Executed January 11, 2011 06:09 p.m. CDT by Lethal Injection in Oklahoma
2nd murderer executed in U.S. in 2011
1236th murderer executed in U.S. since 1976
2nd murderer executed in Oklahoma in 2011
96th murderer executed in Oklahoma since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Jeffrey David Matthews
W / M / 21 - 38
|Otis Earl Short
W / M / 77
Matthews v. State, 953 P.2d 336 (Okla.Crim. App. 1998). (Direct Appeal) (Reversed)
Matthews v. State, 45 P.3d 907 (Okla.Crim. App. 2002). (Direct Appeal)
Matthews v. Workman, 577 F.3d 1175 (10th Cir. 2009). (Habeas)
A deep dish meat lover's pizza, deep fried jumbo shrimp and two hush puppies with vinegar sauce.
“Let my mother know I love her. I just want to thank everyone for their support. I also want to thank all my buddies on death row. I hear you banging. I hate to see you all in this situation,” Matthews told his relatives. “I'm sitting here enjoying my last moments. Enjoy your lives. I think that governor’s phone is broke. He hadn’t called yet.”
Oklahoma Department of Corrections
Inmate: Jeffrey D Mathews
Birth Date: 09/28/1972
Height: 5 ft. 08 in.
Weight: 154 pounds
County of Conviction: Cleveland
Date of Conviction: 07-11-97
Convictions: Murder In The First Degree - Death (07-21-97); Robbery With A Dangerous Weapon - Life
Location: Oklahoma State Penitentiary, Mcalester
Reception Date: 10/28/2002
90-1646 CLEV Burglary - Second Degree 12/20/1990 3Y 0M 0D Probation 12/20/1990 12/19/1993
91-99 MCCL Unlawful Distribution Of Cd 12/01/1992 5Y 0M 0D Incarceration 12/15/1992 05/14/1995
91-99 MCCL Unlawful Distribution Of Cd 12/01/1992 1Y 9M 0D Probation 12/01/1992 08/31/1999
92-211 MCCL Burglary, Second Degree 12/01/1992 5Y 0M 0D Incarceration 12/15/1992 05/14/1995
92-211 MCCL Burglary, Second Degree 12/01/1992 2Y 0M 0D Probation 12/01/1992 11/30/1999
95-183 CLEV Unauthorized Use Of Vehicle 06/23/1995 45Y 0M 0D 06/23/1995 03/20/2021
95-183 CLEV Murder In The First Degree Afc3f 06/23/1995 DEATH Death 09/07/1999
95-183 CLEV Murder First Degree 06/23/1995 DEATH Death 07/03/1995
95-183 CLEV Conspiracy To Commit A Felony Afc2f 06/23/1995 50Y 0M 0D Incarceration
95-183 CLEV Conspiracy 06/23/1995 45Y 0M 0D Incarceration 06/23/1995 03/20/2021
95-183 CLEV Assault W/Dangerous Weapon 06/23/1995 45Y 0M 0D 06/23/1995 03/20/2021
95-183 CLEV Assault W/Dangerous Weapon 06/23/1995 45Y 0M 0D 07/03/1995 03/30/2021
95-183 CLEV Assault W/Deadly Weapon Afc2f 06/23/1995 100Y 0M 0D Incarceration
"Oklahoma inmate executed for relative's 1994 death," by Tim Talley. (Oklahoman January 11, 2011)
McALESTER — An Oklahoma death row inmate whose execution was postponed three times was put to death Tuesday for the murder of his 77-year-old great-uncle almost 17 years ago. Jeffrey David Matthews, 38, was pronounced dead at 6:09 p.m. at Oklahoma State Penitentiary in McAlester, state Department of Corrections spokesman Jerry Massie said.
Matthews was convicted of first-degree murder and sentenced to death for the Jan. 27, 1994, slaying of Otis Earl Short during a robbery at his McClain County home.
Matthews, strapped to a hospital gurney with needles in his arms, addressed six family members who witnessed his execution. Some of the prison's 76 other death row inmates loudly banged the heavy steel doors of their cells. “Let my mother know I love her,” Matthews said as he looked through a window separating the death chamber from the room where family members and spectators were seated. “I love you, too,” replied a woman, whose name wasn't released by prison officials. “I just want to thank everyone for their support,” Matthews continued. “I also want to thank all my buddies on death row. I hear you banging.”
Matthews said he left final notes to his family as well as the family of the victim, but he never directly addressed 10 of the victim's family members who also witnessed the execution. “I hate to see you all in this situation,” Matthews told his relatives. “I'm sitting here enjoying my last moments. Enjoy your lives.” Shortly before the lethal drugs began flowing at 6:04 p.m., Matthews looked at his family members and said with a smile: “I think that governor's phone is broke. He hadn't called yet.” Matthews took several deep breaths as the drugs flowed into his body. His eyes remained open as his face turned ashen. He eventually stopped breathing and remained motionless. After he was pronounced dead, a family member looked at a prison official and said: “Can I have his glasses?”
Prosecutors contended that Matthews was one of two men who stormed into Short's home east of Rosedale. Trial testimony indicated Matthews shot Short once in the head at close range with a .45-caliber pistol and that the second man, Tracy Dyer, cut the throat of his wife, Minnie Short. The men searched the house for almost two hours, eventually leaving in Otis Short's truck with $500 in cash and a .32-caliber pistol. Minnie Short survived the attack and later died of natural causes. Matthews was arrested the day after the attacks.
Attorney General Scott Pruitt, who witnessed Matthews' execution, issued a statement Tuesday that said Matthews was convicted of a crime “that was exceptionally brutal.” “My prayers are with the Short family and I am hopeful that justice being carried out on behalf of the victims today will help bring closure and healing,” Pruitt said. Rep. Mike Ritze, R-Broken Arrow, state District Judge Tom Lucas and Department of Corrections Justin Jones also witnessed the execution.
Matthews' 1995 trial was moved to Cleveland County because of pretrial publicity. He was tried a second time in 1999, after the Oklahoma Court of Criminal Appeals overturned his first conviction. Dyer, 36, was convicted of first-degree murder and other charges at a separate trial and was sentenced to life in prison without the possibility of parole.
Matthews' execution was scheduled but stayed three times last year. Former Gov. Brad Henry twice granted stays to give defense attorneys time to investigate Matthews' claims of innocence. Execution dates of June 17 and July 20 were postponed while fingerprint evidence from the crime scene was re-examined and defense attorneys searched for other possible suspects. The Oklahoma State Bureau of Investigation could not match the fingerprints to any other alleged suspect, according to an Aug. 9 letter to the state Pardon and Parole Board from Assistant Attorney General Seth Branham.
Matthews' next execution date, Aug. 17, was postponed after defense attorneys objected to corrections officials' plans to substitute one of three drugs in the lethal injection protocol because of a nationwide shortage. A federal judge ruled in November that the state could make the substitution. The U.S. Supreme Court on Monday denied Matthews' application for a fourth stay, clearing the way for his execution.
The Oklahoma Pardon and Parole Board denied Matthews' request for clemency May 26, after members of the victim's family urged the board to reject Matthews' request that his life be spared. “I do not believe in killing people, but when someone so close to you is taken away, you realize there are some people in this world that deserve justice, and he is one of them,” Dawn Randolph, Short's great-grandchild, wrote in a letter to the board. Members of the victim's family made no comments after the execution.
Matthews is the second Oklahoma death row inmate to be executed in as many weeks. Billy Dawn Alverson, 39, was executed Thursday for the 1995 killing of a convenience store worker, marking the first execution in the U.S. this year. No other executions are scheduled in the state.
"McClain County killer put to death." (Associated Press Tuesday, January 11, 2011)
McALESTER — A death-row inmate whose execution was postponed three times was put to death Tuesday for the murder of his great-uncle nearly 17 years ago. Jeffrey David Matthews, 38, was pronounced dead at 6:09 p.m. at the Oklahoma State Penitentiary, state Department of Corrections spokesman Jerry Massie said.
Matthews was convicted of first-degree murder and sentenced to death for the Jan. 27, 1994, killing of Otis Earl Short, 77, during a robbery at Short’s McClain County home.
Some of the prison’s 76 other death-row inmates loudly banged the heavy steel doors of their cells in tribute to Matthews, who, strapped to a gurney with needles in his arms, addressed six relatives who witnessed his execution. “Let my mother know I love her,” he said. “I just want to thank everyone for their support. I also want to thank all my buddies on death row. I hear you banging.” Shortly before the lethal drugs began flowing, Matthews looked at his relatives and said with a smile: “I think that governor’s phone is broke. He hadn’t called yet.”
Prosecutors said Matthews was one of two men who stormed into Short’s home east of Rosedale. Testimony indicated that Matthews shot Short once in the head at close range with a .45-caliber pistol and that a second man, Tracy Dyer, cut the throat of Short’s wife, Minnie Short. The men fled in Otis Short’s truck with $500 in cash and a .32-caliber pistol. Minnie Short survived and died later of natural causes. Dyer, 36, was convicted of first-degree murder and other charges and was sentenced to life in prison without the possibility of parole.
Matthews’ execution was scheduled but stayed three times last year to give defense attorneys time to investigate his claims of innocence and to allow for his legal challenge of a change in execution-drug proto
"Oklahoma executes man convicted of murdering his uncle," by Ben Fenwick. (Tue, Jan 11 2011)
OKLAHOMA CITY (Reuters) - Oklahoma put to death on Tuesday a man convicted of murder whose execution date was put off several times, once by a debate over the drugs to be administered in the lethal injection.
Jeffrey David Matthews, 38, was pronounced dead at 6:09 p.m. Tuesday at the Oklahoma State Penitentiary in McAlester, Department of Corrections spokesman Jerry Massie said. Matthews' last words included: "I think that the governor's phone is broke. He ain't called yet."
Matthews was convicted of murdering Otis Earl Short, 77, his great uncle, during a robbery of the elderly man's home, according to court records. Matthews and an accomplice broke into the man's home, cut his wife's throat, and shot Short in the back of the head, according to the account. They stole $500, a pickup and a .32 caliber pistol, according to the records. The man's wife survived.
Matthews' execution was stayed several times, once because the state of Oklahoma changed the drug used as a sedative during execution because of a shortage of the drug usually used. The new drug was administered on Matthews, Massie said.
His last meal was a deep dish meat lover's pizza, deep fried jumbo shrimp and two hush puppies with vinegar sauce, Massie said.
Matthews execution was the second in Oklahoma and the United States this year. The number of U.S. executions fell 12 percent last year, the Death Penalty Information Center.
On January 27, 1994, at around six o'clock in the morning, Minnie Short was awakened by a noise in her home in McClain County, Oklahoma. As she walked from her bedroom into the living room to investigate, an intruder wielding a knife attacked. The intruder cut Mrs. Short's throat, but still she remained conscious. When Mrs. Short's husband, Earl, followed her into the living room a few moments later, another intruder shot him in the head. Mr. Short died within minutes.
The attackers then ordered Mrs. Short to lie still. They asked her where she hid her money. The two men kept Mrs. Short prisoner in her home while they searched it for nearly two hours, eventually leaving in the Shorts' truck with $500 cash and a .32 caliber Smith and Wesson taken from the house.
After the intruders left, Mrs. Short walked down a nearby road to seek help. A passing ambulance came to her aid, and police were notified of the attack. In response to police questioning, Mrs. Short recalled that the man who stabbed her wore a dark jacket and that the man who shot her husband wore tan, loose-fitting clothes. Mrs. Short also told police that the man who stabbed her made a telephone call from the kitchen just prior to leaving. Police traced this phone call and determined it was made at 8:16 a.m. to a Bill Guinn in Oklahoma City. Police promptly contacted Mr. Guinn, who told them he received a call at that time from his nephew and employee, Tracy Lynn Dyer. Dyer had called to say that he would be late to work that morning because of car problems.
Police then located Dyer and took him to the sheriff's office for questioning. There Dyer admitted that he and Jeffrey Matthews, a great-nephew of Earl and Minnie Short, went to the house to look for money they thought was hidden there. Dyer blamed Matthews for the attacks on the Shorts. Police arrested Dyer and secured an arrest warrant for Matthews. They also executed a search of Matthews's home, where they seized a pair of brown coveralls, three $100 bills found in the freezer, and a prescription pill bottle for Xanax issued to Minnie Short. Officers also searched the backyard, but found nothing.
Five months later, however, in June of 1994, one of Matthews's neighbors found a .32 caliber Smith and Wesson revolver buried in a field directly behind Matthews's house. The gun was later identified as the gun taken from the Shorts' home by their attackers. The police then returned to the same field with metal detectors and found another buried gun, a .45 caliber Ruger pistol, that tests proved was used to kill Earl Short.
In due course, Matthews was charged with first degree murder and various other crimes. At trial, Dyer testified against Matthews, implicating him as Dyer's accomplice in the crime. At the close of evidence, the jury found Matthews guilty and sentenced him to death. Dyer pled guilty and received a sentence of life in prison. On appeal, the Oklahoma Court of Criminal Appeals ("OCCA") reversed Matthews's conviction and ordered a new trial. It held that the trial court erroneously admitted statements by Matthews that were the product of an illegal arrest.
Matthews was then re-tried. At the second trial, the State again called Dyer to the stand. But this time he told a different story. Instead of implicating Matthews in the shooting, as he had in the first trial, this time Dyer testified that Matthews was not even involved in the break-in. When confronted by the government with his conflicting testimony from the first trial, Dyer said he had lied because prison guards and prosecutors threatened to harm him if he did not cooperate. Despite Dyer's about-face, the jury found Matthews guilty of all charges against him. With respect to the first degree murder charge, the jury also found the existence of two aggravating circumstances: (1) Matthews's action caused a great risk of death to more than one person, and (2) he committed the offense while under custodial supervision. Based on those aggravating circumstances, the jury sentenced Matthews to death. This execution date was set after Oklahoma Gov. Brad Henry agreed to stay Matthews' June 17, 2010 execution after defense attorneys requested more time to review fingerprint evidence.
Urgent Action Appeal for Jeffrey Matthews Sunday, July 25, 2010 Amnesty International:
The Governor of Oklahoma has extended the stay of execution for Jeffrey Matthews until 17 August. He was sentenced to death for the murder of his great-uncle, Earl Short, in 1994.
Jeffrey Matthews (left) was scheduled to be executed on 20 July 2010 but on 15 July, Governor Brad Henry extended the stay at the request of the defense lawyers and a new execution date was set for 17 August. Jeffrey Matthews was originally scheduled to be executed in June, but a stay of execution was granted after his lawyers made the request to review fingerprint evidence. His lawyers requested this second reprieve on the grounds that more time was needed to complete the review. They had sought to have unidentified fingerprints obtained at the crime scene compared to those of other possible suspects. In 2008 they were told that the prints had been lost or destroyed. However, 10 days before the execution, they were located.
On 26 May, the state Pardon and Parole Board voted by three votes to two to deny clemency to Jeffrey Matthews. In Oklahoma, the governor cannot consider granting clemency without the Board first recommending him to do so.
There is no physical evidence – hair, fiber, blood, DNA, fingerprints, or gunshot residue – linking Jeffrey Matthews to the crime he was sentenced for in 1995. At Jeffrey Matthews’ trial, Tracy Dyer, who had pleaded guilty under a plea agreement and had been sentenced to life imprisonment, testified against him. In 1996, Tracy Dyer retracted his trial testimony. Dyer alleged that he had lied at the trial because he had been beaten in jail and threatened by guards with further violence or death if he did not cooperate in the case against Matthews. In his signed statement he added that, by reaching his plea agreement, he was assured of being transferred out of jail and of avoiding the death penalty. In 1998, the Oklahoma Court of Criminal Appeals ordered a new trial because of an error in relation to the admission of evidence. Jeffrey Matthews was retried in 1999. This time, despite the threat that the prosecutor would revoke the plea agreement, Tracy Dyer testified that Matthews was innocent. He said that he had lied at the original trial, saying: "I’ve lived with a guilty conscience for this whole time. I ain’t going to live with it no more". Nevertheless, the jury convicted Jeffrey Matthews and sentenced him to death.
At Jeffrey Matthews’ 1999 trial, the jury handed down a guilty verdict in the early hours of Saturday 10 April. The sentencing was set for the following Monday, and the judge sent the jurors home with the order that they not discuss the case with anyone. It was revealed after the trial, however, that one of the jurors (Juror #2) had telephoned an alternate (substitute) juror who had earlier been discharged from service in the case. Juror #2 told him of the verdict, and the length of the deliberations, to which he responded that the jury had done the right thing and added that articles in the newspapers supported a finding of guilt. The defense filed a motion for a new trial. The judge held a hearing at which two other jurors reported that Juror #2 had told them of her conversation with the alternate juror. One of these jurors (Juror #8) added that this information had not altered her sentencing decision because she had already made up her mind to vote for the death penalty before the sentencing phase began. Upholding the death sentence in 2009, the US Court of Appeals for the 10th Circuit found that Juror #2 had "undoubtedly engaged in misconduct implicating the defendant’s constitutional due process right to a fair trial". However, the federal court ruled that it could not conclude that Juror #2’s conversation with the alternate juror, "however inappropriate, substantially influenced the jury’s sentence of death". On the question of Juror #8’s admission, the state courts had earlier ruled that this information was inadmissible under Oklahoma law. The 10th Circuit ruled that it could not say, under the "deferential standard" owed by federal to state courts under US law, that this was "reversible error".
The appeal courts have also rejected claims that Jeffrey Matthews’ legal representation at trial was inadequate. For example, the defense presented no witnesses at the innocence/guilt phase of the trial, including possible alibi witnesses. In addition, they did not cross-examine or call as a defense witness Tracy Dyer to elicit from him information that might have helped explain incriminating circumstantial evidence used against Jeffrey Matthews. For example, a medicine bottle belonging to Minnie Short was found in Matthew’s home the day after the crime. Dyer had allegedly given Matthews the bottle after the crime. Another key piece of evidence was that five months after Jeffrey Matthews was arrested, the murder weapon and another gun stolen in the burglary were found buried in the ground just beyond the backyard of his home. In a sworn statement signed in 2007, Michael Mars, a former Deputy Sheriff who was involved in the 1994 investigation of the crime at the Short’s home, said that he found this evidence "suspicious", and suggested that "if the guns had been planted by Matthews, the signs of fresh digging would have been much more apparent when the premises were searched upon his arrest as opposed to half a year later." He added that, in his view, it was plausible that others had planted the weapons there after Matthews was arrested.
In his statement, Michael Mars described the police handling of the case as "sloppy", claiming that officials had been "very quick to target Matthews" to the exclusion of other possible suspects and that some of the officers appeared "highly motivated from the outset to pin Matthews with this crime". He claimed that after Tracy Dyer was brought into the police station, the Sheriff had taken the "highly unusual" step of telling 10 deputies, including Mars, to leave and go for dinner. Upon their return they were informed that Dyer had identified Matthews as his accomplice, but that his statement had not been tape recorded as was normal policy. In addition, Mars stated that he found Tracy Dyer’s allegations of abuse in pre-trial custody to be “plausible”, adding that "I can attest that I have seen a detention deputy both physically and verbally abuse prisoners many times".
International safeguards require that the death penalty not be imposed if guilt is not "based upon clear and convincing evidence leaving no room for an alternative explanation of the facts". Amnesty International opposes the death penalty, regardless of guilt or innocence. The USA has carried out 1,219 executions since resuming judicial killing in 1977, during which time more than 125 people have been released from death rows around the country on grounds of innocence. Oklahoma accounts for 92 of these executions, and 10 of the wrongful convictions. There have been 31 executions in the USA this year, one of them in Oklahoma.
RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible:
-Explaining that you are not seeking to excuse the murder of Earl Short or to downplay the suffering caused;
-Noting that Jeffrey Matthews was convicted on entirely circumstantial evidence and that Tracy Dyer, who was indisputably involved in the crime, later recanted his testimony incriminating Jeffrey Matthews;
-Urging the Oklahoma Parole and Pardon Board to change its vote and to recommend that the Governor commute Jeffrey Matthews’ death sentence;
-Welcoming the extension of the stay of execution by the Governor, and calling on him to further extend this reprieve and to do all within his power to have the Board reconsider their vote against clemency.
Oklahoma Attorney General (News Release)
Execution Date Set for Matthews, Execution Challenge Denied
The Oklahoma Court of Criminal Appeals today set Jan. 11 as the execution date for Cleveland County death row inmate Jeffrey David Matthews on the same day a federal appellate court denied Matthews’ challenge of the state’s lethal injection process.
Matthews was convicted and sentenced to death for the January 1994 murder of 77-year-old Otis Earl Short during a robbery of Short’s home in Rosedale.
Matthews was scheduled to be executed last summer but the U.S. District Court for the Western District of Oklahoma stayed the execution after the Department of Corrections (DOC) altered the drugs used in the execution process due to a nationwide shortage of the anesthetic sodium thiopental.
The U.S. Tenth Circuit Court of Appeals today affirmed a Nov. 22 district court ruling stating DOC’s intention to use pentobarbital instead of sodium thiopental in Matthews’ impending execution did not violate the Constitution’s Eighth Amendment protection against cruel and unusual punishment nor does it violate Oklahoma execution statutes. “The Tenth Circuit ruled that the district court was well within its boundaries in reviewing the evidence presented by both sides in this case,” Edmondson said. “The court also ruled that Matthews’ attorneys failed to show that their challenge to the execution protocol set forth by the state would likely be successful on the merits.”
Matthews v. State, 953 P.2d 336 (Okla.Crim. App. 1998). (Direct Appeal)
Defendant was convicted in the District Court, Cleveland County, Tom A. Lucas, J., of first-degree murder, assault and battery with a deadly weapon, conspiracy to commit a felony, and unauthorized use of a motor vehicle. Defendant appealed, and the Court of Criminal Appeals, Strubhar, J., held that: (1) the warrant for defendant's arrest was not based on probable cause; (2) defendant's statement to law enforcement agents was the product of his illegal arrest; (3) the admission in evidence of defendant's statement was not harmless beyond a reasonable doubt; (4) the jury should not have heard testimony indicating that a witness had taken a polygraph test; and (5) defendant's requested instructions regarding accomplice testimony should have been given. Reversed and remanded.
STRUBHAR, Vice Presiding Judge:
Appellant, Jeffrey David Matthews, was charged with First Degree Murder (Count I), Assault and Battery With a Deadly Weapon (Count II), and Conspiracy to Commit a Felony (Count III), in the District Court of McClain County, Case No. CF-94-18. He was also charged in a separate Information with Unauthorized Use of a Motor Vehicle (Count IV), in the District Court of McClain County, Case No. CF-94-19. As to the First Degree Murder charge, the State filed a Bill of Particulars alleging four aggravating circumstances: (1) that Appellant created a great risk of death to more than one person, (2) that the murder was committed for the purpose of avoiding lawful arrest, (3) that the murder was committed while Appellant was serving a sentence of imprisonment, and (4) that Appellant constituted a continuing threat to society. Appellant filed a Motion for a Change of Venue which was granted. The above mentioned cases were consolidated and tried in the District Court of Cleveland County, Case No. CF-95-183, before the Honorable Tom A. Lucas. At the conclusion of the trial, the jury found Appellant guilty of all crimes charged. The jury assessed punishment at death on Count I FN1 and forty-five years imprisonment on each of Counts II, III and IV. The trial court sentenced Appellant in accordance with the jury's recommendation. It is from this Judgment and Sentence that Appellant has perfected his appeal to this Court.FN2
FN1. As to Count I, First Degree Murder, the jury found the existence of three of the alleged aggravating circumstances: (1) that Appellant created a great risk of death to more than one person, (2) that the murder was committed while Appellant was serving a sentence of imprisonment, and (3) that Appellant constituted a continuing threat to society. FN2. Appellant's Petition in Error was filed in this Court on December 20, 1995. His Brief-in-Chief was filed on September 3, 1996, and the State's Response Brief was filed on January 2, 1997. The case was submitted to this Court on January 3, 1997, and oral argument was heard on this case on April 2, 1997.
In the early morning hours of January 27, 1994, Minnie Short was awakened by a noise in the living room of her home located in a rural area east of Rosedale, Oklahoma. She thought that it was around 6:00 a.m. and decided to get up for the day. She got out of bed and went into the living room where she was attacked from behind by someone with a knife. As she struggled with her attacker he cut her throat. Her husband Earl came into the living room and was shot in the back of the head by another person. Earl fell to the floor beside Minnie. She was told to lie still and was asked several times where the money was hidden. After ransacking the house for almost two hours the two men left with approximately $500.00, a .32 caliber Smith & Wesson, and the Shorts' brown pickup. After the men were gone, Minnie Short dressed and went to the road to try to get help. A passing ambulance saw her and stopped. She told the paramedics that she had been cut and her husband had been shot. They bandaged the wound on her neck, which had stopped bleeding and was determined to be non life-threatening. The paramedics then went to the house where they determined that Earl Short was dead.
When the police talked with Minnie Short she could not describe her attacker or the man who shot her husband. She recalled, however, that her attacker wore a dark jacket with a large circular design and the other man wore tan loose-fitting clothes. She also remembered that the man who attacked her had made a telephone call from her kitchen shortly before they left. When the police traced this phone call they found that it had been made at 8:16 a.m. to Bill Guinn in Oklahoma City. Mr. Guinn confirmed that the call had been made by his nephew, Tracy Dyer, who had called to say that he would be late coming to work that morning because he was having trouble with his truck. At around 10:00 p.m. on January 27 the police went to Dyer's trailer where they found Tracy Dyer and his uncle, Harry Wayne Clary, who was visiting from Madill. Both Dyer and Clary were taken to the sheriff's office for questioning.
Although Dyer initially denied any involvement in the crime, he became more forthcoming when confronted with the telephone call which placed him in the Shorts' home. In his first statement Dyer said that he and Appellant had gone to the Shorts' house to look for money that they believed to be hidden there. Dyer blamed Appellant for the murder of Earl Short and the attack on Minnie Short but he admitted to looking for money. Dyer was arrested.
On January 28, 1994, a warrant was procured for Appellant's arrest. After his arrest on that same date, Appellant was interrogated by OSBI agents. A search warrant for Appellant's home was issued and executed soon after his arrest. Police seized a pair of brown coveralls, three $100.00 bills found in the freezer, some items of clothing and a prescription pill bottle for Xanax made out to Minnie Short found on a nightstand. The backyard was searched but nothing was found there. Later, in June of 1994, one of Appellant's neighbors found a .32 Smith & Wesson revolver buried in a field situated directly behind Appellant's house. This gun was identified as the gun taken from the Shorts' home by their attackers. The police went to the field with metal detectors and found another buried gun, a .45 Ruger pistol, *340 which was later determined to have been the gun used to kill Earl Short.
Although Appellant raised twenty-eight propositions of error in his Brief-in-Chief and Supplemental Brief, we address in this opinion only those propositions relating to the first stage of trial which require reversal and which raise errors to avoid on retrial.
Appellant was arrested in his home at approximately 2:30 a.m. on January 28, 1994. He filed a motion to quash the arrest and suppress all evidence obtained pursuant to it, claiming his arrest was illegal because the arrest warrant executed by the authorities was not based upon probable cause. A hearing was held on this motion in March of 1996. At this hearing it was established that at approximately 2:00 a.m. on January 28, 1994, OSBI Agent Dale Sparks went to the home of Judge Noah Ewing in order to secure a warrant for Appellant's arrest. Instead of taking an affidavit per se, Sparks showed Judge Ewing an Information charging Appellant with the crime of Unauthorized Use of a Motor Vehicle.FN3 Judge Ewing testified at the suppression hearing that the Information was in an affidavit form. It thus served the dual purpose of being both an Information and probable cause affidavit. Judge Ewing testified that he placed Sparks under oath and asked him if the Information was true. Sparks responded that it was and elaborated to some degree on the facts stated therein. However, neither Judge Ewing nor Agent Sparks could remember or articulate any specific facts discussed other than those mentioned in the Information. Agent Sparks admitted at the hearing that the Information set forth no facts which would indicate why he believed Appellant had committed the crime alleged. Nor did Judge Ewing recall any other documents being presented to him by Sparks. Agent Sparks signed the Information as the affiant/complaining witness. Based upon the Information and what Agent Sparks told him under oath, Judge Ewing found probable cause and an arrest warrant was issued. At the close of the hearing on the motion to quash, the trial court denied Appellant's motion.
FN3. The Information contained the following language: IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OKLAHOMA, J. TULLY McCOY, District Attorney, comes into Court and states upon this Affidavit of the undersigned Affiant that the above-named Defendant on or about the 27th day of January, 1994, at Rt. 1, Byars, McClain County, State of Oklahoma, while acting in concert and together with Tracy Lynn Dyer did unlawfully, wilfully [sic] and feloniously, not being entitled to its possession, take, use or drive a certain motor vehicle, to-wit: a 1981 Chevrolet Pickup Truck, 1994 Oklahoma tag number GVS 269, belonging to and without the consent of Otis and Minnie Short, the owner thereof, with the unlawful and felonious intent on the part of said defendant, then and there to deprive said owner temporarily or permanently of the possession of said vehicle, contrary to the form of the Statutes in such cases made and provided and against the peace and dignity of the State of Oklahoma. (O.R.1092)
Appellant argues on appeal that this ruling was in error as there was no probable cause affidavit presented to Judge Ewing to support the issuance of the arrest warrant. This allegation while technically correct, is not so as a matter of practicality. As mentioned above, Judge Ewing testified that the Information presented to him served as an affidavit. It was couched in terms of an affidavit and sworn to by Agent Sparks, who acted as the affiant. There is nothing per se objectionable about the use of such a document to establish probable cause. Rather, the problem here, as Appellant also notes, is that there were no facts alleged in the Information indicating how Appellant was connected to the crime charged.
A similar situation was addressed by the United States Supreme Court in Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). Whiteley arose when a county sheriff who was investigating the burglaries of certain business establishments, acting on a tip, signed a complaint charging the defendant and another with breaking and entering.FN4 Based upon this complaint, the justice *341 of the peace issued an arrest warrant. After the warrant was issued, the sheriff put out a state bulletin on the radio advising that an arrest warrant had been issued for these persons. In reliance upon this bulletin, a Laramie patrolman arrested Whiteley and his companion. Whiteley was tried for breaking and entering and evidence seized pursuant to his arrest was used against him at trial.
FN4. The complaint contained the following language: I, C.W. Ogburn, do solemnly swear that on or about the 23 day of November, A.D. 1964, in the County of Carbon and State of Wyoming, the said Harold Whiteley and Jack Daley, defendants did then and there unlawfully break and enter a locked and sealed building [describing the location and ownership of the building]. Id. 401 U.S. at 563, 91 S.Ct. at 1034 (brackets in original).
Whiteley claimed that his arrest was illegal and therefore, the evidence seized should have been suppressed. The Supreme Court first noted that “[t]he decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.” Id. 401 U.S. at 564, 91 S.Ct. at 1035. In Whiteley the parties had stipulated to the record which revealed that the arrest warrant was supported solely by the sheriff's complaint which consisted of nothing more than the conclusion that the individuals named had perpetrated the offense described. Although the actual basis for the Sheriff's conclusion was the informer's tip, that fact and all other operative facts were omitted from the complaint. Accordingly, the Court held “that document alone could not support the independent judgment of a disinterested magistrate.” Id. 401 U.S. at 565, 91 S.Ct. at 1035. Further, the Court noted that even if the affiant had possessed sufficient information to support a finding of probable cause, testimony concerning this information could not rehabilitate an insufficient affidavit if this information had not been passed on to the magistrate. The Court stated “[a] contrary rule would, of course, render the requirements of the Fourth Amendment meaningless.” Id. 401 U.S. at 565 n. 8, 91 S.Ct. at 1035 n. 8. This Court, in Mosier v. State, 671 P.2d 62, 64 (Okl.Cr.1983), ruled similarly finding that an arrest warrant based upon the bald allegations of a preliminary Information was insufficient to allow an independent finding of probable cause.
In light of these prior cases from both the United States Supreme Court and this Court, we find the Information in the present case did not provide sufficient probable cause upon which to base the issuance of the arrest warrant. We note that Agent Sparks may have possessed additional information which would have provided sufficient probable cause for the issuance of the arrest warrant. However, on the record before this Court, we cannot, without speculation, find that sufficient additional information was imparted to Judge Ewing to support the issuance of the warrant. Accordingly, we find that Appellant's arrest was illegal because the arrest warrant was not based upon a proper finding of probable cause.FN5
FN5. It is important to note that in the absence of a valid arrest warrant the police were without authority to burst into Appellant's home in the middle of the night and arrest him for Unauthorized Use of a Motor Vehicle. While it is axiomatic that under certain circumstances police can make warrantless arrests, this was not such a situation. Absent exigent circumstances, the Fourth Amendment prohibits warrantless entry into an individual's home. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). No exigent circumstances were presented for the routine felony arrest effected in the present case.
Appellant next contends that because his arrest was unlawful, his post-arrest statements should have been suppressed. Statements made by an accused subsequent to an illegal arrest are potentially fruit of the poisonous tree and should be suppressed unless the making of such statements was “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441 (1963). The Supreme Court in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), set forth several factors to be considered when determining whether the statements were obtained through the exploitation of the illegal arrest or whether they can be considered to have been voluntarily made. These factors include (1) the giving of Miranda warnings, (2) the “temporal proximity” of the arrest and the statements, (3) the presence of “intervening circumstances,” and (4) “the purpose and flagrancy of the official misconduct.” Id. 422 U.S. at 603-04, 95 S.Ct. at 2261-62. The burden of showing that the statements at issue were voluntary and therefore admissible lies with the State. Id.
In the present case, Appellant was arrested at around 2:30 a.m. when law enforcement officials kicked down the door to his house. He was hit on the head with a flashlight during a scuffle and stood in his shorts, bleeding from the head in his living room by the open doorway while officers conducted a security sweep of his house and allowed his girlfriend to dress. Appellant was not allowed to dress, but was taken out to a police car and transported to the hospital where his head was sutured. After this, he was taken to the police station where he was read his Miranda rights and interrogated first by Dale Sparks. Because Agent Sparks found Appellant to be belligerent and uncooperative, he asked OSBI Agent Lydia Williams to resume questioning Appellant. Appellant's statement was made to Agent Williams. FN6
FN6. Agent Williams testified that Appellant told her he was home the night before the murder. Early that evening Tracy had come by and the two of them worked on Tracy's pickup for a few minutes. Then Tracy left, and Appellant went to sleep inside his own pickup. At about 4:00 a.m. Tracy came back with another person named John who gave Appellant $300.00 and asked him to buy some drugs for him. The three drove to a residence near Byars to buy drugs but no one was home. On their way back to Purcell, about two miles east of Rosedale Tracy's pickup stalled. Tracy and John got out and started walking and Appellant fell asleep. A short time later Tracy and John drove up in a brown pickup belonging to the Shorts. They used the Shorts' pickup to jump start Tracy's pickup. Then Tracy and John got back inside Tracy's pickup and Tracy drove the Shorts' pickup. He noted that they were seen by a man in a white pickup and by a man in a red pickup. Eventually, he left the Shorts' pickup behind some tank batteries and they drove Tracy's pickup back to Purcell. When they got back to Tracy's trailer John walked off and Appellant went with Tracy into the trailer. He eventually went home. Appellant said that the $300.00 found in his freezer was the money he was supposed to use to make the drug buy. He never admitted to having been inside the Shorts' home. (Trial Transcript VI, 1247-54).
Appellant was interrogated and made his statement as soon after the illegal arrest as officials could question him. Although Appellant was apprised of his Miranda rights and signed a document acknowledging this, it is clear from the record that he was hesitant to talk. There is nothing in this course of events which can be found to have purged the taint of Appellant's unlawful arrest-no intervening circumstances which would allow this Court to find that his statement was not a product of his illegal arrest.
Having found then that Appellant was illegally arrested and his statement tainted by the illegal arrest, we must next determine whether this error requires relief. Because this error is of constitutional magnitude, Appellant's conviction can only stand upon a finding that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11 (1967). See also Wisdom v. State, 918 P.2d 384, 393 (Okl.Cr.1996). Further, it is the State's duty to demonstrate beyond a reasonable doubt that the illegally obtained statement did not contribute to the conviction. Pickens v. State, 885 P.2d 678, 682 (Okl.Cr.1994), overruled on other grounds, Parker v. State, 917 P.2d 980, 986 (Okl.Cr.1996).
Appellant's conviction in this case was secured after the introduction of the following evidence (1) the testimony of several witnesses including Dyer's testimony of Appellant's involvement in the crimes, (2) Appellant's illegally obtained statement and his testimony at trial FN7, and, (3) physical evidence found at Appellant's house. Outside of Dyer's testimony, the greater bulk of the evidence presented against Appellant at trial was circumstantial. Although Appellant did not admit in his statement to having been involved in the commission of the crimes, he did admit to having been in the Shorts' pickup near their house on the morning the crimes occurred. His testimony at trial was also damning as his attempt to explain his prior statement only succeeded in making him seem inconsistent and unbelievable. We cannot find that the admission of this illegally obtained statement was harmless beyond a reasonable doubt. Indeed, the admission of Appellant's statement can be found to have contributed to his conviction on each of the counts charged and accordingly, all counts against Appellant must be reversed and remanded for a new trial.
FN7. Before Appellant testified at trial, defense counsel stated on the record that Appellant was testifying “only because the [trial] court ha [d] overruled his motion to suppress that [sic] statement that he gave to Lydia Williams on the ground that it was involuntary, it was a result of an illegal seizure, and resulted in an illegal arrest.” (Trial Transcript IX, 2051) Defense counsel stated on the record that Appellant testified at trial because he felt he needed to tell his version of the interview with Williams.
We also address Appellant's sixth proposition alleging error in Tracy Dyer's testimony. Prior to Appellant's trial Dyer had entered a plea of guilty and received a sentence of life with the possibility of parole. During the State's examination of Dyer at Appellant's trial, Dyer was asked about the agreement he had made with the State in order to receive the State's recommendation that he be sentenced to life imprisonment. Dyer testified that he had agreed to tell the truth and had also agreed to take a polygraph. Defense counsel objected to Dyer's comment about the polygraph and requested a mistrial. The trial court denied this request finding that it was inadvertent and not prejudicial. The trial court also offered to admonish the jury to disregard the comment. Defense counsel declined this offer stating that it would be more harmful than beneficial. The State's examination of Dyer continued and the polygraph test was not mentioned again.
Appellant correctly advises that this Court has held the results of polygraph tests are not admissible for any purpose. See Paxton v. State, 867 P.2d 1309, 1323 (Okl.Cr.1993), cert. denied, 513 U.S. 886, 115 S.Ct. 227, 130 L.Ed.2d 153 (1994). The Tenth Circuit Court of Appeals has also held that evidence that a witness has taken a polygraph test is inadmissible. See U.S. v. Soundingsides, 820 F.2d 1232, 1241-42 (10th Cir.1987). Accordingly, we find that the jury should not have heard testimony indicating that Dyer had taken a polygraph test.
Finally we address Appellant's argument in his thirteenth proposition, which concerns the requirement that accomplice testimony be corroborated. Bryan Curry was charged with the December 1993 burglary of the Shorts' cellar. Although Appellant was not also charged with this crime, Curry testified at trial that he, Tracy Dyer and Appellant committed the burglary together. Defense counsel requested the jury be instructed that Curry was an accomplice and as such his testimony concerning Appellant's participation in the 1993 burglary required corroboration. The trial court declined to so instruct. Appellant argues that this ruling was in error. Although Appellant acknowledges that this Court has not previously addressed the applicability of these instructions to witnesses who meet the definition of an accomplice with regard to uncharged crimes, he urges this Court to consider the issue now.
This Court has long held that, “[t]he test used to determine whether a witness is an accomplice is whether he or she could be indicted for the offense for which the accused is being tried.” Carter v. State, 879 P.2d 1234, 1246 (Okl.Cr.1994), cert. denied, 513 U.S. 1172, 115 S.Ct. 1149, 130 L.Ed.2d 1107 (1995). When the crime at issue is not the one for which the defendant is being tried, the witness and the defendant are still accomplices if both could be indicted for the offense. This is regardless of whether either, or both, have been charged with the other offense. A witness who was an accomplice in a crime for which the defendant is not currently being tried may have as compelling a reason for testifying about the defendant's involvement in this other crime as would a witness who was an accomplice in the same crime for which the defendant is currently being tried. It makes no sense to deny a defendant instructions requiring that the accomplice's testimony be corroborated. Accordingly, we find that Appellant's requested instructions regarding accomplice testimony should have been given.
In light of the foregoing discussion, Appellant's Judgment and Sentence is REVERSED and REMANDED to the District Court for a NEW TRIAL. CHAPEL, P.J., and LUMPKIN, LANE and JOHNSON, JJ., concur.
Matthews v. State, 45 P.3d 907 (Okla.Crim. App. 2002). (Direct Appeal)
After defendant's first degree murder conviction was reversed on appeal, 953 P.2d 336, defendant was convicted on remand in the District Court, Cleveland County, Candace Blalock, J., of first degree murder, assault and battery with a deadly weapon, conspiracy to commit a felony, and unauthorized use of a motor vehicle, and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Strubhar, J., held that: (1) defendant was not prejudiced by juror's inappropriate telephone conversation with released alternate juror between deliberation sessions; (2) warrant to search defendant's house was supported by probable cause; (3) evidence was sufficient to support conviction for murder, and (4) defendant's personal culpability in attack made him eligible for the death penalty. Affirmed.
Jeffrey David Matthews, Appellant, was re-tried by jury in the District Court of Cleveland County, Case No. CF-95-183, following this Court's opinion reversing his original Judgment and Sentence and remanding the matter for new trial. Matthews v. State, 1998 OK CR 3, 953 P.2d 336. He was again convicted of First Degree Murder (Count I), Assault and Battery With a Deadly Weapon (Count II), Conspiracy to Commit a Felony (Count III) and Unauthorized Use of a Motor Vehicle.FN1 This time the jury recommended death for Count I after finding that Matthews created a great risk of death to more than one person and that the murder was committed while Matthews was serving a sentence of imprisonment. The jury also found Matthews guilty of each non-capital felony after former conviction of two felonies and recommended one hundred years imprisonment on Count II, fifty years imprisonment on Count III and twenty years imprisonment on Count IV. The Honorable Candace Blalock followed the jury's sentencing recommendation and ordered the sentences to be served consecutively. From this Judgment and Sentence, he appeals.FN2
FN1. Matthews was originally charged with first degree murder, assault and battery with a deadly weapon and conspiracy in McClain County Case No. CF-94-18. He was also charged in a separate case, Case No. CF-94-19, with unauthorized use of a motor vehicle. Although these crimes occurred in McClain County, a change of venue was granted, the cases were consolidated and jury trial was held in Cleveland County. Matthews was convicted of all counts and was sentenced originally to death for the murder and forty-five years imprisonment on each non-capital felony. FN2. Matthews' Petition in Error was filed in this Court on November 1, 1999. His brief was filed June 12, 2001, and the State's brief was filed October 10, 2001. A reply brief was filed on December 31, 2001. The case was submitted to the Court on October 17, 2001. Oral argument was held February 5, 2002.
The facts relevant to Matthews' convictions are thoroughly discussed in Matthews, 1998 OK CR 3, at ¶¶ 2-5, 953 P.2d at 339-40. We will not restate them here, except as may be necessary in our review of Matthews' twenty-three propositions of error relating to his retrial.
JUROR MISCONDUCT/JURY SELECTION ISSUES
In his first proposition of error, Matthews claims he was denied due process *912 and a fair trial because jurors in his case were exposed to and engaged in unauthorized communications regarding the merits of the case during first stage deliberations and again between first stage verdict and the second stage. Matthews filed a motion for new trial based on this alleged juror misconduct and the trial court held hearings at which all twelve jurors were examined as well as other relevant witnesses.FN3 Following the hearings, the trial court found no juror misconduct and denied the motion. Because this juror misconduct issue was litigated and involves the factual issues of whether there were improper communications that resulted in the jury considering extraneous information in rendering its verdict, we defer to the trial court's ruling unless it is clearly erroneous. See Young v. State, 2000 OK CR 17, ¶ 109, 12 P.3d 20, 48, cert. denied, 532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030 (2001). FN3. We applaud Judge Blalock's prompt and thorough investigation of these claims so we have a complete record to review.
This claim stems from a communication that occurred between Juror No. 2 FN4 and alternate juror James DeHaven following the first stage verdict but before the beginning of the second stage. The record shows DeHaven, who was released prior to first stage deliberations, asked Juror No. 2 to call him and advise him of the verdict once it had been reached. The jury began its first stage deliberations around 4:30 p.m. on Friday, April 9, 1999, and reached a verdict early Saturday morning around 2:00 a.m. Thereafter the jury was released until Monday, April 12th with the admonition not to discuss the case with anyone. Despite the admonition, Juror No. 2 spoke with DeHaven on the telephone sometime Saturday the 10th either in the afternoon or evening concerning the verdict. Juror No. 2 and DeHaven differed on how long the conversation lasted and on the content of the conversation. However, the evidence at its worst shows the conversation lasted fifteen minutes and that Juror No. 2 discussed with DeHaven the difficulty of making the decision, the numerical stance of the jury during deliberations, and general information about the deliberative process. In response, DeHaven told Juror No. 2 that he thought the jury had done the right thing, which Juror No. 2 understood as words of comfort following a difficult decision. DeHaven also informed Juror No. 2 that he had read the newspaper and indicated the articles supported the jury's verdict. He told her she would feel more sure about her decision once she was released and read the articles herself. DeHaven did not impart any information from the articles to Juror No. 2, and according to Juror No. 2, nothing he said affected her second stage verdict. FN4. The jurors were referred to by number in the post-trial hearings in an effort to protect their privacy.
Juror No. 7 and Juror No. 8 testified they heard Juror No. 2 say she had spoken to DeHaven to report the guilty verdict. Both remembered Juror No. 2 stating that DeHaven had read the newspaper, but neither remembered Juror No. 2 stating anything about the newspaper supporting their verdict. Juror No. 7 and Juror No. 8 also testified that Juror No. 2's brief and lone statement about her contact with DeHaven had no affect on their second stage verdict. Based on this evidence, the trial court found a violation of its admonition but that no juror misconduct took place. FN5. In making its ruling, the trial court noted for the record that alternate juror DeHaven was described as a “husky, virulent” young widower and Juror No. 2 was a “striking, beautiful divorcee.” The judge was not surprised that DeHaven chose Juror No. 2 to call him and implied that these two had contact in part to perhaps launch some sort of a personal relationship.
Matthews maintains the trial court erred in its ruling, arguing he met his burden to show actual prejudice from the alleged juror misconduct since he established that Juror No. 2 violated the court's admonition and her oath by conversing with another person concerning the trial. 12 O.S.1991, §§ 576 & 581.FN6 Alternatively, because he showed a participating juror engaged in an unauthorized conversation about the case between the two phases of a capital trial, Matthews argues prejudice should be presumed as the case had been submitted and that the presumption cannot be rebutted by this record. FN6. Section 576 provides: The jury shall be sworn to well and truly try the matters submitted to them in the case in hearing, and a true verdict give, according to the law and the evidence. Section 581 provides: If the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by, any other person, on any subject of the trial, and that it is their duty not to form or express an opinion thereon, until the case is finally submitted to them.
We have held that “[w]hen the alleged misconduct occurs subsequent to the submission of the case to the jury, the misconduct is presumed to have prejudiced the defendant and it is incumbent upon the State to show that he was not prejudiced.” Wacoche v. State, 1982 OK CR 55, ¶ 14, 644 P.2d 568, 572. “However, where it appears that a juror converses with third parties during the trial and prior to deliberations, there must be a showing by the defendant that he was prejudiced.” Id. Here, the contact occurred after the guilty verdict was reached and first stage deliberations ended, but before the beginning of the second stage. Based on Wacoche and the timing of the conversation, Matthews was required to show that he was prejudiced by the contact. Because first stage deliberations had ended and a verdict had been reached, we find, like the trial court, that the contact in no way affected the first stage verdict.
We must now determine if this contact affected second stage. Second stage is a separate proceeding solely to determine punishment and it is not error to allow the jury to separate after its verdict in the first stage of a bifurcated proceeding prior to the submission of any evidence in the second stage. See Frederick v. State, 1995 OK CR 44, ¶ 30, 902 P.2d 1092, 1099; McCracken v. State, 1994 OK CR 68, ¶ 25, 887 P.2d 323, 330, cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995); 21 O.S.Supp.1992, § 701.10(A). As noted above, the discussion between Juror No. 2 and DeHaven occurred between the first and second stage of trial and focused on the guilty verdict that had been reached. Though DeHaven told Juror No. 2 that he had read the newspaper and that it supported the jury's guilty verdict, there is no evidence Juror No. 2, or any other juror, knew of the content of any newspaper articles and more specifically that Matthews had been previously sentenced to death for Short's murder. According to the testimony, Juror No. 2 was not privy to any information that DeHaven gleaned from the newspaper that could have influenced her sentencing decision during second stage deliberations. Moreover, there is no evidence Juror No. 2 and DeHaven ever discussed the evidence in the case or how she should vote in the pending second stage proceeding. When Juror No. 2 appeared for the second stage, she heard the relevant evidence and received the appropriate instructions on sentencing without any outside influence. Just because DeHaven told her he believed she had done the right thing in finding Matthews guilty and that the newspaper supported that decision, we do not see how that information would make her more willing to vote for a death sentence or somehow conclude that death was the appropriate punishment without more, especially in light of our weighing scheme. Based on the testimony presented, we find the trial court correctly denied Matthews' motion because he failed to prove he was actually prejudiced from this inappropriate conversation.
Matthews also cites attorney Kenneth Adair's testimony to support his claim of juror misconduct. Adair testified that he saw DeHaven on Saturday, the 10th, and that DeHaven told him three female jurors called him when the jury was deadlocked in favor of acquittal. DeHaven claimed these jurors, who were in favor of guilt, asked him how to change the other's votes and DeHaven directed the jurors to certain evidence that he believed made Matthews' guilt clear. These allegations were explored at the post-trial hearings and no credible evidence was presented to show such communications occurred. All jurors testified they had no means of using a telephone during deliberations and that they were not aware of any *914 other juror doing so. All cellular telephones and pagers were turned over to the bailiffs for safekeeping. Any information jurors needed relayed to their families was conveyed through the bailiffs. The bailiffs were also called and testified about all the precautions that were taken to prevent any juror from having outside contact while deliberations were ongoing. Even Adair testified that he did not believe DeHaven because he believes DeHaven is prone to exaggeration. Based on this record, we affirm the trial court's ruling that no improper communications occurred during first stage deliberations.
Lastly, Matthews claims he was prejudiced because DeHaven, while still empaneled as a juror in the case, told a local bondsman that Matthews was going to “fry.” The bondsman testified the two of them were joking. As discussed above, DeHaven, the alternate, was released prior to first stage deliberations and did not participate in the verdict. Moreover, there is no evidence the improper communication was conveyed to any of the actual jurors. Thus, having failed to show prejudice, Matthews' claim of error must fail and no relief is required. See Al Mosawi v. State, 1996 OK CR 59, ¶ 33, 929 P.2d 270, 280, cert. denied, 522 U.S. 852, 118 S.Ct. 145, 139 L.Ed.2d 92 (1997).
In his second proposition of error, Matthews claims he was denied an impartial jury on the issue of punishment because one of the jurors stated after the verdict that she had formed her opinion on punishment before the presentation of second stage evidence. As a result, Matthews asks that his death sentence be vacated, arguing a juror with a fixed preconceived opinion that the death penalty should be imposed cannot be impartial and would inevitably fail to consider the mitigating evidence and follow the court's second stage instructions.
At the June 28, 1999 hearing investigating juror misconduct, Juror No. 8 was questioned about any outside communication in which she may have been involved and her knowledge of any communications between Juror No. 2 and DeHaven, the alternate. Juror No. 8 testified she had not participated in any outside communications during or after first stage deliberations, but had heard Juror No. 2 say when the jury returned for second stage that she had talked with DeHaven to relay the guilty verdict. Juror No. 8 recalled Juror No. 2 saying that DeHaven had read the newspaper; however, she did not know what he had read and Juror No. 2 did not indicate that anything he read would support the verdict or somehow make them feel better about it. When asked if Juror No. 2's statements affected her punishment deliberations, Juror No. 8 stated, “Oh, no. I had already decided. When we went through that night, everything was settled in my mind.” FN7 Thereafter, defense counsel asked Juror No. 8 questions to clarify which verdict she was referring to as having decided. The exchange ended when defense counsel asked if Juror No. 8 meant that she had already decided what the punishment should be and she said, “Uh-huh.” FN8 At this point, the State objected and complained defense counsel was going beyond the scope of the hearing and attempting to have the juror impeach her verdict. The trial court agreed and limited defense counsel to questions regarding any outside information or influence that may have occurred during trial.FN9
FN7. Hrg.06/28/99 at 76. FN8. Hrg.06/28/99 at 77. FN9. The trial court allowed defense counsel to make a record that he should be allowed to inquire further of Juror No. 8 to determine whether or not she had an open mind on punishment during second stage. Counsel maintained that if Juror No. 8 should indicate that she did not have an open mind, Matthews would be entitled to a new trial with an impartial jury.
Title 12 O.S.1991, § 2606(B) governs this claim and states: Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify as to any matter or statement occurring during the course of the jury's deliberations or as to the effect of anything upon his or another juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes during deliberations. A juror may testify on the *915 question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. An affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying shall not be received for these purposes.
Section 2606(B) was enacted to prohibit jurors from testifying post-verdict to the motives, methods or mental processes by which they reached their verdict in an effort to preserve finality of judgments and safeguard jurors from corruption by unhappy non-prevailing litigants. Weatherly v. State, 1987 OK CR 28, 733 P.2d 1331, 1334-35. Excluded from the rule is evidence of prejudicial extraneous information or influences being injected into the deliberative process. Id at 1335. Therefore, under section 2606(B), parties may only question former jurors to determine if improper and prejudicial information was revealed to the jury or any outside influence was improperly brought to bear upon any juror. Id. Given the law and its purpose, the trial court correctly allowed the questions concerning the existence and effect of any outside influence on Juror No. 8 and disregarded and limited Juror No. 8's testimony concerning her deliberative process. As such, we find the trial court properly ruled on Matthews' motion for new trial and deny relief.
In his third proposition of error, Matthews argues the trial court erred in failing to excuse five jurors FN10 for cause based on their bias toward the death penalty. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Warner v. State, 2001 OK CR 11, 29 P.3d 569. He claims questioning in voir dire established that each of these prospective jurors possessed an actual bias FN11 necessitating dismissal for cause.
FN10. The prospective jurors complained of are Stephen McLaughlin, Gary Weaver, Kenneth Batt, Gregory Herbster and James DeHaven. FN11. “Actual bias is present when a juror's views ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath.’ ” Young v. State, 1998 OK CR 62, ¶ 9, 992 P.2d 332, 337, cert. denied, 528 U.S. 837, 120 S.Ct. 100, 145 L.Ed.2d 84 (1999), quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985).
Trial judges enjoy “broad discretion in deciding which members of the venire possess actual bias and should be excused for cause.” Warner, 2001 OK CR 11, ¶ 6, 29 P.3d at 572. However, in ruling on challenges for cause, all doubts regarding juror impartiality must be resolved in favor of the accused, who need not prove a juror's bias in favor of the death penalty with unmistakable clarity. Warner, 2001 OK CR 11, at ¶¶ 6 & 8, 29 P.3d at 572, 573. This means trial courts should consider the entirety of a prospective juror's voir dire to determine if their expressed feelings favoring the death penalty would prevent or substantially impair their performance as a juror. Warner, 2001 OK CR 11, ¶ 8, 29 P.3d at 573. On appeal, this Court will not grant relief based on the improper denial of a challenge for cause unless the record affirmatively shows that the erroneous ruling reduced the number of the appellant's peremptory challenges to his prejudice and he must demonstrate that he was forced, over objection, to keep an unacceptable juror. Warner, 2001 OK CR 11, ¶ 10, 29 P.3d at 573-74. Failure to exercise all peremptory challenges waives claims of potential juror bias on appeal. Cheatham v. State, 1995 OK CR 32, ¶ 21, 900 P.2d 414, 422.
Though two of the complained of jurors expressed feelings about the death penalty that suggested an impermissible bias, Matthews cannot show prejudice from this record. The record shows Matthews removed three of the prospective jurors with his peremptory challenges and waived his ninth challenge. This left two of the complained of prospective jurors as potential alternate jurors. Matthews removed one of them, leaving DeHaven, who as discussed above did not participate in deliberations. Based on this record, Matthews cannot demonstrate prejudice and therefore he is not entitled to relief.
FIRST STAGE ISSUES
In his fourth proposition, Matthews contends the trial court erred in admitting certain items of evidence FN12 seized during the execution of a search warrant on his home. He claims the seized evidence should have been suppressed because it was obtained as a result of his illegal arrest and was therefore tainted and inadmissible. He also claims the trial court erroneously applied the inevitable discovery doctrine from Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) in admitting a pair of brown coveralls.
FN12. The evidence complained of consists of a medicine bottle of Xanax dated 1991 with Minnie Short's name on it found on a table in Matthews' home, three one hundred dollar bills seized from Matthews' refrigerator-freezer, two pair of Pepes jeans, one pair of Levi blue jeans, one pair of aqua and black Reebok tennis shoes found in Matthews' bathroom, one denim jacket and one pair of brown coveralls.
In Matthews, 1998 OK CR 3, ¶ 11-16, 953 P.2d at 341-43, we found that Matthews was illegally arrested and that the admission of his incriminating post-arrest statement to a law enforcement agent necessitated reversal because the statement was the product of the illegal arrest that contributed to the verdict. When the State initiated Matthews' retrial, he filed a motion to suppress the evidence seized during the search of his home, arguing it, too, was tainted by the illegal arrest and therefore should be suppressed. The validity of the search warrant and the admissibility of the seized items were litigated on March 4, 1999. The trial court issued a written ruling finding the warrant sufficient to establish probable cause and denying the motion to suppress.
The record shows the day after the murder Dick Frye, an investigator for the McClain County District Attorney's Office, completed a four paragraph affidavit for a search warrant on Matthews' house. Paragraph Four of the affidavit was based on information Frye gained during Matthews' illegal arrest, namely that Frye had observed a pair of brown coveralls which matched the description of a witness who observed a person wearing “those” coveralls near the murder scene around the time of the murder. At the March 4, 1999 hearing, the prosecutor conceded that Paragraph Four could not be used to determine if the affidavit provided sufficient facts to establish probable cause, but argued though the affidavit was one of the “poorest excuses for an affidavit” that he had seen in his lengthy career, it was legally sufficient. The trial court ultimately severed Paragraph Four from the affidavit and considered only the remaining paragraphs in making its ruling. As will be discussed further in the next proposition, the trial court correctly concluded that the information Frye provided in his affidavit was sufficient to establish probable cause and that the search warrant was not so dependent on information obtained from Matthews' illegal arrest, i.e. Paragraph Four, to render it invalid thereby requiring suppression of the evidence. In addition to Paragraph Four, Frye stated that the investigation soon focused on Tracy Dyer, a known perpetrator, when phone records and investigation showed he made a telephone call from the Shorts' residence to his uncle during the burglary/murder. Dyer, in a voluntary statement, named Matthews as a co-perpetrator of the burglary/ murder. A named perpetrator who makes a statement against his own penal interest and identifies his accomplice is sufficient to establish probable cause. See United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971)(“Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility-sufficient at least to support a finding of probable cause to search.”); Sockey v. State, 1984 OK CR 48, ¶ 6, 676 P.2d 269, 271. Frye's inclusion of Dyer's admissions in the affidavit supplied the necessary facts to establish probable cause.
Matthews also claims the trial court erred in finding that the brown coveralls were admissible based on the doctrine of inevitable discovery. Matthews complains the trial court simply made a probable cause finding on the issuance of the warrant instead of reviewing the record provided to determine if the State proved by a preponderance of the evidence that the brown coveralls would have been inevitably discovered by lawful means as required by Nix. The subject coveralls were discovered during Matthews' illegal arrest in his home, but were not seized until law enforcement executed the search warrant. In its ruling the trial court stated, “If the warrant stands, the coveralls would have been inevitably discovered as mere evidence in plain view during execution of the search warrant under Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377.” Contrary to Matthews' claim, this statement does not show the trial court created a new standard or misapplied Nix. The court's inquiry necessarily focused on whether the warrant was valid. In order to determine if the State met its burden to show the coveralls would have been inevitably discovered by lawful means, the court had to determine if the police were lawfully in Matthews' home when they seized the coveralls that were in plain view. Because the record supports the trial court's ruling, this claim is denied.
In his fifth proposition, Matthews claims the evidence seized from his home should have been suppressed because the affidavit upon which the magistrate relied in issuing the search warrant contained false statements, omitted material facts and contained misleading statements knowingly made with reckless disregard for the truth in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) and Wackerly v. State, 2000 OK CR 15, ¶ 13, 12 P.3d 1, 9, cert. denied, 532 U.S. 1028, 121 S.Ct. 1976, 149 L.Ed.2d 768 (2001). Consequently, Matthews maintains there was no probable cause to issue the warrant and relief is required.
“In Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978), the Supreme Court held that an affidavit supporting a factually sufficient search warrant may be attacked upon allegations that the affidavit contained deliberate falsehoods or reckless disregard for the truth.” Wackerly, 2000 OK CR 15, ¶ 13, 12 P.3d at 9. However, if when the inaccuracies are removed from consideration there remains in the affidavit sufficient allegations to support a finding of probable cause, the inaccuracies are irrelevant. Id. “To determine this issue, we ask whether the warrant would have been issued if the judge had been given accurate information.” Gregg v. State, 1992 OK CR 82, ¶ 19, 844 P.2d 867, 875, citing United States v. Page, 808 F.2d 723, 729 (10th Cir.), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 683 (1987).
Matthews specifically complains the affiant, Dick Frye, failed to inform the magistrate of material differences between Dyer's statement and that of the surviving victim, Minnie Short, namely that Dyer had lied to police about his involvement and location during the attack.FN13 Omission of this information, he argues, prevented the magistrate from effectively evaluating Dyer's credibility. He also complains Frye falsely stated that further investigation revealed Dyer and he acted in concert when Frye had no source or basis for the statement and that Frye falsely stated that Dyer made his voluntary statement to Frye when the record shows Dyer made his statement to Agent Sparks. Lastly, he complains that Dyer's statements incriminating him were not corroborated.
FN13. Dyer claimed he did not enter the house until after he heard a gunshot and that he did not injure anyone while Mrs. Short maintained two men were in the house and that the man who made the phone call cut her throat.
As discussed above, the trial court found the affidavit contained sufficient information to allow a neutral magistrate to find probable cause under the totality of the circumstances. In so ruling, the trial court concluded that Frye did not intentionally try to mislead the magistrate and that the omission of the discrepancies between Dyer's and Short's statement would not have materially affected the magistrate's decision in issuing the warrant because confessing perpetrators routinely minimize their own involvement. The trial court also found Frye was not trying to mislead the magistrate when he stated that Dyer made his voluntary statement to him, noting Frye had testified that his use of the term “me” included not only himself but other O.S.B.I. agents. Frye also testified he was outside the door during Dyer's interview and that the interviewing officer relayed the content of the interview to him as liaison coordinator of the case. When Dyer made his written statement, Frye was present. Based on the record provided, the trial court concluded there was no police misconduct in the preparation of the affidavit, noting that a probable cause analysis properly considers the collective knowledge of facts of all the officers working on the case.
When reviewing the totality of the circumstances, including both allegations included in the affidavit and those which Matthews contends should have been included in the affidavit, there is no doubt but that upon being fully informed, the magistrate would still have had a substantial basis for concluding that probable cause existed. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (The standard for review for the validity of a search warrant is the totality of circumstances). See also Lynch v. State, 1995 OK CR 65, ¶ 18, 909 P.2d 800, 804-05 (Our duty as a reviewing Court is simply “to ensure that the magistrate had a substantial basis for concluding that probable cause existed.”) The magistrate knew from the affidavit that there was more than one perpetrator and that authorities had confirmed Dyer's location at the scene through telephone records and an interview with Dyer's uncle. As noted above, by making a statement against his penal interest, there was an indicia of credibility about the remainder of Dyer's statement naming Matthews as the other perpetrator sufficient to establish probable cause. Accordingly, we find the affiant's failure to inform the magistrate of the complained of facts and his imprecise statements were not material to the finding of probable cause.
In his sixth proposition, Matthews alleges he was denied the reasonably effective assistance of trial counsel in violation of the Sixth Amendment. He argues trial counsel was deficient because counsel failed to: 1) cross-examine Dyer; 2) investigate available witnesses; 3) present defense witnesses crucial to his defense; and 4) object and move for mistrial or request admonishment to correct the prosecutor's improper comments.
To prevail on a claim of ineffective assistance of counsel, Matthews must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance by showing:  that trial counsel's performance was deficient; and  that he was prejudiced by the deficient performance. Black v. State, 2001 OK CR 5, ¶ 65, 21 P.3d 1047, 1070, cert. denied, 534 U.S. 1004, 122 S.Ct. 483, 151 L.Ed.2d 396 (2001). See also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Failure to prove either of the required elements is fatal to Matthews' entire claim. Id.
First, Matthews attacks counsel's failure to cross-examine Dyer about how Matthews came into possession of Mrs. Short's pill bottle and how the guns, including the murder weapon, ended up buried in a field next to Matthews' house. When called at this trial, Dyer testified that Matthews was not present and did not participate in the burglary/murder at the Shorts' residence on January 27, 1994.FN14 He claimed he had lied at prior hearings when he implicated Matthews in an attempt to save himself. After the State concluded its direct examination, the defense approached the bench and asked the court if they questioned Dyer about the pill bottle and guns whether they would open the door to having the State read Dyer's prior testimony concerning the crime. The trial court advised defense counsel that if he elected to question Dyer about details, the court would allow the State to go into details as well. Defense counsel elected not to cross-examine Dyer. Under the circumstances, the decision was sound trial strategy and one we will not second-guess on appeal. See Black, 2001 OK CR 5, ¶ 67, 21 P.3d at 1071.
FN14. Dyer plead guilty pursuant to a plea agreement in which he received a life sentence for Earl Short's murder and agreed to testify against Matthews at his first trial.
Matthews also claims defense counsel should have called various witnesses that Dyer had told he had wrongly accused Matthews to corroborate Dyer's trial testimony. Dyer admitted he had told all of these witnesses how he had lied and incriminated Matthews. Given this testimony, we find counsel made a sound strategic decision not to call them and no relief is required. Id.
Second, Matthews complains that defense counsel should have called Michael and Grady Slay as defense witnesses. The Slays had testified at preliminary hearing that they saw Matthews at their trailer park in Purcell between 9:00 and 10:00 a.m. on January 27th. Matthews claims this testimony would have contradicted the testimony of Thomas Tucker and Dennis Hawkins that circumstantially placed him near the Shorts' at that time. FN15. Tucker testified that he saw two pickup trucks, one white and one brown, near the Shorts' residence the morning of the murder around 9:30 a.m. There were two men who appeared to be trying to jump-start one of the trucks. One of the men was wearing brown coveralls similar to those recovered from Matthews' home. Hawkins had seen someone driving Mr. Short's brown pickup in a reckless manner followed by a white pickup near the Shorts' home around 9:00 a.m. Neither could identify the men they saw.
This is not a case where counsel failed to investigate and was unaware that these witnesses existed since the Slays had testified at preliminary hearing. Matthews was represented by two seasoned lawyers, who were familiar with the content of the preliminary hearing transcript. They elected not to call the Slays and chose to focus on Dyer's exoneration of their client. Again, this decision was a strategic one and we will not second-guess it on appeal. Id.
Next, Matthews claims counsel should have called Lora Gulley to testify that his car was inoperable on the day of the murder. FN16 Such testimony, he argues, would have refuted the testimony of her husband, Robert, who claimed he saw Matthews at a gas station in Wayne around 10:00 a.m. the morning of the murder paying for his gas with a wad of twenties and shaking so badly the clerk had to take the money from his hand. At trial, Gulley testified he saw Matthews and three other men at the Tom's convenience store during his morning break. Though Gulley noted he saw Matthews putting gas in “his” car, the record does not establish if it was Matthews' car or one he was borrowing. On cross-examination, Gully stated “they were in a car,” not a white pickup. At no time did Gulley describe the car or testify it was a car that belonged to Matthews. Consequently, we cannot find Matthews was prejudiced by counsel's failure to investigate and call Lora Gulley.
FN16. In conjunction with this claim Matthews filed an application for an evidentiary hearing alleging counsel failed to investigate and use available evidence. Pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002), Matthews has included in his application, among other affidavits, an affidavit from Lora Gulley stating she had personal knowledge that Matthews' car was inoperable on January 27, 1994. After reviewing the record, we find that an evidentiary hearing is not warranted because the application and supplemental materials do not contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was deficient for failing to utilize the complained-of evidence. Accordingly, the Application for an Evidentiary Hearing is DENIED.
Lastly, Matthews claims he was prejudiced by counsel's failure to object to and request admonishments for the prosecutor's improper remarks. As discussed in Proposition VIII, infra, Matthews was not denied a fair trial by any of the alleged remarks. Therefore, he cannot show counsel was ineffective for these omissions and this claim must fail. Spears v. State, 1995 OK CR 36, ¶ 65, 900 P.2d 431, 445-46, cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995).
In his seventh proposition, Matthews claims the trial evidence was insufficient to prove beyond a reasonable doubt that he perpetrated the crimes against the Shorts because Tracy Dyer recanted his prior testimony implicating him and claimed Matthews was not present and did not participate in the crimes. In reviewing such a challenge, we must view the direct and circumstantial evidence in the light most favorable to the State, crediting all inferences that could have been drawn in the State's favor. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. Where there are conflicts in the testimony, we must defer to the jury's resolution of the weight of the evidence and the credibility of the witnesses. Ullery v. State, 1999 OK CR 36, ¶ 32, 988 P.2d 332, 347. Pieces of evidence must be viewed not in isolation but in conjunction, and we must affirm the conviction so long as, from the inferences reasonably drawn from the record as a whole, the jury might fairly have concluded the defendant was guilty beyond a reasonable doubt. McGregor v. State, 1994 OK CR 71, ¶ 8, 885 P.2d 1366, 1375, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995).
Though Dyer had a change of heart in this second trial, he had in the past named Matthews as his accomplice. Other circumstantial evidence sufficiently corroborated Dyer's first statement and connected Matthews to the crimes. Crystal Smith, Matthews' girlfriend, testified Matthews left his home with Tracy Dyer the night before the murder and did not return that night. She did not see Matthews again until lunchtime the following day. Mark Sutton testified that it was Matthews he loaned his .45 caliber Ruger to the day before Short's murder and that Matthews did not return it as agreed. The Ruger was later identified as the murder weapon and was found buried in a field next to Matthews' home. Bryan Curry testified that he drove Dyer and Matthews to the Shorts' home in December 1993 so they could burglarize it. Dyer and Matthews stole eight to ten thousand dollars from the Shorts' storm cellar. Matthews was familiar with the Shorts because they were his great aunt and uncle. Given the success of the first burglary, Matthews certainly had a motive to be the likely participant with Dyer in the instant crimes. Thomas Tucker saw two people in pickup trucks not far from the Shorts' residence around the time of the murder. He claimed one of them was wearing khaki coveralls. Mrs. Short said the shooter, not Dyer, wore khaki coveralls. Physical evidence seized from Matthews' home within two days of Short's murder, namely Mrs. Short's pill bottle, three one-hundred dollars bills and a pair of brown coveralls, was strong evidence connecting Matthews to the crimes. This evidence was sufficient for a rational trier of fact to conclude that Matthews perpetrated the crimes with Dyer beyond a reasonable doubt. As such, this claim fails.
In his eighth proposition of error, Matthews claims his conviction and sentence must be vacated because he was deprived of a fair trial by the prosecutor's misconduct. Matthews cites to several comments that he contends exceeded the bounds of proper prosecutorial advocacy. He claims the prosecutor improperly commented on his right to remain silent, mocked the defense theory, impermissibly vouched for the credibility of state's witnesses and attempted to unduly inflame the passions of the jury against him and defense counsel.
Only one of the comments of which Matthews complains was met with objection at trial. The trial court sustained the objection and thus cured any error. See Torres v. State, 1998 OK CR 40, ¶ 45, 962 P.2d 3, 17, cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999). As to the comments not met with objection, Matthews has waived all but plain error. Anderson v. State, 1999 OK CR 44, ¶ 40, 992 P.2d 409, 421, cert. denied, 531 U.S. 850, 121 S.Ct. 124, 148 L.Ed.2d 79 (2000). The instances cited, when read in the context of the entire closing argument, cannot truly be labeled “prosecutorial misconduct.” Rather, they were the typical sort of comments made during the normal course of closing argument and as such, these instances fall within the broad parameters of effective advocacy and do not constitute error. Wackerly, 2000 OK CR 15, ¶ 30, 12 P.3d at 12. Having found none of the comments were made in error or were prejudicial, their combination did not prejudice Matthews or deny him a fair trial. This proposition is denied.
In his ninth proposition, Matthews claims the trial court erroneously admitted other crimes evidence that did not fall within one of the exceptions listed in 12 O.S.1991, § 2404(B) and was more prejudicial than probative. He specifically complains of Bryan Curry's testimony that Curry had driven Matthews and Dyer to the Shorts the month before Earl Short's murder where they burglarized the Shorts' storm cellar.
The State timely filed a Burks notice that correctly specified that the evidence of other crimes the State intended to offer against Matthews was admissible under the identity and common scheme or plan exceptions to the general prohibition against admission of other crimes evidence. See generally Burks v. State, 1979 OK CR 10, ¶ 11, 594 P.2d 771, 774-75, overruled in part on other grounds by Jones v. State, 1989 OK CR 7, 772 P.2d 922. Matthews' participation in the prior burglary at the Shorts' with Dyer was also relevant to show motive. As discussed above, Dyer and Matthews stole eight to ten thousand dollars from the Shorts' storm cellar. Evidence of this prior burglary provided a motive for him to be the likely participant with Dyer in the instant crimes and circumstantially proved identity. It also showed a common plan to steal all of the Shorts' money they believed the Shorts kept at their residence. There was a logical connection between the introduction of this evidence and the offenses charged. We find the probative value of this evidence was not substantially outweighed by the risk of unfair prejudice. See 12 O.S.1991, §§ 2401 & 2403. Accordingly, we find the trial court did not abuse its discretion in admitting Curry's testimony about the prior burglary. See Salazar v. State, 1993 OK CR 21, ¶ 28, 852 P.2d 729, 736.
In his tenth proposition of error, Matthews claims the trial court erred in instructing the jury, over his objection, on the law regarding the actions and statements of co-conspirators. Matthews argues the court's instruction erroneously provided that co-conspirators are criminally responsible for all acts done by each member in furtherance of the conspiracy regardless of each member's actual knowledge of the events or statements. FN17 Matthews maintains this non-uniform instruction eliminated the requirement that a conspirator must know or be aware of the scope or objective of the conspiracy.
FN17. Instruction 21 provided: You are instructed that, where a conspiracy has in fact been entered into, each of the conspirators is criminally responsible for all that is said and done by each of the members to the conspiracy, in furtherance of the conspiracy, until the purpose of the conspiracy has been fully accomplished, regardless of any actual knowledge of the events or statements. (O.R.2223)
We have held that the responsibility of co-conspirators for the language or conduct of those acting with them is not confined to the accomplishment of the common purpose for which the conspiracy was entered into. Johnson v. State, 1986 OK CR 134, ¶ 8, 725 P.2d 1270, 1273. Rather, it extends to and includes all declarations made and collateral acts done incident to and growing out of the common design when spoken or done by a co-conspirator as against all of his co-conspirators. Id. Moreover, “all persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.” 21 O.S.1991, § 172.
Contrary to Matthews' claim, our case law does not require a co-conspirator to have knowledge of every act of his co-conspirator to be bound thereby. Once the agreement is made and the conspirators begin to carry-out their plan, each member is bound by the acts of his co-conspirators that are in furtherance of the conspiracy regardless of each member's actual knowledge of his co-conspirator's actions and statements. Therefore, we find the trial court's instruction fairly and accurately stated the law and no relief is required. Phillips v. State, 1999 OK CR 38, ¶ 73, 989 P.2d 1017, 1038, cert. denied, 531 U.S. 837, 121 S.Ct. 97, 148 L.Ed.2d 56 (2000)(“Deviation from language of the uniform instructions constitutes technical error which is harmless if the instructions given fairly and accurately state the applicable law.”)
SECOND STAGE ISSUES
In his eleventh proposition of error, Matthews claims the evidence was insufficient to prove that he knowingly created a great risk of death to more than one person. He maintains the evidence was insufficient because Mrs. Short was never at a great risk of death from his act of shooting Mr. Short since she was not in the line of fire and the evidence failed to show he or Dyer intended to kill Mrs. Short since she was alive when they left the Shorts' home.
This Court views the evidence supporting an aggravating circumstance in the light most favorable to the State to determine whether any rational trier of fact could have found the facts necessary to support it beyond a reasonable doubt. Selsor v. State, 2000 OK CR 9, ¶ 30, 2 P.3d 344, 353, cert. denied, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001). To determine if a defendant knowingly created a great risk of death to another, this Court reviews the evidence to see if the defendant's conduct endangered someone other than the deceased in close proximity, in time and intent, to the murder. Id. In addition, liability for this aggravating circumstance can attach for a co-defendant's act that a defendant has aided and abetted. Selsor, 2000 OK CR 9, ¶ 32, 2 P.3d at 353. Under these standards, the evidence here was sufficient.
Matthews and Dyer conspired to burglarize the Shorts. When Mrs. Short walked into the living room, Dyer grabbed her from behind and put his hand over her mouth. As she and Dyer scuffled, Mr. Short entered the room to see what was the matter. Matthews shot Mr. Short in the back of the head and Dyer threw Mrs. Short to the floor where her husband fell face down with his arm across her. At some time during the skirmish on the floor, Dyer cut her throat and choked her until Mrs. Short lost consciousness. Mrs. Short was undoubtedly at risk of death in terms of time, intent and location to Mr. Short's murder. Accordingly, we find the evidence was sufficient to show Matthews' own conduct, as well as the conduct of Dyer whom he aided and abetted, threatened the life of Mrs. Short. See Williams v. State, 2001 OK CR 9, ¶ 91, 22 P.3d 702, 724, cert. denied, 534 U.S. 1092, 122 S.Ct. 836, 151 L.Ed.2d 716 (2002). Therefore, this claim is denied.
Matthews also argues the great risk of death aggravating circumstance is unconstitutionally vague and overbroad. This aggravating circumstance has been found constitutional as defined and applied, and Matthews offers no new argument to challenge that conclusion. Therefore, this claim is denied. See Selsor, 2000 OK CR 9, ¶ 29, 2 P.3d at 353.
In his twelfth proposition of error, Matthews asks this Court to reconsider its prior decisions upholding the aggravating circumstance that the murder was committed by a person while serving a sentence of imprisonment on conviction when the accused was on pre-parole status rather than serving his sentence in the penitentiary. Matthews maintains this aggravating circumstance is unconstitutionally vague in this situation and fails to perform the narrowing function that is constitutionally required. This Court has consistently held, and continues to find, that this circumstance is constitutional as applied to those that the evidence shows are on pre-parole status at the time they murder the victim for the reasons stated in our prior cases. See Humphreys v. State, 1997 OK CR 59, ¶ 31, 947 P.2d 565, 575-76, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998); Duckett v. State, 1995 OK CR 61, ¶¶ 80-83, 919 P.2d 7, 25-26, cert. denied, 519 U.S. 1131, 117 S.Ct. 991, 136 L.Ed.2d 872 (1997); Cooper v. State, 1995 OK CR 2, ¶¶ 112-117, 889 P.2d 293, 315-16, reversed on other grounds, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996); McCracken, 1994 OK CR 68, ¶¶ 32-33, 887 P.2d at 331. As such, we find this proposition must be denied and no relief is warranted.
In his thirteenth proposition of error, Matthews contends that given his indigent status, his execution would violate the Constitution. He argues his sentence was impermissibly imposed in part because he is poor and could not hire experts to testify about the lack of deterrent value of the death penalty. We rejected a similar claim in Young, 2000 OK CR 17, ¶ 103, 12 P.3d at 46-47. We note nothing in the record suggests that his poverty contributed to the jury's conviction or sentence. The trial and sentencing were conducted in accordance with Oklahoma law. “Oklahoma's capital punishment system is constitutional and to the extent possible, assures that the death penalty will only be assessed against “criminals whose crimes set them apart from ‘any other murder.’ ” ” Banks v. State, 2002 OK CR 9, ¶ 40, 43 P.3d 390 quoting Hain v. State, 1993 OK CR 22, ¶ 11, 852 P.2d 744, 747-48, cert. denied, 511 U.S. 1020, 114 S.Ct. 1402, 128 L.Ed.2d 75 (1994). Accordingly, this claim is denied.
In his fourteenth and fifteenth propositions of error, Matthews claims his death sentence must be vacated because the mitigating evidence outweighed the evidence in aggravation and because his death sentence was the result of passion, prejudice and other arbitrary factors. He argues the jury imposed the death penalty due to the admission of unduly prejudicial and irrelevant other crimes evidence, ineffective assistance of counsel, prosecutorial misconduct and Juror No. 8's violation of her oath and duties as a juror. See Propositions II, VI, VIII and IX.
The jury was instructed on fourteen specific mitigating circumstances that were supported by the evidence.FN18 By contrast, the jury found two of the three alleged aggravating circumstances, both fully supported by the evidence as explained above.FN19 See Propositions XI and XII, supra. After careful review of the aggravating circumstances and the mitigating evidence, and considering the errors alleged in this appeal, we find the aggravating circumstances outweighed the mitigating circumstances. Given our resolution of the claims raised in Propositions II, VI, VIII and IX finding no error that deprived Matthews of a fair trial, we cannot say the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.
FN18. They were: 1) the defendant did not have any significant history of prior criminal activity; 2) the defendant's capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of law was impaired; 3) the defendant was under the influence of mental/emotional disturbance; 4) the defendant is likely to be rehabilitated; 5) the defendant's age; 6) the defendant's character; 7) the defendant's emotional/family history; 8) factors existed in Jeff Matthews childhood which made it more difficult for him to develop as a normal human being; 9) Jeff Matthews was physically and emotionally abused by his father; 10) Jeff Matthews was emotionally abused by his mother and she permitted Jeff Matthews to be physically and emotionally abused by his father; 11) Jeff Matthews has a learning impairment which was undiagnosed and untreated and this contributed to his inability to learn and adjust in school; 12) the defendant has no previous history of violent behavior; 13) the defendant is capable of being rehabilitated while in prison; and 14) the defendant has shown that he has some good qualities and has shown compassion for other human beings. (O.R.2389-90) FN19. 1) Matthews knowingly created a great risk of death to more than one person; and (2) Matthews was serving a sentence of imprisonment when he committed the murder.
In his sixteenth proposition, Matthews claims his death sentence must be vacated because the jury was allowed to sentence him to death without determining his culpability for Short's murder. Because separate verdict forms were not used, Matthews maintains the jury may have sentenced him to death for felony murder by his accomplice, Dyer, without making the required findings of intent or personal culpability. Tison v. Arizona, 481 U.S. 137, 157-58, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378, 73 L.Ed.2d 1140 (1982) (holding an individual cannot be sentenced to death for felony murder by an accomplice unless the jury finds the defendant killed the victim, intended that the victim be killed, intended that lethal force be used or acted with reckless indifference to human life).
The record shows otherwise. Matthews' jury was instructed that it could not impose the death penalty without finding beyond a reasonable doubt that Matthews either: “1) killed a person, 2) attempted to kill a person, 3) intended a killing to take place, 4) intended the use of deadly force, or 5) was a major participant in the felony committed and was recklessly indifferent to human life.” FN20 The trial evidence showed that Dyer and Matthews broke into the Shorts' home to steal more money. Dyer attacked Mrs. Short when she came into the living room, demanding to know the location of the money that had been kept in the cellar.FN21 Since there were only two men involved, Matthews, by elimination, was the shooter. Matthews shot Mr. Short as he came to Mrs. Short's aid, using a home-made silencer he brought to deaden the noise. This evidence sufficiently showed Matthews fired the fatal shots, intending that lethal force be used and displaying a remarkable indifference to human life. The jury's decision that Matthews' personal culpability in the attack made him eligible for the death penalty is supported by the record making his death sentence constitutional under Enmund/ Tison. Accordingly, no relief is required. FN20. O.R. at 2381.
FN21. Matthews concedes that the evidence is undisputed that Dyer was the man who struggled with Mrs. Short and cut her throat.
In his seventeenth proposition, Matthews claims the trial court committed plain error by failing to submit separate verdict forms for malice aforethought murder and felony murder since he was charged in the alternative. He maintains he was prejudiced because the general verdict form used did not allow the jury to determine his culpability in the murder. As we discussed above, the jury was properly instructed during the sentencing stage and its decision is supported by the record. See Proposition XVI, supra. Accordingly, this claim is denied.
In his eighteenth proposition, Matthews asks this Court to reconsider its decisions upholding the constitutionality of the Oklahoma death penalty scheme and procedure. Because Matthews has failed to provide any compelling reason for this Court to revisit its prior decisions, this claim is denied. Carter v. State, 1994 OK CR 49, ¶ 54, 879 P.2d 1234, 1251, cert. denied, 513 U.S. 1172, 115 S.Ct. 1149, 130 L.Ed.2d 1107 (1995) and cases cited therein.
In his nineteenth proposition, Matthews claims the trial court should have granted his motion to quash the Bill of Particulars because: 1) the death penalty constitutes cruel and unusual punishment; 2) the filing of a Bill of Particulars is unconstitutional because the prosecutor has complete discretion to do so and the correctness of that decision is not subject to judicial review for probable cause; and 3) Matthews should not have been exposed to the death penalty pursuant to Enmund and Tison. As discussed in Propositions XIII and XVI, supra, we reject the claim the death penalty is unconstitutional and constitutes cruel and unusual punishment and that Matthews' death sentence violates Enmund/Tison. We recently rejected the claim that filing a Bill of Particulars is unconstitutional because it is not subjected to judicial review for probable cause because adequate guidelines exist to direct prosecutors in the capital punishment decision. See Banks, 2002 OK CR 9, ¶ 38, 43 P.3d 390. Accordingly, we find the trial court did not err in denying Matthews' motion to quash.
In his final proposition of error, Matthews contends that, even if no individual error merits reversal, the cumulative effect of the errors in his case necessitates either reversal of his conviction or a modification of his sentence. This Court has said that in the absence of individual error, there can be no accumulation of error. Lewis v. State, 1998 OK CR 24, ¶ 63, 970 P.2d 1158, 1176, cert. denied, 528 U.S. 892, 120 S.Ct. 218, 145 L.Ed.2d 183 (1999). “However, when there have been numerous irregularities during the course of the trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial.” Id. We have thoroughly reviewed Matthews' claims and the record in this case which reveals no error which, by itself or in combination, would justify either modification or reversal. Any irregularities or errors, even in aggregation, were harmless beyond a reasonable doubt. Therefore, no relief is required.
MANDATORY SENTENCE REVIEW
¶ 58 Pursuant to 21 O.S.1991, § 701.13(C), we must now 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 aggravating circumstances as enumerated in 21 O.S.1991, § 701.12. We addressed these issues in conjunction with our review of Propositions XI, XII, XIV and XV, supra, and found the death sentence was factually substantiated and appropriate. We further find no error that warrants reversal or modification. Accordingly, the Judgment and Sentence of the trial court is AFFIRMED.
LUMPKIN, P.J., JOHNSON, V.P.J., CHAPEL and LILE, JJ., CONCUR.
Matthews v. Workman, 577 F.3d 1175 (10th Cir. 2009). (Habeas)
Background: Petitioner sought federal habeas relief from his state conviction for first-degree murder. The United States District Court for the Western District of Oklahoma, David L. Russell, J., denied relief, and petitioner appealed.
Holdings: The Court of Appeals, Gorsuch, Circuit Judge, held that: (1) juror's misconduct did not warrant habeas relief; (2) evidence was sufficient to sustain conviction; and (3) trial counsel was not deficient. Affirmed.
GORSUCH, Circuit Judge.
In 1999, an Oklahoma state jury convicted Jeffrey Matthews of murdering his great-uncle and sentenced him to death. Since then, Mr. Matthews has challenged his conviction and sentence on direct appeal, in collateral proceedings in state court, and in a habeas petition in federal district court. All of these challenges have proven unsuccessful. Now before us, Mr. Matthews appeals the district court's denial of a writ of habeas corpus. He argues that reversal is warranted because of, among other things, juror misconduct, the lack of sufficient evidence to sustain his conviction, prosecutorial misconduct, and the ineffective assistance he received from his counsel. After careful review, we affirm.
On January 27, 1994, at around six o'clock in the morning, Minnie Short was awakened by a noise in her home in McClain County, Oklahoma. As she walked from her bedroom into the living room to investigate, an intruder wielding a knife attacked. The intruder cut Mrs. Short's throat, but still she remained conscious. When Mrs. Short's husband, Earl, followed her into the living room a few moments later, another intruder shot him in the head. Mr. Short died within minutes. The attackers then ordered Mrs. Short to lie still. They asked her where she hid her money. The two men kept Mrs. Short prisoner in her home while they searched it for nearly two hours, eventually leaving in the Shorts' truck with $500 cash and a .32 caliber Smith and Wesson taken from the house.
After the intruders left, Mrs. Short walked down a nearby road to seek help. A passing ambulance came to her aid, and police were notified of the attack. In response to police questioning, Mrs. Short recalled that the man who stabbed her wore a dark jacket and that the man who shot Mr. Short wore tan, loose-fitting clothes. Mrs. Short also told police that the man who stabbed her made a telephone call from the kitchen just prior to leaving. Police traced this phone call and determined it was made at 8:16 a.m. to a Bill Guinn in Oklahoma City.
Police promptly contacted Mr. Guinn, who told them he received a call at that time from his nephew and employee, Tracy Dyer. Mr. Dyer had called to say that he would be late to work that morning because of car problems. Police then located Mr. Dyer and took him to the sheriff's office for questioning. There Mr. Dyer admitted that he and Jeffrey Matthews, a great-nephew of Earl and Minnie Short, went to the house to look for money they thought was hidden there. Mr. Dyer blamed Mr. Matthews for the attacks on the Shorts.
Police arrested Mr. Dyer and secured an arrest warrant for Mr. Matthews. They also executed a search of Mr. Matthews's home, where they seized a pair of brown coveralls, three $100 bills found in the freezer, and a prescription pill bottle for Xanax issued to Minnie Short. Officers also searched the backyard, but found nothing. Five months later, however, in June of 1994, one of Mr. Matthews's neighbors found a .32 caliber Smith and Wesson revolver buried in a field directly behind Mr. Matthews's house. The gun was later identified as the gun taken from the Shorts' home by their attackers. The police then returned to the same field with metal detectors and found another buried gun, a .45 caliber Ruger pistol, that tests proved was used to kill Earl Short.
In due course, Mr. Matthews was charged with first degree murder and various other crimes. At trial, Mr. Dyer testified against Mr. Matthews, implicating him as Mr. Dyer's accomplice in the crime. At the close of evidence, the jury found Mr. Matthews guilty and sentenced him to death. On appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) reversed the conviction and ordered a new trial. It held that the trial court erroneously admitted statements by Mr. Matthews that were the product of an illegal arrest. See Matthews v. State, 953 P.2d 336 (Okla.Crim.App.1998).
Mr. Matthews was then re-tried. At the second trial, the State again called Mr. Dyer to the stand. But this time he told a different story. Instead of implicating Mr. Matthews in the shooting, as he had in the first trial, this time Mr. Dyer testified that Mr. Matthews was not even involved in the break-in. When confronted by the government with his conflicting testimony from the first trial, Mr. Dyer said he had lied because prison guards and prosecutors threatened to harm him if he did not cooperate. Despite Mr. Dyer's about-face, the jury found Mr. Matthews guilty of all charges against him. With respect to the first degree murder charge, the jury also found the existence of two aggravating circumstances: (1) Mr. Matthews's action caused a great risk of death to more than one person, and (2) he committed the offense while under custodial supervision. Based on those aggravating circumstances, the jury sentenced Mr. Matthews to death.
Mr. Matthews once again appealed his conviction, but this time the OCCA affirmed. See Matthews v. State, 45 P.3d 907 (Okla.Crim.App.2002). After an unsuccessful petition for certiorari to the United States Supreme Court, Mr. Matthews filed an application for post-conviction relief in the Oklahoma state courts. The OCCA denied relief. Mr. Matthews then filed his § 2254 petition for a writ of habeas corpus in federal district court. That petition too was denied, and Mr. Matthews now appeals to this court.
Our review of this case is for the most part governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA provides that, when a state court has “adjudicated a claim on the merits,” we may grant relief only if the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “An adjudication on the merits occurs when the state court resolves the case on substantive grounds, rather than procedural grounds.” Boyle v. McKune, 544 F.3d 1132, 1137 (10th Cir.2008) (quoting Valdez v. Cockrell, 274 F.3d 941, 946-47 (5th Cir.2001)). In what follows, we group Mr. Matthews's various arguments into five general categories for purposes of our analysis-arguments about jury misconduct (Part II), sufficiency of the evidence (Part III), prosecutorial misconduct (Part IV), ineffective assistance of counsel (Part V), and certain other remaining matters (Part VI).
We begin with two distinct but related allegations of jury misconduct. First, Mr. Matthews argues that he is entitled to relief because Juror # 2 was exposed to outside influences that made her more likely to vote for a sentence of death. Second, he claims that he is entitled to relief because Juror # 8 made up her mind in favor of the death penalty before the trial's penalty stage. Both claims arise out of the same turn of events.
After jurors found Mr. Matthews guilty in the early morning hours of Saturday, April 10, 1999, the court released them for the weekend with the usual admonition not to discuss the case with anyone. The penalty phase of the trial was set to begin the following Monday. Despite the court's instruction, later on Saturday, April 10, Juror # 2 called a discharged alternate juror, James DeHaven. Before being dismissed from jury service, Mr. DeHaven had given Juror # 2 a slip of paper with his phone number on it and asked her to call him to tell him the verdict. During their approximately 15 minute phone conversation, Juror # 2 told Mr. DeHaven that the jury had found Mr. Matthews guilty and indicated how long the jury deliberated. Mr. DeHaven replied that he thought the jury had done the right thing. Mr. DeHaven added that he had read newspaper articles that supported the jury's verdict, and assured Juror # 2 that she would understand what he meant once she was free to read the articles. Mr. DeHaven did not share any of the specific information in the articles with Juror # 2. Matthews, 45 P.3d at 912.
After the jury reconvened and sentenced Mr. Matthews to death, Mr. Matthews made a motion for a new trial in light of Juror # 2's contact with Mr. DeHaven. The trial court held an evidentiary hearing to determine whether the conversation prejudiced the defendant. Two other jurors (Juror # 7 and Juror # 8) reported that Juror # 2 had told them she had spoken with Mr. DeHaven, but neither remembered Juror # 2 saying anything about the newspaper article defending the jury's guilty verdict. Juror # 8 offered that the conversation did not affect her decision to vote for the death penalty because she had made up her mind to impose the death penalty before the penalty stage. The State objected to this response, arguing that it was outside the scope of the hearing as well as impermissible testimony about the juror's mental processes. The court sustained the State's objection and eventually denied the motion for a new trial.
On direct appeal, the OCCA affirmed. The OCCA held that Mr. Matthews could not prove that Juror # 2's conversation with Mr. DeHaven was prejudicial to him-that is, that the call made her more willing to vote for a death sentence. Matthews, 45 P.3d at 913. The OCCA also ruled that Juror # 8's testimony-that she had already made up her mind prior to the penalty stage-was properly excluded by the trial court under Okla. Stat. tit. 12 § 2606(B), which prohibits jurors from testifying “as to the effect of anything upon his or another juror's mind or emotions as influencing him to assent to or dissent from the verdict.” Matthews, 45 P.3d at 914-15. The district court declined to disturb these rulings in response to Mr. Matthews's § 2254 petition. Neither may we.
Juror # 2 undoubtedly engaged in misconduct implicating the defendant's constitutional due process right to a fair trial. A jury's verdict “must be based upon the evidence developed at trial,” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), not on extraneous information presented outside “a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel,” Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); see also Vigil v. Zavaras, 298 F.3d 935, 940 (10th Cir.2002). Still, if Juror # 2's conversation about the case with the discharged former alternate juror violated this basic rule, the violation could have affected only her vote at the penalty phase, coming as the conversation did only after the guilt phase's completion. Ultimately, both the trial court and the OCCA concluded that Juror # 2's misbehavior was harmless, even with respect to the penalty phase proceedings, because Mr. Matthews “failed to prove he was actually prejudiced from this inappropriate conversation.” Matthews, 45 P.3d at 913.
The parties disagree about what standard we should apply when reviewing this determination. Mr. Matthews would have us ask “whether there exists a reasonable possibility that the external influence of information affected the verdict,” United States v. Simpson, 950 F.2d 1519, 1522 (10th Cir.1991), a standard we have applied on direct appeal when reviewing the district court's refusal to grant a new trial based on allegations the jury was prejudiced by extraneous material. The government, by contrast, believes that, because this case comes to us on collateral review, we should apply Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and so ask whether Juror # 2's improper communication had a “substantial and injurious effect or influence in determining the jury's verdict.” Id. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see also Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007) ( Brecht governs harmlessness determinations in habeas corpus proceedings). Under this standard, we may reverse if we have “grave doubt” about the harmlessness of an error; in turn, “grave doubt” exists only where the case appears “so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.” O'Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995).
Precedent confirms that the government is correct. “Interests of comity and federalism, as well as ‘the State's interest in the finality of convictions that have survived direct review within the state court system,’ mandate a more deferential standard of review in evaluating [Mr. Matthews's] claim.” Crease v. McKune, 189 F.3d 1188, 1193 (10th Cir.1999) (quoting Brecht, 507 U.S. at 635, 113 S.Ct. 1710). Therefore, following Brecht, on collateral review we ask only whether the extraneous material to which the jury was exposed had a “substantial and injurious effect” on the verdict. Fry, 127 S.Ct. at 2328; see also Malicoat v. Mullin, 426 F.3d 1241, 1250 (10th Cir.2005). When conducting this inquiry, we must also bear in mind the Supreme Court's admonition that “[t]he substance of ... ex parte communications and their effect on juror impartiality are questions of historical fact” on which the state trial court's findings are entitled to deference. Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983).
On the record before us, we cannot conclude that Juror # 2's conversation with Mr. DeHaven, however inappropriate, substantially influenced the jury's sentence of death. This is not a case in which the question of harm or harmlessness is evenly balanced. Mr. Matthews argues that the information Mr. DeHaven communicated to Juror # 2 could have affected the verdict in the penalty stage by removing any residual doubt Juror # 2 harbored about Mr. Matthews's guilt, and thereby making her more likely to approve a death sentence. The difficulty with this suggestion is that the defense itself made no appeal to residual doubt in the penalty phase; in fact, defense counsel expressly disclaimed any such argument and emphasized that the defense respected the jury's verdict on the question of guilt. As well, it appears from the record that no specific details of the newspaper article were communicated to Juror # 2; that no other juror was even exposed to Mr. DeHaven's comment that the newspaper article supported the guilty verdict; and that the jury did not discuss or consider the extraneous information. We, thus, have no record evidence that would permit us to infer harm flowing from Juror # 2's conversation, and we reach this conclusion even without resort to the fact that Juror # 2 testified at the State evidentiary hearing that her conversation with Mr. DeHaven had no effect on her penalty phase verdict.
This leaves us with and leads us to Mr. Matthews's argument that he is entitled to habeas relief because Juror # 8 decided to impose the death penalty before listening to the penalty stage evidence. On direct appeal, the OCCA held that the trial court properly denied relief on this claim because the only evidence that Juror # 8 made up her mind prior to the penalty stage was inadmissible under Okla. Stat. tit. 12 § 2606(B); no other competent evidence existed to support Mr. Matthews's position. The OCCA's decision qualifies for AEDPA deference as an “adjudication on the merits” of Mr. Matthews's federal due process claim because it was not a “procedural ruling in which the court dismissed [the] claim as improperly before [it]. Rather, the state court's decision was a substantive determination that [the] claim was unsupported by any evidence,” competent under that state's rules of evidence. Salazar v. Dretke, 419 F.3d 384, 398 (5th Cir.2005).
We cannot say that the OCCA's decision amounts to reversible error under AEDPA's deferential standard. The only possible evidence supporting Mr. Matthews's position was excluded by the Oklahoma trial court under its analogue to Federal Rule of Evidence 606(b). There is nothing in clearly established Supreme Court law requiring states to take cognizance of evidence excludable under such common evidentiary rules. Just the opposite. In Tanner v. United States, 483 U.S. 107, 113-16, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), the defendant argued that post-verdict juror testimony concerning the ingestion of drugs or alcohol during trial was not excluded by Federal Rule of Evidence 606(b), and, that even if the evidence was barred by Rule 606(b), “an evidentiary hearing including juror testimony on drug and alcohol use [was] compelled by [the] Sixth Amendment right to trial by a competent jury.” Id. at 116-17, 107 S.Ct. 2739. The Supreme Court rejected both arguments, explaining that the testimony of juror alcohol and drug use was barred by Rule 606(b) and that, in light of numerous other protections designed to secure an impartial and competent jury-such as voir dire, observation of the jury during court, reports by jurors of inappropriate behavior before rendering a verdict, and post-verdict impeachment by evidence other than juror testimony-the Constitution does not require a post-verdict hearing in which such evidence is admissible. Id. at 126-27, 107 S.Ct. 2739.FN1
FN1. Mr. Matthews seeks to secure a different result by citing McDonald v. Pless, in which the Supreme Court suggested that “it would not be safe to lay down any inflexible rule” barring post-verdict juror testimony because there “might be instances in which such testimony of the juror could not be excluded without violating the plainest principles of justice.” 238 U.S. 264, 268-69, 35 S.Ct. 783, 59 L.Ed. 1300 (1915) (internal quotation marks omitted). But even if one might plausibly contend that this language leaves open the possibility that the rule barring post-verdict juror testimony would violate the Sixth Amendment in some rare case, as Mr. Matthews supposes, it does not specify when such a case would arise and thus can hardly suffice as the sort of clearly established law recognizing a constitutional right to the introduction of juror testimony impeaching a verdict that AEDPA requires.
Next, Mr. Matthews contends there is insufficient evidence to support his conviction. Under Supreme Court precedent, sufficient evidence exists to support a conviction if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Because the OCCA applied the Jackson standard in deciding Mr. Matthews's sufficiency claim on direct review,FN2 our task is limited by AEDPA to inquiring whether the OCCA's application of Jackson was unreasonable. See Brown v. Sirmons, 515 F.3d 1072, 1089 (10th Cir.2008).FN3
FN2. Though the OCCA did not cite Jackson, it ultimately concluded that “this evidence was sufficient for a rational trier of fact to conclude that Matthews [was guilty],” Matthews, 45 P.3d at 920, a formulation identical to Jackson's. That the OCCA did not cite Jackson is of no moment; state courts need not refer to, or even be aware of, controlling Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); see also Harris v. Poppell, 411 F.3d 1189, 1195-96 (10th Cir.2005).
FN3. Mr. Matthews would have us ask a different question; he argues that we should review the OCCA's application of the Oklahoma sufficiency-of-the-evidence standard, which, he submits, requires the proof adduced at trial “to exclude every reasonable hypothesis except that of guilt.” Appellant's Br. at 77. But as a federal court performing collateral review, it is not our role to ensure that the Oklahoma state court correctly applied its own law. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“[F]ederal habeas corpus relief does not lie for errors of state law.”). Our role is to enforce federal law, and Jackson makes clear that the due process guarantee of the federal Constitution imposes a very different standard than the one he proposes.
Mr. Matthews offers several facts that, he thinks, demonstrate the absence of sufficient evidence to support his conviction even under these deferential standards: (1) Tracy Dyer's testimony that Mr. Matthews was not involved in the break-in and murder; (2) inconsistencies surrounding the discovery of the murder weapon; (3) alibi testimony from Mike Slay that Mr. Matthews was not at the Shorts' residence at the time of the crimes; (4) inconsistencies in Mrs. Short's testimony; and (5) the lack of blood, DNA, and fingerprint evidence as well as no eyewitness testimony placing Mr. Matthews at the Short residence at the time of the murder. We consider each of these arguments by turn.
First, it is surely true Tracy Dyer testified in the second trial that Mr. Matthews was not involved in the break-in or murder. But this fact standing alone hardly renders the evidence in this case insufficient for the jury to find Mr. Matthews guilty. Abundant other evidence linked Mr. Matthews to the crime. And the jury was not only free to discredit Mr. Dyer's testimony, it had ample reason to do so: after all, Mr. Dyer himself admitted that he gave a completely different account of Mr. Matthews's involvement at the first trial. Plainly, Mr. Dyer was telling the truth at one trial and lying at the other, and the jury was free to determine which was which. As an appellate court on collateral review, we are not allowed to “weigh conflicting evidence or consider the credibility of witnesses.” Valdez v. Bravo, 373 F.3d 1093, 1097 (10th Cir.2004). Rather, when “faced with a record of historical facts that supports conflicting inferences [the court] must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution.” Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir.1996). Applying that standard here, we must presume that the jurors simply did not credit Mr. Dyer's testimony at Mr. Matthews's second trial.
Second, Mr. Matthews argues the two guns discovered behind his house (the .45 caliber pistol used in the murder along with the .32 caliber revolver stolen from the Shorts) were planted, and that this fact establishes reasonable doubt. At trial, the State introduced evidence that Mr. Matthews's neighbor, Ted Mize, discovered the guns nearly six months after Mr. Matthews was taken into custody. Mr. Mize was doing yard work in the area behind Mr. Matthews's home one evening when he noticed a hole in the yard and eventually uncovered the .32 caliber revolver stolen from the Shorts' home. Mr. Mize called law enforcement, who discovered the murder weapon buried in the same general location. Little of this evidence, of course, helps Mr. Matthews's cause.
Mr. Matthews stresses, however, the portion of Mr. Mize's testimony in which he states that he had not previously noticed the hole in which he discovered the revolver, even though he had been in the same area a few days prior. Mr. Matthews places great reliance, as well, on the testimony of McClain County Undersheriff Ronnie Brown that the ground in the area where the murder weapon was discovered looked like it had been “disturbed recently.” 1999 Tr. 1, Vol. VII at 1612, 1618. This testimony, Mr. Matthews claims, establishes that the guns were planted a few days prior to their discovery by Mr. Mize and long after Mr. Matthews was taken into custody. But the fact that Mr. Mize had not noticed the hole a few days before hardly compelled the jury to conclude that the hole was only dug and the guns buried in the last few days. Mr. Brown's testimony that the ground looked as if it had been “disturbed recently” is likewise ambiguous as to whether the ground was disturbed in the preceding several days, weeks, or months. Neither does it suggest that the ground was disturbed by some unknown hole digger rather than by Mr. Mize's yardwork or some other innocent and unrelated cause. Accordingly, the evidence creates “a record of historical facts that supports conflicting inferences,” a situation in which we must presume “that the trier of fact resolved any such conflicts in favor of the prosecution.” Messer, 74 F.3d at 1013.
Third, Mr. Matthews points to testimony given by Mike Slay, arguing that it establishes he had an alibi precluding any rational trier of fact from finding him guilty. Whatever other problems might exist with this argument, one difficulty it surely faces is that Mike Slay did not testify at the trial under review; he only testified at Mr. Matthews's first trial. The question before the OCCA and us under Jackson concerns the sufficiency of the evidence at the trial that resulted in the defendant's conviction, not the availability of other evidence that wasn't used as the basis to deprive Mr. Matthews of his liberty. Our review is thus “limited to ‘record evidence’ ... [and] does not extend to nonrecord evidence.” Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); accord Romano v. Gibson, 239 F.3d 1156, 1164 (10th Cir.2001). Put differently, it makes no sense for us, in reviewing whether a jury's verdict was based on sufficient evidence, to consider facts the jury never heard.
Fourth, Mr. Matthews's argument that the OCCA unreasonably applied Jackson by failing to take note of inconsistencies in Mrs. Short's testimony fails for the same reason. Mr. Matthews points to purported inconsistencies between Mrs. Short's testimony at the first trial and her testimony at the second trial. But in a sufficiency challenge, the pertinent question is whether the evidence introduced at the trial resulting in the defendant's conviction is sufficient to allow a rational trier of fact to convict. Of course, defense counsel was free to attempt to impeach Mrs. Short at the second trial by pointing to inconsistencies between her testimony then and at the first trial. And, the jury was free to disbelieve Mrs. Short on account of those putative inconsistencies. But all that proves is that a rational juror might not accept Mrs. Short's testimony at the second trial; it doesn't show that a rational juror could not accept it, which is the question on which a sufficiency challenge necessarily must focus.
Finally, Mr. Matthews claims that the OCCA's application of Jackson was unreasonable because the prosecution did not introduce blood, DNA, or fingerprint evidence, or eyewitness testimony. But Jackson does not require such evidence to sustain a criminal conviction. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 100, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (“[W]e have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required.”). And, again, the focus of a Jackson inquiry is not on what evidence is missing from the record, but whether the evidence in the record, viewed in the light most favorable to the prosecution, is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781.
With that standard in mind, we are convinced the OCCA's application of it was not unreasonable. While Tracy Dyer testified that Mr. Matthews was not involved in the crimes, the jury also learned that Mr. Dyer had implicated Mr. Matthews as his accomplice in an earlier proceeding. And, as the OCCA noted, significant and uncontested other evidence pointed in the same direction, including: (1) Mr. Matthews's girlfriend's testimony that Mr. Matthews left his home with Mr. Dyer the night before the murder and did not return that night; (2) Mark Sutton's testimony that he loaned Mr. Matthews his .45 caliber Ruger the day before the murder and that Mr. Matthews did not return it; (3) the same .45 caliber Ruger was later identified as the murder weapon and was discovered behind Mr. Matthews's home; (4) Bryan Curry's testimony that a year prior to the murder, he drove Mr. Dyer and Mr. Matthews to the Shorts' residence to burglarize their cellar; (5) Thomas Tucker's testimony that he saw two people in pickup trucks near the Shorts' residence around the time of the murder, one of whom was wearing khaki coveralls; (6) Mrs. Short's testimony that the shooter was wearing khaki coveralls; and (7) the fact that police seized Mrs. Short's pill bottle, $300.00 cash, and a pair of brown coveralls from Mr. Matthews's home two days after the murder. Matthews, 45 P.3d at 920. Mr. Matthews does not attempt to discredit any of this evidence, all of which suggests that it was he who shot and killed Earl Short. On this record, we cannot say that the OCCA's sufficiency of the evidence analysis falls afoul of AEDPA's standards of review.
Mr. Matthews raises five claims of prosecutorial misconduct stemming from the State's closing argument. A prosecutor's remarks to the jury can create constitutional error in one of two ways. First, prosecutorial misconduct can prejudice “a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); see also Patton v. Mullin, 425 F.3d 788, 811 (10th Cir.2005). In such a case, we review the harmfulness of the error using Brecht's “substantial and injurious effect” standard. See Fry, 127 S.Ct. at 2328. Second, even if the prosecutor's improper remarks do not impact a specific constitutional right, they may still create reversible error if they “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. The Supreme Court has instructed us that “the appropriate standard for review of such a claim on writ of habeas corpus is ‘the narrow one of due process, and not the broad exercise of supervisory power.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) ( quoting Donnelly, 416 U.S. at 642, 94 S.Ct. 1868); Patton, 425 F.3d at 811. That is, our interest is in whether Mr. Matthews got a fair trial; “inappropriate prosecutorial comments, standing alone, [do] not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.” United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). The OCCA concluded that none of the challenged remarks was improper, and that in any event none prejudiced Mr. Matthews. We assess this decision through AEDPA's forgiving lens,FN4 and in doing so we cannot say that the OCCA's analysis was contrary to or an unreasonable application of Supreme Court precedent, or based on an unreasonable determination of the facts.
FN4. The government contends that most of these claims were procedurally defaulted because (with one exception) Mr. Matthews did not object to the prosecutor's statements at trial. While exercising plain error review, the OCCA held that none of the challenged comments was in fact “error” at all. In this circumstance, we do not apply the procedural default rules. We have held that when a state court “den[ies] relief for a federal claim on plain-error review because it finds the claim lacks merit under federal law,” that decision is a merits determination entitled to ordinary AEDPA deference. Douglas v. Workman, 560 F.3d 1156, 1177-78 (10th Cir.2009) (quoting Cargle v. Mullin, 317 F.3d 1196, 1205-06 (10th Cir.2003)).
First, Mr. Matthews objects to the prosecutor's reference, in closing argument, to a photograph showing a picture of a shovel leaning against the back of Mr. Matthews's house. This reference was misleading, Mr. Matthews argues, because the photograph suggested to the jury that Mr. Matthews used the shovel to bury the murder weapon when, in fact, McClain County Sheriff Otis Anderson used the shovel while executing the search warrant. As it happens, however, Sheriff Anderson testified at trial not only that he used the shovel when executing the search warrant; he also testified that when he first arrived at the scene he discovered the shovel exactly as it appeared in the picture-leaning against Mr. Matthews's house. There could be nothing misleading about the picture's use, then, and nothing improper about the prosecution's reference to it in closing.
Second, Mr. Matthews argues that the prosecutor impermissibly vouched for the integrity of the State's witnesses when he argued to the jury: “You still have the fact that within 48 hours of Mr. Short's death, the OSBI, the Oklahoma State Board of Investigation had his killers in custody. That's what the evidence says, and that's a pretty good job.” 1999 Tr. 2, Vol. II at 221. Mr. Matthews rightly notes that the Supreme Court has held that a prosecutor's vouching for the credibility of witnesses poses the danger that “evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant,” as well as the risk that the jury will “trust the Government's judgment rather than its own view of the evidence.” Young, 470 U.S. at 18-19, 105 S.Ct. 1038. But the prosecutor here did not reference any extra-record evidence in his argument; instead, quite the opposite, he sought to direct the jury to evidence in the record showing that Mr. Matthews and Mr. Dyer were in custody within 48 hours of Mr. Short's murder. To be sure, the prosecutor went on to comment that “that's a pretty good job.” Even assuming without deciding that this remark was an effort to have the jury trust the State's view of the evidence rather than reach its own conclusion that the evidence suggested competent police work, Mr. Matthews offers us no basis for concluding that the OCCA was not just wrong, but unreasonably wrong under AEDPA, in holding that this comment did not render the whole trial fundamentally unfair. Neither would it be easy for him to do so: the weight of the evidence amassed against Mr. Matthews was strong, a fact which, the Supreme Court has instructed, “reduce[s] the likelihood that the jury's decision was influenced by argument.” Darden, 477 U.S. at 182, 106 S.Ct. 2464.
Third, Mr. Matthews argues that the prosecutor referred to facts not in evidence when he said in closing “I don't know how much more blatant [the defense] can get. All they want you to do is speculate this thing into oblivion. And you know what? That's the only way Jeffrey David Matthews is going to walk out of here a free man is if you ignore the evidence and just speculate about this. And that's what's got them scared to death, because they know it too.” 1999 Tr. 2, Vol. II at 224. The first half of this statement, however, is merely an admonition against speculation, and there can be no question that all parties are free to ask the jury to stick to the facts and avoid speculating. In the last part of this statement, the prosecutor added that Mr. Matthews and his attorneys were “scared to death” the jury would avoid such speculation. This comment was unnecessary and itself surely involved an element of speculation. But, like the “that's a pretty good job” remark discussed earlier, the OCCA concluded it did not render Mr. Matthews's trial fundamentally unfair, and we cannot say, as we must under AEDPA, that its determination was unreasonable. Mr. Matthews himself cites no authority suggesting otherwise.
Fourth, Mr. Matthews argues that the prosecutor commented on his decision to exercise his Fifth Amendment right not to testify when he said: Despite the fact that the defense has chosen to put on no testimony, no witnesses, they certainly will still make an argument. You can count on it. You can bank on it. [Mr. Matthews's attorneys] will argue before you vigorously in defense of Mr. Matthews. And the defense-the only defense that is really available under the evidence you have heard is, I wasn't there. I wasn't there. But if they're going to build that defense, they're going to have to build it on the evidence. Id. at 110-111. Mr. Matthews also objects to another portion of the closing argument in which the prosecutor made clear that the defense was under no burden to present witnesses in order to prevail and added that “having done so, that means that the State's evidence, other than [the defense's] questions on cross-examination, stands essentially uncontroverted.” Id. at 116. And, again, Mr. Matthews alleges the prosecutor referred to his decision not to testify when he said the following: “[I]f Mr. Matthews is sitting there, thinking he's innocent, based on the evidence you have heard he's deluding himself.” Id. at 226. FN5. On appeal, Mr. Matthews raises additional statements by the prosecution that he contends constituted an impermissible comment on his failure to testify. Mr. Matthews did not raise these statements before the district court, however, and thus did not preserve them for appellate review. Cummings v. Norton, 393 F.3d 1186, 1190-91 (10th Cir.2005).
While it is of course well settled that a prosecutor may not comment on the defendant's exercise of his or her Fifth Amendment liberty, Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), it is equally well settled that a prosecutor “is otherwise free to comment on a defendant's failure to call certain witnesses or present certain testimony.” Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir.1999). Whatever conclusion we would reach about these comments writing on a clean slate, the OCCA concluded that they were (properly) directed at Mr. Matthews's failure to present evidence rather than (improperly) directed at Mr. Matthews's exercise of his Fifth Amendment rights. To reverse, we must conclude that the OCCA's decision on this score “was not merely wrong but unreasonable.” See Dockins v. Hines, 374 F.3d 935, 940 (10th Cir.2004). We cannot say that here. Our own cases teach that the dispositive legal inquiry is “whether the language used [by the prosecutor] was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent.” Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir.2001) (alteration in original) (internal quotation marks omitted). Here, none of the prosecutor's remarks actually refers to Mr. Matthews's decision not to take the stand, and all expressly reference the absence of evidence supporting his position. The OCCA's conclusion that the record is insufficient to give rise to an inference that the prosecutor impermissibly commented on Mr. Matthews's right not to testify may not be unavoidable but neither does this record permit us to say it was unreasonable. FN6. We note that the prosecution should not have suggested, at the end of the first comment, that the defense was required to come forth with evidence to prove any defense. But this aspect of the prosecutor's comment is not before us. The defense objected to it at trial on this basis, and the trial court sustained the objection.
Fifth, Mr. Matthews argues that the prosecution made a variety of other “inflammatory comments” during closing argument. He points, among other things, to this passage: Almost two weeks ago each of you advised the attorneys in this case and the Judge that you would not [speculate on the case, but] that you would judge the case on the evidence [we] have presented to you and not by guessing or speculating on what other possible evidence there may have been out there that you don't have. Now, I will be interested, as I'm sure you will, during the defense's closing how many times [defense counsel] will come up here and use the words possible, possibly, could have, what if, might, maybe, or give you different scenarios. And I submit to you if you had your notebooks right now, and every time [defense counsel] did that, you marked down a little match stroke-one, two, three, four, five-by the end of their closing arguments you could have a bonfire. Wait and see. 1999 Tr. 2, Vol. II at 112-13. The OCCA concluded that this statement was a reasonable argument-an admonition against speculation-and that it did not so infect the trial with unfairness as to constitute a denial of due process. Again, Mr. Matthews refers us to no authority suggesting such a conclusion is an unreasonable application of clearly established Supreme Court precedent.
Finally, Mr. Matthews points us to still other passages in closing, including when the prosecutor said, “[Defense counsel] said that apparently he feels the State should be indicted for putting on [as witnesses] admitted liars in their case. Folks, I didn't choose them. They were [Mr. Matthews's] friends and associates.” Id. at 213. Mr. Matthews claims that this statement denigrated his defense because his lawyer never said that the State should be indicted. While Mr. Matthews is surely correct that his lawyer never suggested that the State should be indicted, he fails to make mention of the fact that his counsel did say that the State's case “reek[ed] of liars, half-truth tellers, accidental liars,” id. at 209; that “[t]he State of Oklahoma has gone to bed with this liar,” id. at 200; and that the prosecution wanted the jury to render its verdict “based on liars and people that got deals and people that have motives to lie and protect themselves,” id. at 209. The statement Mr. Matthews objects to plainly was a response to these criticisms, and the Supreme Court has said that, when a prosecutor is responding to defense counsel's argument, courts “must also take into account defense counsel's opening salvo.” Young, 470 U.S. at 12, 105 S.Ct. 1038. To be sure, improper remarks are not excused just because they are provoked by opposing counsel, but the Supreme Court has told us that “if the prosecutor's remarks were ‘invited,’ and did no more than respond substantially in order to ‘right the scale,’ such comments would not warrant reversing a conviction.” Young, 470 U.S. at 13, 105 S.Ct. 1038; see also Darden, 477 U.S. at 182, 106 S.Ct. 2464 (The “invited response [doctrine] is used not to excuse improper comments, but to determine their effect on the trial as a whole.”); cf. Whittenburg v. Werner Enterprises, Inc., 561 F.3d 1122, 1130-31 (10th Cir.2009) (noting this “tit-for-tat” phenomenon). In this case, the prosecutor's remark was certainly more restrained than defense counsel's provocation and, under these circumstances and governing Supreme Court precedent, we cannot say the OCCA was unreasonable to conclude that this remark did not unfairly prejudice Mr. Matthews.
Mr. Matthews next argues that his trial counsel made six errors that denied him the effective assistance of counsel guaranteed by the Sixth Amendment. To succeed on such a claim, Mr. Matthews must show that his counsel's performance was deficient and that his defense was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Performance is deficient if it falls “below an objective standard of reasonableness” measured “under prevailing professional norms” and considered in light of the circumstances. Id. at 688, 104 S.Ct. 2052. At the same time, Mr. Matthews must overcome “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. To establish prejudice, Mr. Matthews must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. In a death penalty case, the relevant prejudice inquiry is whether there is a reasonable probability that one juror would have chosen a sentence other than death. See Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
On direct appeal, the OCCA applied Strickland to Mr. Matthews's claims of ineffective assistance and rejected them. Matthews, 45 P.3d at 918-19. Ordinarily this would compel us to review Mr. Matthews's argument in light of AEDPA's deferential standards. In this case, however, Mr. Matthews sought an evidentiary hearing in state court under the terms of Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002), to help prove his claims. Matthews, 45 P.3d at 919 n. 16. This court, in an en banc proceeding, recently heard argument on whether and in what circumstances AEDPA deference or de novo review should apply when the OCCA has denied the defendant an evidentiary hearing under this rule. See Wilson v. Sirmons, 549 F.3d 1267 (10th Cir.2008) (order setting en banc hearing). Given the uncertainty surrounding the standard of review in these circumstances, and because it makes no difference to the outcome of our analysis in this case, we believe the prudent course is to examine Mr. Matthews's claims de novo, the most favorable possible standard of review. Accord Knowles v. Mirzayance, --- U.S. ----, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009) (assuming without deciding that de novo review applies when claim still fails under that standard).
First, Mr. Matthews complains his counsel failed to cross-examine Mr. Dyer at the second trial. After Mr. Dyer testified that Mr. Matthews was not involved in the crime, Mr. Matthews submits, the State's case was held together only by physical evidence tying Mr. Matthews to the murder-namely, the cash and Minnie Short's pill bottle found in Mr. Matthews's home and the murder weapon and gun taken from the Shorts' home discovered in his backyard. Mr. Matthews suggests that, if defense counsel had asked Mr. Dyer on cross-examination why the cash, the pill bottle, and the guns were discovered in or near Mr. Matthews's home, Mr. Dyer could and would have provided explanations exonerating Mr. Matthews.
The record is clear, however, that defense counsel contemplated this course and didn't follow it for good reason. Defense counsel asked the trial judge about the consequences of asking Mr. Dyer questions about the pill bottle and guns on cross examination: If we ask this witness specific questions about the crime, a very limited-not actually about the crime, but about a matter after the crime that he may have testified to differently at the trial, we want to know if the State then proceeds and says we've opened the door for him to read the whole transcript or not. Or will it be limited to-we're making our motion that it should be limited to the issues that were addressed on examination. And I'm specifically talking about the two things, the pill bottle and the pistols. 1999 Tr. 1, Vol. VI at 1519. The State responded to all this by saying that, if the defense asked Mr. Dyer about the facts of the crime, it intended to ask follow up questions and that, if Mr. Dyer refused to testify, it would read his testimony from the first trial to the jury. When defense counsel argued that he should be allowed to ask questions about the pill bottle and pistols without the prosecution going into the details of Mr. Dyer's prior testimony, the trial court responded, “if you go into the details, he's going into the details. So it's just at your own risk.” Id. at 1520. No one before us challenges the legitimacy of this ruling, and it was only after receiving it that Mr. Matthews's counsel decided there would not be any cross-examination of Mr. Dyer.
These circumstances indicate that Mr. Matthews's counsel made a considered (and eminently rational) decision not to cross-examine Mr. Dyer. There was, after all, every reason for Mr. Matthews's counsel to do whatever he could to prevent the State from delving into Mr. Dyer's prior testimony. While the State elicited from Mr. Dyer the bare fact that he had testified against Mr. Matthews in the first trial, it did not elicit or read into evidence the specifics of Mr. Dyer's prior testimony. The specifics of that testimony indicated, among other things, that Mr. Matthews took the lead in planning the burglary and murder and that he told Mr. Dyer what to do; shot Earl Short; took both the murder weapon and the gun stolen from the Shorts' with him; used a towel to wipe fingerprints off objects in the house and the getaway vehicle; and after splitting some of the Xanax pills with Mr. Dyer, took the bottle with him. Obviously, these details of Mr. Dyer's testimony from the first trial could have been extremely damaging to Mr. Matthews if introduced at the second. They would have provided an explanation for all the physical evidence discovered in and around Mr. Matthews's home, and they would have painted Mr. Matthews as all the more responsible for Mr. Short's murder. We can hardly say that the strategic decision made by Mr. Matthews's counsel to keep this information from the jury was professionally deficient.
Second, Mr. Matthews argues his trial counsel was ineffective because counsel failed to call two witnesses who, Mr. Matthews contends, would have provided him with an alibi. Mr. Matthews argues that Mike and Grady Slay, both witnesses called by the State (not defense) at Mr. Matthews's first trial, could have testified that they saw Mr. Matthews at their trailer park around the time of the murder.
As it happens, however, Mike Slay's testimony is far more ambiguous than Mr. Matthews suggests. Under the State's theory of the case, Mr. Matthews was at the Short residence in the early morning on January 27-until sometime between 8:15 and 9:00 a.m. At one point in his testimony at the first trial, Mike Slay estimated that he saw Mr. Matthews in the trailer park around 6:30 to 7:00 a.m., but at another point he testified that it could have been as late as 9:00 a.m., and at another point still he said it might have been later than 9:00 a.m. He finished his testimony by admitting that he did not actually know what time he saw Mr. Matthews. Mr. Matthews has not shown that it was unreasonable of his lawyer to decline to call such an uncertain witness (who, after all, wasn't likely to be uniformly helpful to the defendant, given that he testified for the State in the first trial). And, at all events, there is not a reasonable probability that this speculative and equivocal testimony would have done anything to change the result of the trial; the evidence against Mr. Matthews was simply too strong. The same conclusion pertains to Grady Slay. Grady Slay testified at Mr. Matthews's first trial that he thought he saw Mr. Matthews on the morning of the murder around 10:15 to 10:30 a.m. dressed in only jeans and a t-shirt and walking quickly toward Mike Slay's trailer. But Grady Slay was not even sure it was Mr. Matthews, and even if it was Mr. Matthews he saw, it was well after the break-in and murder at the Shorts' residence. We cannot fault Mr. Matthews's lawyer for not calling this witness either, and again we fail to see any plausible argument for how his testimony could have made any difference.
Third, Mr. Matthews argues that his trial counsel should have called Lora Gulley as a witness to impeach the testimony of her husband, Robert Gulley, who testified for the State. Robert Gulley testified that he saw Mr. Matthews at a gas station around 10:00 a.m. on the morning of the murder. According to Mr. Gulley, Mr. Matthews filled up a car with gas and, when he went into the store to pay, he had a stack of twenty-dollar bills and was shaking so hard the cashier had to take the money out of his hands. Mr. Matthews tells us that Lora Gulley, if called, would have testified that Mr. Matthews's car was not working on the day of the murder. Even if this were true, however, it is neither here nor there. Robert Gulley didn't testify that Mr. Matthews was driving his own car, only that he was driving a car. Any testimony from Lora Gulley that Mr. Matthews's vehicle was broken, thus, would have done little to undermine Mr. Gulley's testimony. We see no deficient performance or prejudice arising from counsel's tactical decision not to call Mrs. Gulley.
Fourth, Mr. Matthews argues that his counsel was ineffective for failing to call as witnesses several of Mr. Dyer's fellow inmates. These individuals were apparently prepared to testify that Mr. Dyer told them he lied at Mr. Matthews's first trial. As it happens, however, Mr. Dyer himself testified at the second trial that he told these fellow inmates about his lie. Matthews, 45 P.3d at 918. The inmates' testimony, thus, would have been cumulative of Mr. Dyer's own. Neither did the State ever challenge Mr. Dyer's testimony that he told fellow inmates he lied at the first trial. Rather, the State contested (only) the truth of the underlying assertion that he did lie at the first trial. We cannot fault defense counsel for failing to produce cumulative evidence tangential to the parties' actual dispute, nor say that its production was prejudicial to the outcome of this case.
Finally, Mr. Matthews complains that his trial counsel failed to introduce testimony from Mr. Matthews's grandmother that he made hobby crafts in prison, sold them, and asked that the proceeds be used to support his daughter.FN7 Mr. Matthews argues that this evidence would have shown his “human side” and helped refute the prosecution's portrayal of him. But this evidence, too, would have been largely cumulative of evidence the jury did hear. The defense called three different mitigation witnesses-Mr. Matthews's mother, a psychologist who evaluated him, and Wendell Marley, a volunteer for the Jehovah's Witnesses who met regularly with Mr. Matthews. Collectively, these mitigation witnesses communicated to the jury that Mr. Matthews was interested in art, had strong family relationships, and was concerned with the welfare of others. For example, the psychologist testified that he had “incredible art ability,” and that he produced art in prison, 1999 Tr. 2, Vol. III at 333; his mother testified that she and he shared a “very, very close” relationship, id. at 296; and the volunteer for the Jehovah's Witnesses testified that Mr. Matthews demonstrated a “genuine concern for other people,” id. at 376. To the extent the evidence Mr. Matthews now proffers is cumulative of what the jury heard, we cannot say that counsel's decision not to offer it was either deficient or prejudicial.
FN7. The OCCA held this claim procedurally barred because Mr. Matthews first raised it in his motion for post-conviction relief when it could have been raised on direct appeal. See OCCA Opinion Denying Post-Conviction Application, Matthews v. State, No. PCD-2002-391 (unpublished) (Aug. 25, 2002), at 4-5. While the State argues that Mr. Matthews thus procedurally defaulted his claim in federal court by failing to comply with an independent and adequate state procedural rule, Mr. Matthews has asserted ineffective assistance of appellate counsel as the cause of his failure to raise this challenge. If he could prove such a failure by appellate counsel, he might have grounds to avoid the procedural bar. See Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). But we need not enter this thicket. Even assuming de novo review, the claim fails.
Even so, in one respect the evidence Mr. Matthews now proffers arguably is not cumulative of the evidence actually presented during the penalty phase. At trial, the jury did not hear any evidence that Mr. Matthews sought to direct proceeds from his prison art sales to his daughter. Assuming without deciding that this particular fact has some independent mitigating value apart from the evidence that was shared with the jury, and that counsel was deficient for failing to introduce it, to reverse we must still find a reasonable probability that it would have spared Mr. Matthews the death penalty-that, after “reweigh [ing] the evidence in aggravation against the totality of available mitigating evidence,” there is a reasonable probability one juror would have voted for a different sentence. Young v. Sirmons, 551 F.3d 942, 966, 969 (10th Cir.2008) (quoting Wiggins, 539 U.S. at 534, 123 S.Ct. 2527). We discern no such reasonable probability here. The jury found two aggravating circumstances-that Mr. Matthews's crime caused a great risk of death to more than one person, and that he committed the offense while under custodial supervision. Neither of these aggravating factors nor any of the record facts about Mr. Matthews's crime is in any way called into doubt by the proffered evidence. We likewise do not see how it is reasonably likely that jurors would have changed their view that aggravating evidence outweighed mitigating evidence based on this single additional fact. It may add something new, but it is something very little to the evidence the jury already heard about Mr. Matthews's close family connections, his concern for others while in prison, and his artwork. Indeed, we have found excluded evidence substantially more novel and powerful than this insufficient to suggest a reasonable probability of a different outcome in death penalty cases. See, e.g., Young, 551 F.3d at 968 (moral culpability not reduced by defendant's good deeds performed during ministry, the blow of losing both a brother and a son to sickle cell anemia, and responding to emotional distress by falling into alcoholism). We see no way, remaining faithful to our precedent, to reach a different result here.FN8
FN8. As an alternative to vacating his conviction, Mr. Matthews requests that we remand to the district court with instructions to hold an evidentiary hearing on his ineffective assistance claims. But Mr. Matthews is entitled to an evidentiary hearing only if “his allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief.” Bryan v. Mullin, 335 F.3d 1207, 1214 (10th Cir.2003) (en banc); see also Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). And, as we have discussed, Mr. Matthews's allegations, even if assumed true, would not show that he received ineffective counsel; accordingly, we are constrained to deny his request for an evidentiary hearing.
In addition to the previous claims of error, Mr. Matthews raises two others meriting discussion: (1) that his conviction depended on evidence that should have been suppressed under the Fourth Amendment, and (2) that the jury was not instructed that it must find that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt.
Mr. Matthews first argues that probable cause did not exist for the magistrate to issue the search warrant for Mr. Matthews's home that led to the seizure of Mrs. Short's Xanax bottle, three $100 bills, and a pair of brown coveralls. He also contends that the search warrant application deliberately misled the magistrate by omitting certain material facts. For its part, the district court concluded it was barred from reaching the merits of this claim by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). In Stone, the Supreme Court held that a state prisoner may not be granted federal habeas relief on the ground that evidence was obtained in an unconstitutional search or seizure so long as the State “provided an opportunity for full and fair litigation” of Fourth Amendment claims. Id. at 494, 96 S.Ct. 3037. The district court concluded Mr. Matthews received such an opportunity.
We review de novo the district court's conclusion that a petitioner had a full and fair opportunity to litigate a Fourth Amendment claim in state court, Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir.1999), and doing so agree with the district court in this case. In Smallwood, we held it sufficient that petitioner's trial counsel informed the trial court of the factual basis for a Fourth Amendment claim, appellate counsel presented the issue to the state appellate court on direct appeal, and the state courts “thoughtfully considered the facts underlying petitioner's Fourth Amendment claim” but rejected it on the merits by applying appropriate Supreme Court precedents. Id. That is exactly what happened in this case.
Our review of the state court record reveals that the Oklahoma courts gave extensive consideration to Mr. Matthews's Fourth Amendment claims. The trial court held a hearing where both parties argued the suppression issue. At that hearing, the State conceded that part of the investigator's affidavit in support of the warrant could not be considered because it relied on information obtained as a result of an arrest the OCCA had held to be unconstitutional. The trial court issued a written ruling denying the motion to suppress, finding sufficient information to establish probable cause even if the information gleaned from the illegal arrest was severed. On direct appeal, the OCCA held that the trial court correctly denied Mr. Matthews's motion to suppress the evidence. The OCCA explained that a statement by Tracy Dyer implicating Mr. Matthews established probable cause because it was an admission against penal interest that is entitled to credibility under United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). Matthews, 45 P.3d at 916-17. On the question whether the affiant deliberately misled the magistrate and whether this should invalidate the search warrant, the OCCA explained that even if all material information had been provided to the magistrate, probable cause still would have been present, and the evidence was thus admissible under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Matthews, 45 P.3d at 917-18. Mr. Matthews argues that Oklahoma misapplied Fourth Amendment doctrine in reaching these conclusions, but that is not the question before us. The question is whether he had a full and fair opportunity to present his Fourth Amendment claims in state court; he undoubtedly did.
Second, Mr. Matthews complains about the trial court's penalty stage jury instructions. To impose a sentence of death, under its instructions, the jury was required to find the existence of any aggravating circumstance beyond a reasonable doubt and that the aggravating circumstances outweighed mitigating circumstances. Mr. Matthews contends it should also have been instructed that it had to find beyond a reasonable doubt that aggravating factors outweighed the mitigating. The failure to include an instruction on this last point, Mr. Matthews contends, violated his Sixth Amendment rights. In his view, the question whether aggravating circumstances outweigh mitigating circumstances implicates a factual finding that increases the maximum penalty for his crime, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 588, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), require that juries make such factual findings beyond a reasonable doubt.FN9
FN9. The trial court instructed the jury as follows: “If you unanimously find that one or more of the aggravating circumstances existed beyond a reasonable doubt, the death penalty shall not be imposed unless you find that any such aggravating circumstances outweigh the finding of one or more mitigating circumstances. Even if you find that the aggravating circumstances outweigh the mitigating circumstances, you may impose a sentence of imprisonment for life with the possibility of parole or imprisonment for life without the possibility of parole.” State Court Record at 2387.
The State argues that Mr. Matthews's claim is procedurally barred because Mr. Matthews failed to raise this issue in his direct appeal. Claims defaulted in state court on adequate and independent state procedural grounds may not be considered by a federal habeas court unless the petitioner can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Mr. Matthews replies that he can meet this standard because his lawyer on direct appeal provided ineffective assistance by failing to raise his Apprendi/Ring claim.
Whether or not it is barred procedurally, Mr. Matthews's Apprendi argument is certainly barred on the merits by dint of our decision in United States v. Barrett, 496 F.3d 1079, 1107 (10th Cir.2007). There, we explained that the jury's determination that aggravating factors outweigh mitigating factors is not a finding of fact subject to Apprendi but a “highly subjective, largely moral judgment regarding the punishment that a particular person deserves.” Id. at 1107 (citing Caldwell v. Mississippi, 472 U.S. 320, 340 n. 7, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)). We are of course bound by this decision as the law of the circuit, and we likewise can hardly say that appellate counsel on direct appeal rendered constitutionally ineffective assistance by failing to raise a point of law that we have rejected as erroneous. See Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).FN10
FN10. Mr. Matthews also argues that he is entitled to relief for cumulative error. In the federal habeas context, the only otherwise harmless errors that can be aggregated are federal constitutional errors, and such errors will suffice to permit relief under cumulative error doctrine “only when the constitutional errors committed in the state court trial so fatally infected the trial that they violated the trial's fundamental fairness.” See Young, 551 F.3d at 972 (quoting Jackson v. Johnson, 194 F.3d 641, 655 n. 59 (5th Cir.1999)) (emphasis omitted). The OCCA rejected Mr. Matthews's cumulative error argument, Matthews, 45 P.3d at 924, and so do we. At the guilt phase, the only errors we have identified are the prosecutor's questionable remarks; we do not think that, when put together, these remarks rendered the trial fundamentally unfair. As for the penalty phase, Mr. Matthews can show, at best, that Juror # 2 improperly communicated with an outsider before the penalty phase began and that, perhaps, his lawyer should have told the jury about his efforts to send his art proceeds to his daughter. But, as we have noted, there is no evidence suggesting that the juror's communication had any effect on the death sentence. And the likely impact of the art evidence would have been small. We cannot say, as we must to reverse, that the combination of these errors rendered Mr. Matthews's trial unfair.