trial at either the guilt or sentencing phase. “A cumulative error analysis aggregates all the errors that individually might be harmless, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Thornburg, 422 F.3d at 1137 (internal quotation marks omitted). In death-penalty cases, we review whether the “improper comments as a whole so infected the trial with unfairness as to make the resulting conviction a denial of due process, or rendered the sentencing fundamentally unfair in light of the heightened degree of reliability demanded in a capital case.” Id. (internal citation and quotation marks omitted). Because the OCCA concluded that the cumulative errors did not deprive Mr. Bland of a fair trial, we must defer to its ruling unless it constitutes an unreasonable application of the cumulative-error doctrine.
Three errors affected the guilt phase of the trial: (1) argument that the jury should consider manslaughter only after it rejected first-degree murder; (2) a comment on Mr. Bland's post- Miranda silence; and (3) ridiculing Mr. Bland as a “sniffling ... coward[ ].” The evidence establishing Mr. Bland's guilt on the first-degree malice-aforethought murder charge was quite strong. Mr. Bland had previously told Ms. Lord that he wanted to kill Mr. Bland. He admitted to hiding his shotgun in his coveralls so Mr. Rains would not see the weapon, and to shooting Mr. Rains in the back of the head. He attempted to cover up the murder by cleaning the garage and discarding Mr. Rains' body in a remote creek and covering the body with logs. He then lied to his mother so that she would not know that anything had happened to Mr. Rains. Excluding all impermissible prosecutorial comments and considering any curative instructions, it was not unreasonable for the OCCA to conclude that the jury had substantial evidence to convict Mr. Bland of first-degree murder, and that the errors did not result in a denial of due process.
There were two instances of prosecutorial misconduct at the sentencing phase: (1) ridiculing Mr. Bland as a “violent and evil man,” and a “heartless and vicious killer”; and (2) comparing Mr. Bland's life in prison to Mr. Rains's death. For reasons already explained, however, the evidence supporting both aggravating factors was overwhelming and the mitigating evidence weak. Having reviewed the entire record, we conclude that the OCCA reasonably applied clearly established federal law in determining that the sentence was not the consequence of any prosecutorial misconduct.
G. Ineffective Assistance of Counsel
Last, Mr. Bland has raised three grounds for ineffective assistance of trial counsel: (1) failing to request an instruction on voluntary intoxication; (2) failing to adequately investigate, prepare, and use available evidence during both stages of trial; and (3) failing to lodge appropriate objections for the claims discussed above. Mr. Bland also requests an evidentiary hearing to further develop his claims of ineffective assistance of counsel.
Mr. Bland raised all of these claims on direct appeal. Applying the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the OCCA rejected his voluntary-intoxication-instruction claim, finding that Mr. Bland was not prejudiced by counsel's failure to request the instruction because the instruction was not supported by the evidence. Bland, 4 P.3d at 731. The OCCA deemed Mr. Bland's failure-to-investigate claim waived because the arguments relied on affidavits that were not part of the appellate record. Id. Nonetheless, the OCCA considered the claim in light of Mr. Bland's request for an evidentiary hearing. Id. at 732. Examining the affidavits that would be proffered at such a hearing, the court rejected the claims. Id. at 732-34. The OCCA also rejected Mr. Bland's claim arising from counsel's failure to object to prosecutorial misconduct, finding no reasonable probability that the result of the trial would have been different had counsel objected. Id. at 732. The district court likewise rejected Mr. Bland's claims, “confident that the jury would have convicted Petitioner of first-degree murder and recommended a death sentence even if trial counsel had employed all of the trial tactics and had used all of the information that Petitioner's current counsel suggests he should have.” R. Doc. 61, at 26.
Claims of ineffective assistance of counsel present mixed questions of law and fact. Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir.1999). To prevail on such a claim, a petitioner “must prove  that counsel's performance was constitutionally deficient and  that counsel's deficient performance prejudiced the defense, depriving the petitioner of a fair trial with a reliable result.” Boyd v. Ward, 179 F.3d 904, 913 (10th Cir.1999) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). It is not enough that counsel's decisions were wrong in hindsight; they must fall below “an objective standard of reasonableness,” evaluated from counsel's perspective at the time the decision was made. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. For that reason, we are “highly deferential” to counsel's decisions, and a petitioner “must overcome the presumption that counsel's conduct was not constitutionally defective.” Wallace, 191 F.3d at 1247.
We need not consider whether counsel's performance was deficient, however, if the petitioner was not prejudiced by the alleged deficiency. See Allen v. Mullin, 368 F.3d 1220, 1245 (10th Cir.2004) (proceeding directly to prejudice analysis). To establish prejudice, a petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. For challenges to counsel's conduct during the sentencing phase, a petitioner must show “a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695.
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For the reasons set forth above, we AFFIRM the district court's decision denying Mr. Bland's 28 U.S.C. § 2254 petition for a writ of habeas corpus.