Executed January 15, 2012 06:10 p.m. CDT by Lethal Injection in Oklahoma
1st murderer executed in U.S. in 2012
1278th murderer executed in U.S. since 1976
1st murderer executed in Oklahoma in 2012
97th murderer executed in Oklahoma since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Gary Roland Welch
W / M / 32 - 49
|Robert Dean Hardcastle
W / M / 35
Welch v. State, 968 P.2d 1231 (Okla.Crim. App. 1998). (Direct Appeal)
Welch v. State, 972 P.2d 26 (Okla.Crim. App. 1998). (PCR)
Welch v. Workman, 639 F.3d 980 (10th Cir. 2011). (Habeas)
Two fish filets from Long John Silvers.
Welch gave a short speech before the injection in which he thanked the inmates of the Oklahoma State Penitentiary's H unit for clanging on their cell doors before his execution - a tradition the inmates view as a sign of respect. "I want to acknowledge that my brothers are here for me, to send me off on my journey," he said. "They are here on my behalf. They've already given me my little send-off. So let's get it on, because that's what we're here for." As soon as the lethal injection was administered, Welch began to chant repeatedly, "Valhalla. Odin. Slay the beast!" until he lost consciousness.
Oklahoma Department of Corrections
Inmate: GARY R WELCH
Birth Date: 08/21/1962
Height: 6 ft. 00 in.
Weight: 210 pounds
County of Conviction: OTTA
Date of Conviction: 05-30-96
Convictions: Murder In The First Degree - Death
Location: Oklahoma State Penitentiary, Mcalester
Reception Date: 06-03-96
CRF# County Offense Conviction Date Start Term End
82-234 OTTA Assault & Battery With Deadly Weapon (2 Counts) 10-01-86 5Y & 1 YR Probation 12/20/1990 12/19/1993
"Okla. inmate put to death for fatal stabbing during 1994 fight; 1st US execution." (AP January 5, 2012)
An Oklahoma inmate who recently attempted suicide was put to death Thursday evening for killing a man during a knife fight nearly two decades ago, marking the nation's first execution this year. Gary Roland Welch, 49, was given a lethal injection at the state penitentiary in McAlester for fatally stabbing 35-year-old Robert Hardcastle in Miami, Okla. He was pronounced dead at 6:10 p.m.
Minutes before the drugs were administered, other death row inmates could be heard banging on their cell walls, and Welch paid tribute to them during his final statement. “I was just going to ask everybody if they could hear my brothers out there,” he said. “I know it's kind of quiet now, but I want to acknowledge that my brothers are here with me to send me off on my journey. They are here on my behalf. They've already given me my little send off. So let's get it on because that's what we're here for.” Before he died, Welch chanted apparent references to Norse mythology, which he had studied behind bars. On his fourth chant, Welch passed out as the drugs began to kick in.
Earlier in the day, he was given fish filets from Long John Silver's for his last meal, prison officials said. At his request, nobody attended the execution on his behalf, and Hardcastle's family members declined comment afterward.
Welch's execution came nearly three weeks after he tried to kill himself by slitting his throat with a smuggled shaving razor. Prison officials and Welch's own court-appointed attorney insisted he was sane and understood his fate.
Welch maintained that he only killed Hardcastle in self-defense. He remained defiant at a hearing last month before the state Pardon and Parole Board, telling the board he wasn't “here today crying, begging or sniveling for my life.” “I did what I had to do,” Welch told the panel. “I didn't intend to kill him, but I certainly didn't intend for him to kill me, either.” The board voted 3-2 to deny clemency.
After Welch's suicide attempt on Dec. 16, prison guards rushed him to a hospital where he was treated before being returned to death row. He was evaluated by a psychiatric unit based at the prison and deemed competent to be executed because he was aware of what was going to happen to him and why — the standard required for death row inmates in Oklahoma.
Nothing in Welch's court record indicated that the issue of his sanity or mental capacity was ever raised, and prosecutors presented evidence at the pardon and parole hearing suggesting that Welch was a bully in prison who enjoyed watching violent movies, pushed around other inmates and was once caught with a homemade knife in his cell.
The question of Welch's mental state was addressed this week by his court-appointed attorney, Robert Wyatt, who insisted his client knew what he was doing and added that the suicide attempt could have been influenced by Welch's belief that he “never got a fair shake” because he was given the death penalty for murder instead of a lesser charge, such as manslaughter. “He always felt the system was against him, and as a result of that, that influences how a person reacts,” Wyatt said this week. “(Welch) said openly at the pardon and parole hearing, that during his stay at the Oklahoma State Penitentiary, he's always been treated fairly.”
According to court records, several witnesses testified they saw Welch and a co-defendant, Claudie Conover, beating and stabbing Hardcastle outside of Hardcastle's Miami home on Aug. 25, 1994. Conover also was sentenced to death, but his sentence was later reduced to life without parole. He died in prison from natural causes in 2001.
Ben Loring, the lead prosecutor in the case, recalled Welch's self-defense argument as flimsy. “The problem was, nothing matched up,” Loring told The Associated Press this week. “None of the physical evidence matched up to what he was saying.”
Loring said Welch had “ample opportunity” to stop the assault but continued with the beating. At one point, Loring recalled, Conover ended up with the knife and was walking to the car with it. That's when Welch got a broken beer bottle and continued slashing Hardcastle, he said. “It just went way too far,' Loring said. “I'm not a big proponent of the death penalty, but if anybody deserved it, I felt the case (for a death sentence) should have been presented to a jury.”
On Thursday, Oklahoma Attorney General Scott Pruitt issued a statement detailing Welch's “15-year history of violent crimes that included multiple assaults on women and police officers, burglary, stabbings and carrying concealed weapons before his conviction of murder.” “The punishment of death as chosen by a jury of Welch's peers is reserved for the most heinous crimes,” he said. “My thoughts are with Robert Hardcastle's family and what they have endured for the past 17 years.”
Welch's suicide attempt marked the second time in nearly 20 years that an Oklahoma death row inmate tried to kill himself rather than face a state execution. Hours before condemned killer Robert Brecheen's execution in 1995, he attempted to overdose on sedatives and anti-anxiety pills he had hoarded in his cell. He was rushed to a hospital, had his stomach pumped and was returned to the death chamber, where he was executed hours later.
"Oklahoma executes Gary Roland Welch for 1994 Ottawa County slaying," by CARY ASPINWALL. (1/6/2012)
McALESTER - The state of Oklahoma executed Gary Roland Welch on Thursday evening for his role in a 1994 slaying in Ottawa County. As soon as the lethal injection was administered at 6:05 p.m., Welch began to chant repeatedly, "Valhalla. Odin. Slay the beast!" until he lost consciousness. He was pronounced dead at 6:10 p.m.
Welch, 49, offered no apology or show of remorse for the slaying of Robert Dean Hardcastle, 35, in a dispute over drugs in Miami, Okla. He gave a short speech before the injection in which he thanked the inmates of the Oklahoma State Penitentiary's H unit for clanging on their cell doors before his execution - a tradition the inmates view as a sign of respect. "I want to acknowledge that my brothers are here for me, to send me off on my journey," he said. "They are here on my behalf. They've already given me my little send-off. So let's get it on, because that's what we're here for." He then began his chant, presumed to be a reference to Norse mythology.
Welch maintained that he killed Hardcastle in self-defense, and he appeared unrepentant and indignant at a clemency hearing in December. "I was right on 8/25/94, and I'm right now," Welch said at the hearing. "I'm not coming up here today crying, begging and sniveling for my life. I'm only here to speak my mind."
A few weeks after that hearing, Welch attempted suicide in his cell with a contraband razor blade. He recovered and was deemed competent for Thursday's execution.
Prosecutors said Welch assaulted Hardcastle in the victim's duplex and then chased him outside when he fled. Welch and co-conspirator Claudie Conover continued assaulting Hardcastle in a ditch at the end of the street, where multiple witnesses said they saw Welch punch and stab Hardcastle before slashing him with a broken beer bottle. Conover originally was sentenced to death, as well, but his sentence was reduced to life in prison without parole possible. He died of natural causes in 2001 at the Dick Conner Correctional Center in Hominy.
Oklahoma Assistant Attorney General Robert Whitaker argued that forensic evidence and court testimony in Welch's case contradicted his claims of self-defense. Two hours before Welch killed Hardcastle, he had pulled a knife on someone else in the Miami area, demanding drugs. He killed Hardcastle to send a message regarding a shipment of drugs that had been sent to the wrong address and turned over to police, prosecutors argued.
"Gary Welch had a 15-year history of violent crimes that included multiple assaults on women and police officers, burglary, stabbings and carrying concealed weapons before his conviction for murder," Attorney General Scott Pruitt said in a written statement. "The punishment of death as chosen by a jury of Welch's peers is reserved for the most heinous crimes. My thoughts are with Robert Hardcastle's family and what they have endured for the past 17 years."
Hardcastle had twin sons who were 2 years old when their father was killed. Several of Hardcastle's family members, along with law enforcement officials from Ottawa County, witnessed Welch's execution, the first of the year in the state as well as the country.
"Oklahoma executes murderer in first 2012 execution," by Steve Olafson. (Fri Jan 6, 2012 8:04am EST)
(Reuters) - A convicted murderer who tried but failed to kill himself three weeks ago in prison was put to death by lethal injection on Thursday in Oklahoma in the country's first execution of 2012. Gary Roland Welch, sentenced to death for the fatal stabbing of Robert Dean Hardcastle during a drug dispute in 1994, was declared dead at 6:10 p.m. on Thursday at the state prison in McAlester, prison spokesman Jerry Massie said. Welch was the first U.S. inmate executed this year, and the first in Oklahoma since January 2011, according to the Washington-based Death Penalty Information Center, which tracks death penalty data. He was 49 years old.
Welch acknowledged "my brothers" in prison before his execution and said: "So let's get it on because that's what we're here for," Massie said, quoting execution witnesses. Welch then repeated four times, "Valhalla, Odin, slay the beast," Massie said. Odin is the chief god in Norse mythology and Valhalla is the hall in which he receives slain heroes.
Welch attempted unsuccessfully to kill himself three weeks ago by slashing his neck, according to prison officials. Earlier in the day, Welch requested his last meal be two fish filets from Long John Silver's, Massie said.
A tattoo artist and admitted methamphetamine user, Welch said he killed Hardcastle, 35, in self defense after he went to the man's duplex in Miami, Oklahoma, to barter for drugs and was unexpectedly attacked. He told the Oklahoma Pardon and Parole Board he would not apologize for killing Hardcastle because the other man initiated the violence. "To me, this was life or death. It was just luck that I survived," Welch said. "My intentions were never to kill him. But I also didn't intend for him to kill me either."
But multiple witnesses said Welch punched and stabbed Hardcastle before slashing him with a broken beer bottle, Oklahoma Attorney General Scott Pruitt said. "Gary Welch had a 15-year history of violent crimes that included multiple assaults on women and police officers, burglary, stabbings and carrying concealed weapons before his conviction for murder," Pruitt said. "The punishment of death as chosen by a jury of Welch's peers is reserved for the most heinous crimes. My thoughts are with Robert Hardcastle's family and what they have endured for the past 17 years," he added.
The Oklahoma Pardon and Parole Board narrowly denied clemency to Welch by a 3-2 vote. Welch had said during the hearing he would not apologize for killing Hardcastle because the other man initiated the fight.
A co-defendant of Welch's, Claudie Conover, was also convicted and sentenced to death although his sentence was later reduced to life without parole. Conover died of natural causes in 2001.
Oklahoma executed two prisoners in 2011, both in the first two weeks of the year, according to DPIC data. The execution brings to 1,278 the number of people executed in the United States since capital punishment was reinstated in 1976. The number of U.S. executions fell for the second year in a row in 2011, with 43 inmates put to death compared to 46 in 2010 and 52 in 2009, DPIC figures show. That is fewer than half of the number of executions a dozen years before, in 1999, when a record 98 prisoners were executed.
"Okla. death row inmate Gary Welch has been executed; first in U.S.," by Rachel Petersen January 5, 2012)
McALESTER — The first execution in the United States was carried out this evening when Oklahoma death row inmate Gary Roland Welch, 49, was executed at the Oklahoma State Penitentiary in McAlester. The execution procedures began at 6:03 p.m.
There were 7 media witnesses present, as well as three witnesses from the victim’s family, numerous Oklahoma Department of Correction employees, Miami District Attorney Eddie Wyant, Miami Asst. District Attorney Ben Loring and Miami Chief of Police George Haralson. Welch had requested that he have no witnesses at his execution on his behalf.
Just before being executed, OSP Warden Randy Workman asked the condemned man if he had any last words. “Well sir, I was just going to ask everybody if they could hear my brothers out there,” Welch said referring to the other death row inmates who were banging and clanging in their cells in an effort to say their good-byes to Welch. “I know it’s kind of quiet now. I want to acknowledge that my brothers are here with me to send me off on my journey. They are here on my behalf. They have already given me my little send off. So let’s get it on because that’s what we’re here for. “Valhalla, Odin, slay the beast.” At 6:04, Workman said, “Let the execution begin.” And Welch continued to chant: “Valhalla, Odin, slay the beast. “Valhalla, Odin, slay the beast. “Valhalla, Odin, slay...”
Welch’s words became grumbled and he lost consciousness and at 6:08, all color was gone from his face. At 6:10 p.m., a physician pronounced Welch’s time of death.
Welch’s chanting was in relation to his beliefs about the afterlife, a topic the News-Capital had the opportunity to discuss with Welch on Dec. 5, just prior to his clemency hearing. Valhalla is a word from “Scandinavian Mythology” and refers to “the hall of Odin into which the souls of heroes slain in battle and others who have died bravely are received,” according to www.dictionaryreference.com. On Dec. 5, Welch explained to the News-Capital that his beliefs about the afterlife are very non-traditional. “I hope when I leave this body, I find the gates of Valhalla,” he said. Welch is expecting that once he leaves this life, he has his most difficult times ahead. “Once I’m released from this body, that’s when my real trials and tribulations begin,” he said. But he hopes that once he finds the gates of Valhalla, he will be able to “slay the beast” and enter the “warrior’s paradise.” The beast, Welch had explained, is a three-headed dragon that guards the gates of Valhalla.
At 6 a.m. on the day of his execution, Welch was moved from the infirmary unit to the execution holding cell on death row. At around noon, Welch ate Long John Silvers’ fish filets with red cocktail sauce as his last meal, traditionally afforded to death row inmates on the day of their executions. He was also afforded the opportunity to speak with a spiritual advisor, but chose not to.
Welch received his death sentence for the Aug. 25, 1994, slaying of 35-year-old Robert Dean Hardcastle in Miami, Okla. Welch is one of two men convicted of killing Hardcastle in Miami, Okla. Both Welch and his co-defendant in the case, Claudie Delbert Conover, were convicted of beating and stabbing Hardcastle to death with a knife and broken bottle on the side of the road in view of those who were passing by. Both men were sentenced to death, though Conover’s sentence was later reduced to life without the possibility of parole. Conover died of natural causes on Dec. 19, 2001, while incarcerated at Dick Conner Correctional Center in Hominy, said Oklahoma Department of Corrections Public Relations Officer Jerry Massie.
Even up until the day of his execution, Welch maintained that his killing of Hardcaslte was in self-defense. However, Welch’s death sentence was upheld by all courts, as all of his appeals were denied.
Welch was denied clemency on Dec. 5 by a 3-2 vote by the Oklahoma State Pardon and Parole Board. Then, on Dec. 16, Welch attempted to take his own life by cutting his neck with a homemade device constructed out of shaving razors. He was found bleeding in his cell and had to be rushed to the McAlester Regional Health Center, a local hospital, where he spent three days in the intensive care unit.
Welch’s suicide attempt is not the first time OSP officials have had to deal with a death-row inmate attempting to end his own life as his execution date neared. In 1995, Robert Brecheen overdosed on drugs the very day of his scheduled execution and he was rushed to a local hospital. Brecheen’s life was saved by doctor’s who pumped his stomach and he was returned to the prison where he was executed a few hours later than originally scheduled.
The last execution to take place at OSP was on Jan. 11, 2011, when death row inmate Jeffrey David Matthews, 38, was executed for the murder of his 77-year-old great-uncle, Otis Earl Short, who was shot to death during a robbery of his home in Rosedale. Matthews claimed innocence from the day of his arrest until the day of his execution. All of his appeals were also denied.
Although there is not another scheduled execution at OSP, the Oklahoma State Attorney General has requested an execution date for Oklahoma death row inmate Garry Thomas Allen, sentenced to death for the 1986 murder of his wife, Lawanna Gail Titsworth. Allen was convicted of gunning down Titsworth just days after she moved out of their home with their two sons, who were ages 6 and 2 at the time. Although family members of Hardcastle were present during Welch’s execution, they chose not to make a statement to the press after the execution was complete.
Attorney General Scott Pruitt gave this written statement regarding Welch’s execution: “Gary Welch had a 15-year history of violent crimes that included multiple assaults on women and police officers, burglary, stabbings and carrying concealed weapons before his conviction for murder. The punishment of death as chosen by a jury of Welch’s peers is reserved for the most heinous crimes. My thoughts are with Robert Hardcastle’s family and what they have endured for the past 17 years.”
Oklahoma Attorney General (News Release)
Gary Roland Welch - 6 p.m. Oklahoma State Penitentiary in McAlester
Name: Gary Roland Welch
Age at Date of Crime: 32
Victim: Robert Dean Hardcastle, 35
Date of Crime: 8/25/94
Date of Sentence: 5/30/96
Crime Location: Hardcastle’s Residence, Miami, OK
Judge: Sam C. Fullerton
Prosecuting: Ben Loring
Defending: Joe P. Robertson (OIDS)
Circumstances Surrounding Crime:
Welch was convicted and sentenced to death for the Aug. 25, 1994 murder of Robert Dean Hardcastle during an altercation that began inside Hardcastle’s residence. Welch assaulted Hardcastle inside his duplex and then chased him when he fled his home. Welch and co-conspirator Claudie Conover continued the assault in a ditch at the end of the street where multiple witnesses observed Welch punch and stab the victim before slashing him with a broken beer bottle.
Claudie Delbert Conover was sentenced to death. The sentence was later reduced to life without parole. Conover died in 2001 from natural causes while incarcerated at the Dick Conner Correctional Center in Hominy.
Statement from Attorney General Scott Pruitt:
“Gary Welch had a 15-year history of violent crimes that included multiple assaults on women and police officers, burglary, stabbings and carrying concealed weapons before his conviction for murder,” Attorney General Scott Pruitt said. “The punishment of death as chosen by a jury of Welch’s peers is reserved for the most heinous crimes. My thoughts are with Robert Hardcastle’s family and what they have endured for the past 17 years.”
Welch v. State, 968 P.2d 1231 (Okla.Crim. App. 1998). (Direct Appeal)
Defendant was convicted following jury trial in the District Court, Ottawa County, Sam C. Fullerton, J., of first degree murder and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Lumpkin, J., held that: (1) testimony concerning comments of codefendant did not fall within coconspirator exception to hearsay rule but was admissible as present sense impression; (2) defendant invited any error in prosecutor's inquiry into details of prior convictions; (3) reenactment of murder was not improper; (4) defendant was not prejudiced by trial judge's nonresponsive answer to question from jury; (5) admission of improper victim impact evidence was harmless error; (6) trial counsel was not ineffective for failing to bring out victim's involvement in drugs; and (7) death sentence was properly imposed. Affirmed.
¶ Appellant Gary Roland Welch was tried by jury and convicted of First Degree Murder (21 O.S.1991, 701.7), Case No. CRF-94-302, in the District Court of Ottawa County. The jury found the existence of three aggravating circumstances and recommended the punishment of death. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.FN1 FN1. Appellant's Petition in Error was filed in this Court on September 6, 1996, and an Amended Petition in Error was filed March 17, 1997. Appellant's brief was filed February 24, 1997. The State's brief was filed June 24, 1997. The case was submitted to the Court July 8, 1997. Oral argument was held October 21, 1997.
¶ Appellant and co-defendant Claudie Conover were convicted of the first degree murder of Robert Hardcastle. The District Court granted a motion for severance and Appellant was tried approximately ten (10) months after co-defendant Conover. The facts of this case are set forth in Conover v. State, 933 P.2d 904 (Okl.Cr.1997).
¶ In his sixth assignment of error, Appellant contends the trial court never acquired subject matter jurisdiction over the case as the Information failed to allege all of the elements of malice murder; specifically, the element of “malice aforethought.” The felony Information filed against Appellant read in pertinent part:
MURDER IN THE FIRST DEGREE (TITLE 21-701.7)
... That said defendants, on the day and year aforesaid, in the County and State aforesaid, while acting in concert, each with the other, did unlawfully, willfully, and feloniously, without authority of law, and with a premeditated design to effect the death of one Robert Hardcastle, a human being, did then and there kill one Robert Hardcastle by means of a knife having a sharp and pointed blade, and a broken bottle which was sharp, with which the said defendants did cut, slash and stab the body of the said Robert Hardcastle, causing mortal wounds in the body of the said Robert Hardcastle from which mortal wounds the said Robert Hardcastle did languish and die, ... (O.R.1).
¶ This is the same felony Information filed against co-defendant Claudie Conover. We have previously found this Information sufficiently provided notice of the charge against the defendant and apprised him of what he must defend against at trial. Conover, 933 P.2d at 909-10. Appellant has not persuaded us to alter that view. We have also previously rejected Appellant's additional claim that Parker v. State, 917 P.2d 980, 986 (Okl.Cr.1996) should not be applied to his case. Id. at 910. Accordingly, this assignment of error is denied.
FIRST STAGE TRIAL ISSUES
¶ In his first assignment of error, Appellant contends he was denied a fair trial by the improper admission of hearsay testimony. Larry Davis testified at trial that while he and co-defendant Conover were visiting, they heard “banging” noises coming from the victim's half of the duplex. Davis testified that he commented to his wife and Conover that he hoped the victim was “winning his wrestling match.” Conover said something to the effect that “someone's getting a spanking over a deal.” The State sought to admit Conover's statement as that of a co-conspirator under 12 O.S.1991, 2801(4)(b). The trial court initially sustained Appellant's objection finding the evidence insufficient to support the existence of a conspiracy. The State reserved the right to recall the witness after it had established the existence of the conspiracy. (Tr. Vol.5, pp. 1162-64). Near the end of its case-in-chief, the State again attempted to introduce the statement. This time the court admitted the statement and overruled Appellant's objections finding the existence of a conspiracy had been established and that the statement was made during and in furtherance of the conspiracy.
¶ Now on appeal, Appellant asserts the trial court ruling was error as the evidence did not support the finding of a conspiracy. We agree. A statement which is offered against a party and made by his co-conspirator during the course and in furtherance of their conspiracy is admissible and is not hearsay. 12 O.S.1991, 2801(4)(b)(5). See also Omalza v. State, 911 P.2d 286, 295-96 (Okl.Cr.1995). A co-conspirator's statements satisfy the requirements of reliability and are admissible as non-hearsay substantive evidence only where the trial court finds:  a conspiracy existed;  both the defendant and the alleged co-conspirator declarant were parties to the conspiracy;  the statements were made during the duration of the conspiracy; and  the statements furthered the goals of the conspiracy. Id. at 296. The conspiracy must be proven by a preponderance of evidence and the trial court may consider the alleged hearsay statements in reaching its decision. Id. “In a conspiracy prosecution, the critical inquiry is whether the circumstances, acts, and conduct of the parties are of such a character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists.” State v. Davis, 823 P.2d 367, 370 (Okl.Cr.1991) quoting United States v. Kendall, 766 F.2d 1426, 1431 (10th Cir.1985).
¶ Here, there was no evidence of an agreement or joint plan to kill the victim, nor was there evidence that Conover's statement was made during or in furtherance of that plan. At most, the evidence showed joint action between the two defendants in running down the victim and beating him to death, conduct which occurred after Conover's statement was made. Therefore, we find the trial court erred in admitting the statement under the co-conspirator exception.
¶ However, we do not find the statement itself inadmissible. Under 21 O.S.1991, 2803(1) a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter is exempted from the hearsay prohibition and is admissible as a present sense impression. Conover's statement was made immediately upon hearing the noise coming from next door and offered an explanation for that noise. Therefore, any error in admitting the statement under the co-conspirator exception was harmless as the statement was properly admissible as a present sense impression. Further, as the comment falls under a well established exception to the hearsay rule, there was no violation of Appellant's right of confrontation. Accordingly, this assignment of error is denied.
¶ In his second assignment of error, Appellant asserts the prosecutor improperly inquired into the details of his prior convictions and infringed upon his right to silence when he asked why Appellant had not come forward at Conover's trial “to help your buddy out.” Initially, we review only for plain error as no objection was raised by Appellant to these inquiries.FN2 Simpson v. State, 876 P.2d 690, 698 (Okl.Cr.1994). FN2. In footnote number 18 of his appellate brief, Appellant asserts, in the alternative, that trial counsel's failure to object to the inquiries in question constituted ineffective assistance of counsel. This reference is insufficient to raise the issue of ineffective assistance of counsel and we therefore do not address that claim at this time. 10 Cross-examination as to prior convictions is allowed for the purpose of impeaching a defendant's credibility. 12 O.S.1991, 2609. However, that inquiry is limited and the prosecutor may not go into the details of the convictions. Little v. State, 79 Okl.Cr. 285, 154 P.2d 772 (1945). See also Britt v. State, 721 P.2d 812, 816 (Okl.Cr.1986). Any error in the prosecutor's inquiry in this case must be deemed invited error as Appellant initially raised the issue during his direct examination. Appellant testified on direct examination that he had spent “some time” in the penitentiary, that he was released from the reformatory at Granite in March of 1988, and that he had spent only his last ninety (90) days of a twenty-one (21) month sentence at Granite. The prosecutor's inquiry on cross-examination into the offense for which Appellant was serving time at Granite, the details of that offense and other prior convictions was invited. This Court has long held that an appellant cannot complain of error which he has invited, and that reversal cannot be predicated upon such error. Pierce v. State, 786 P.2d 1255, 1259-60 (Okl.Cr.1990); Dutton v. State, 674 P.2d 1134, 1139 (Okl.Cr.1984).
¶ Also during cross-examination, the prosecutor inquired as to whether Appellant was aware that co-defendant Conover had been charged with first degree murder, whether he had been subpoenaed as a witness for Conover's trial and whether Appellant had “come forward in that case and testify as to what transpired to help your buddy out.”
¶ Reference to Appellant's post-arrest silence, albeit used solely for impeachment purposes on cross-examination, is a violation of Appellant's rights under the due process clause of the Fourteenth Amendment to the United States Constitution. Wood v. State, 748 P.2d 523, 526 (Okl.Cr.1987). However, such violation is subject to a harmless error analysis. Id. Appellant testified on re-direct that he was subpoenaed to testify at Conover's trial but was never called to testify. Considering that testimony and the substantial evidence of Appellant's guilt, we conclude the error was harmless beyond a reasonable doubt. Accordingly, this assignment of error is denied.
¶ Appellant complains in his third assignment of error that a demonstration re-enacting the crime was reversible, prejudicial error. He claims the demonstration lacked relevance and that the danger of unfair prejudice far outweighed any probative value.
¶ State's witness Donnie Nading testified that he observed the assault on the victim as he drove past the area. He testified to seeing Appellant and another man attack the victim and to observing Appellant stab the victim. With Mr. Nading's assistance and that of Officer Pendley, the prosecutor attempted to demonstrate the assault. Over Appellant's objections, the court allowed the prosecutor to take the position of the victim, Officer Pendley to take the position of co-defendant Conover and Mr. Nading to be Appellant.
¶ This Court has previously upheld demonstrations which were based on the evidence presented at trial and not theatrical demonstrations. Brown v. State, 777 P.2d 1355, 1358 (Okl.Cr.1989) (prosecutor used a police officer during closing argument to illustrate the position of the decedent seated in a chair when shot in the neck and back by appellant.) See also Woodruff v. State, 846 P.2d 1124, 1136 (Okl.Cr.), cert. denied, 510 U.S. 934, 114 S.Ct. 349, 126 L.Ed.2d 313 (1993) (police officer demonstrated use of the garrotte on the neck of an Assistant District Attorney).
¶ Here, the demonstration was relevant in illustrating the events which occurred in the ditch as Mr. Nading watched from his van. Testimony concerning these events was contradictory as Appellant claimed he acted in self-defense and denied stabbing the victim. The demonstration was brief and not so prejudicial as to outweigh the probative value of helping the jury understand the State's theory of the commission of the offense and in particular, Appellant's role in the offense. Therefore, we find no error in the demonstration.
¶ In his fourth assignment of error, Appellant challenges the jury instructions and finds error in the trial court's failure to give instructions on the lesser included offenses of second degree depraved mind murder and first degree manslaughter by means of a dangerous weapon. An instruction on second degree murder was requested by Appellant but refused by the trial court finding the evidence insufficient to support such an instruction. Appellant's request has preserved the issue for appellate review.
¶ Initially, second degree depraved mind murder is not a lesser included offense of first degree malice murder. Willingham v. State, 947 P.2d 1074, 1081 (Okl.Cr.1997). Therefore, the trial court did not err in refusing to give the instruction.
¶ Appellant's complaint about the lack of an instruction on first degree manslaughter by means of a dangerous weapon is not well taken as the record shows that such an instruction was given. (Instruction No. 25, O.R.404).
¶ Further, Appellant argues that by failing to instruct the jury on lesser included offenses, the trial court failed to provide the jury with the option of convicting him of a non-capital offense as required by Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) and Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Neither Beck nor Schad require that a jury in a capital case be given a third, non-capital option where the evidence absolutely does not support that option. Regardless, the jury in this case was given a third, non-capital option of first degree manslaughter, as well as the alternative sentences of life imprisonment and life without parole. Therefore, the jury was not prevented from considering a non-capital option. Accordingly, this assignment of error is denied.
SENTENCING STAGE ISSUES
¶ In his seventh assignment of error, Appellant challenges the victim impact evidence. In the first of his several arguments, Appellant asserts admission of the victim impact evidence was in plain violation of the Eighth and Fourteenth Amendments of the United States Constitution and outside the scope of 22 O.S.1991, 984.
¶ This argument has previously been rejected in Ledbetter v. State, 933 P.2d 880, 889-90 (Okl.Cr.1997) and Cargle v. State, 909 P.2d 806, 828 (Okl.Cr.1995). Cargle sets out the basis the United States Supreme Court has utilized to find the Eighth Amendment is not violated by victim impact evidence and that the Fourteenth Amendment has the potential to be implicated if appropriate restrictions are not placed on victim impact evidence.
¶ This Court has held victim impact evidence admissible as long as it is “restricted to the ‘financial, emotional, psychological, and physical effects,’ or impact, of the crime itself on the victim's survivors; as well as some personal characteristics of the victim.” Ledbetter, 933 P.2d at 889-90 quoting Cargle, 909 P.2d at 828. [I]ts use should be limited to showing how the victim's death is affecting or might affect the victim's survivors, and why the victim should not have been killed ....; victim impact evidence should be restricted to those unique characteristics which define the individual who has died, the contemporaneous and prospective circumstances surrounding that death, and how those circumstances have financially, emotionally, psychologically, and physically impacted on members of the victim's immediate family. Id. The opinion of a member of the victim's immediate family regarding a recommended sentence has also been held admissible. Hain v. State, 919 P.2d 1130,1144 (Okl.Cr.1996). However, such opinion will be viewed by this Court with a heightened degree of scrutiny. Willingham, 947 P.2d at 1086.
¶ Turning to the specific victim impact evidence introduced in this case, it is substantially the same as that admitted in Conover. 933 P.2d at 918-19, n. 6. Trial counsel in the present case did not object to the introduction of the victim impact evidence generally but did raise contemporaneous objections to the victim impact statements arguing they went beyond the statutory scope of victim impact evidence. The objections were overruled.
¶ In Conover, we found the victim impact evidence weighed the scales too far in favor of the prosecution. Id. We found such statements as the victim was “butchered like an animal”, and that two men “butchered him” have no place in a victim impact statement. Id. at 920. Assuming statements like this are not prohibited under the rules of hearsay, such statements are inflammatory descriptions designed to invoke an emotional response by the jury. Such comments do not fall under the statutory provision permitting statements on the manner in which the crime was perpetrated. These type of statements are emotionally charged personal opinions which are more prejudicial than probative. Id. (footnote omitted). We further stated: [c]omments about the victim as a baby, his growing up and his parents' hopes for his future in no way provide insight into the contemporaneous and prospective circumstances surrounding his death; nor do they show how the circumstances surrounding his death have financially, emotionally, psychologically, and physically impacted a member of the victim's immediate family. Id. at 921. However, we also found several statements were properly admitted including Mrs. Hardcastle's reference to taking care of the victim's twin grandsons, nursing them through nightmares and answering their questions about their father. This evidence was found relevant to show the emotional, psychological, and physical impact of the victim's death. Id. The effect of the improperly admitted evidence was not addressed in light of the need to remand the case for resentencing due to the denial of the appellant's right to confrontation. Id. The same statements found improper in Conover are present in this case. The effect of this improperly admitted evidence will be addressed in the Mandatory Sentence Review.
¶ Appellant also complains the victim impact evidence was replete with hearsay and the witnesses testified to things of which they had no personal knowledge. Specifically, Appellant directs us to references to his criminal record and that he planned the homicide. The Evidence Code prohibition of hearsay applies in second stage proceedings in capital cases and unless a hearsay statement falls within one of the recognized exceptions to the hearsay rule, it is not admissible in second stage proceedings. Ledbetter, 933 P.2d at 895. In Conover, we said that Mrs. Hardcastle's reference to appellant's prior conviction was error if she had no personal knowledge of the prior conviction and because such a statement did not show the financial, emotional, psychological, and physical effects of the victim's death nor is it relevant to the circumstances surrounding the victim's death. 933 P.2d at 922. We find the same comment error in this case, the effect of which will be discussed in the Mandatory Sentence Review.
¶ Appellant further argues that victim impact evidence functions as “superaggravating evidence.” This claim was rejected in Cargle wherein we found evidence supporting an aggravating circumstance and victim impact evidence are different kinds of evidence addressing two separate purposes. 909 P.2d at 828, fn. 15. Appellant has not persuaded us to reconsider the issue.
¶ Appellant also asserts the victim impact evidence was inadmissible due to the trial court's failure to conduct an in-camera hearing on the evidence as required by Cargle, his failure to receive adequate notice of the evidence, the witnesses' improvising on the stand and failure to adhere to their written statements, and the giving of their testimony in a narrative instead of a question and answer format.
¶ In Cargle, this Court held that the State should file a Notice of Intent to Produce Victim Impact Evidence, detailing the evidence sought to be introduced; and an in-camera hearing should be held by the trial court to determine the admissibility of the evidence as it relates to 12 O.S.1991, 2403. 909 P.2d at 828. The evidence sought to be introduced should be limited to the evidence listed in the prosecutor's notice filed before trial, and, although not required, the trial court may wish to consider whether a question-and-answer format may be a preferable method of controlling the way relevant victim impact evidence is presented to a jury. Id.
¶ In the present case, approximately one year before trial, the State filed a Notice of Victim Impact Statement listing the three witnesses who testified as well as seven other witnesses who did not testify, with brief summaries of their testimony included. The State also provided Appellant with the written statements prepared by the three witnesses who did testify. Although the record does not reflect when these written statements were provided to the defense, no objection was raised on the basis of lack of notice. Appellant was provided sufficient notice of the victim impact evidence. See Ledbetter, 933 P.2d at 894.
¶ An in-camera hearing on the admissibility of the evidence was not held but when the victim impact evidence was met with a defense objection at trial, all of the evidence offered by the State was admitted. The failure of the trial court to hold the in-camera hearing was error. However, it is a trial error subject to a harmless error analysis. Bartell v. State, 881 P.2d 92, 98-99 (Okl.Cr.1994).
¶ The purpose of the in-camera hearing is to allow the trial judge the opportunity to rule on the admissibility of the victim impact evidence prior to its presentation to the jury. The defense objections in this case gave the trial court that same opportunity and all of the evidence offered by the State was admitted. Therefore, the failure to make that same ruling prior to trial in an in-camera hearing is harmless error. However, when the trial court fails to follow the procedures for an in-camera hearing it opens up the potential for reversible error if inadmissible evidence which creates prejudice is presented to the jury. Fortunately we do not have that problem here.
¶ The three witnesses who testified did so in a narrative form. We find no error as Cargle provided that either a question and answer format or a narrative format is permissible. 909 P.2d at 828. The option of using either method to present victim impact evidence makes the fact that a testifying witness added to his or her written statement inconsequential. Here, Ed Hardcastle, the victim's father, stated on the stand that he had heard the testimony concerning Appellant's attempt to kill a witness and her children and he wondered if his grandchildren had been with their father at the time of the homicide if they would have been butchered. He also commented that Appellant showed no remorse for what he had done, that his lawyer would ask for a reduced sentence, for mercy, but that his son was shown no mercy. The fact that his comments were not included in his written statement does not make them improper. It is the content of his comments which determine their admissibility.
¶ Looking to the statements themselves, the comment to “look at a man that shows no remorse for what he's done” can be described as proper characterization and opinion of the defendant. Ledbetter, 933 P.2d at 890. However, the rest of the statements were not comments on the ‘financial, emotional, psychological, and physical effects,’ or impact, of the crime itself on the victim's survivors, but emotionally charged personal opinions which were more prejudicial than probative. Their admission was error, the effect of which will be discussed in the Mandatory Sentence Review.
¶ Finally, Appellant challenges the jury instruction on victim impact evidence arguing it failed to limit and channel the jury's discretion in evaluating victim impact evidence. The instruction given in this case was that approved in Cargle, 909 P.2d at 828-29. Appellant has not persuaded us to reconsider our endorsement of this instruction. Accordingly, this assignment of error is denied. B.
¶ Appellant contends in his eighth assignment of error that the trial court's failure to give an instruction listing specific mitigating evidence was error in violation of the Eighth and Fourteenth Amendments. Appellant argues the absence of such an instruction prevented the jury's full consideration of the specific mitigating circumstances offered. Appellant's submission to the trial court of a written requested instruction on the subject has preserved the issue for appellate review.
¶ Appellant asserts this Court has recognized that an instruction of the type offered by him is appropriate and should be given when requested, citing as authority “Notes on Use” to Oklahoma Uniform Jury Instructions-Criminal (OUJI-Cr) (2nd) 4-79. However, this Court also recognizes that the second edition OUJI-Cr did not go into effect until approximately four (4) months after Appellant's trial and we have not applied them retroactively. 12 O.S.Supp.1996 577.2. Appellant offers no other authority in support of his argument that the failure to give such an instruction is error. Rather, he relies on Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) and other cases which find that a court may not give instructions which preclude or inhibit the jury's evaluation of mitigating evidence.
¶ The present case is distinguishable from Penry in that we are not faced with instructions which improperly limit the jury's consideration of certain evidence but with the absence of an instruction specifically directing their consideration of certain evidence. The absence of that type of instruction in light of the instructions which were given during the second stage did not deny Appellant a fair sentencing proceeding. The record shows the jury was instructed that mitigating circumstances were those which, in fairness and mercy, may be considered as extenuating or reducing the degree of the defendant's moral culpability or blame and that the determination of what are mitigating circumstances was solely for the jury to resolve under the facts and circumstances of the case. (Instruction No. 7, O.R. 432). The jury was also instructed that before it could impose the death sentence it must first find an aggravating circumstance beyond a reasonable doubt and that the aggravating circumstance must outweigh the mitigating evidence. Under these instructions, we find the jury was not prevented from considering the evidence nor is there a reasonable likelihood the jury failed to consider the evidence offered in mitigation. Therefore, the failure to give an instruction specifically listing the mitigating evidence does not warrant reversal or modification of sentence. C.
¶ In his ninth assignment of error, Appellant contends the trial court erred in failing to give an instruction explaining the difference between life imprisonment and life without parole as requested by the jury in two notes sent out during deliberations. Appellant asserts that under 22 O.S.1991 894 the court had an affirmative duty to provide further guidance to the jury and the failure to do so resulted in prejudicial error.
¶ Section 894 provides that when the jury has a question after it has started deliberations, they must be conducted into open court to receive their response in the presence of the defendant and all counsel concerned. The record does not reflect that the jury was brought into the courtroom to receive the court's response.
¶ Initially, Appellant asks this Court to presume prejudice because the record is silent as to the court's actions upon receiving the questions. Only the written versions of the jury's questions and the court's responses have been included in the record. There is no indication that Appellant objected to the court's method of responding to the questions. It is well established that it is Appellant's burden to ensure a sufficient record is provided to this Court to determine the issues raised. Hill v. State, 745 P.2d 410, 411 (Okl.Cr.1987). This Court does not assume error from a silent record. Id. Further, absent an objection as to the court's failure to follow section 894, the issue is not properly preserved for appellate review. Brown v. State, 777 P.2d 1355, 1359 (Okl.Cr.1989).
¶ Therefore, reviewing only for plain error, this Court has found a violation of 22 O.S.1991, 894, in failing to call the jury into the courtroom in the presence of, or after notice to, the district attorney and defense counsel, error subject to harmless error review. Such a violation can be harmless in the absence of any prejudice to the defendant. Fisher v. State, 736 P.2d 1003, 1007 (Okl.Cr.1987); Givens v. State, 705 P.2d 1139, 1142 (Okl.Cr.1985); Wilson v. State, 534 P.2d 1325, 1327 (Okl.Cr.1975).
¶ Here, the jury asked “Can life without parole be reduced by appeal or pleas in the future” and “Has anybody ever be (sic) released with the sentencing of life without parole.” The court's response to both questions was “I am not allowed to answer this question.” Appellant asserts the judge should have instructed the jury that the sentence of life without possibility of parole means exactly what it says and that the jury is to presume that any sentence given to Appellant would be carried out according to the plain meaning of that sentence. He argues that under Johnson v. State, 928 P.2d 309, 319 (Okl.Cr.1996) the trial courts should be permitted to fully define what the sentence means to allay juror confusion or misunderstanding.
¶ In Johnson, the jury asked “[w]e need to know! Is life without parole firm-Does it mean he can never be paroled?” The trial court responded “It is inappropriate for you to consider the question asked.” Id. at 319. This Court found the trial court's response error as it was a misstatement of law, citing to Mayes v. State, 887 P.2d 1288 (Okl.Cr.1994), that the law is clear, the jury must consider the distinctions between life, life without parole and death as it reaches the sentencing decision. However, this Court found such error did not require reversal as prior case law made it clear that: ... [i]n this jurisdiction the jury is not to be told of the inner workings of the parole system, even when it must compare two life sentences: one with the possibility of parole, and one without the possibility of parole. In none of these cases [ McGregor v. State, 885 P.2d 1366 (Okl.Cr.1994); McCracken v. State, 887 P.2d 323 (Okl.Cr.1994) and Mayes v. State, 887 P.2d 1288 (Okl.Cr.1994) ] did the trial judge give a responsive answer to the jury's question. Likewise, the judge's answer in this case was non-responsive. The ultimate effect of all of these responses was to force the jurors back to the plain language of the instructions. From the standpoint of what the jurors must do following the trial judge's response, we find no meaningful behavioral difference flowing from the approved responses in McCracken, McGregor, and Mayes which could be summarized as, “I am not going to answer that question”, and the response in the case before us which could be summarized as, “Don't ask.” We therefore find the trial judge's response in this case to be harmless beyond a reasonable doubt. Id. at 1320.
¶ In Mayes, relied upon in Johnson, the jury sent out a note from deliberations asking, “if life without parole was given was there ever a possibility of release from prison”. 887 P.2d at 1316. The trial judge responded saying the instructions were self-explanatory. This Court found no error in the court's response stating there is no requirement for a trial judge to explain the Oklahoma parole process to a jury. Id. at 1318.
¶ In McCracken, the jury sent out a note asking, “Does Life without Parole mean exactly that? He would never under any circumstances, get out of prison?” The trial court responded, “I will instruct you again to look at your instructions. The law in Oklahoma provides a person convicted of Murder in the First Degree is punishable by death, by life without parole or life. You may retire and deliberate further.” 887 P.2d at 334. This Court found the instructions self-explanatory and that the trial court did not err by refusing a defense instruction setting forth Article VI, Section 10 of the state constitution which prohibits the governor from granting parole to a person who receives a sentence of life without parole. Id.
¶ In McGregor, the trial court did not respond to the jury's question “about what would happen to McGregor if he were sentenced to life without parole.” 885 P.2d at 1383. Relying on Mayes this Court found no plain error as the trial court is not required to explain the Oklahoma parole process. Id.
¶ The court's response to the jurors' questions in this case was non-responsive and as such forced the jury to fall back on the plain meaning of the instructions-instructions which merely set out the three punishment options of death, life without parole and life imprisonment. (O.R.437). While the trial court could have specifically referred the jury back to those instructions, it was not required to further define the punishment options or explain the parole process. We find the jury was not confused or misled by the court's response as Appellant has failed to show that when the jury returned its verdict on punishment that it was confused or misunderstood any of the three punishment options. Finding no prejudice occurred to Appellant, the error was harmless and this assignment of error is denied.
¶ In his tenth assignment of error, Appellant challenges the aggravating circumstances found in this case.FN3 Initially, he argues the evidence was insufficient to support the aggravator of “especially heinous, atrocious or cruel”, that the trial court failed to properly instruct the jury on this aggravator, and that the aggravator is unconstitutionally vague and overbroad. Further, he argues the aggravator of “continuing threat” has been applied by this Court in an overbroad and unconstitutionally vague manner, that the evidence supporting this aggravator was insufficient, that the jury was not properly instructed on the manner in which it should evaluate the evidence of unadjudicated acts and that other improper evidence was wrongly admitted in the penalty phase. FN3. Appellant does not challenge the third aggravator returned, that he had been previously convicted of a felony involving the use or threat of violence.
¶ When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, the proper test is whether there was any competent evidence to support the State's charge that the aggravating circumstance existed. In making this determination, this Court should view the evidence in the light most favorable to the State. Bryson, 876 P.2d at 259; Romano v. State, 847 P.2d 368, 387 (Okl.Cr.1993), cert. granted and case aff'd; Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). Evidence supporting a finding that a murder was especially heinous, atrocious or cruel requires proof that the death was preceded by torture or serious physical abuse. Neill v. State, 896 P.2d 537, 555 (Okl.Cr.1994), cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740, (1996).
¶ Appellant challenges the torture aspect, both mental and physical, of this aggravator. He argues that as the wounds were rapidly inflicted, that although some wounds were fatal and others were superficial, that as the victim was still standing when police arrived and as the attack was provoked by the victim, this case is indistinguishable from Nguyen v. State, 769 P.2d 167 (Okl.Cr.1988); Cheney v. State, 909 P.2d 74 (Okl.Cr.1995); Brown v. State, 753 P.2d 908 (Okl.Cr.1988) and Hayes v. State, 845 P.2d 890 (Okl.Cr.1992). Cases in which this Court found there was no evidence of torture or serious physical abuse sufficient to support the “especially heinous, atrocious or cruel” aggravator.
¶ In Berget v. State, 824 P.2d 364, 373 (Okl.Cr.1991), cert. denied, 506 U.S. 841, 113 S.Ct. 124, 121 L.Ed.2d 79 (1992) we stated that torture may include the infliction of either great physical anguish or extreme mental cruelty. See also Neill, 896 P.2d at 555. The “torture creating extreme mental distress must be the result of intentional acts by the defendant. The torture must produce mental anguish in addition to that which of necessity accompanies the underlying killing. Analysis must focus on the acts of the defendant toward the victim and the level of tension created.” Cheney, 909 P.2d at 80. The mental torture element is confined to cases in which the victim is terrorized for a significant period of time before death. Id. at 81.
¶ In the cases relied upon by Appellant, this Court found the evidence did not show that the victims suffered prior to their deaths. In the present case, the evidence showed that the victim was conscious as he was attacked with a knife and a broken beer bottle and desperately sought to run away from his attacker and defend himself. He was able to talk with the first officer who responded to the scene and identify Appellant as the assailant. Therefore, unlike the cases cited by Appellant, there was no need for the jury to speculate as to whether the victim remained conscious after the infliction of the initial wounds or whether he suffered mental anguish.
¶ Further, the evidence in this case showed the victim did not die immediately, but was left to languish from multiple knife wounds. Leaving a victim to linger and languish after he was stabbed is sufficient to support this aggravator. See McCracken, 887 P.2d at 332. Therefore, we find sufficient evidence of the victim's mental torture and conscious physical suffering to support this aggravator.
¶ Appellant next argues the trial court's instructions on this aggravator did not limit the jury's consideration to constitutional objective considerations. Appellant's objection at trial to the instruction on this aggravator has preserved the issue for appellate review. The jury was instructed the phrase “especially heinous, atrocious or cruel” is directed to those crimes where the death of the victim is preceded by torture of the victim or serious abuse rather than serious physical abuse as set out in the uniform jury instruction. (emphasis added). See OUJI-Cr. 436 (1st ed.). Appellant contends that without the modifier “physical abuse” the jury could have interpreted the aggravator in an unconstitutionally vague and overbroad manner. He also asserts such misinstruction was critical as the element of torture was not involved in this case.
¶ This deviation from the uniform instruction is error. Johnson v. State, 928 P.2d 309, 318 (Okl.Cr.1996). However, we are not persuaded the error lessened the standard of proof which the jury had to apply to find this aggravator or that it misled the jury into interpreting the aggravator in an unconstitutional manner. Id.; see also Richie v. State, 908 P.2d 268, 278 (Okl.Cr.1995). The term “serious abuse” controls the standard of proof, and that term was given to the jury. Johnson, 928 P.2d at 318. Further, under the evidence presented at trial, torture as it is ordinarily understood was involved, and there is no indication the jury understood the phrase “serious abuse” in any sense other than as “serious physical abuse.” Therefore, we find the error harmless as it did not lessen the standard of proof and thus could have had no impact on the sentencing decision. Simpson, 876 P.2d at 698-99.
¶ Appellant also poses the question whether the term “serious physical abuse” serves to sufficiently limit this aggravator at trial and on appeal. That question was answered in the affirmative in Stouffer v. State, 742 P.2d 562, 564 (Okl.Cr.1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). Relying on Robinson v. State, 900 P.2d 389 (Okl.Cr.1995) Appellant argues this Court has effectively negated the narrowing definition approved in Stouffer by finding only momentary consciousness following a gun shot wound is sufficient to show great physical anguish or extreme mental cruelty. Appellant's argument is not well taken as the evidence in Robinson showed the victim was shot twice in the back as he was running away. The victim fell and turned over, asking “what is going on?”. The appellant walked up to the victim, shot him twice and calmly walked away, leaving the wounded victim to linger and languish. The victim remained conscious long enough to tell bystanders to call an ambulance. This Court found the evidence showed the victim was in conscious pain for a period of time and that such evidence was sufficient to bring the crime within the definition of “especially heinous, atrocious or cruel” as narrowed by Stouffer.
¶ Appellant's further argument, that the aggravator is unconstitutionally vague and overbroad was rejected in Williamson v. State, 812 P.2d 384, 407 (Okl.Cr.1991), cert. denied, 503 U.S. 973, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992), and we find no reason to hold differently now. Accordingly, the “especially heinous, atrocious or cruel aggravator” facially and as applied in this case is constitutionally valid.
¶ Appellant next challenges the aggravating circumstance of “continuing threat”. While recognizing this Court has previously rejected such constitutional attacks, he asks this Court to revisit the issue. Although Appellant presents a very thorough argument, he has failed to convince us that our finding of the validity of this aggravator as set forth in Valdez v. State, 900 P.2d 363, 381 (Okl.Cr.1995) and Bryson, 876 P.2d at 259 should be reconsidered. As we noted in Roberts v. State, 910 P.2d 1071, 1083 n. 7 (Okl.Cr.1996) this Court is aware that one federal district court has concluded the use of unadjudicated crimes can result in a constitutional violation. See Williamson v. Reynolds, 904 F.Supp. 1529 (E.D.Okla.1995), overturned on other grounds, Williamson v. Ward, 110 F.3d 1508 (10th Cir.1997) (the 10th Circuit specifically finding that “consideration of evidence of unadjudicated crimes in imposing the death sentence does not violate a petitioner's due process rights,” quoting Hatch v. Oklahoma, 58 F.3d 1447, 1465 (10th Cir.1995)). Further, the United States Supreme Court has generally approved the constitutionality of the “continuing threat” aggravator. See Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929, 938 (1976). See also Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 2637, 129 L.Ed.2d 750 (1994).
¶ Appellant additionally argues that evidence of unadjudicated offenses was wrongly admitted in support of the “continuing threat” aggravator. Appellant asserts the error was compounded by an instruction which did not properly instruct the jury on the use of this evidence.
¶ This Court has previously upheld the use of unadjudicated offenses to support the “continuing threat” aggravator. Hain, 919 P.2d at 1141; Paxton v. State, 867 P.2d 1309, 1325 (Okl.Cr.1993), cert. denied, 513 U.S. 886, 115 S.Ct. 227, 130 L.Ed.2d 153 (1994). Instruction No. 11, challenged on appeal, was not met with an objection therefore, we review only for plain error.
¶ The following instruction was given to the jury: There has been evidence of other unadjudicated acts of violent conduct offered by the State in support of the aggravating circumstance that the defendant would commit acts of violence that would constitute a continuing threat against society. There is no legal requirement that criminal charges must be filed before you as a jury can consider allegations of criminal conduct by the defendant with respect to this circumstance, nor is it necessary there be a final conviction for such unrelated criminal conduct. Whether the defendant committed these alleged crimes is a matter to be determined by you the jury, based upon the evidence presented to you in open court. (O.R.436).
¶ Appellant argues this instruction allowed the jury to use the evidence of unadjudicated offenses without even making a finding that he had committed the offense beyond a reasonable doubt, thus unconstitutionally lessening the State's burden of proof with respect to this aggravating circumstance.
¶ Instruction No. 11 is not a uniform (OUJI-Cr) instruction. In fact the uniform instructions do not set forth an instruction explaining or defining unadjudicated acts. Appellant has cited no authority requiring such an instruction or mandating such an instruction. The instruction given was an accurate statement of the law as a final conviction is not necessary for prior criminal activity to be relevant to the “continuing threat” aggravator. See Paxton, 867 P.2d at 1322. Further, the existence of the aggravating circumstance in general must be proved beyond a reasonable doubt, not the individual pieces of evidence which make up the aggravator. Contrary to Appellant's argument, the instruction does not allow the jury to use evidence of unadjudicated acts for “whatever purpose the jury chose.” (Appellant's brief, pg. 75) It specifically directs the jury that such evidence was to be considered only as it pertained to the aggravating circumstance of “continuing threat”. We find the instruction does not constitute plain error.
¶ Appellant further complains about other evidence admitted to prove the “continuing threat” aggravator. Initially, he complains about testimony from Miami Police Chief Gary Anderson that he had arrested or had contact with Appellant on numerous occasions and that his reaction upon hearing of Appellant's involvement in the homicide was “it was bound to happen sooner or later.” He argues that the lack of pre-trial notice for this testimony violated his Eighth Amendment right to a reliable sentencing proceeding.
¶ Title 21 O.S.1991, 701.10, provides that “[o]nly such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible” during second stage proceedings. We have held that section 701.10, along with Okla. Const. art. II, 20, requires the State to provide a capital defendant with “a summary of the evidence intended to support the alleged aggravating circumstances, and a list of witnesses the State might call” and not a detailed description of anticipated second stage evidence. Walker v. State, 887 P.2d 301, 316-17 (Okl.Cr.1994); see also Wilson v. State, 756 P.2d 1240, 1245 (Okl.Cr.1988). The purpose of this pre-trial notice requirement is “to allow the defendant time to present a defense or an explanation for alleged criminal misconduct.” Walker, at 316-17. Stated in more general terms, its purpose is “to apprise the defendant of evidence relevant to sentencing which will be introduced for the first time in the sentencing hearing.” Id. “[F]ailure to object to lack of notice, either at a pre-trial hearing or at the time the challenged evidence is offered, will result in waiver of this statutory right.” Id.
¶ Neither challenged comment was met with an objection as to insufficient notice. Appellant's failure to object on the lack of notice, grounds that he raises now on appeal, waives all but plain error review of the issue.
¶ Chief Anderson was listed on the State's initial List of Second Stage Witnesses (O.R.78). A summary of his testimony was provided in the State's Summary of Witness Testimony filed approximately one year prior to trial. (O.R.84). The summary stated that the testimony would be consistent with police reports provided to Appellant and as present at the scene. Anderson was again listed on an Amended List of Second Stage Witnesses and Summary of Witness Testimony filed March 22, 1996. (O.R.290, 297). Based upon this record, Appellant had sufficient notice of Anderson's testimony.
¶ Appellant further argues the second challenged comment was a personal opinion, not relevant to the issues. Anderson's comment that “it was bound to happen sooner or later” was a spontaneous remark which in light of the evidence did not prejudice Appellant.
¶ Appellant next complains that a public drunk incident which occurred while he was a juvenile was improperly used during second stage proceedings as it could not have been used to enhance punishment under 21 O.S.1991, 51. The enhancement of punishment in a non-capital case and the sentencing stage of a capital trial serve entirely separate purposes. Carter v. State, 879 P.2d 1234, 1250 (Okl.Cr.1994), cert. denied, 513 U.S. 1172, 115 S.Ct. 1149, 130 L.Ed.2d 1107 (1995); Paxton, 867 P.2d at 1322. Here, evidence of the prior unadjudicated offense was specifically admitted to support the aggravating circumstance of “continuing threat.” The enhancement of punishment was not an issue in this case. The jury was thoroughly informed, through argument and instructions, as to the consideration to be given the unadjudicated offenses. Therefore we find no error in the admission of this evidence.
¶ Finally, Appellant finds error in the admission of testimony by a jailer that Appellant enjoyed watching violent movies and got excited while watching them. Appellant's objection to the testimony preserved the issue for appellate review. We find this testimony relevant in proving Appellant's propensity for violence and the existence of a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society. Based upon the foregoing, we find Appellant was not denied a reliable sentencing proceeding by the admission of improper evidence. Accordingly, this assignment of error is denied.
¶ In his eleventh assignment of error, Appellant challenges the second stage jury instructions. He acknowledges that several of his arguments have been previously rejected by this Court, but presents them again to preserve them for future appeals and to urge this Court to reconsider the arguments.
¶ First, he asserts the instructions failed to inform the jury that its findings regarding mitigating circumstances did not have to be unanimous. This argument has previously been rejected in Bryson, 876 P.2d at 262; Pickens v. State, 850 P.2d 328, 339 (Okl.Cr.1993), cert. denied 510 U.S. 1100, 114 S.Ct. 942, 127 L.Ed.2d 232 (1994). We are not persuaded to hold differently now.
¶ Next, he asserts the instructions on the issue of mitigation permitted the jury to ignore mitigating evidence altogether, and seriously diminished the effect of mitigating evidence presented in this case. In Instruction No. 7 the jury was instructed that mitigating circumstances are those which “may be considered” as extenuating or reducing the degree of blame. Appellant contends that using such permissive language instead of the mandatory language of “must be considered” allowed the jury to disregard mitigating evidenceFN4. This same instruction was given in Pickens wherein we rejected the argument that the instruction allowed the jury to ignore mitigating evidence. 850 P.2d. at 339. FN4. Instruction No. 7 reads in its entirety: Mitigating circumstances are those which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case. (O.R.432).
¶ Appellant also argues the trial court erred in failing to instruct the jury that it could consider a sentence of life or life without parole even though they had found the existence of one or more aggravating circumstances. This argument has consistently been rejected as this Court has held that the trial court is not required to inform the jury that they may disregard the aggravating circumstances and impose a life sentence. Valdez, 900 P.2d at 385; Bryson, 876 P.2d at 262.
¶ Appellant next asserts the instructions on the manner in which the jury was to weigh aggravating circumstances was erroneous and set forth an improper burden of proof. He complains that Instruction No. 8, which is verbatim OUJI-Cr 440 (1st ed.) improperly permitted the jury to weigh the totality of the aggravating circumstances against each individual mitigating circumstance rather than weighing the aggregate mitigating factors against each separate aggravating circumstance as required by 21 O.S.1991, 701.11. Appellant's objection to Instruction No. 8 has preserved the issue for appellate review.
¶ Specific standards for balancing aggravating and mitigating circumstances are not constitutionally required. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); see also Mitchell v. State, 884 P.2d 1186, 1206 (Okl.Cr.1994). Whether aggravators outweigh mitigating circumstances is left to the jury's discretion. Johnson v. State, 731 P.2d 993, 1004 (Okl.Cr.1987), cert. denied, 484 U.S. 878, 108 S.Ct. 35, 98 L.Ed.2d 167 (1987). Instruction No. 8 informed the jury that a finding of aggravating circumstances beyond a reasonable doubt is not by itself sufficient to assess the death penalty. Rather, the aggravating circumstances must clearly outweigh any mitigating circumstances before the death penalty may be imposed. This Court has held similar instructions constitutional, rejecting the argument now made by Appellant. Mitchell, 884 P.2d at 1206; Revilla v. State, 877 P.2d 1143, 1153 (Okl.Cr.1994), cert. denied, 513 U.S. 1096, 115 S.Ct. 764, 130 L.Ed.2d 661 (1995). Accordingly, this assignment of error is denied.
PREJUDICIAL PHOTOGRAPHS CLAIM
¶ In his fifth assignment of error, Appellant challenges the admissibility of photographs of the victim and autopsy slides. He argues that since he did not contest the cause or manner of death, the photos and slides had little, if any, probative value. Specifically, Appellant directs our attention to State's Exhibits No. 5 and 9. These are color photographs, 11 x 14 inches in size showing a full body view of the victim and a close-up of the victim's head, respectively. Appellant also directs us to eighteen (18) slides illustrating wounds to the victim. These are the same photographs and slides found admissible in Conover, 933 P.2d at 912-913. Appellant's arguments have not persuaded us to change that view.
¶ Appellant further asserts admission of the photographs and slides denied him a fair sentencing proceeding. As the exhibits were properly admitted during the first stage of trial, and as they were relevant in establishing the aggravating circumstance of “especially heinous, atrocious or cruel”, we find they did not deny Appellant a fair sentencing proceeding. Accordingly, this assignment of error is denied.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
¶ In his twelfth assignment of error, Appellant contends he was denied the effective assistance of counsel by trial counsel's failure to cross-examine the victim impact witnesses on certain aspects of the victim's character, specifically that he was a convicted drug dealer. Appellant also claims counsel was ineffective by failing to cross-examine into that same area during the first stage testimony of Detective Pendley and to otherwise bring this evidence before the jury.
¶ Trial counsel is presumed competent to provide the guiding hand that the accused needs, and therefore the burden is on the accused to demonstrate both a deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland sets forth the two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. First, the defendant must show that counsel's performance was deficient, and second, he must show the deficient performance prejudiced the defense. Unless the defendant makes both showings, “it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687, 104 S.Ct. at 2064. Appellant must demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. at 688-89, 104 S.Ct. at 2065-66.
¶ When a claim of ineffectiveness of counsel can be adjudicated on the ground of lack of prejudice, that course should be followed. Id. at 696, 104 S.Ct. at 2070, 80 L.Ed.2d at 699. Concerning the prejudice prong, the Supreme Court, in interpreting Strickland, has held: [an appellant] alleging prejudice must show “that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S., at 687, 104 S.Ct., at 2064; see also Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986) (“The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect”); Nix v. Whiteside, 475 U.S. , at 175, 106 S.Ct. , at 998[, 89 L.Ed.2d 123 (1986) ]. Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him. See [ United States v.] Cronic, 466 U.S. , at 658, 104 S.Ct. , at 2046[ 80 L.Ed.2d 657 (1984) ]. Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180, 189 (1993) (footnote omitted). Although we must consider the totality of the evidence which was before the factfinder, our “ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Strickland, at 695, 104 S.Ct. at 2069; Fisher v. State, 736 P.2d 1003, 1012 (Okl.Cr.1987), cert. denied 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1988).
¶ In the present case, apart from a reference to an “NCIC” report in the original record, there is nothing in the record to indicate the victim had been convicted of any crime, including a drug crime. Further, Appellant's defense was that of self-defense, specifically denying the use or any involvement with drugs. He testified that while co-defendant Conover was visiting the Davises he just happened to remember that the victim lived next door and went over talk to him about tattoos. During their conversation, the victim suddenly attacked and Appellant was forced to defend himself. To introduce evidence that the victim was involved with drugs would have only weakened Appellant's defense of self-defense in light of the evidence showing Appellant had been looking for drugs prior to arriving at the victim's home. Further, if evidence had been presented that the victim had drugs and drug paraphernalia in his home at the time of the murder, it would only have served to strengthen the State's theory that Appellant killed the victim when he failed to provide the drugs. Based upon this record, counsel's failure to introduce any evidence in the first stage of trial concerning the victim's involvement with drugs appears to have been a strategic decision. Counsel seemed to focus the defense on self-defense and purposely avoid the role illegal drugs may have played in the case. Focusing and narrowing the defense based upon the State's evidence is a valid strategy. This Court has declined to second guess trial strategy on appeal. Smith v. State, 650 P.2d 904, 908 (Okl.Cr.1982). That the strategy proved unsuccessful is not grounds for branding counsel ineffective. Absent a showing of incompetence, the appellant is bound by the decisions of his counsel and mistakes in tactic and trial strategy do not provide grounds for subsequent attack. Davis v. State, 759 P.2d 1033, 1036 (Okl.Cr.1988).
¶ Further, any failure to bring out evidence of the victim's involvement with illegal drugs during the second stage of trial was also a strategic decision. While victim impact witnesses are subject to the same rules of cross-examination as other witnesses, the decision to cross-examine relatives of the victim on negative aspects of the victim's character is a matter best left to trial counsel who observes the witnesses and jury first hand. The pursuit of such an issue could have a devastating effect on the Appellant's plea for a sentence of less than death. The failure to obtain explicit admissions from the victim impact witnesses did not deny Appellant a reliable sentencing proceeding.
¶ Appellant also asserts counsel was ineffective in his failure to object to improper cross-examination of Appellant regarding his prior convictions and his post-arrest silence, and in his failure to object to “flawed” sentencing instructions on “especially heinous, atrocious or cruel” and “continuing threat”.
¶ In Proposition II, we discussed the prosecutor's inquiry into Appellant's prior convictions and post-arrest silence. We found no error in the inquiry into the prior convictions and harmless error in the inquiry into his post-arrest silence. Therefore, counsel's failure to object to the two lines of inquiry did not prejudice Appellant as it did not affect the fundamental fairness of the trial. Further as discussed in Proposition X, the instructions given to the jury on the aggravating circumstances of “especially, heinous, atrocious or cruel” and “continuing threat” did not deny Appellant a reliable sentencing hearing. Therefore, counsel's failure to object to these instructions did not prejudice Appellant. Accordingly, we find Appellant was not denied the effective assistance of counsel and this assignment of error is denied.
ACCUMULATION OF ERRORS CLAIM
¶ In his final and thirteenth assignment of error, Appellant contends that, even if no individual error merits reversal, the cumulative effect of such errors warrants either reversal of his conviction or a modification of his sentence. We have reviewed Appellant's complaints and found any errors harmless beyond a reasonable doubt. Therefore, there can be no cumulative error. Error relating to victim impact evidence admitted in the second stage is addressed in the mandatory sentence review below.
MANDATORY SENTENCE REVIEW Pursuant to 21 O.S.1991, 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of the aggravating circumstances as enumerated in 21 O.S.1991, 701.12. Turning to the second portion of this mandate, the jury found the existence of three (3) aggravating circumstances: 1) the murder was especially heinous, atrocious or cruel; 2) the defendant was previously convicted of a felony or felonies involving the use or threat of violence to the person; and 3) the existence of a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, 701.12(4), (1),(7).
¶ As discussed previously, we have found the aggravator of “continuing threat” and “especially heinous, atrocious or cruel” supported by sufficient evidence. Appellant does not contest the sufficiency of the evidence as it pertains to the “prior violent felony” aggravator. However, we have reviewed the evidence and find the aggravator is supported by evidence of prior convictions for Aggravated Assault and Battery on a Police Officer and Assault and Battery with a Dangerous Weapon, After Former Conviction of a Felony. Paxton, 867 P.2d at 1325.
¶ Turning to the mitigating evidence, Appellant presented four (4) witnesses, including his wife, mother, friend, and a licensed clinical psychologist. These witnesses testified that Appellant's mental capacity was impaired by a combination of substance abuse and childhood trauma; that he has family members and friends who love him and who will, if he is not put to death, visit him and maintain a relationship with him; the mental impairment Appellant suffers from is controllable by medication and deprivation of drugs and alcohol; and Appellant benefits from a controlled environment such as that provided in prison. We find the aggravating circumstances sufficiently outweigh the mitigating evidence presented by Appellant at trial.
¶ We now address the first question: whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor. As noted above in our discussion of Proposition VII, we found error in the amount and type of victim impact evidence presented to the jury. However, as our discussion of the aggravating circumstances shows, the victim impact evidence was not the only evidence presented during the sentencing stage. As discussed in Cargle, any error in the admission of victim impact evidence is a trial error “which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” 909 P.2d at 835 quoting Bartell v. State, 881 P.2d 92, 98 (Okl.Cr.1994). 909 P.2d at 835. In the present case, the jury was properly instructed on the use of victim impact evidence and Appellant received sufficient notice of the victim impact evidence to be introduced. Further, given the fact that we have determined, independently of the victim impact evidence, there was sufficient evidence to support three aggravating circumstances, we can safely hold that portion of the victim impact evidence which was improperly admitted was harmless beyond a reasonable doubt as the improperly admitted evidence does not undermine the reliability of the verdict as to the sentence imposed.FN5 FN5. In a Motion for Leave to File Supplemental Authority, Appellant asserts that the recent case of Willingham v. State, 947 P.2d 1074 (Okl.Cr.1997) compels vacation of his death sentence on the grounds of improper victim impact evidence. We have reviewed Willingham and find it is not in conflict with our decision in this case.
¶ Having reviewed the evidence and applicable law, we find the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor. Accordingly, finding no error warranting reversal or modification, the judgment and sentence of the trial court is AFFIRMED.
Welch v. State, 972 P.2d 26 (Okla.Crim. App. 1998). (PCR)
Following affirmance of conviction and death sentence for first-degree murder, defendant petitioned for post-conviction relief. The Court of Criminal Appeals, Lumpkin, J., held that: (1) ineffective assistance claims raised on direct appeal were barred by res judicata; (2) new ineffective assistance claim did not turn on information unavailable on direct appeal and was therefore barred; (3) defendant could not reassert claims rejected on direct appeal by presenting them under the guise of ineffective assistance of appellate counsel; and (4) appellate counsel's failure to challenge introduction of evidence of other crimes was not ineffective assistance. Application denied.
1998 OK CR 57 CORRECTION ORDER
¶ 1 The opinion in the above entitled cause, Welch v. State, 1998 OK CR 55, 69 OBJ 3524, handed down on October 7, 1998, is hereby withdrawn. The opinion erroneously omitted the Court's analysis of the denial of Evidentiary Hearing. The corrected opinion is simultaneously handed down with this correction order as Welch v. State, 1998 OK CR 58, 972 P.2d 26. IT IS SO ORDERED. OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF, AND APPLICATION FOR EVIDENTIARY HEARING LUMPKIN, J.
¶ 1 Petitioner Gary Roland Welch was convicted of First Degree Murder (21 O.S.1991, § 701.7), Case No. CRF-94-302, in the District Court of Ottawa County. The jury found the existence of three aggravating circumstances and recommended the punishment of death. This court affirmed the conviction and sentence in Welch v. State, 1998 OK CR 54, 968 P.2d 1231. Petitioner filed his Original Application for Post-Conviction Relief in this Court on January 2, 1998, in accordance with 22 O.S.Supp.1995, § 1089.
¶ 2 Before considering Petitioner's claims, we must again reiterate the narrow scope of review available under the amended Post-Conviction Procedure Act. As we have said numerous times, the Post-Conviction Procedure Act was neither designed nor intended to provide applicants another direct appeal. Walker v. State, 933 P.2d 327, 330 (Okl.Cr.1997) (interpreting Act as amended); Fox v. State, 880 P.2d 383, 384 (Okl.Cr.1994), cert. denied,  U.S. , 115 S.Ct. 1318, 131 L.Ed.2d 199 (1995) (same conclusion under Act before amendments). The Act has always provided petitioners with very limited grounds upon which to base a collateral attack on their judgments. Accordingly, claims which could have been raised in previous appeals but were not are generally waived; and claims raised on direct appeal are res judicata. Thomas v. State, 888 P.2d 522, 525 (Okl.Cr.1994), cert. denied,  U.S. , 116 S.Ct. 123, 133 L.Ed.2d 73 (1995); Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992). Conover v. State, 942 P.2d 229 (Okl.Cr.1997). These procedural bars still apply under the amended Act. We have noted the new Act makes it even more difficult for capital post-conviction applicants to avoid procedural bars. Walker v. State, 933 P.2d 327, 331 (Okl.Cr.), cert. denied, 521 U.S. 1125, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997). Under 22 O.S.Supp.1995, § 1089(C)(1), only claims which “[w]ere not and could not have been raised” on direct appeal will be considered. A capital post-conviction claim could not have been raised on direct appeal if (1) it is an ineffective assistance of trial or appellate counsel claim which meets the statute's definition of ineffective counsel; or (2) the legal basis of the claim was not recognized or could not have been reasonably formulated from a decision of the United States Supreme Court, a federal appellate court or an appellate court of this State, or is a new rule of constitutional law given retroactive effect by the Supreme Court or an appellate court of this State. 22 O.S.Supp.1995, §§ 1089(D)(4)(b), 1089(D)(9). Should a Petitioner meet this burden, this Court shall consider the claim only if it “[s]upports a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent.” 22 O.S.Supp.1995, § 1089(C)(2). As we said in Walker, The amendments to the capital post-conviction review statute reflect the legislature's intent to honor and preserve the legal principle of finality of judgment, and we will narrowly construe these amendments to effectuate that intent. Given the newly refined and limited review afforded capital post-conviction applicants, we must also emphasize the importance of direct appeal as the mechanism for raising all potentially meritorious claims. Because the direct appeal provides appellants their only opportunity to have this Court fully review all claims of error which might arguably warrant relief, we urge them to raise all such claims at that juncture. Walker, 933 P.2d at 331 (footnote omitted, emphasis in original). We now turn to Petitioner's claims.
¶ 3 In Proposition I, Petitioner challenges the constitutionality of the recent amendments to the capital post-conviction statute. He argues that such amendments unconstitutionally limit his right of access to the courts, and deny his rights to due process and equal protection of the law. This Court has previously rejected this argument. Le v. State, 953 P.2d 52, 54 (Okl.Cr.1998). We do so again.
¶ 4 In Proposition II, Petitioner argues he was denied the effective assistance of trial counsel by counsel's failure to effectively investigate and present available mitigation evidence. The issue of ineffective assistance of counsel was raised and addressed on direct appeal.FN1 Therefore, further consideration of the issue is barred by res judicata. 22 O.S.Supp.1995, § 1089(C)(1). See also Smallwood v. State, 937 P.2d 111, 115 n. 3 (Okl.Cr.1997). FN1. On direct appeal, Petitioner argued he was denied the effective assistance of counsel by trial counsel's failure to cross-examine the victim impact witnesses on certain aspects of the victim's character, specifically that he was a convicted drug dealer, and by failing to cross-examine into that same area during the first stage testimony of Detective Pendley and to otherwise bring this evidence before the jury.
¶ 5 Despite the procedural bar of res judicata, a claim of ineffective assistance of trial counsel can be brought for the first time on post-conviction, but only if it requires fact-finding outside of the direct appeal record. 22 O.S.Supp.1995, § 1089(D)(4)(b)(1). The statutory phrase “fact-finding outside the direct appeal record” was never meant to negate the principle of waiver. McGregor v. State, 935 P.2d 332, 335 (Okl.Cr.1997). This Court may not review post-conviction claims of ineffective assistance of trial counsel if the facts generating those claims were available to the direct appeal attorney and thus either were or could have been used in the direct appeal. Walker, 933 P.2d at 332. The mere absence of a claim from the direct appeal record is not sufficient: the claim is still waived if the facts contained in it were available to the direct appeal attorney and could have been raised on direct appeal. Id.
¶ 6 Having reviewed Petitioner's argument and affidavits in support thereof, we find his claim of ineffective assistance of trial counsel does not turn on facts or information unavailable at the time of his direct appeal. Therefore, he has failed to meet the conditions for review of this claim on the merits and therefore review of the claims is barred. See Scott v. State, 942 P.2d 755, 760 (Okl.Cr.1997).
¶ 7 Propositions III FN2 and IV FN3 were also raised on direct appeal, therefore further consideration is barred by res judicata. 22 O.S.Supp.1995, § 1089(C)(1). See also Smallwood v. State, 937 P.2d 111, 115 n. 3 (Okl.Cr.1997). FN2. In Proposition III, Petitioner contends he was denied his right to a reliable sentencing proceeding as the trial court refused his requested instruction on specific mitigating factors. He argues that this error was exacerbated by the conduct of the prosecutor during voir dire who repeatedly asked prospective jurors if a history of alcohol and drug abuse, and a deprived and turbulent background would justify a sentence of less than death if the jurors believed the death penalty was appropriate. The issue of the omission of a jury instruction on specific mitigating factors was raised on direct appeal. FN3. In Proposition IV, Petitioner asserts he was denied his rights under the Fifth and Fourteenth Amendments when the prosecutor, in closing argument, made a comment reflecting adversely on his right not to make a statement to authorities following his arrest. Petitioner argues this error was compounded by the fact that during closing argument, the prosecutor made another comment on Petitioner's right of silence following his arrest. The issue of the prosecutor's comment on Petitioner's right to post-arrest silence was raised on direct appeal.
¶ 8 In Proposition V, Petitioner asserts he was denied his constitutional rights to a fair trial when the trial court permitted the introduction of irrelevant evidence of other crimes. Petitioner recognizes this issue was not raised on direct appeal, and argues that such failure is indicative of ineffective assistance of appellate counsel. Consideration of this issue on its merits is waived as it was not raised on direct appeal but could have been. 22 O.S.Supp.1995, § 1089(C)(1). The claim of ineffective assistance of appellate counsel is addressed inter alia.
¶ 9 In Walker, this Court set forth a three-prong test to review claims of ineffective assistance of appellate counsel.FN4 Under this analysis, (1) the threshold inquiry is whether appellate counsel actually committed the act which gave rise to the ineffective assistance allegation. If a petitioner establishes appellate counsel actually did the thing supporting the allegation of ineffectiveness, this Court then (2) determines whether the performance was deficient under the first of the two-pronged test in Strickland v. Washington, 466 U.S. 668, 677-78, 104 S.Ct. 2052, 2059, 80 L.Ed.2d 674 (1984). If this burden is met, (3) this Court then considers the mishandled substantive claim, asking whether the deficient performance supports a conclusion “either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent.” Walker, 933 P.2d at 333 n. 23 (quoting 22 O.S.Supp.1995, § 1089(C)(2)). FN4. I continue to maintain that the Strickland test in its entirety, i.e., both prongs of the test, is the appropriate vehicle with which to review claims of ineffective assistance of appellate counsel. See Walker, 933 P.2d at 341 (Lumpkin, J., Concurring in Result). However, I yield to the majority here based on stare decisis. Having reviewed Petitioner's application, together with the argument and authority provided, in accordance with the criteria set forth in Braun v. State, 937 P.2d 505, 511-514 (Okl.Cr.1997) I find counsel's performance was not deficient and the underlying substantive claim is procedurally barred. In addition, it should be noted the criteria set forth in Strickland for evaluating effectiveness of counsel has been further explained in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Applying the Lockhart standard, the record is void of any evidence the trial was rendered unfair and the verdict rendered suspect or unreliable.
¶ 10 Applying this analysis to Petitioner's claims of ineffective assistance of appellate counsel raised in Propositions II, III and IV the first threshold question is not met as appellate counsel raised those issues on appeal. That post-conviction counsel raises the claims in a different posture than that raised on direct appeal is not grounds for reasserting the claims under the guise of ineffective assistance of appellate counsel. Turrentine v. State, 1998 OK CR 44, 965 P.2d 985. The doctrine of res judicata does not allow the subdividing of an issue as a vehicle to relitigate at a different stage of the appellate process. Id. Direct appeal counsel competently raised the issues of ineffective assistance of trial counsel, the lack of a jury instruction listing specific mitigating factors and comments on Petitioner's post-arrest silence on direct appeal. “Post-conviction review is neither a second appeal nor an opportunity for [Petitioner] to re-raise or amend propositions of error already raised in the direct appeal.” Hooper v. State, 957 P.2d 120, 123 (Okl.Cr.1998). In other words, “[p]ost-conviction review does not afford defendants the opportunity to reassert claims in hopes that further argument alone may change the outcome in different proceedings.” Trice v. State, 912 P.2d 349, 353 (Okl.Cr.1996). See also Hooks v. State, 902 P.2d 1120, 1124 (Okl.Cr.1995); Fowler v. State, 896 P.2d 566, 570 (Okl.Cr.1995).
¶ 11 In this case, the claims of ineffective assistance of trial counsel, the lack of a jury instruction listing specific mitigating factors and comments on Petitioner's post-arrest silence as raised on direct appeal contained relevant legal arguments supported by pertinent facts and legal authority. This was sufficient to enable this Court to consider the issues. That appellate counsel was not successful in his challenges is not grounds for a finding of ineffectiveness. As appellate counsel's challenges to these issues were not deficient, further argument on post-conviction would not render the issue meritorious. Trice, 912 P.2d at 353.
¶ 12 As to the issue raised in Proposition V, the threshold question is met as the direct appeal record shows this claim was not raised on direct appeal. We therefore turn to the second requirement under the new Act: whether such performance was deficient under the first prong of the Strickland test. Under this standard the analysis is whether “counsel's performance was deficient under prevailing professional norms.” Turrentine, 965 P.2d at 990.
¶ 13 While appellate counsel has a duty to raise relevant issues for this Court's consideration, there is no obligation to raise all available non-frivolous issues. Walker, 933 P.2d at 334. Appellate counsel filed a well written, thoroughly researched brief raising numerous claims at least equally meritorious to those which were omitted and are at issue here. We cannot find that appellate counsel's failure to raise the claims at issue here rendered his performance unreasonable under prevailing professional norms. It has not been shown that appellate counsel breached a duty owed to Petitioner, or that appellate counsel's judgment was “unreasonable under the circumstances or did not fall within the wide range of professional assistance” owed to a client by an attorney. Walker, 933 P.2d at 337. Further, Petitioner has failed to show any external impediment which precluded counsel from raising the issues. Conover, 942 P.2d at 233. Therefore, as Petitioner has not established that appellate counsel's performance was deficient, his claim of ineffective assistance of appellate counsel has no merit and his substantive claim remains procedurally barred.
¶ 14 Further, Petitioner has filed an Application for Evidentiary Hearing in accordance with Rule 9.7(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1996). He asserts that crucial mitigating evidence regarding his abusive and deprived background was available for introduction in the second stage of trial, but was not pursued by trial counsel. Attached to the Application is a Social History, dated December 12, 1978, and three Special Leave Reports, dated March 9, March 30, and May 3, 1979, from the State of Oklahoma Department of Institutions, Social and Rehabilitative Services. These reports detail Appellant's history before the courts of this State, his abusive home life and plans for future treatment. Appellant requests these documents be made a part of the record and that this Court order an evidentiary hearing with respect to the claims made in Proposition II of the application for post-conviction relief.
¶ 15 The requirements for evidentiary hearings in post-conviction proceedings are set forth in Rule 9.7(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1996). Rule 9.7(D)(5) provides: (5) A request for an evidentiary hearing is commenced by filing an application for an evidentiary hearing, together with affidavits setting out those items alleged to be necessary for disposition of the issue petitioner is advancing. The application for hearing and affidavits submitted by the petitioner shall be cross-referenced to support the statement of specific facts required in the application for post-conviction relief. See Section 1089(C)(2) of Title 22. The application for an evidentiary hearing shall be filed together with the application for post-conviction relief. See Section 1089(D)(2) of Title 22. The application for hearing and affidavits must contain sufficient information to show this Court by clear and convincing evidence the materials sought to be introduced have or are likely to have support in law and fact to be relevant to an allegation raised in the application for post-conviction relief. (emphasis added).
¶ 16 Here, Petitioner has not set forth sufficient information to show this Court by clear and convincing evidence the information about his background and trial counsel's failure to pursue such information in second stage has or is likely to have support in law and fact to be relevant to an allegation raised in the application for post-conviction relief. As we discussed in Proposition II, Petitioner's claims of ineffective assistance of trial counsel are procedurally barred. Section 1089(C) provides that only matters which could not have been raised in direct appeal can be raised on post-conviction. See 22 O.S.1991, § 1089(C)(1); Rule 9.7(B)(1) and (2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1996). Further, this Court may not review post-conviction claims of ineffective assistance of trial counsel if the facts generating those claims were available to the direct appeal attorney and thus either were or could have been used in the direct appeal. Walker, 933 P.2d at 332. Here, Petitioner admits the background information in question was available to trial counsel at the time of trial. That admitted availability at the time of trial prevents this Court from reviewing a claim of ineffective assistance of trial counsel based upon the failure of trial counsel to utilize that information. Therefore, as Petitioner cannot show that trial counsel's failure to pursue the background material in question is an issue which could not have been raised on direct appeal, then the issue is not relevant to the application for post-conviction relief, and a basic prerequisite for an evidentiary hearing has not been met. Accordingly, Petitioner's request for an evidentiary hearing is denied.
¶ 17 After carefully reviewing Petitioner's Application for post-conviction relief, we conclude (1) there exists no controverted, previously unresolved factual issues material to the legality of Petitioner's confinement; (2) Petitioner could have previously raised collaterally asserted grounds for review; (3) grounds for review which are properly presented have no merit; and (4) the current post-conviction statutes warrant no relief. 22 O.S.Supp.1995, § 1089(D)(4)(a)(1), (2) & (3). Accordingly, Petitioner's Application for Post-Conviction Relief is DENIED.
Welch v. Workman, 639 F.3d 980 (10th Cir. 2011). (Habeas)
Background: After his murder conviction and death sentence were affirmed on appeal, 968 P.2d 1231, and his request for post-conviction relief denied, 972 P.2d 26, defendant filed petition for federal writ of habeas corpus. The United States District Court for the Northern District of Oklahoma, Claire V. Eagan, Chief Judge, 2007 WL 927950, denied the petition, but granted certificate of appealability (COA).
Holdings: On grant of rehearing and denial of rehearing en banc, the Court of Appeals, O'Brien, Circuit Judge, held that: (1) any error by state court in allowing witness to relate statement of co-defendant who was not available to testify did not entitle defendant to habeas relief; (2) alleged misconduct of prosecutor in commenting on defendant's post-arrest silence did not entitle defendant to habeas relief; (3) decision that trial court did not err in refusing to give a series of second degree murder instructions was not contrary to United States Supreme Court precedent; (4) trial court's consideration of certain portions of victim impact statements did not result in actual prejudice; (5) determination that evidence was sufficient to support jury's determination that defendant's murder was “heinous, atrocious or cruel” was not an unreasonable determination of the facts or contrary to clearly established federal law; (6) trial counsel's failure to object to jury instruction defining the heinous, atrocious or cruel aggravator did not constitute ineffective assistance; and (7) appellate counsel did not provide ineffective assistance of counsel. Affirmed.
Opinion, 607 F.3d 674, withdrawn and superseded.
ORDER ADDRESSING PETITION FOR REHEARING AND SUBSTITUTING NEW OPINION
Appellant, Gary Roland Welch, petitioned for panel and en banc rehearing. Panel rehearing is granted for the limited purpose of addressing the issue Welch raised in his petition for panel rehearing and clarifying that the panel reviewed the Hardcastle family's victim impact testimony de novo, applying Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The panel's original opinion will be amended to do so. The opinion in this case dated June 07, 2010, Welch v. Workman, 607 F.3d 674 (10th Cir.2010), is withdrawn and the attached opinion is substituted in its place. In all other respects, the petition for panel rehearing is denied. The petition for rehearing en banc as well as the modified and substituted opinion was transmitted to all of the judges of the court in regular active service. As no member of the panel and no judge in regular active service on the court requested a poll, the petition for rehearing en banc is denied. Additional petitions for rehearing in this matter will not be permitted. See 10th Cir. R. 40.3 (“[t]he court will accept only one petition for rehearing from any party to an appeal. No motion to reconsider the court's ruling on a petition for rehearing may be filed.”). O'BRIEN, Circuit Judge. Gary Welch was sentenced to death after his conviction for the first degree murder of Robert Hardcastle. After his conviction and sentence were affirmed on appeal and his request for post-conviction relief was denied, Welch petitioned for writ of habeas corpus under 28 U.S.C. § 2254. The district court denied his petition but granted a certificate of appealability on ten issues involving both the guilt and sentencing phase of his trial. We affirm.
I. EVIDENCE AT TRIAL
A. Guilt Phase
Welch and his co-defendant, Claudie Conover, were charged with murdering Robert Hardcastle on August 25, 1994. At around 4:00 p.m. that day, Welch and Conover drove to the home of Johnny Rogers. Stephen St. John, Rogers' brother-in-law, testified he was present when they arrived. St. John saw his brother-in-law walk to Welch's car and heard Welch ask for a “bump” (a drug injection). (Vol. 5 at 1116, 1119.) When Rogers said he had none, Welch got out of the car and, pointing a knife at Rogers, said “Give me a god damned bump!” ( Id. at 1120.) Welch turned the knife on St. John and told him to “look the other way.” ( Id. at 1121.) Welch continued to demand drugs until Conover patted him on the back and said “let's get out of here.” ( Id. at 1121–22.) Approximately one hour later, Conover appeared at Larry Davis' home located in a duplex owned by Hardcastle. Davis and his wife lived in the front part of the duplex while Hardcastle resided in the back. Davis testified his friend was cooking dinner and Conover accepted an invitation to join them. Davis noticed a car parked toward the back, but saw only Conover at the time. At some point, Davis went into the kitchen to help cook. While there, he heard banging noises coming from Hardcastle's residence. When he returned to the living room, Davis said he “wondered if [Hardcastle] was winning his wrestling match.” ( Id. at 1161.) Conover jokingly replied, “I wouldn't worry about it. Somebody's probably getting a spanking over a deal.” (Vol. 7 at 1563.) A few minutes later, Davis heard his living room window break. Turning, he saw Hardcastle running by the window yelling, “I don't have any” or “I didn't do it.” (Vol. 5 at 1167.) Hardcastle then ran to Davis' porch; there was blood on his hands, forearms, face and bare chest. Both Conover and Davis went towards the door but when Conover went out first, Davis shut the door and returned to his distraught wife. Patricia and Donnie Nading testified they were driving their children to football practice when, in Patricia's words, they “noticed a commotion at the side of the road.” (Vol. 6 at 1255.) They saw three men run across the street in front of them. As the Nadings pulled even with the men, they saw Hardcastle crouched in a fetal position in the roadside ditch while Conover punched him and Welch stabbed and punched him. The Nadings pulled up to the next house and Donnie used the neighbor's telephone to call the police. While on the telephone, he spoke from a window with an unobstructed view of the activity. He saw the men continue to beat Hardcastle, as another car stopped and backed up toward the fracas. He saw Conover leave the victim and stride to the car. Banging on the back window and screaming profanities, Conover told the driver to leave. In the meantime, Welch continued to stab Hardcastle until, at one point, Welch left to retrieve a beer bottle five to seven feet away. Welch smashed the bottle and used it to stab and slash at Hardcastle.
While Conover was yelling at the first driver, a second car pulled up driven by Rachelle Campbell. She saw Conover leave the first car and run toward a nearby house. The next thing she knew, a car pulled out and stopped to pick up Welch. Conover was driving; he drove the car toward her at a high speed, causing her to back into a ditch to avoid a collision. As the car drove by, Conover yelled profanities and told her to get out of the way. As the two men drove away, Campbell saw Hardcastle, covered with blood, come out of the ditch. Officer Jim Gambill was the first officer to arrive at the scene. He had known Hardcastle since they were children. Hardcastle said, “Jim, Gary Welch did this shit to me.” ( Id. at 1411.) He then asked for water and collapsed. Gambill radioed the ambulance and asked the paramedics to hurry, then radioed in to report Welch as a suspect. Hardcastle died a few minutes later. As they made their escape, Welch and Conover were seen by an officer who testified the car and its occupants matched the descriptions provided over the radio dispatch. Because the officer was in an unmarked car, he called for a marked backup and followed them. When the backup arrived, the officers stopped the car and arrested Welch and Conover. The officers then retrieved a broken knife which had been thrown out of the vehicle prior to its stop. At booking, a knife scabbard was taken from Welch's belt and another knife was found in the car. Welch had sustained a wound which totally penetrated his left forearm but he refused treatment that night. At one point he passed out in his cell. The next day, Welch was transferred to the hospital where he underwent surgery on the wound. A search of Hardcastle's duplex revealed a major fight had taken place in the kitchen and inside the front door. The autopsy report stated Hardcastle bled to death after receiving at least ten stab wounds, three of which penetrated his lungs, and numerous incision (slice) wounds.FN1 Some of the wounds were consistent with the broken knife thrown from the vehicle and the superficial wounds were consistent with those caused by a broken beer bottle. FN1. Dr. Ronald Distefano, the medical examiner, testified he defined an “incise wound” as a wound “caused by a sharp instrument.” (R. Vol. 7 at 1722.) The term is used to differentiate such a wound from a stab wound. A stab wound is also from a sharp instrument but it is “essentially deeper than it is wide, whereas an incise wound is more wide than it is deep.” ( Id.) At trial, Welch testified he fought Hardcastle in self-defense. He explained that two weeks before the incident Hardcastle, who knew Welch did “skin illustrations,” had spoken to him about getting a tattoo. (Vol. 8 at 1796.) Welch decided to visit with Hardcastle about the tattoo while Conover visited with Davis. According to Welch, he and Hardcastle had a pleasant visit until Hardcastle asked Welch to show him the knife he was carrying. When Welch handed Hardcastle the knife, Hardcastle opened it and began to clean his fingernails. Then Hardcastle's attitude abruptly changed. Welch stated that Hardcastle held the knife in a threatening way and said “you've been stepping on my old lady's toes,” but he had no idea what Hardcastle was talking about. (Vol. 8 at 1825.) Hardcastle then thrust the knife at Welch, wounding him in his left arm as he raised it to protect himself.FN2 FN2. But see n.12, infra.
Welch claimed they began to fight while Hardcastle repeatedly tried to stab him. As Welch attempted to defend himself, Hardcastle eventually “went down” while still holding the knife. ( Id. at 1838.) Welch escaped through the front door and hid behind the cars in the driveway. Hardcastle came out of the house and ran to the front duplex. Seeing Conover come out on the porch, Welch revealed his position and called to Conover for assistance. Hardcastle ran towards Welch, who fled across the street and then, in his own words, “turned, you know, to face the problem.” (Vol. 8 at 1846.) Obviously rejecting Welch's account of the situation, the jury found him guilty of first degree murder.
B. Sentencing Phase
The State alleged three aggravating circumstances: (1) a previous felony conviction involving the use or threatened use of violence; (2) a probability of future criminal acts of violence constituting a continuing threat to society; and (3) the murder was especially heinous, atrocious and cruel. After incorporating the evidence from the guilt phase, the State introduced evidence of two prior felony convictions—aggravated assault and battery upon a police officer (1981) and assault and battery with a dangerous weapon after a former felony conviction (1982). In support of the continuing threat aggravator, the State introduced testimony from several police officers recounting an incident from several years before in which Welch attacked an officer while being booked for driving under the influence. In addition, an officer from the Ottawa County Jail testified Welch had threatened him during Welch's present incarceration. A fellow inmate also testified Welch assaulted him while they were being held in the same cell. The state presented evidence of a history of domestic violence. Two women testified Welch had assaulted them in the past. One stated Welch, while living in her home with his girlfriend, broke down her door, hit her and threw her against the Christmas tree. Welch's former girlfriend recounted one time Welch came to her home and demanded sex. When she refused, Welch beat her in the presence of her two minor children. Welch told the children to lie down and be quiet or he would kill them. He then tore her clothes off and put her head through a cabinet and a wall. Another time, she believed Welch was going to kill her so she fired a shotgun at him. When she missed, he took the gun, bent it, and hit her in the head with it. Yet another time, he found her in her yard and dragged her inside her home. There, Welch stuck her head in a washing machine, threw her down on a coffee table and held a knife to her throat. The State's final witnesses were three members of Hardcastle's family. We discuss these statements in detail infra. Each family member characterized Welch as an “animal” or a “parasite” and implored the jury to impose death. (Vol. 9 at 2116, 2117, 2123, 2130.) In mitigation, Welch presented the testimony of Dr. Phillip Murphy. He opined Welch's drug and alcohol abuse caused brain damage but his behavior could be managed with medication in a controlled environment. One man testified Welch was a good friend when he was not drinking or taking drugs and he would maintain this relationship if Welch's life was spared. Welch's wife testified she loved Welch and would continue this relationship if he let her. However, she admitted whether the death penalty should be imposed was a “hard question;” she knew he needed an environment where he could not get drugs or alcohol. ( Id. at 2174.) When asked if she had seen him express remorse for the incident, she did not answer directly but replied “[she had] seen a lot of different changes in [Welch] in the two years he's been in jail.” ( Id. at 2175.) Cross examination revealed that Welch's wife had requested a protective order against Welch less than a month before Hardcastle's murder. She explained Welch had hit her, injuring her mouth and blackening her eye. He then forced her to take him to his girlfriend's house. The next day, Welch and his girlfriend returned and took a television, VCR and cable box from her home. They destroyed a window and air conditioner. The girlfriend left a threatening note. Welch's mother was his final witness. Her testimony, however, was barely coherent. She had difficulty responding to questions and her answers rambled into nonsense. For example, when asked if there were times when social workers came to her home, she replied: No, they—they would—the city come out to our house, they come out there and said they wanted to go in and see if they help straighten things in school or something. And we didn't know ... who they was and we thought they was going to go in there and get this—what this principal and stuff was doing in there to Gary. We didn't know though they was trying to trap us all. And trying to get us to do something to our son to where they could, you know, arrest us, or make us bad parents, in other words. ( Id. at 2183–84.) During sentencing deliberations the jury sent two notes to the court relevant here. One note asked, “Can life without parole be reduced by appeal or pleas in the future?” Another asked, “Has anybody ever be[en] released with the sentencing of life without parole?” (Evidence Packet.) The trial court responded to each question, “I am not allowed to answer this question.” ( Id.) After deliberating further, the jury returned with a death sentence, finding all three aggravating factors beyond a reasonable doubt.
II. PROCEDURAL HISTORY
The Oklahoma Court of Criminal Appeals (OCCA) affirmed Welch's conviction and sentence and denied a request for rehearing. Welch v. State, 968 P.2d 1231 (Okla.Crim.App.1998). Welch's petition for a writ of certiorari was denied. Welch v. Oklahoma, 528 U.S. 829, 120 S.Ct. 83, 145 L.Ed.2d 70 (1999). After the OCCA affirmed the denial of Welch's application for post-conviction relief, see Welch v. State, 972 P.2d 26 (Okla.Crim.App.1998), Welch filed his § 2254 habeas petition. The district court denied the petition, Welch v. Sirmons, No. 00–CV–0105–CVE–PJC, 2007 WL 927950 (N.D.Okla. Mar. 26, 2007), but granted a certificate of appealability on ten issues (R. Vol. 1, Doc. 51). The issues relating to the guilt phase are whether: (1) prejudicial hearsay testimony was improperly admitted denying Welch an opportunity to confront a witness; (2) prosecutorial comments denied Welch a fair trial; and (3) the trial court failed to correctly instruct the jury. Sentencing phase issues are whether: (4) improper victim impact statements resulted in the death penalty; (5) the trial court's answer to the jury's questions while deliberating on his sentence rendered his sentencing fundamentally unfair; (6) the omission of a jury instruction at sentencing prevented consideration of mitigating factors; (7) aggravating factors were supported by either improper or insufficient evidence; and (8) the trial court erred in failing to instruct the jury it could reject the death penalty even if it found aggravating factors. Finally, Welch claims (9) he received ineffective assistance of trial and appellate counsel and (10) the accumulation of error had a substantial and injurious effect on the verdict of guilt and his death sentence.
III. STANDARD OF REVIEW
Under the Anti–Terrorism and Effective Death Penalty Act (AEDPA), a petitioner is entitled to federal habeas relief only if the state court 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 ... 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)(1)–(2). We presume the factual findings of the state court are correct unless the petitioner rebuts that presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “We review the district court's legal analysis of the state court decision de novo.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.2006). In applying § 2254(d), we first determine whether the principle of federal law on which the petitioner's claim is based was clearly established by the Supreme Court at the time of the state court judgment. Id. “[C]learly established law consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice. Although the legal rule at issue need not have had its genesis in the closely-related or similar factual context, the Supreme Court must have expressly extended the legal rule to that context.” House v. Hatch, 527 F.3d 1010, 1016 (10th Cir.2008). “The absence of clearly established federal law is dispositive under § 2254(d)(1).” Id. at 1018.
the existence of clearly established federal law is confirmed: [W]e then consider whether the state court decision was ‘contrary to’ or an ‘unreasonable application of’ that clearly established federal law.... A decision is ‘contrary to’ clearly established federal law for purposes of § 2254 if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from the result reached by the Supreme Court. Bland, 459 F.3d at 1009 (quotations omitted) (citing Williams v. Taylor, 529 U.S. 362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). A different result means the state decision must be “diametrically different” and “mutually opposed” to clearly established Supreme Court precedent. Id. “A state court decision involves an ‘unreasonable application’ of federal law if ‘the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case.’ ” Id. If constitutional error is committed, we look to whether “the prejudicial impact of constitutional error in [the] state-court criminal trial” rises to the “substantial and injurious effect standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)”, and O'Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Fry v. Pliler, 551 U.S. 112, 120, 121 n. 3, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). The standard applies “whether or not the state appellate court recognized the error and reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman.” Id. at 121–122, 127 S.Ct. 2321. It is important to note “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Brecht, 507 U.S. at 634, 113 S.Ct. 1710. Under the Brecht/ McAninch test a habeas petitioner obtains plenary review to determine whether a trial error “resulted in actual prejudice.” Id. at 637, 113 S.Ct. 1710 (quotations omitted). Under O'Neal, a “substantial and injurious effect” exists when the court finds itself in “grave doubt” about the effect of the error on the jury's verdict. 513 U.S. at 435, 115 S.Ct. 992. “[W]hen a court is ‘in virtual equipoise as to the harmlessness of the error’ under the Brecht standard, the court should ‘treat the error ... as if it affected the verdict....’ ” Fry, 551 U.S. at 121 n. 3, 127 S.Ct. 2321 (quoting O'Neal, 513 U.S. at 435, 115 S.Ct. 992). “The § 2254(d) standard does not apply to issues not decided on the merits by the state court.” Bland, 459 F.3d at 1010. For those claims, “we review the district court's legal conclusions de novo and its factual findings for clear error.... However, if the district court based its factual findings entirely on the state court record, we review that record independently.” Id. We “may not consider issues raised in a habeas petition that have been defaulted in state court on an independent and adequate procedural ground unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” House, 527 F.3d at 1025.
A. Proposition 1—Hearsay Testimony
Because Conover was not available to testify at Welch's trial, Welch claims the trial court violated his right to confrontation when it allowed Davis to relate Conover's statement regarding somebody getting spanked over a deal. The trial court admitted the testimony under the co-conspirator rule. On direct appeal, the OCCA ruled its admission under this precept was error but the error was harmless because the testimony could properly be admitted under the present sense impression exception to the hearsay rule. Welch, 968 P.2d at 1240. The district court rejected Welch's confrontation clause claim, concluding the OCCA's determination the statement was a present sense impression was not an unreasonable application of federal law. It noted Welch's trial occurred before the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). FN3 Thus his claim was governed by the standard set forth in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under the Roberts standard: FN3. In Crawford, the Court stated: “Where testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” 541 U.S. at 68, 124 S.Ct. 1354. [W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. 448 U.S. at 66, 100 S.Ct. 2531. The district court concluded the OCCA based its ruling “on a ‘firmly rooted hearsay exception’ ” and, therefore, its ruling was not contrary to Roberts. Welch, 2007 WL 927950 at *10. Welch argues the present sense impression exception does not apply because the statement was not used at trial to establish Conover's immediate impression. Rather, the statement was used to prove Welch's prior intent to “punish” Hardcastle.FN4 (Vol. 8 at 1956–57.) Because the statement's purpose was not within the hearsay exception, Welch maintains his inability to cross-examine Conover on what he meant by those words violated his right to confront the State's witness and his right to a fair trial. Welch also argues under Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), we must independently determine whether the statement is sufficiently reliable. We disagree. FN4. In closing argument the prosecutor stated, “Spanking is a punishment. For what? I don't know. But it's a punishment. Welch went into this home with the intent of punishing Robert Hardcastle. He had to have that intention when he went in there because Claudie Conover ... knew it, when he was over [at the Davis house].” (Vol. 8 at 1956–57.) Our review under AEDPA is limited. Notwithstanding the basis for the OCCA's conclusion, it determined the admission of the statement was harmless error. Therefore, we review only whether the admission of the testimony is harmless under the Brecht standard. See Fry, 551 U.S. at 121, 127 S.Ct. 2321. Welch maintains Conover's statement was testimonial and was not harmless because it was the only evidence of Welch's prior intent to harm Hardcastle (and contrary to his self-defense testimony). Even if we assume the statement was testimonial, numerous third-party eyewitnesses testified Welch repeatedly stabbed and beat Hardcastle while Conover held him down. Donnie Nading testified he saw Welch pursue Hardcastle, beat and stab him, and then leave Hardcastle in a fetal position to retrieve a beer bottle so the stabbing could continue. In light of the overwhelming evidence refuting Welch's self-defense testimony, we are confident the admission of Conover's statement did not have a substantial and injurious effect or influence on the jury's guilty verdict or the death sentence.
B. Proposition 2–Prosecutorial Comments
At trial, Welch's counsel asked him if he had a previous opportunity to tell his side of the story. Welch responded, “I've been waiting almost two years to be able ... to tell what happen[ed].” (Vol. 8 at 1794.) On cross-examination, the prosecutor asked the following questions: Q. [Y]ou've also testified that at no time did any law enforcement officers ask you what transpired in this case, is that correct? A. No sir, they didn't. Q. Do you recall any law enforcement officers talking with you about your [physical] condition? FN5 FN5. When arrested, Welch had sustained a deep knife wound which fully penetrated his left forearm. Welch refused treatment but became unconscious while in custody. He underwent surgery the next day. A. No, I do not.... .... Q. You were subpoenaed as a witness [for Conover] in [his] case, were you not? A. Yes, sir. I believe so. Q. Did you come forward in that case and testify as to what transpired to help your buddy out? A. No, sir, I did not. (Vol. 8 at 1922–26.) On redirect, Welch clarified he had been subpoenaed but had not been called to testify at Conover's trial. In the state's rebuttal closing argument, the prosecutor briefly discussed Welch's statement regarding the lack of opportunity to tell his story and said, “I suppose you all have heard about the Fifth Amendment. You know we cannot make anybody make a statement.” (Vol. 9 at 2002–03.) Defense counsel's contemporaneous objection was overruled.
On direct appeal, Welch maintained the cross-examination questions constituted prosecutorial misconduct which violated due process. The OCCA agreed but held the error was harmless beyond a reasonable doubt. Welch, 968 P.2d at 1240–41. During Welch's petition for post-conviction relief, he expanded his due process argument to allege not only the cross-examination questions but also the statements in closing argument, together, constituted an improper comment on Welch's post-arrest silence. The OCCA held this claim barred by res judicata because the comments during cross-examination were considered on direct appeal and Welch could not expand the claim in his post-conviction proceeding.FN6 Welch, 972 P.2d at 29 n. 3. “When a state court refuses to readjudicate a claim on the ground that it has been previously determined, the court's decision does not indicate that the claim has been procedurally defaulted. To the contrary, it provides strong evidence that the claim has already been given full consideration by the state courts and thus is ripe for federal adjudication.” Cone v. Bell, ––– U.S. ––––, 129 S.Ct. 1769, 1781, 173 L.Ed.2d 701 (2009). “A claim is procedurally barred [however], when it has not been fairly presented to the state courts for their initial consideration.” Id. Accordingly, the district court confined its review to the prosecutor's questions during cross-examination and denied relief. FN6. Under Oklahoma law, claims previously raised and rejected are barred by res judicata. See Okla. Stat. tit. 22 §§ 1086, 1089(C)(1). “Both the res judicata bar to claims previously rejected and the waiver rule for claims not previously raised ... are included in Okla. Stat. Ann. tit. 22, §§ 1086 and 1089, and both are regularly and even-handedly applied by the state courts.” Smallwood v. Gibson, 191 F.3d 1257, 1268 n. 8 (10th Cir.1999). Welch argues the district court erred by considering his argument regarding cross-examination and closing statements as discrete issues. He claims the prosecutor's comments on his right to silence constitute a single violation under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and the OCCA incorrectly determined this error harmless. See Doyle, 426 U.S. at 619, 96 S.Ct. 2240 (“[T]he use for impeachment purposes of [defendant's] silence, at the time of arrest and after receiving Miranda warnings, violated the due process clause of the Fourteenth Amendment.”). Welch did not mention the closing statements to the OCCA in his arguments on direct appeal. Rather, he argued the prosecutor's cross-examination questions were plain error. Therefore, to the extent this is a single claim of prosecutorial misconduct, we will not consider the expanded argument because it was not raised on direct appeal and the OCCA did not have the opportunity to consider the expanded argument on its merits. Welch is procedurally barred from expanding his argument or from raising new issues. See Smallwood, 191 F.3d at 1268 n. 8. In any event, the expanded claim is harmless under Brecht. We must apply the Brecht standard “whether or not the state appellate court recognized the error and reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman.” Fry, 551 U.S. at 121–22, 127 S.Ct. 2321. Defense counsel's questions on redirect established Welch had not been called to testify at Conover's trial, thereby retiring any inference that Welch refused to testify on his friend's behalf. Even when the comments are considered as a whole, the overwhelming evidence presented in the guilt phase negates any reasonable belief the prosecutor's minimal questioning and closing comments had a substantial and injurious effect on the jury's guilty verdict.
C. Proposition 3—Instruction on Second Degree Murder
At trial, Welch requested a series of second degree murder instructions found in the Oklahoma Uniform Jury Instructions (OUJI) for criminal cases. (Vol. 8 at 1932–33 requesting instructions under OUJI–CR 449, 450 & 451.) The trial court declined the instructions, finding insufficient evidence to support a verdict of second-degree murder. On direct appeal to the OCCA, Welch argued the trial court committed constitutional error in failing to instruct on this lesser included offense. See Schad v. Arizona, 501 U.S. 624, 647–48, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (while a jury need not be instructed on every lesser-included offense that may be supported, the jury must not be faced with an all (death) or nothing approach); see also Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (jury must be permitted to consider a lesser included non-capital offense when the evidence would have supported such a verdict). The OCCA held that because second degree murder is not a “lesser included offense of first degree malice murder” and the jury had been instructed on the lesser offense of first degree manslaughter, “the trial court did not err in refusing to give the instruction.” Welch, 968 P.2d at 1241. Welch did not raise this issue in his state post-conviction proceedings. In his habeas petition in the district court, however, he argued that shortly after the OCCA decided his case, it determined second-degree murder was a lesser-included offense of first degree murder.FN7 He further contended the trial court violated his right to due process under Mathews v. United States, because “a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). The district court rejected his arguments. FN7. The OCCA relied on Willingham v. State, 947 P.2d 1074, 1081 (Okla.Crim.App.1997). The OCCA reversed Willingham in Shrum v. State, 991 P.2d 1032 (Okla.Crim.App.1999) holding all degrees of murder are lesser-included offenses to murder in the first degree. On appeal, Welch relies solely on Mathews, claiming the facts supported a finding of second-degree murder, and therefore, he was denied due process when the trial court failed to so instruct the jury. However, this argument was rejected in Schad, a case decided after Mathews. In Schad, the defendant claimed he was denied due process when the court failed to instruct the jury on robbery as well as first and second-degree murder. The Supreme Court disagreed: Petitioner misapprehends the conceptual underpinnings of Beck. Our fundamental concern in Beck was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all.... We repeatedly stressed the all-or-nothing nature of the decision with which the jury was presented.... This central concern of Beck simply is not implicated in the present case, for petitioner's jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence.... [T]he fact that the jury's “third option” was second-degree murder rather than robbery does not diminish the reliability of the jury's capital murder verdict. 501 U.S. at 646–47, 111 S.Ct. 2491. Here, the jury was instructed on the non-capital crime of first-degree manslaughter. It “was not faced with an all-or-nothing choice.” Id. at 647, 111 S.Ct. 2491. Thus, the OCCA's decision was not contrary to clearly established United States Supreme Court precedent.
D. Proposition 4—Victim Impact Statements
At sentencing, Hardcastle's brother and parents testified by reading their written victim impact statements to the jury. The statements, other than comments relating to the testimony of Welch's witnesses, had previously been given to the defense. Hardcastle's older brother testified: Gary Welch, with the aid of Claudie Conover, in August of '94, ended the life of my younger brother, Bob. Their cruel and inhuman actions have totally altered and devastated the lives of my entire family. The very fact that they, in cold blood, without any remorse, stabbed and mutilated my only brother in broad daylight, in front of numerous witnesses, has caused myself and the remainder of my family unending pain and untold suffering is difficult into words [sic]. I think of my parents who have lovingly devoted their lives to raising two sons who would grow up to be men, married, and raise families of their own, only to have these dreams shattered. I think of myself and the love I've shared with my brother, the experiences growing up, and the interests we shared, and also the bitter disappointment that we won't be able to grow old together as brothers should. Most of all I think of his two little boys, Robert and James. They'll grow up to be men not knowing how much their daddy loved them, and what a kind and gentle person he really was. That, to me, is the biggest crime of all. The actions of Gary Welch and Claudie Conover have altered and changed and devastated the lives, hopes and dreams of my entire family. What is the price to be paid for the actions of these individuals, whose past criminal records and convictions clearly identify them as a menace to society. I've always had the philosophy of live and let live, but there has to be a point when we as a society have to say enough is enough. There are people in this world who are parasites, they feed on the common decent people who work, live and conduct themselves in a decent and responsible manner who do not deserve to be violated by these people that have no sense of right or wrong or just don't care. In this instance I tend to cry for revenge or vengeance. Sometimes it is hard to tell the difference. In the end I hope and pray justice will be served. Q. Mr. Hardcastle, do you have an opinion as to what punishment should Gary Welch have? (Objection and discussion at bench) Q. I know this is difficult for you, but I ask if you'll look at the jury and tell them what you would like to have happen to the man who murdered your brother? A. Gary Welch deserves the death penalty. Give it to him, please. (Vol. 9 at 2115–20.)
John Edwin Hardcastle, Robert's father, testified next: Many repercussions to any crime, repercussions I have, my family has, and I would like to tell you about them. It is a very difficult thing worse, the loss of a son by a father. I was and am still completely devastated over the complete loss of my life will always be there. It will be there forever. I have loving memories of my son, as a baby. As a toddler, he was a little cotton top. He was a mama's baby. I watched him grow and I guided him the best I could growing up. Since he growed into manhood with all my hopes and my dreams for him. He brought into my life two beautiful twin grandsons. Now all the memories that I have of that is overshadowed by the horrible and inhumane way his life ended. My wife and I will never be the same. My son was a part of me and he was a part of her. It's as if that knife went into our hearts as well as his heart. I speak also for my grandsons, Robert and James, who are not old enough to speak for themselves. The loss they suffered and they suffer now, and will all of their lives growing up without their father and without having his love and his guidance for them. One of the hardest things I've ever had to do was to put my two grandsons on my lap, three and a half years old, and tell them that their daddy had been killed, and try to explain to them about death and where their daddy was now. I can't stop thinking of what my son must have suffered. The pain and stark terror when Gary Welch and Claudie Conover took his life. I have never seen and I hope to never see again such cruelty and complete disregard for the human life. Like bloodthirsty animals, they chased my son down and they butchered him with a knife, showing no pity, mercy or feeling. They had opportunities to stop but that wasn't in the plan. I heard the last lady's testimony that Gary Welch threatened her babies to kill them. And I wondered if my grandbabies had been there that day, would they—would he have butchered them, too? Gary Welch, as Pattie and Donnie Nading testified, stabbed and slashed Bobby over and over and over. Look at a man that shows no remorse for what he's done. And his lawyer is gonna to ask you for a reduced sentence, for mercy. And I can't help but thinking that as my son lay in the ditch covered up and was trying to protect himself if he wasn't crying for mercy. But all he got was a knife and a broken bottle. I don't believe it's justice that my son lies in a cold grave and that Gary Welch should live. And I would ask the jury for justice for Bobby and to give this man the justice that they both deserve and I'd ask for the death penalty. Thank you. (Vol. 9 at 2122–24.) As he did after the first statement, counsel objected to the admission of the statement on the basis it was more prejudicial than probative and beyond the testimony allowed by statute. Counsel requested a mistrial and stated: “The State has prepared these statements and made them available to us and we've objected to them previously, and then we recognized the court's stand on that has been to allow it in.” ( Id. at 2125.) Counsel cited Mitchell v. State, 884 P.2d 1186 (Okla.Crim.App.1994), explaining, “While it doesn't deal squarely with the opinion evidence, which I'm objecting to, but it does deal squarely with the legal requirement that in order to allow victim impact evidence the court must weigh it in the same manner as other evidence....” ( Id. at 2126.) Acknowledging “there's very little probative value in the statements” the court denied the motion for a mistrial. ( Id. at 2126–27.)
The State's final witness was Hardcastle's mother, Mary Gayle Hardcastle, who read the following statement: On July 17, 1959, God gave us a precious life, our son, Robert Hardcastle. On August the 25th, 1994, his life was taken from us, from his twin sons that were then three years old, from a family who loved him dearly, taken by a brutal, needless murder. We had no choice. We couldn't say goodbye, son, we love you. We couldn't touch his hand to let him know we were there with him. We had no choice at all. Words can never explain the pain it has put into our lives, the agony that we are enduring. The daily thoughts of this brutal day, the scene where he died and how he died. And not one night since his death have I gone to bed without dreaming of what he must have gone through, seeing his butchered body, knowing that he was crying out for help. His neighbor was there at the other side of the house, visiting with one of the murderers. Why? It's another question that we face daily. If we would have just gone by that evening, which wasn't unusual for us to do, maybe things would have been different today. And I've often wondered, too, if his babies were there would they have been dead? Needless to say that the pain has never let up. Twenty months later we cry, we ache each day. We go to the cemetery to find comfort or closeness to Bob. We look at a cold clod of dirt. We come home and we pray to God for relief, for understanding. And like my husband just said, if you've ever tried to explain to three year old babies that their daddy is never coming back because he's dead, then maybe you have a real idea of what pain is. We've had to answer questions like: Why is daddy dead? Why did the mean men hurt him? Are they going to hurt us? Will daddy come back and take us on vacation when our piggy bank is full? Which is something Bob had told them they would do. Is daddy going to be back for Christmas? Can daddy see us from heaven? And the list goes on and on. We've nursed both boys through nightmares and we know the hurt and the pain they are having. These two little boys loved their daddy, but now because of two murderous animals, and I do mean animals, they'll have to face life without him. They will never be able to do all the things that fathers and sons do together and have the love that they once shared with him and know that he was there for them. His brother has had to face his pain alone, living so far away from our family. And we thank God every day that we still have him. Robert had a great love for life and for people. His greatest love was for his sons. Love and respect for his grandparents. He wasn't a church person. He had his faults, as we all do, but we loved him with all of our hearts. He loved God at one point in his life and lived and worked for God's cause, going to crusades with the youth of our church. And in his adult years he did stray from God, but we had always hoped that he would come back to what he was taught and what he believed and God does promise us that. No human being deserves to die the death that he did. It was violent, it was brutal and it was needless. And two men have been put on trial for his murder. And there is no doubt that they're the ones who killed him. They planned it. They went to his home in broad daylight and they completed in a very brutal way what they intended to do. And today one of them sits in this courtroom, smug and uncaring. They've never shown one sign of remorse. No shame. Their wives and friends visited with them. They're allowed to hug them, kiss them, touch them, visit with them every week, and we couldn't even say goodbye. Sometimes my husband and I can't even communicate because of this murder. A part of our lives is just one big void. It can't ever be filled or changed or replaced. Our hopes and dreams have been shattered forever. And not only has this been a vast emotional problem to us and his boys, it's placed a number of loads on us that we just don't know how to deal with. I would beg this court and this jury to see that justice is done. And justice to us is no less than the death penalty. Both Mr. Welch and Mr. Conover have a very long and vivid history of crimes of brutality. Mr. Conover already was convicted of another murder for which he served only a few years. And this was because he shot a woman for saying something that he just didn't like. Through the jury selection of this trial, Mr. Robertson [defense counsel] has tried to impress on us the unfortunate childhood that Gary had and asked each one of you do you think a person should be given a more lenient penalty. And if what we have been told is true, yes, he did have an undesirable early life. But does this give him the right to live above the laws of God and man, the right to brutally attack another human being, and the right to take a life? I don't believe it does. From the age of two until I was about nine I, too, had a very harsh childhood. My brother and I lived with a very brutal, drunken stepfather who physically abused our mother and both of us. But in spite of our unfortunate childhood, neither my brother [n]or I felt we had the right to disregard the law, to cause pain and suffering to other people through senseless means of brutal behavior. We've tried to live productive lives and raise our children to live the same way, respecting the rights and the laws of others. So, no, I can't believe that Mr. Welch's childhood should excuse him from the things that he has done as an adult, including the murderous act that took my son's life. We are all capable of making choices in our lives. My brother and I chose to live by the law and to be responsible for our actions. And Gary Welch had a choice. He chose the path that brought him to this courtroom today. It was Gary Welch, not his family, not his mother, who took our son from us. And it is Gary Welch, not his family, who should be held responsible for his actions. We can now only put our faith first in God and then our courts, and you, the jury. And I would beg you, please, don't let this happen to another family. And, again, I say I feel that he should be imposed the death penalty. (Vol. 9, 2128–33.)
On direct appeal, Welch argued the admission of the family's testimony violated his rights under the Eighth and Fourteenth Amendments.FN8 The OCCA, citing to its earlier decisions discussing the Supreme Court's decision in Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), rejected the argument: FN8. Prior to Welch's trial, Conover was tried separately and sentenced to death. On direct appeal, Conover's conviction was affirmed but his sentence was reduced to life without parole due to the trial court's refusal to allow Conover to introduce evidence of Hardcastle's drug-related activities. Conover v. State, 933 P.2d 904, 922–23 (Okla.Crim.App.1997). The OCCA also determined the trial court erred in admitting essentially the same victim impact statements admitted at Welch's trial but, because of the separate issue warranting relief, it did not reach the harmlessness of the error. Id. at 920–22. This [Eighth Amendment] argument has previously been rejected in Ledbetter v. State, 933 P.2d 880, 889–90 (Okla.Cr.App.1997) and Cargle v. State, 909 P.2d 806, 828 (Okla.Cr.1995). Cargle sets out the basis the United States Supreme Court has utilized to find the Eighth Amendment is not violated by victim impact evidence and that the Fourteenth Amendment has the potential to be implicated if appropriate restrictions are not placed on victim impact evidence. Welch, 968 P.2d at 1242. The OCCA held the admission of much of the victim impact testimony was error (violating the Fourteenth Amendment) but considered the error harmless beyond a reasonable doubt: In the present case, the jury was properly instructed on the use of victim impact evidence FN9 and Appellant received sufficient notice of the victim impact evidence to be introduced. Further, given the fact that we have determined, independently of the victim impact evidence, there was sufficient evidence to support three aggravating circumstances, we can safely hold that portion of the victim impact evidence which was improperly admitted was harmless beyond a reasonable doubt as the improperly admitted evidence does not undermine the reliability of the verdict as to the sentence imposed.
FN9. The jury was instructed as follows: The prosecution has introduced what is known as victim impact evidence. This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim's death on the members of the victim's immediate family. It is intended to remind you that you as the sentencer that just as the Defendant should be considered as an individual, so to [ sic ] the victim is an individual whose death may represent a unique loss to society and the family. This evidence is simply another method of informing you about the specific harm caused by the crime in question. You may consider this evidence in determining an appropriate punishment. However, your consideration must be limited to a moral inquiry into the culpability of the defendant, not as an emotional response to the evidence. As it relates to the death penalty, victim impact evidence is not the same as aggravating circumstances. Proof of an adverse impact on the victim's family is not proof of an aggravating circumstance. Introduction of this victim impact evidence in no way relieves the State of its burden to prove beyond a reasonable doubt at least one aggravating circumstance which has been alleged. You may consider this victim impact evidence in determining the appropriateness of the death penalty, only if you first find that the existence of one or more of aggravating circumstances [sic] has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence and find that the aggravating circumstance or circumstances found outweigh the finding of one or more mitigating circumstances. As it relates to the other sentencing options, you may consider this victim impact evidence in determining the appropriate punishment as warranted under the law and facts of the case. Welch, 968 P.2d at 1254, (Vol. 9 at 2206–08.) Id. at 1254. The district court concluded the family's victim impact testimony violated both the Eighth and Fourteenth Amendments, specifically noting the family's recommendation of a death sentence was impermissible. Applying a deferential standard to the OCCA's conclusion that the error was harmless under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), it determined the OCCA's decision was not objectively unreasonable,FN10 saying: FN10. Welch did not argue to the district court that it should apply a de novo standard of review as he now does. However, since the government did not object we consider it. Several factors convince this Court that admission of the improper victim impact evidence in question was harmless error which does not warrant habeas relief. First, the evidence of Petitioner's guilt was substantial. Second, the jury found the existence of three aggravating circumstances beyond a reasonable doubt before recommending the death penalty for Petitioner. The jury found, based upon first stage evidence incorporated by reference in the second stage proceedings, that Petitioner's attack on Mr. Hardcastle was especially heinous, atrocious, and cruel. The jury also found that Petitioner was previously convicted of a felony or felonies involving the use or threat of violence to the person. Finally, the jury found the existence of a probability that Petitioner would commit criminal acts of violence that would constitute a continuing threat to society. The evidence supporting the three aggravating circumstances, independent of the victim impact evidence, was ample. Welch, 2007 WL 927950 at *22. Welch argues he suffered actual prejudice in this instance because all three witnesses were allowed to testify at length to precisely the type of information precluded by the Supreme Court in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). Given the egregiousness of the error found in the statements' direct attacks on Welch's character, his mitigation evidence, the character of Welch's co-defendant and the pleas for the death sentence, Welch contends the admission of this testimony rendered his trial fundamentally unfair. In Booth, the Supreme Court identified two categories of victim impact information which, if admitted, “creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.” 482 U.S. at 502–503, 107 S.Ct. 2529. The first category is testimony describing “the personal characteristics of the victims and the emotional impact of the crimes on the family.” Id. at 502, 107 S.Ct. 2529. The second is “the family members' opinions and characterizations of the crimes and the defendant.” Id. In 1989, the Court extended the rule announced in Booth to statements made by a prosecutor to a capital sentencing jury regarding the victim's personal qualities. See South Carolina v. Gathers, 490 U.S. 805, 811, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989). In 1991, the Court expressly overruled at least part of its decisions in Booth and Gathers. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). It held “the Eighth Amendment erects no per se bar” to victim impact evidence concerning the specific impact of the crime on the family and a glimpse of the victim's life. Id. The only constitutional limitation on this evidence is imposed by the Due Process Clause's requirement of a fundamentally fair trial. See [ Frank ] Welch v. Sirmons, 451 F.3d 675, 702–03 (10th Cir.2006) (abrogated on other grounds). However, contrary to the OCCA's interpretation of Payne, we have stated, “the portion of Booth prohibiting family members of a victim from stating characterizations and opinions about the crime, the defendant, and the appropriate sentence during the penalty phase of a capital trial survived the holding in Payne and remains valid.” Id. at 703 (quotations omitted). The OCCA decided portions of the victim impact statements went outside constitutional bounds and were clearly error. It recognized “such statements as the victim was ‘butchered like an animal’, and that two men ‘butchered him’ have no place in a victim impact statement.” Welch, 968 P.2d at 1242. Rather, the statements must be “restricted to the financial, emotional, psychological, and physical effects, or impact, of the crime itself on the victim's survivors; as well as some personal characteristics of the victim.” Id. (quotations omitted). As a result, the OCCA applied the correct law to the first two categories of impermissible victim impact testimony.
However, the OCCA applied Oklahoma law which specifically allows the admission of the family's sentencing recommendation—evidence precluded by our reading of Supreme Court precedent.FN11 See [ Frank ] Welch, 451 F.3d at 703. Although the OCCA reviews these statements “with a heightened degree of scrutiny,” Welch, 968 P.2d at 1242, it “made no attempt to reconcile Payne or Booth ” to the family's recommendation of a death sentence. [ Frank ] Welch, 451 F.3d at 703. Thus, the OCCA did not consider the recommendations as constitutional error in its harmlessness analysis. As a result, we determine de novo whether the erroneous admission of the victim impact testimony so clearly swayed the jury as to cause Welch actual prejudice as required by Brecht. In doing so, we are mindful that “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Brecht, 507 U.S. at 634, 113 S.Ct. 1710. We conclude Welch has not shown the victim impact statements caused him actual prejudice. FN11. See 22 Okla. Stat. § 984 (1998). This statute defined admissible victim impact statements as “information about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family, or person designated by the victim or by family members of the victim and includes information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence.” Id. Section 984 was repealed in 2010 and re-enacted without change as 21 Okla. Stat. § 142A–1.
Welch argues, because “[t]his case involved a grown-man on grown-man homicide, a common method of murder (stabbing), and elements of mutual combat [Welch's injury],” FN12 the crime does not amount to the “worst of the worst” in capital case jurisprudence. (Appellant's Petition for Rehearing at 4.) In addition, he contends actual prejudice is demonstrated by the jury's questions about life without parole—indicating the jury's struggle with the death penalty—and the trial court's failure to provide a definitive answer. FN12. The penetrating wound in Welch's arm caused an entry and exit wound of approximately the same size. It was undisputed at trial that only one knife was present during the fight. However, a second knife was found underneath the driver's seat in Conover's car when he and Welch were arrested. Also, undisputed testimony established that Conover used his car to spirit Welch away from the ditch where he was stabbing and cutting Hardcastle with a knife and broken bottle. The operating physician testified to his inability to distinguish the entry wound from the exit wound. However he did say either knife could have caused Welch's injury but the longer knife found in the car was more likely to cause an entry and exit wound of the same size. Consequently, the jury heard evidence that the knife likely causing Welch's wound was never at scene of the murder, but only in the getaway car—evidence of any attack on Welch by Hardcastle was hardly conclusive; perhaps not even credible. Assessing the improper parts of the victim impact evidence “in the context of other evidence presented,” we conclude it did not have an actual impact on the sentence. Id. at 629, 113 S.Ct. 1710. In essence, Welch argues his acts were not heinous, atrocious and cruel. But as discussed later, the evidence supporting the three aggravating factors presented in both stages of Welch's trial provided strong support for a death sentence. The witnesses testified Welch chased Hardcastle out of his home only to repeatedly stab him using both a knife and a broken beer bottle while Conover held the victim down. Officer Gambill, who had known Hardcastle since they were children, could not immediately recognize Hardcastle when he arrived at the scene. Hardcastle “was covered with blood and had severe wounds to his face ... a large hole ... in his left cheek.” (R. Vol. 6 at 1410.) Medical testimony established that in addition to abrasions, cuts and superficial wounds, Hardcastle sustained twenty-one non-superficial wounds. Moreover, the evidence established Welch's history was permeated with violent assaults, even while incarcerated pending trial in this case. His own witnesses testified to his difficulty in controlling his rage. The jury also learned Welch had twice been convicted of felony assault and had, on at least one occasion, violated the conditions of his probation to the point probation was revoked. This was not a case in which there was simply sufficient evidence supporting the jury's finding of aggravating factors; the evidence was overwhelming in establishing the heinous nature of the crime and a dark history of violence by Welch. The jury's parole questions and the district court's response do not suggest that Welch was actually prejudiced. At the end of the day, the jury was left with the same choices with which it began—death, life without parole or life. The instructions were clear and the court's response did not negate any of these choices. Further, the jury was correctly instructed on the use of mitigating evidence and its role in the sentencing deliberations. This is not to say the victim impact testimony here was only marginally offensive. The family members' testimony violated every category of impermissible expression. Had the evidence of the murder and the evidence of Welch's relentless violence against others been less graphic and compelling, the result may be different. But “[t]he principle that collateral review is different from direct review resounds throughout our habeas jurisprudence.” Brecht, 507 U.S. at 633, 113 S.Ct. 1710. Considering all of the evidence in both stages of this trial we cannot say the improper victim impact testimony impermissibly swayed the jury's verdict. See [ Frank ] Welch, 451 F.3d at 704; Le v. Mullin, 311 F.3d 1002, 1016 (10th Cir.2002) (In a case in which the Oklahoma court applied the appropriate federal law, victim impact evidence was harmless given overwhelming evidence of guilt and evidence supporting aggravating factors coupled with instruction to the jury). We cannot conclude that the jury's verdict was substantially influenced by the victim impact testimony. See Brecht, 328 U.S. at 776.
E. Proposition 5—Response to Jury's Questions
During sentencing deliberations, the jury sent two notes to the judge relevant to the sentence. It first asked, “Can life without parole be reduced by appeal or pleas in the future?” (Ex. Pack.) The court responded, “I am not allowed to answer this question.” ( Id.) Undeterred, the jury sent a second note asking, “Has anybody ever be[en] released with the sentencing of life without parole?” ( Id.) The court again responded it was not allowed to answer. On direct appeal, Welch argued the judge's refusal to clarify the jury's obvious confusion denied him due process under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), and the error was plain. After reviewing relevant Oklahoma precedent, the OCCA said: The court's response to the jurors' questions in this case was nonresponsive and as such forced the jury to fall back on the plain meaning of the instructions—instructions which merely set out the three punishment options of death, life without parole and life imprisonment. While the trial court could have specifically referred the jury back to those instructions, it was not required to further define the punishment options or explain the parole process. We find the jury was not confused or misled by the court's response as Appellant has failed to show that when the jury returned its verdict on punishment that it was confused or misunderstood any of the three punishment options. Welch, 968 P.2d at 1246 (citations omitted).FN13 FN13. The OCCA apparently determined the trial judge erred under Oklahoma law because the jury was not reconvened to receive its answer as required by Okla. Stat. tit. 22, § 894. See Welch v. State, 968 P.2d 1231, 1245 (Okla.Crim.App.1998) (“Section 894 provides that when the jury has a question after it has started deliberations, they must be conducted into open court to receive their response in the presence of the defendant and all counsel concerned. The record does not reflect that the jury was brought into the courtroom to receive the court's response.”). It found that error was harmless. Id. at 1246. At present, the trial court's answer apparently would have been incorrect under Oklahoma law on another ground as well. After Littlejohn v. State, 85 P.3d 287, 293–94 (Okla.Crim.App.2004), the judge has been encouraged to explain the instructions. In Littlejohn, the OCCA made clear that the trial court has three options for how to handle such a question from the jury: [I]n future cases where the jury during deliberations asks, in some form or fashion, whether an offender who is sentenced to life imprisonment without the possibility of parole is parole eligible, the trial court should either refer the jury back to the instructions, tell the jury that the punishment options are self explanatory, or advise the jury that the punishment options are to be understood in their plain and literal sense and that the defendant will not be eligible for parole if sentenced to life imprisonment without the possibility of parole. Id. at 293–94 (citations omitted). Given that the court decided Littlejohn after this appeal was final, that rule does not apply in this case. In Simmons, the Supreme Court held when the defendant's future dangerousness is at issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process requires that the sentencing jury be told the defendant is parole ineligible. Id. at 156, 114 S.Ct. 2187. The Court reasoned that consideration of a defendant's future dangerousness is affected by the possibility the defendant may be allowed to return to society. Id. at 168–69, 114 S.Ct. 2187. Similarly, in Shafer v. South Carolina, the Court held, because the jury was only given two sentencing options—life imprisonment or death—without being told the meaning of life imprisonment, the sentence must be reversed. 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001). In applying Simmons, we have concluded that if the trial court simply directs the jury to review the instructions again, the defendant's due process rights are not violated. See McCracken v. Gibson, 268 F.3d 970, 980–81 (10th Cir.2001); McGregor v. Gibson, 219 F.3d 1245, 1256 (10th Cir.2000), overruled en banc on other grounds by 248 F.3d 946 (10th Cir.2001). Conversely, in cases in which the trial court informs the jury that it is not to consider the issue of whether the defendant is parole ineligible, we have found a due process violation. See Mollett v. Mullin, 348 F.3d 902, 915 (10th Cir.2003) (determining trial court violated defendant's due process rights by stating, “matters of parole are beyond the purvue [sic] of the jury or the court to consider”) (quotation marks omitted); Johnson v. Gibson, 254 F.3d 1155, 1164, 1166 (10th Cir.2001) (holding trial court's response, “[i]t is inappropriate for you to consider the question asked,” “did more than give a non-responsive answer” but, contrary to Supreme Court precedent, “told the jury that parole eligibility could not be considered....”) (quotation marks omitted). Even assuming the trial court's statement (that it was not allowed to answer the jury's questions) ran afoul of Oklahoma procedural law, its response simply could not have created a prohibited false choice under the United States Constitution. Failing to clarify the life without parole instruction cannot be “taken to mean that parole was available but that the jury, for some unstated reason, should be blind to this fact.” Shafer, 532 U.S. at 53, 121 S.Ct. 1263 (quotation marks omitted). Rather, as in McCracken and McGregor, the state trial court's non-responsive answer simply required the jury to return to the instructions as its sole guidance. And those instructions properly referred to Oklahoma's three-option sentencing scheme, offering the jury three choices—death, life imprisonment without parole and life imprisonment—which we have previously held to be constitutionally adequate. Hamilton v. Mullin, 436 F.3d 1181, 1191 (10th Cir.2006). The trial court's response to the jury's questions did not negate or contradict any of these choices; each were explicitly set forth in the jury instructions and clearly presented in the verdict form. Moreover, evidence of Welch's future dangerousness demonstrated Welch's violence did not disappear at the prison gate. Not only was there evidence of a pattern of domestic violence, but several witnesses testified regarding Welch's outbursts while in custody. The OCCA reasonably found the trial court's response to the jury questions did not violate Welch's constitutional rights.
F. Proposition 7—Aggravating Factors
Welch challenges two of the three aggravating factors found by the jury. He claims there was insufficient evidence to support the jury's determination his crime was “heinous, atrocious or cruel.” He further contends the State used inadmissible evidence to prove the “continuing threat” aggravator.
1. Heinous, Atrocious or Cruel
To find a murder heinous, atrocious or cruel, the State must prove the victim suffered torture or serious physical abuse. Serious physical abuse requires a showing the victim was subjected to “great physical anguish” or “extreme mental cruelty.” Neill v. State, 896 P.2d 537, 555 (Okla.Crim.App.1994). Welch argues Hardcastle's death, resulting from stab wounds occurring in a rather short period of time, cannot meet these standards. Welch asserts the AEDPA standard of review does not apply to this claim because, on direct appeal, the OCCA reviewed this claim under an erroneous legal standard. The standard used by the OCCA was “whether there was any competent evidence to support the State's charge that the aggravating circumstance existed.” Welch, 968 P.2d at 1246. Welch argues the proper standard is articulated by the Supreme Court in Jackson v. Virginia, as follows: “whether any rational factfinder could have” found the existence of the prerequisite facts “beyond a reasonable doubt.” 443 U.S. 307, 313, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). While Welch is correct the Jackson standard applies, he asserts without analysis that the standard used by the OCCA “is much different than the one in Jackson and also much more favorable to the State.” (Appellant's Br. at 71.) We agree the wording of the standards is different but need not decide whether the standard used by the OCCA is contrary to Jackson. With or without AEDPA deference, the OCCA's ultimate determination is a reasonable application of Jackson based on the facts of this case. The OCCA concluded the following facts supported the heinous, atrocious or cruel aggravating factor: [T]he evidence showed that the victim was conscious as he was attacked with a knife and a broken beer bottle and desperately sought to run away from his attacker and defend himself. He was able to talk with the first officer who responded to the scene and identify Appellant as the assailant.... [T]here was no need for the jury to speculate as to whether the victim remained conscious after the infliction of the initial wounds or whether he suffered mental anguish. Further, the evidence in this case showed the victim did not die immediately, but was left to languish from multiple knife wounds. Leaving a victim to linger and languish after he was stabbed is sufficient to support this aggravator. Welch, 968 P.2d at 1247. Welch argues the OCCA's conclusion is contrary to other Oklahoma cases involving more gruesome factual circumstances where the OCCA held the evidence insufficient to support this aggravating factor. A careful reading of these cases reveals the OCCA's decisions reached a different result because the state had failed to show the victim was conscious or establish the death was not nearly instantaneous. Those doubts are not present here.
“[T]o evaluate whether the ‘heinous, atrocious, or cruel’ aggravating circumstance was properly applied, we must examine the state court's findings as to the duration of conscious suffering on the part of the victim.” Medlock v. Ward, 200 F.3d 1314, 1324 (10th Cir.2000) (Lucero, J., concurring). The jury heard evidence of a fight that continued from Hardcastle's home into the street where he fled. He appeared at the doorway bleeding. In the street, Conover held him down and punched him. Welch repeatedly stabbed him. During the struggle his clothes were stripped from his body. Given the evidence adduced in the guilt stage and incorporated into the sentencing stage, a rational trier of fact could have found the existence of great physical and mental anguish before his death. And “despite the omission of the word ‘physical,’ from the instruction, the instruction still performed its required narrowing function and imposed restraint upon the sentencer.” Miller v. Mullin, 354 F.3d 1288, 1300 (10th Cir.2004). Thus, the OCCA's conclusion is not an unreasonable determination of the facts or contrary to clearly established federal law.
2. Continuing Threat Welch contends the continuing threat aggravator was supported primarily by unadjudicated offenses. Welch concedes unadjudicated crimes or a past history of lawlessness may be used to prove he poses a “continuing threat” to society. See Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (“What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.”); Knighton v. Mullin, 293 F.3d 1165, 1172 (10th Cir.2002) (“The Constitution ... does not preclude a capital sentencer from considering unadjudicated bad acts.”). However, Welch complains “the relatively minor incidents from the early 1980s were too remote” and “the evidence allowed was overbroad and irrelevant.” (Appellant's Br. at 77.) This assertion minimizes the seriousness and, more importantly, the consistency of Welch's violent behavior. In any event, Welch fails to direct us to any Supreme Court precedent holding the admission of similar unadjudicated crimes is a violation of constitutional proportion. This claim is without merit.
G. Propositions 6 & 8—Sentencing Phase Instructions
Welch offered a sentencing instruction which asked the jury to consider the following mitigating evidence: the effects of his substance abuse and childhood trauma causing mental impairment; the love of friends and family members continuing after imprisonment; the ability to control his mental impairment through deprivation of drugs and alcohol; and how he would benefit from a controlled environment such as prison. The trial court refused the instruction. Instead, it instructed the jury: “Mitigating circumstances are those which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case.” (R. Vol. 2 at 432.) On direct appeal, Welch argued the trial court erred when it failed to give his requested instruction and the error was exacerbated when the court instructed that mitigating circumstances “may be considered.” He claims, together, those actions presented an impermissible risk the jury would disregard the mitigating evidence altogether. The OCCA rejected Welch's claim because the instructions as a whole did not prevent the jury from considering the evidence nor was there “a reasonable likelihood the jury failed to consider the evidence offered in mitigation.” Welch, 968 P.2d at 1245. Welch maintains the OCCA's ruling is contrary to Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ( Penry I ) ( overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).FN14 “In Lockett, a plurality of the Court decided that an Ohio death penalty statute that limited the jury's consideration to specified mitigating circumstances violated the constitutional requirement of individualized sentencing in capital cases.” Saffle v. Parks, 494 U.S. 484, 489, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). In Eddings, the Court applied Lockett and ruled “a sentencing judge's refusal, as a matter of law, to consider mitigating evidence presented by a capital defendant concerning his family history and upbringing was constitutional error.” Id. The Court reasoned “it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf.” Eddings, 455 U.S. at 114, 102 S.Ct. 869. These principles were applied in Penry I, where the Court held the Texas death penalty scheme allowing the jury to consider only the answer to two questions before applying the death penalty prevented the jury from considering and giving effect to certain types of mitigating evidence. As recently explained by the Supreme Court: FN14. Welch also claims the instruction given to the jury impermissibly ties the mitigating evidence to “those things that reduce the degree of moral culpability or blame for committing the crime. It does not explain clearly to the jury that mitigating evidence may also include characteristics personal to the accused that have no relation to the crime at all.” (Appellant's Br. at 67.) This argument was not raised in the state or district courts and Welch offers no justification for a deviation from our general rule refusing to address arguments presented for the first time on appeal. See United States v. Mora, 293 F.3d 1213, 1216 (10th Cir.2002). Therefore, this argument will not be considered. [S]entencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future. Abdul–Kabir v. Quarterman, 550 U.S. 233, 246, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007). A reviewing court must determine “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. Calif., 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). The instructions are considered as a whole. There is no Supreme Court precedent requiring a trial court to affirmatively instruct on the specific mitigating evidence the defendant wishes the jury to consider. Therefore, this claim fails under AEDPA. See Smith v. Spisak, ––– U.S. ––––, 130 S.Ct. 676, 684, 175 L.Ed.2d 595 (2010) (no right to habeas relief if Supreme Court has not previously held jury instruction unconstitutional for same reason); see also Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009) (legal rule must be “squarely established” by Supreme Court). In addition, the OCCA correctly noted Penry 1 and its predecessors involved instructions “which improperly limit[ed] the jury's consideration of certain evidence [in addition to] the absence of an instruction specifically directing their consideration of certain evidence.” Welch, 968 P.2d at 1244. Here, Welch's jury was not prevented from considering mitigating evidence and was specifically instructed it was limited only by its own judgment. In Smallwood v. Gibson, 191 F.3d 1257, 1271 (10th Cir.1999) and Boyd v. Ward, 179 F.3d 904, 924 (10th Cir.1999), we rejected the argument that the use of the word “may” in a mitigating evidence instruction permitted the jury to ignore mitigating evidence. Welch concedes this point but maintains his case is distinct because, unlike Boyd v. Ward, the trial court refused his instruction listing the mitigating evidence. Welch asserts “[t]his extra component of the instructions is of constitutional importance” because it provides the “vehicle to give effect to the mitigation evidence in a constitutional manner.” (Appellant's Br. at 80, 81.) In Boyd v. Ward, the trial court gave an identical instruction on mitigating evidence as was given here. 179 F.3d at 924. We held: The use of the word “may” does not alone compel the conclusion that the jury was empowered to ignore mitigating evidence. Moreover, instruction number nine FN15 told the jury it “shall” consider certain minimum mitigating circumstances and “may” consider any additional mitigating circumstances. There is no reasonable likelihood that the jury applied the instructions in such a way that it was prevented from considering mitigating evidence. FN15. Instruction 9 read: You are instructed that mitigating circumstances are not specifically enumerated in the Statutes of this State but the law of this State sets up certain minimum mitigating circumstances you shall follow as guidelines in determining which sentence you impose in this case. You shall consider any or all of these minimum mitigating circumstances which you find apply to the facts and circumstances of this case. You are not limited in your consideration to these minimum mitigating circumstances. You may consider any additional mitigating circumstance, if any, you find from the evidence in this case. What are and what are not additional mitigating circumstances are for you the jury to determine. Evidence has been offered as to the following mitigating circumstances: 1. The Defendant did not plan to kill the deceased. Whether these circumstances existed and what degree and weight you are to place on them must be decided by you. Boyd, 179 F.3d at 924. Id. Even so, Welch claims our decision in Boyd v. Ward suggested the Oklahoma instruction would not pass constitutional muster in the absence of an instruction listing mitigating circumstances. That is not the case. Our mention of the additional instruction was merely to reinforce the OCCA's determination the jury did not misapprehend its duty.
“[A] capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an [impermissible] inhibition” in considering mitigating evidence. Boyde, 494 U.S. at 380, 110 S.Ct. 1190. Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting. Id. at 380–81, 110 S.Ct. 1190. Looking to the instructions as a whole, the jury was told the meaning of mitigation and instructed it must unanimously find the existence of the aggravating factors beyond a reasonable doubt. It was also instructed that even if the aggravating factors were found to exist, it was authorized to consider the death penalty only if it found the aggravating factors outweighed the mitigating evidence. Given these instructions, the OCCA's conclusion is not contrary to or an unreasonable application of clearly established federal law. Finally, Welch argues the failure to instruct the jury that it could consider a sentence of life or life without the possibility of parole even if it found the existence of one or more aggravating factors violated his rights under the Eighth and Fourteenth Amendments. He concedes we have rejected this precise claim in Fox v. Ward, 200 F.3d 1286, 1300–01 (10th Cir.2000). He presents no new argument and therefore, we deny this claim for the same reasons articulated in Fox.
H. Proposition 9—Ineffective Assistance of Trial and Appellate Counsel
The OCCA rejected Welch's claims that both his trial counsel and appellate counsel provided ineffective assistance. To prevail, Welch must establish trial counsel's (1) “representation fell below an objective standard of reasonableness,” and (2) there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish the prejudice prong at sentencing, Welch must demonstrate, “there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. 2052. Our review is “highly deferential.” Id. at 689, 104 S.Ct. 2052. Recently, the Supreme Court recognized Strickland created a general standard, thus giving “a state court ... even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles, 129 S.Ct. at 1420; see also Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (“[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.”) Thus, our review should be “doubly deferential.” Knowles, 129 S.Ct. at 1420. And we “indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (internal quotation marks omitted). Welch posits four reasons why his trial counsel was ineffective, all of which impermissibly led the jury to impose the death penalty. 1. Failure to Cross–Examine Regarding Hardcastle's Drug Activity. Welch contends trial counsel's failure to cross-examine witnesses at both the guilt and the penalty phase and the failure to introduce evidence regarding Hardcastle's drug dealing prejudiced his defense. He claims, had the jury heard this evidence, it would have supported his self-defense theory by showing Hardcastle was capable of violent and unpredictable actions “that go with that lifestyle.” (Appellant's Br. at 88.) At the penalty phase, such evidence would have countered the State's presentation (through the victim impact statements) of Hardcastle as “just a normal guy who was married and had children.” ( Id. at 87.) The fact Hardcastle dealt drugs would have shown “his lifestyle was one in which he was likely to end up in a bad situation and thus he did not have entirely ‘clean hands' in the situation.” ( Id. at 88.) Welch raised this claim on direct appeal. The OCCA determined counsel's failure to introduce this evidence was reasonable trial strategy at both stages of the trial. At the guilt stage, the OCCA determined “it would only have served to strengthen the State's theory that [Welch] killed the victim when he failed to provide the drugs.” Welch, 968 P.2d at 1252. At the penalty stage, it concluded “the decision to cross-examine relatives of the victim on negative aspects of the victim's character is a matter best left to trial counsel who observes the witnesses and jury first hand.” Id. Welch argues the OCCA's reasoning is deficient, especially in light of its reversal of Conover's death penalty on the same grounds. But Conover and Welch had separate trials with differing defense theories. The theory at Conover's trial was Hardcastle's involvement with drugs demonstrated “Welch went to the victim's home to purchase drugs and not to kill him and therefore neither Welch nor [Conover] acted with premeditation.” Conover, 933 P.2d at 912. The trial court did not allow evidence of Hardcastle's drug activities as support for Conover's theory. At sentencing, Conover again attempted to elicit this evidence but the trial court again refused. The OCCA reversed Conover's death sentence, finding the evidence admissible and the trial court's refusal to admit it was error which affected the reliability of the sentencing procedure. Welch's trial strategy was quite different. Welch denied he went to Hardcastle's looking for drugs and testified he just wanted to discuss a tattoo. Consequently, counsel did not attempt to introduce evidence of Hardcastle's drug dealing. Welch argues that counsel's decision not to introduce this evidence was not a reasonable trial strategy.
Counsel's performance must be “completely unreasonable” to be constitutionally ineffective, “not merely wrong.” Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.1997). As the OCCA noted, Welch's testimony was he acted in self-defense. He did not mention any involvement with drugs and denied he threatened Rogers or St. John earlier that day to gain access to drugs. Therefore, the OCCA's conclusion that trial counsel's strategy to forego a theory invoking Welch's search for drugs is not unreasonable, particularly under the double deference test. While the strategy to avoid this evidence during the sentencing phase is less obvious, we do not determine counsel's effectiveness through a rear view mirror. The Supreme Court requires we make “every effort ... to eliminate the distorting effects of hindsight” by indulging in a strong presumption counsel acted reasonably. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. As the OCCA observed, we cannot know the interaction between the victim's family and the jury during the penalty phase. It is not unreasonable to avoid questions requiring the family to speak ill of the deceased for fear the jury's anger would settle on the defendant. The OCCA's conclusion that trial counsel was not ineffective for failing to elicit evidence of Hardcastle's drug activity at sentencing is not contrary to clearly established federal law.
2. Failure to Object to Erroneous Penalty Phase Instruction.
Welch next claims trial counsel's failure to object to the jury instruction defining the heinous, atrocious or cruel aggravator was ineffective assistance of counsel. While the OCCA held counsel should have objected to the instruction's use of the phrase “serious abuse” rather than “serious physical abuse,” it concluded the failure to object did not prejudice the defendant. Welch, 968 P.2d at 1247–48. We agree. There is no question the evidence at trial established Hardcastle suffered serious physical abuse. Thus, the evidence at trial supports the OCCA's determination that the difference in the language “could have had no impact on the sentencing decision.” Id. at 1248.
3. Failure to Challenge Improper Voir Dire.
During voir dire, the prosecutor asked all but two members of the jury questions similar to the following: “Do you feel like something like a poor childhood is a reason to not assess the death penalty? ... If there is evidence as to drug involvement, or alcohol involvement, things of that nature, do you feel that in and of itself is a reason to not assess the death penalty? (Tr. Vol. 2 at 431, 438, 447, 437; Vol. 3 at 553, 731; Vol. 4 at 876, 901, 958, 982.) The prosecutor received a negative answer from each juror. Welch maintains these questions impermissibly secured an agreement from the jurors to ignore Welch's mitigation evidence, thus ensuring a death sentence. He claims trial counsel's failure to object to this line of questioning constituted ineffective assistance of counsel under Strickland. While ineffective assistance of trial counsel was raised on direct appeal, it did not include a claim based on voir dire. When raised in Welch's petition for post-conviction relief, the OCCA held this aspect of his ineffective assistance of counsel claim was barred by res judicata. Welch, 972 P.2d at 28–29. “On habeas review, this court does not address issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998). The Oklahoma requirement that a claim of ineffective assistance of trial counsel be raised on direct appeal is an adequate ground for procedural default if (1) the defendant's counsel on direct appeal is different from trial counsel and (2) the claims can be resolved on the trial record alone. Id. at 1263. Welch concedes he had different counsel on appeal and the claim could have been resolved on the trial record alone. Therefore, habeas review of this claim on the merits is barred unless Welch can show “cause for the default and prejudice resulting therefrom, or that failure to review his claim[s] will result in a fundamental miscarriage of justice.” Hickman v. Spears, 160 F.3d 1269, 1272 (10th Cir.1998). Welch contends he met the cause and prejudice requirement because his appellate counsel was ineffective in failing to raise his trial counsel's ineffectiveness during voir dire, especially when considered in conjunction with the trial court's refusal to give a specific instruction listing the mitigation factors. Mitchell v. Gibson, 262 F.3d 1036, 1057 (10th Cir.2001) (quotations omitted). The OCCA determined Welch's appellate counsel was not ineffective by applying the test set out in Walker v. State, 933 P.2d 327, 334 (Okla.Crim.App.1997). See Welch, 972 P.2d at 29–30. But we have held the Walker test “is contrary to federal law.” DeLozier v. Sirmons, 531 F.3d 1306, 1331 (10th Cir.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 2058, 173 L.Ed.2d 1138 (2009). We, therefore, do not defer to the OCCA's ruling but review appellate counsel's performance de novo. Id. If Welch cannot show trial counsel was ineffective, then he cannot show “cause” (ineffective appellate representation) for his procedural default. Sherrill v. Hargett, 184 F.3d 1172, 1175–1176 (10th Cir.1999). In addition, while “[a] claim of appellate ineffectiveness can be based on counsel's failure to raise a particular issue on appeal, ... counsel ‘need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.’ ” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir.2003) (quoting Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)). “[I]f the omitted issue has merit but is not so compelling, [we assess] the issue relative to the rest of the appeal, and deferential consideration must be given to any professional judgment involved in its omission; of course, if the issue is meritless, its omission will not constitute deficient performance.” Id. We first look to the predicate inquiry, whether trial counsel performance was unreasonably deficient and whether it prejudiced Welch. He has failed to show the latter. Assuming, arguendo, trial counsel's failure to object to the State's voir dire was deficient performance, counsel was not ineffective because the error did not prejudice Welch's defense. A capital jury is not required to find any particular evidence must be given mitigating effect or weight. Boyde, 494 U.S. at 377, 110 S.Ct. 1190. There is a constitutional violation only if there exists a reasonable likelihood that the jurors believed themselves precluded from considering relevant mitigating evidence. Id. at 386, 110 S.Ct. 1190. Put differently, the jury must be the body that decides the weight or effect given to the evidence. The questions asked during voir dire did not preclude the jury from considering Welch's evidence. After the State's allegedly improper questions to the jury, defense counsel questioned each juror to assure individual willingness to consider every form of punishment in the event they found Welch guilty, as well as each juror's willingness to adhere to the court's instructions. Given these circumstances, we cannot say there is a reasonable likelihood the prosecutor's questions affected the jury's decision on guilt or sentencing. Moreover, the prosecutor's questions were irrelevant to guilt and the evidence supporting the aggravating factors was sufficient to impose the death sentence, even considering all mitigating evidence. Because Welch cannot show trial counsel's alleged error caused prejudice, his ineffective assistance of appellate counsel claim must fail. Therefore, he cannot avoid the procedural bar.
4. Failure to Develop And Present Mitigating Evidence.
a) Trial Counsel's Ineffectiveness
Welch asserts trial counsel was ineffective for failing to present additional mitigating evidence at sentencing. Prior to trial, clinical social worker Fran St. Peters evaluated Welch and concluded Welch should be evaluated by a neuropsychologist. She reported Welch had “memory interruptions,” “grandiose delusions” and detailed Welch's abuse as a child as well as the history of mental illness in his family. Reports from juvenile authorities also documented Welch's problems as a juvenile and indicated he had been chained by his parents as a child. Welch claims trial counsel's failure to introduce this evidence deprived the jury of an understanding of the full picture of his childhood's severe emotional and physical abuse which prevented him from learning to socialize like normal children. The OCCA and the district court held this claim of ineffective assistance of trial counsel was procedurally barred because it had not been raised on direct appeal and “[did] not turn on facts or information unavailable at the time of his direct appeal.” Welch, 972 P.2d at 29; see also Okla. Stat. tit. 22, § 1089(C) (“[t]he only issues that may be raised in an application for post-conviction relief are those that ... [w]ere not and could not have been raised in a direct appeal.”). Welch claims the procedural bar should not apply here because his ineffectiveness claim could not “be resolved on the trial record alone.” (Appellant's Br. at 93.) And Welch now adds an argument that the procedural bar is not adequate because it is not strictly or regularly followed. But this argument, raised for the first time in this Court, was specifically noted for its absence by the district court. See Welch, 2007 WL 927950 at *42 n. 26. FN16 FN16. Footnote 26 states: The Court need not address whether Oklahoma's procedural rules are adequately and evenhandedly applied because Petitioner does not address his alleged procedural default, let alone challenge the adequacy of Oklahoma's procedural rules. See Spears v. Mullin, 343 F.3d 1215, 1252 (10th Cir.2003); Hooks v. Ward, 184 F.3d 1206, 1215 (10th Cir.1999) (concluding it is habeas petitioner's burden to challenge the adequacy of a state procedural bar). Our cases (and more important, Supreme Court Cases) do not prevent Oklahoma from requiring ineffectiveness of trial counsel claims to be raised on direct appeal. English, 146 F.3d at 1263. Our cases do require procedures that: “(1) allow petitioner an opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel's performance and (2) provide a procedural mechanism whereby a petitioner can adequately develop the factual basis of his claims of ineffectiveness.” Id. Under OCCA Rule 3.11, a defendant may request an evidentiary hearing “[w]hen an allegation of the ineffective assistance of trial counsel is predicated upon an allegation of failure of trial counsel to properly utilize available evidence or adequately investigate to identify evidence which could have been made available during the course of the trial.” Okla. Stat. tit. 22, ch. 18, app., Rule 3.11(B)(3)(b). “However, we have been skeptical of whether Rule 3.11 is sufficient to satisfy” a procedural mechanism by which a defendant can supplement the record. Fairchild v. Workman, 579 F.3d 1134, 1142–43 (10th Cir.2009). Nonetheless, because Welch did not challenge the method by which he could supplement the facts on appeal to the State or federal district court, any argument that he was not provided an adequate procedure is waived. Therefore, we do not consider it here. Cone, 129 S.Ct. at 1780 (“When a petitioner fails to properly raise his federal claims in state court, he deprives the State of an opportunity to address those claims in the first instance and frustrates the State's ability to honor his constitutional rights.”) (quotations omitted); see also United States v. Avalos, 506 F.3d 972, 977 (10th Cir.2007) (issues not raised below are waived). In any event, as discussed below, trial counsel presented mitigating evidence of Welch's difficult childhood and it is highly unlikely further mitigation evidence would have changed his sentence.
5. Ineffectiveness of Appellate Counsel.
Welch contends his claim of trial counsel's ineffective investigation and presentation of mitigating evidence should not have been subjected to the procedural bar. That is because his appellate counsel was ineffective for failing to raise this claim. We review this claim de novo because the OCCA determined appellate counsel was effective under the Walker test, an incorrect standard. Welch must show appellate counsel's representation fell “below an objective standard of reasonableness” in light of “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. We “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance” and avoid judging counsel's performance using the distorting benefit of hindsight. Id. at 689, 104 S.Ct. 2052 (quotations omitted). The Supreme Court recently reiterated we may consider the standards in effect at the time of counsel's representation as “guides” but “the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.” Bobby v. Van Hook, ––– U.S. ––––, ––––, 130 S.Ct. 13, 17, 175 L.Ed.2d 255 (2009) (quotations omitted). Even assuming Welch could show trial counsel's failure to present St. Peter's testimony and his juvenile records fell below that standard, he must then show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. Id. at 695–96, 104 S.Ct. 2052. Welch's trial “counsel ... presented more than a skeletal case in mitigation.” Welch, 2007 WL 927950 at (distinguishing Anderson v. Sirmons, 476 F.3d 1131, 1142 (10th Cir.2007)). Dr. Murphy testified Welch suffered from psychological problems and related the “possible causes from his background.” Id. While petitioner's mother's testimony was of limited coherence, she provided some “insight into Petitioner's childhood behavioral problems.” Id. Even if St. Peters or another expert could have given a more detailed account, “counsel is not required to keep hiring experts until the most favorable one possible is found.” DeLozier, 531 F.3d at 1333. The evidence of aggravating factors was especially persuasive. As discussed above, Welch had a violent history on the street and in confinement. Under the law at the time of appeal, appellate counsel may have reasonably believed the additional evidence was no more meritorious than other issues argued on direct appeal. Because Welch has not shown appellate counsel ignored a compelling issue or that the additional evidence would reasonably likely have changed the jury's sentence, he cannot succeed on his claim of ineffective assistance of appellate counsel.
I. Proposition 10—Cumulative Error
Welch maintains the actual errors determined by the OCCA, and those he asserts on appeal, cannot be found harmless when considered in the aggregate. “A cumulative-error analysis aggregates all errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” United States v. Toles, 297 F.3d 959, 972 (10th Cir.2002) (quotations omitted). Here, we have determined, as did the OCCA and the district court, that the trial court erred in allowing the prosecution to comment on Welch's post-arrest silence and in admitting a substantial portion of the victim impact statements. The district court, as did the OCCA, determined reversal is not warranted. We agree. After careful review of the record and the arguments on appeal, we cannot say the cumulative effect of the errors deprived Welch of a fair trial. AFFIRMED.