Inmate: Boltz, John A.
ODOC#: 141921
Birth Date: 07/30/1931
Race: White
Sex: Male
Height: 6 ft. 02 in.
Weight: 200 pounds
Hair: Blonde
Eyes: Blue
County of Conviction: Pott
Date of Conviction: 11/21/84
Location: Oklahoma State Penitentiary, Mcalester

Oklahoma Attorney General News Release

04/11/2006 News Release - W.A. Drew Edmondson, Attorney General

Court Sets Execution Date for Boltz

The Oklahoma Court of Criminal Appeals today set June 1 as the execution date for Pottawatomie County death row inmate John Albert Boltz.

Boltz, 74, was convicted of the April 18, 1984, murder of his step-son, Doug Kirby, 23.

Boltz reportedly stabbed Kirby 11 times when Kirby confronted him about threats he made to Kirby’s mother, Pat Kirby, who had earlier in the day told Boltz she wanted a divorce.

The court previously set April 18 as the execution date for Grady County death row inmate Richard Alford Thornburg. There are currently no other Oklahoma inmates scheduled for execution.

ProDeathPenalty.Com

On April 18, 1984, at approximately 9:30 p.m., the Shawnee Police Department received a call from John Boltz's wife who informed the police that she was at her mother's house and that Boltz, who had been drinking, had forced his way into the house and had made accusations about her to her mother. She further stated that when she threatened to call the police, Boltz left. She gave the dispatcher Boltz's car tag number and his home address.

His wife called the police department later and inquired as to whether Boltz had been taken into custody. When she was informed that he had not been arrested, she went to her son Doug's house. After they had been there for a short time, Boltz called and talked to Doug. The conversation lasted only a few minutes. A short time later, Boltz called back and again talked to Doug. After this call, Doug left to go to Boltz's trailer house. Immediately thereafter, Boltz called a third time and his wife answered. Boltz told her, "I'm going to cut your loving little boy's head off." Boltz also threatened his wife who immediately called the police and reported the threats. She told the dispatcher where Boltz lived and stated that she was going over there.

A woman who lived next door to Boltz, testified that during that evening she heard the screeching of brakes, a car door slam and loud and angry voices. When she heard a sound like someone getting the wind knocked out of him, she looked out the window and observed a man later identified as Doug Kirby, lying on the ground on his back, not moving. She testified that Boltz was standing over him screaming obscenities and beating him. Ms. Witt told her son to call the police. Ms. Witt testified that she observed Boltz pull something shiny from his belt and point the object at the man. Ms. Witt testified that when Boltz looked up and saw her watching, she turned away out of fear.

Boltz was arrested in Midwest City, Oklahoma, at the American Legion Hall after a friend informed the police of Boltz's location. Boltz had informed the friend that he had killed his stepson and had probably cut his head off. Boltz surrendered to the police upon their arrival. Dr. Fred Jordan testified that the autopsy of Doug Kirby revealed a total of eleven wounds, including eight stab wounds to the neck, chest and abdomen, and three cutting wounds to the neck. One of the wounds to the neck was so deep that it had cut into the spinal column. The carotid arteries on both sides of the neck were cut in half and the major arteries in the heart were also cut.

Boltz testified that Doug Kirby had called him that evening and threatened to kill him. Boltz claimed that when Doug arrived at his house, he kicked in the front door and as he went for a gun, Boltz stabbed him twice, but did not remember anything after that point. A .22 caliber revolver was recovered from the passenger seat of Doug's car. The gun had no blood on it although the seat was splattered with blood

National Coalition to Abolish the Death Penalty

John Boltz, OK - June 1

Do Not Execute John Boltz!

John Boltz, a 74-year-old white man, is scheduled to be executed on June 1 for the killing of Doug Kirby in Pottawatomie County. On the evening of April 18, 1984, John Boltz’s then wife, Patricia, went to meet a friend of hers. Boltz, suspecting the two were having an affair, flew into a rage, threatening his wife’s friend. Later that evening, Patricia’s son (and Boltz’s stepson), Doug Kirby, told his mother he was going to see his stepfather. Before he arrived at Boltz’s home, Boltz called Patricia and threatened her and Kirby. When Kirby arrived at Boltz’s home, Boltz is alleged to have stabbed him several times, killing him. Boltz was apprehended at a local American Legion hall.

In his appeal, Boltz argues that he should have been declared incompetent after refusing to accept a prosecutor’s plea bargain for the charge of voluntary manslaughter. A guilty plea to this charge would have carried a much lighter sentence than the one which the prosecutor sought at trial: death. The court found that the fact that Boltz refused to plead guilty to manslaughter did not indicate incompetence, just failure to recognize a good deal. But this ignores a larger, more troubling issue. Death penalty proponents argue that execution is reserved for the worst of the worst killers. They suggest that these offenders are entirely incorrigible, and should never again be free in society. Yet John Boltz was offered a deal that, in all likelihood, would have made him a free man by now.

In Furman v. Georgia, death penalty laws around the country were declared unconstitutional due to the arbitrary and capricious manner in which the punishment was applied. The only reason capital punishment continues to exist today is because those laws were “fixed.” But what could be more arbitrary than offering a man the charge of manslaughter one day, then seeking the death penalty against him the next? Perhaps John Boltz deserves to spend the rest of his natural life in prison, but he should not be executed. Boltz’s case is the perfect example of how the death penalty continues to be woefully unjust.

Please write to Gov. Brad Henry on behalf of John Boltz!

Amarillo Globe

"Okla. executes 74-year-old," by Tim Talley. (The Associated Press 06/02/06)

MCALESTER, OKLA. - John Albert Boltz, a 74-year-old death row inmate convicted of stabbing his stepson to death 22 years ago, was executed Thursday, making him the oldest death row inmate ever put to death in Oklahoma. Boltz was pronounced dead at 7:22 p.m. after receiving a lethal injection of drugs at the Oklahoma State Penitentiary. His execution came nearly two hours after the U.S. Supreme Court denied two requests for a stay of execution and after the 10th U.S. Circuit Court of Appeals reversed a federal judge's order to halt the execution.

Boltz was executed for the stabbing death of his 22-year-old stepson, Doug Kirby. He was pronounced dead nine minutes after he began a statement to the victim's family members who witnessed his execution.

Boltz did not express remorse for Kirby's death, did not apologize to family members and did not acknowledge two of his friends who witnessed his execution. They were not identified. Instead, he blamed members of Kirby's family for his execution. "This is a time of gladness for me and a time of sadness," he said. "It's a time of gladness because I know I'm going to a better place. It's a time of sadness because I think of all the people involved who got me here and what's in store for them." Without reciting the verses, Boltz referred to passages in the Old Testament book of Deuteronomy. "They need to read this portion of the Bible and see what's down the road for them," Boltz said. "I've seen so much pain for all these years. And now it's come down to this."

Boltz took some heavy breaths following his statement and then a deep sigh as he closed his eyes. His rosy face turned ashen, then purple, as the drugs paralyzed him and then stopped his heart.

Boltz's execution was delayed more than one hour because prison workers had trouble finding a vein to inject the lethal cocktail, said Jerry Massie, spokesman for the Oklahoma Department of Corrections.

The execution was witnessed by the victim's brother, Jim Kirby, son Nathan, who was just 4 years old when his father died, and other family members. Afterward, Jim Kirby said Boltz's execution was "long overdue." "It was a horrific crime," he said. "It deserved the punishment that was given. "We're all relieved that it's all over with."

A stay was ordered earlier Thursday by U.S. District Judge Stephen P. Friot following a hearing in which Boltz's court-appointed attorney challenged the lethal injection method used in Oklahoma. Boltz's attorney, James L. Hankins of Oklahoma City, argued that Oklahoma's lethal injection protocol may have violated Boltz's 8th Amendment guarantee against cruel and unusual punishment. In staying the execution, Friot said more time was needed to "allow the court to hear the issues in a more developed and orderly fashion."

Boltz was 52 when a jury convicted him of killing Doug Kirby on April 18, 1984. Kirby had driven to Boltz's home to discuss threats Boltz had made to his mother, Pat Kirby, Boltz's estranged wife. She had told Boltz earlier that day she wanted a divorce, authorities said. Boltz claimed he acted in self-defense and that Doug Kirby came to his Pottawatomie County home to confront him. The Medical Examiner's Office said Kirby sustained eight stab wounds to the chest and abdomen as well as cutting wounds of the neck that nearly decapitated him.

Boltz's execution was opposed by the National Coalition to Abolish the Death Penalty in Washington and other anti-death penalty groups who said his age and incarceration for more than two decades nullified the deterrent effect putting him to death might have.

Tulsa World

"State executes 74-year-old killer," by Sara Ganus. (6/2/2006)

John Boltz was found guilty of the 1984 murder of his 22-year-old stepson.

McALESTER -- After last-minute appeals that went all the way to the U.S. Supreme Court and more than an hour's delay from the time the execution began, 74-year-old John Albert Boltz was put to death Thursday evening at the state penitentiary. Boltz, the oldest person ever to be executed in Oklahoma, expressed no remorse for the murder of his stepson but referenced a passage from the Bible before he was executed. The execution, scheduled for 6 p.m., was delayed because workers had trouble finding a vein through which to administer the lethal injection, said Jerry Massie, a spokesman for the Oklahoma Department of Corrections.

Boltz, who was convicted 22 years ago of the April 18, 1984, murder of his 22-year-old stepson, Doug Kirby, was given the opportunity to make a statement, and he began speaking about 7:13 p.m.

"It's a time of sadness because I think of all the people involved who got me here and what's in store for them," he said. Without reciting the verses, Boltz then referenced Deuteronomy 19:18-21, saying that "they need to read that portion of the Bible and see what's down the road for them." Although Boltz never specified who "they" are, the passage seemed to be directed at Kirby's family: The verses say, in part: "And the judges shall make careful inquiry. If they discover that the witness is, indeed, resentful and has accused falsely against his brother, then you shall do to him what he had planned to have done to his brother; and thus you shall eradicate the evil from among you."

Jim Kirby, Doug Kirby's brother, said Boltz had no remorse and that his statement "was nothing more than threats against my family." Two friends of Boltz's, a man and a woman whose names were not released, witnessed the execution. As Boltz referenced the Bible passage, the woman gave a thumbs-up sign and shook her head.

The lethal drugs were administered beginning at 7:15 p.m. Seven minutes later, Boltz was pronounced dead. After witnessing the execution, the woman patted her knee twice as a tear rolled down her right cheek. Jim Kirby later made a brief statement, saying there is no case in which the death penalty better fits the crime than this one. "We're just all relieved it's finally over with," he said.

Doug Kirby was killed after driving to Boltz's house to discuss threats Boltz had made to Kirby's mother, Pat Kirby. Earlier that day, Pat Kirby had told Boltz that she wanted a divorce. During his trial, Boltz claimed that he had acted in self-defense. A medical examiner testified at Boltz's trial that Kirby was stabbed eight times in the chest and upper abdomen and had three cutting wounds to his neck that nearly decapitated him.

Shortly after the execution, Attorney General Drew Edmondson released a statement in which he said Boltz had been properly convicted and sentenced to death. "His appeals have been turned down by courts at all levels," the statement said. "His repeated last-minute attempts to delay his punishment have been denied. It is time the sentence is carried out." The five-member state Pardon and Parole Board voted 5-0 last week to deny clemency to Boltz, but earlier Thursday, U.S. District Judge Stephen Friot had issued a stay of the execution.

Friot did not rule on Boltz's claim that execution by lethal injection violated his right against cruel and unusual punishment but found that Boltz's interests outweighed the state's interests in a timely execution, Assistant Attorney General Preston Saul Draper said. James Hankins, Boltz's Oklahoma City attorney, wrote in court documents that Boltz "alleges that a significant risk of excessive pain and suffering awaits him under the current execution protocols."

Oklahoma's execution procedure calls for the use of sodium thiopental to put a condemned person to sleep, then vercuronium bromide to stop breathing and potassium chloride to stop the heart. In a May grievance to the Oklahoma Department of Corrections protesting the state's method of execution, Boltz said it did not guarantee that he would be successfully anesthetized for the "entire duration of the execution." The stay granted by Friot was lifted a few hours later by the 10th U.S. Circuit Court of Appeals, which said a stay of the execution was "clearly inappropriate." The U.S. Supreme Court then denied Boltz's appeal.

In court documents, Draper questioned the timing of Boltz's claim, adding that he "could have brought his challenge to Oklahoma's lethal injection procedure 15 years ago when his conviction and sentence became final." An appeal filed by two Oklahoma death-row inmates, Grady County killer Glenn Anderson and Payne County killer Charles Taylor, challenging the execution procedure is pending before Friot. A similar case is pending before the U.S. Supreme Court.

KOCO-TV5

"Clemency Denied For 74-Year-Old Death Row Inmate." (UPDATED: 10:45 pm CDT May 23, 2006)

OKLAHOMA CITY -- The state Pardon and Parole Board denied clemency Tuesday for a 74-year-old death row inmate, clearing the way for him to become the oldest person ever executed in Oklahoma. The five-member board voted 5-0 to deny clemency for John Albert Boltz, who was sentenced to die for the murder of his 23-year-old stepson 22 years ago, said Emily Lang, spokeswoman for Attorney General Drew Edmondson's office. Boltz is scheduled to die by lethal injection on June 1 at the Oklahoma State Penitentiary at McAlester.

The oldest inmate ever put to death in Oklahoma is Robert Hendricks, 64, who was executed in 1957, said Jerry Massie, spokesman for the Oklahoma Department of Corrections. Hendricks was convicted of murder in Craig County, Massie said. Boltz was convicted of first-degree murder for the April 18, 1984, murder of Doug Kirby, who was stabbed eleven times after he confronted Boltz about threats Boltz had made to Kirby's mother, Pat Kirby, authorities said. Pat Kirby had told Boltz she wanted a divorce earlier that day. During his trial, Boltz argued he acted in self-defense. He said Kirby came to his Pottawatomie County home to confront him. Boltz repeated those assertions Tuesday during a presentation via electronic teleconference from a cell at OSP to the board's meeting at the Hillsdale Community Correction Center in Oklahoma City, Lang said. Kirby's father and two brothers opposed the clemency request.

Edmondson's office also opposed the request, arguing that Kirby's death was especially heinous and cruel and has had a devastating affect on his family, including Kirby's son, Nathan Kirby, who was just four years old when his father was killed.

The Medical Examiner's Office said Kirby sustained eight separate stab wounds to the chest and abdomen as well as cutting wounds of the neck that nearly decapitated him.

The Oklahoman

"Killer, 74, becomes oldest to be executed in state," by Ann Weaver. (The Oklahoman)

McALESTER - John Albert Boltz, 74, on Thursday became the oldest man in Oklahoma's history to be executed. Authorities executed Boltz by lethal injection after his attorney tried to win a last-minute stay, arguing the state's lethal injection procedure could cause unnecessary pain before Boltz died from the mix of drugs pumped into his veins. Boltz was pronounced dead at 7:22 p.m. And with the last words of his life, he admonished those who put him on death row.

There was no quaver of sorrow or anger in his voice as he lay on the execution table, shrouded in a white sheet with two pillows supporting his head. He was both happy he would be going to a better place and sad for the punishment that would befall his accusers, he said, referencing an Old Testament passage from the Bible in his remarks. Then, Boltz closed his eyes, looking more like a grandfather taking a nap than a killer.

As the poison entered his veins, color faded from his skin. Less than five minutes later, a female friend of Boltz's broke the silence in the witness room by whispering, "He's gone." The procedure should have started at 6 p.m., but death chamber workers had some difficulty finding a vein on the inmate to inject, said Jerry Massie, Department of Corrections spokesman.

Jim Kirby, the brother of the man Boltz had been convicted of killing, called Thursday's execution "death with no remorse." "It was nothing more than more threats against my family," he said, after witnessing the procedure.

Penitentiary workers went forward with the execution after a federal judge in Oklahoma City had ordered a stay about 1:30 p.m. the same day, which later was overturned by the 10th Circuit Court of Appeals in Denver. The U.S. Supreme Court denied a subsequent appeal.

The former used car salesman and evangelistic preacher was put to death for killing his 22-year-old stepson, Douglas Kirby, on April 18, 1984, in a Shawnee mobile home park. Retired Shawnee police Detective John Moody said Kirby was stabbed as many as eight times and nearly was decapitated with a hunting knife. Moody said he believes Boltz killed Kirby seeking revenge against his mother, Pat Kirby, who had told Boltz earlier that day she wanted a divorce. Boltz could have avoided execution had he accepted a plea bargain prosecutors offered.

Former Pottawatomie County Assistant District Attorney John Canavan said the deal would have reduced the offense to first-degree manslaughter with a maximum sentence of 42 years in prison, if Boltz pleaded guilty. The offer was extended to spare Pat Kirby from testifying. Canavan said Pat Kirby told prosecutors she was on the verge of a nervous breakdown and was concerned the stress of a trial would push her fragile mental state too far. Ultimately, Pat Kirby's testimony won the jurors' sympathies and garnered the death sentence, Canavan said. "We were all sort of shocked, because juries rarely give the death penalty in domestic killings," he said. "This one was just so mean. A total innocent was killed just to get back at her."

Jim Hankins, Boltz's attorney the past seven years, said Boltz probably would already have been released from prison had he taken the plea bargain. Instead, he's spent most of the last 22 years confined 23 hours a day on death row. Boltz adamantly had claimed he was in his own home defending himself from an attacker. "I don't think he's particularly sorry that he didn't take the deal," Hankins said. "I think he's sorry that no one believes he acted in self defense. I am sure that he wishes the whole incident never happened."

Hankins said Boltz was in reasonably good health for a man who nearly was 75. He remained a solid Pentecostal, who read daily from the Bible, the attorney said. Boltz's parents and many of his family members long since have passed away, but friends he had made as a minister and an ex-wife maintained contact with him, Hankins said.

Jim Kirby said his brother Doug was working at an industrial plant in Shawnee before his death, but aspired to be a businessman. Doug Kirby was a member of the Shawnee Jaycees, a chapter that instituted an outstanding community service award in his remembrance. He had bought a small, two-bedroom house because the young bachelor wanted a home for visits with his son, Jim Kirby said.

In a letter to the state Pardon and Parole Board, Nathan Kirby, 26, said he only knows his father through photos and stories. "Not only have I missed out on having a father, but my father has missed out on having a son," Nathan Kirby said. "John Boltz dying will bring us all some peace, but it will never bring Doug back to us," Jim Kirby said. "I think about that every time I look at a family Christmas picture and he's missing."

The state's previous oldest inmate to be executed was Robert Hendricks, 64, who was put to death in 1957.

Boltz v. State, 806 P.2d 1117 (Okla.Crim. 1991) (Direct Appeal).

Defendant was convicted in the District Court, Pottawatomie County, Glenn Dale Carter, J., of murder in first degree, and was sentenced to death, and he appealed. The Court of Criminal Appeals, Johnson, J., held that: (1) erroneous failure to conduct competency hearing concurrent with trial was cured by retrospective determination of competency; (2) juror who stated that if person was guilty of taking another life, his life should be taken, regardless of what he did, did not have to be excused for cause; (3) defendant was not entitled to instructions on lesser included offenses of heat of passion manslaughter and second-degree murder; (4) evidence supported finding of aggravating circumstances; and (5) defendant did not receive ineffective assistance of counsel. Affirmed. Parks, P.J., filed specially concurring opinion.

JOHNSON, Judge:
John A. Boltz, appellant, was tried by jury for the crime of Murder in the First Degree in the District Court of Pottawatomie County, Case No. CRF-84- 97. Appellant was represented by counsel. The jury returned a verdict of guilty and sentenced appellant to death. The trial court sentenced appellant accordingly. From this judgment and sentence, appellant appeals.

On April 18, 1984, at approximately 9:30 p.m., the Shawnee Police Department received a call from the appellant's wife, Pat Kirby. Ms. Kirby informed the police that she was at her mother's house and that appellant, who had been drinking, had forced his way into the house and had made accusations about her to her mother. Ms. Kirby further stated that when she threatened to call the police, appellant left. Ms. Kirby gave the dispatcher the appellant's car tag number and his home address.

Ms. Kirby called the police department later and inquired as to whether appellant had been taken into custody. When she was informed that he had not been arrested, Ms. Kirby went to her son Doug's house. After they had been there for a short time, appellant called and talked to Doug. The conversation lasted only a few minutes. A short time later, appellant called back and again talked to Doug. After this call, Doug left to go to appellant's trailer house. Immediately thereafter, appellant called a third time and Ms. Kirby answered. Appellant told her, "I'm going to cut your loving little boy's head off." Appellant also threatened Ms. Kirby. Ms. Kirby immediately called the police and reported the threats. Ms. Kirby told the dispatcher where appellant lived and stated that she was going over there. Vita Witt, who lived next door to appellant, testified that during that evening she heard the screeching of brakes, a car door slam and loud and angry voices. When she heard a sound like someone getting the wind knocked out of him, she looked out the window and observed a man later identified as Doug Kirby, lying on the ground on his back, not moving. She testified that appellant was standing over him screaming obscenities and beating him. Ms. Witt told her son to call the police. Ms. Witt testified that she observed appellant pull something shiny from his belt and point the object at the man. Ms. Witt testified that when appellant looked up and saw her watching, she turned away out of fear.

Appellant was arrested in Midwest City, Oklahoma, at the American Legion Hall after a friend informed the police of appellant's location. Appellant had informed the friend that he had killed his stepson and had probably cut his head off. Appellant surrendered to the police upon their arrival. Dr. Fred Jordan testified that the autopsy of Doug Kirby revealed a total of eleven wounds, including eight stab wounds to the neck, chest and abdomen, and three cutting wounds to the neck. One of the wounds to the neck was so deep that it had cut into the spinal column. The carotid arteries on both sides of the neck were cut in half and the major arteries in the heart were also cut.

Appellant testified that Doug Kirby had called him that evening and threatened to kill him. Appellant claimed that when Doug arrived at his house, he kicked in the front door and as he went for a gun, appellant stabbed him twice, but did not remember anything after that point. A .22 caliber revolver was recovered from the passenger seat of Doug's car. The gun had no blood on it although the seat was splattered with blood.

* * *

Appellate counsel asserts that appellant's failure to follow trial counsel's advice and accept a pretrial plea bargain for manslaughter in the first degree further evidences his incompetency. Clearly, in retrospect, such a decision was unwise. However, we cannot find that poor judgment, in and of itself, denotes incompetency. The defendant was quizzed by the Judge and by his own attorney as to his understanding of his rights and of his wish to go to trial. Defendant felt he could get a not guilty verdict because of self-defense, so this in and of itself does not show incompetency, only a lack of knowledge as to what was a good deal.

* * *

Appellant also asserts that the trial court erred in refusing to allow him to testify concerning alleged threats to kill the appellant made by the victim shortly before his fatal stabbing, and also erred in refusing to allow the appellant to testify concerning an alleged admission by a man that he and the appellant's wife were having an affair. Appellant admits that these statements were hearsay, but attempts to show that both statements should have been admitted under exceptions to the hearsay rule. We need not decide whether this hearsay evidence was admissible under an exception because the appellant was able to present this information to the jury in other ways. After the objection was sustained which prevented the appellant from relating what he was allegedly told over the telephone by the victim, the appellant was asked what he did when he was through talking with the victim. He responded, "... I start trying to defend my life, because I know an attack is fixing to be made on me, because I've been told that." (Tr. 545) After telling what steps he took to prepare to defend himself, he stated, "I went over and started peeping out of this aluminum foil on the door to see if he was going to do what he screamed at me that he was going to do." (Tr. 545) Concerning his testimony about an alleged admission of an affair, he stated on cross-examination that, "I told [the victim] that I caught his mother with her lover, and that the man had confessed to an adulterous relationship with his mother for over three years. And that's the truth." Thus, the jury actually heard the information which the appellant complains was excluded and we find this assignment to be without merit. See Burroughs v. State, 528 P.2d 714 (Okl.Cr.1974).

Appellant next contends that the trial court failed to instruct on heat of passion manslaughter as a lesser included offense of first degree murder. After a review of the record, we find that the evidence simply did not support a heat of passion manslaughter instruction. Walton v. State, 744 P.2d 977 (Okl.Cr.1987). There must be evidence for the court to instruct on heat of passion; here there was none. The court gave instructions on the defense of self-defense. The trial judge was correct as to his finding on the evidence and refusal to instruct on heat of passion. The evidence clearly showed appellant had a design to effect death.

* * *

During the second stage, evidence of an unadjudicated burglary against appellant was admitted to support the aggravating circumstance that he would constitute a continuing threat to society. Appellant contends that the evidence was irrelevant and highly prejudicial. The evidence of which appellant complains demonstrated that the inner door facing of the victim's home was discovered splintered as a result of forcible entry the morning after his murder. The victim's brother testified that nothing was missing, but a picture was laying on the floor "shattered." Evidence had been offered during the first stage of trial that appellant had last spoken to his wife at the victim's home shortly before the murder, and that after telling her that he intended to cut her son's head off, he threatened to kill her within the hour. We find that this circumstantial evidence is strong enough for the jury to find that the appellant committed the subsequent burglary, and such evidence would make more probable that the appellant intended to kill his wife and therefore supports the aggravating circumstance of continuing threat. In Johnson v. State, 665 P.2d 815, 822 (Okl.Cr.1982), this Court held that prior unadjudicated acts of violent conduct are relevant to the determination of whether a defendant is likely to commit future acts of violence that would constitute a continuing threat to society. We find such evidence to be relevant in the jury's determination as to whether a person has a propensity to commit criminal acts in the future. We find no error.

The appellant alleges that the trial court improperly failed to instruct during the second phase of the trial that if jurors could not reach a unanimous verdict in sentencing, the court could impose a life sentence. As we have previously stated, such an instruction could improperly distract the jury from performing its duty of assessing the sentence, and the jury need not be instructed concerning this rule of law. See Fox v. State, 779 P.2d 562, 574 (Okl.Cr.1989).

The jury found that the murder was especially heinous, atrocious or cruel. Appellant contends that the aggravating circumstance was applied in an unconstitutional manner in this case. We disagree. In Stouffer v. State, 742 P.2d 562 (Okl.Cr.1987), this Court limited the application of this circumstance to those cases which involve torture or serious physical abuse to the victim prior to death. See also Fox v. State, 779 P.2d 562, 576 (Okl.Cr.1989). The record in the present case reveals that Doug Kirby was stabbed repeatedly while retreating from the trailer house in an attempt to escape. During the struggle he was finally overcome and collapsed in the yard. We find this to be sufficient evidence that he suffered serious physical abuse prior to death. The facts show that the deceased's stabbing occurred in the house, in the car and on the ground outside the car. His head was almost cut off; one must say that this was heinous, atrocious or cruel.

In his next two assignments of error, appellant contends that the aggravating circumstance of "the existence of a probability that the defendant would commit acts of violence that would constitute a continuing threat to society" is vague on its face, that no definitive guidance has been provided to construe the statute, that it has been evaluated in an arbitrary manner, and that the trial court should have specifically defined its elements. We have previously addressed these issues, holding that "... this aggravating circumstance is specific, not vague, and is readily understandable." See Liles v. State, 702 P.2d 1025, 1031 (Okl.Cr.1985). Furthermore, it is not being evaluated in an arbitrary manner, see Foster v. State, 714 P.2d at 1040. See also Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). We find no error.

Appellant next contends that there was insufficient evidence to support the jury's finding of the "continuing threat" circumstance. The record reveals that appellant lured the victim to his trailer, and while he was en route, appellant called Ms. Kirby to tell her that he was going to kill Doug and threatened to kill her within the hour. There was further evidence that appellant had attempted to enter Doug's house in an attempt to find her. Other testimony revealed that appellant had bragged about killing before. These facts combined with the sheer callousness in which this murder was committed amply support the jury's finding of this aggravating circumstance. See Robison v. State, 677 P.2d 1080, 1088 (Okl.Cr.1984).

Appellant next contends that the trial court's instructions failed to provide particularized guidelines for considering mitigating circumstances. As explained by this Court in Foster v. State, 714 P.2d 1031, 1041 (Okl.Cr.1986), particularized guidance is not required. Where the jury's attention is focused on the circumstances of the appellant's case, that guidance is sufficiently precise. In the case before us the Court instructed that evidence of mitigating circumstances offered by the appellant included his state of mind arising from his traumatic domestic circumstances, that his surrender to authorities was voluntary, that he had not been previously convicted of a crime, and that he had demonstrated his propensity to act in aid of others. We find the instructions to be sufficient.

Appellant next asserts that his sentence should be modified to life imprisonment because the mitigating evidence outweighed the aggravating evidence. However, after a review of the record we find sufficient evidence from which the jury could have found that the aggravating circumstances outweighed the mitigating circumstances. See Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985). Appellant further argues that the death penalty in his case is disproportionate to the punishment imposed in similar cases. However, in Foster, supra, we explained that a proportionality review is no longer required under our present statutory scheme. Therefore, this assignment of error is meritless.

In his final assignment of error, appellant contends that he received ineffective assistance of counsel. He argues that his trial counsel failed to present available evidence to support the appellant's self-defense claim, that trial counsel failed to present available evidence to support the theory that appellant was acting under such emotional and mental pressure that he could not have acted with malice aforethought, and that trial counsel presented no mitigating evidence during the penalty phase of the trial. To establish a claim of ineffective assistance of counsel, appellant must first show that counsel's performance was deficient and secondly, that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court directed that judicial scrutiny of counsel's performance must be highly deferential, and warns that it is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all to easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Id., 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

Appellant argues that trial counsel failed to fully develop evidence that the initial struggle occurred inside the trailer house which was consistent with appellant's testimony, that his physician could have testified concerning the change in his mental state which she had observed, and that other witnesses also could have testified concerning his changed mental state. Having examined these arguments, and affidavits of individuals stating what they would have testified had they been called, we nevertheless remain unconvinced that trial counsel's performance was deficient. To quote the Tenth Circuit Court of Appeals, "[A]n attorney who makes a strategic choice to channel his investigation into fewer than all plausible lines of defense upon which he bases his strategy are reasonable and his choices on the basis of those assumptions are reasonable...." An attorney's decisions not to interview witnesses and to rely on other sources of information, if made in the exercise of professional judgment, is not ineffective counsel. United States v. Glick, 710 F.2d 639, 644 (10th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 995, 79 L.Ed.2d 229 (1984).

Concerning the appellant's complaint that trial counsel failed to present mitigating evidence in the penalty phase of his trial, the record reveals that character witnesses testified for the appellant during the first stage of the trial, and this evidence was incorporated into the second stage where the trial court gave instructions on the mitigating evidence presented by the appellant. Accordingly, this assignment of error is without merit. Finally, we are required to determine whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. 21 O.S.Supp.1985, § 701.13(C)(1). We find that it was not. The judgment and sentence is AFFIRMED.

Boltz v. Mullin 415 F.3d 1215 (10th Cir. 2005) (Habeas).

Background: Petitioner convicted in state court for first-degree murder and sentenced to death filed petition for writ of habeas corpus. The United States District Court for the Western District of Oklahoma, Vicki Miles-LaGrange, J., denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Tacha, Chief Circuit Judge, held that:
(1) trial counsel's decision to call petitioner's friend as witness did not deprive petitioner of effective assistance of counsel;
(2) counsel's failure to order transcript of government witness's testimony at preliminary hearing did not deprive petitioner of effective assistance of counsel;
(3) counsel's failure to introduce evidence of bruises on petitioner's arm did not deprive petitioner of effective assistance of counsel;
(4) counsel's failure to present evidence that murder victim left his glasses in his car did not deprive petitioner of effective assistance of counsel;
(5) counsel's failure to present evidence that victim knew that petitioner had accused victim's mother of adultery did not deprive petitioner of effective assistance of counsel;
(6) counsel's failure to investigate murder victim's propensity for violence did not deprive petitioner of effective assistance of counsel;
(7) evidence was sufficient to support jury's finding of continuing threat aggravator; and
(8) state appellate court's determination that petitioner was not entitled to heat of passion manslaughter instruction was not contrary to or an unreasonable application of federal law. Affirmed.

TACHA, Chief Circuit Judge.
A jury convicted Petitioner-Appellant John Albert Boltz of first-degree murder in the stabbing and decapitation death of his stepson, Doug Kirby, and sentenced him to death in 1984. In 1991, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction and sentence on direct appeal. Mr. Boltz then filed an application for post-conviction relief in the District Court of Pottawatomie County, Oklahoma on July 2, 1992, which was denied and subsequently affirmed by the OCCA. On September 9, 1999, Mr. Boltz filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Oklahoma pursuant to 28 U.S.C. § 2254. Relief was denied on all grounds on March 25, 2004. Mr. Boltz then sought a certificate of appealability (“COA”) with the District Court, which granted the certificate as to Mr. Boltz's claim of ineffective assistance of counsel. This Court also granted a COA with respect to two other claims raised by Mr. Boltz: that the evidence was insufficient to establish the “continuing threat” aggravating factor found by the jury, and that his right to due process was violated when the court failed to instruct the jury on heat of passion manslaughter. We take jurisdiction under 28 U.S.C. §§ 1291 and 2253 and AFFIRM.

I. BACKGROUND

On April 18, 1984, Pat Kirby, who was then married to Mr. Boltz, left work in Shawnee, Oklahoma and drove to Stroud to meet her friend and former boss, Duane Morrison. Mr. Boltz was suspicious that his wife was having an affair with Mr. Morrison and followed her there dressed in combat fatigues and dark glasses. When he saw that Ms. Kirby was meeting Mr. Morrison, he flew into a rage, swearing at Mr. Morrison and telling him that he was going to cut his head off. Mr. Boltz then exclaimed that he had killed men, women, and children during the Korean War and killing “didn't faze him,” and *1220 that he had cut off people's heads in the war for less serious infractions.

After this altercation, Ms. Kirby returned alone to the trailer home she and Mr. Boltz shared in Shawnee. There, she wrote a note to her husband telling him that their marriage was over. She then packed some clothes, called her twenty-two-year-old son, Doug Kirby, to ask for help moving some of her things into his home, and went to her mother's house.

During this time, Mr. Boltz was drinking at the VFW hall. When he returned to the trailer, he found the note and drove to his mother-in-law's home to see if his wife was there. Once there, he forced his way in and yelled and swore at Ms. Kirby. Ms. Kirby then called the Shawnee Police Department and asked them to remove Mr. Boltz from the premises. Mr. Boltz left shortly thereafter, and Ms. Kirby went to her son's house.

Mr. Boltz, who had returned to his trailer, then made the first of three phone calls to Doug Kirby's residence. In the first, Mr. Kirby answered the phone and spoke with Mr. Boltz for a few minutes. A few minutes later, Mr. Boltz placed the second call. Again, Mr. Kirby answered and had a very short conversation with Mr. Boltz. After these two calls, Mr. Kirby did not appear upset, but he told his mother that he was going over to Mr. Boltz's trailer to speak with him. After he left, Mr. Boltz called Mr. Kirby's residence a third time. This time, Ms. Kirby answered. Mr. Boltz told her that he was “going to cut [her] loving little boy's head off.” He also said that he was going to kill Ms. Kirby herself within the hour.

After hanging up with her husband, Ms. Kirby placed another call to the Shawnee Police Department. This phone call was recorded and played to the jury during the State's case-in-chief: DISPATCHER: Shawnee Police Department, Cheryl. MS. KIRBY: Cheryl, this is Pat again. I hate-I hate to keep calling, but John just now called and said he was going to cut my son's head off, and my son is over there in the trailer park, and John is over there at the trailer. That was Lot 119.

Ms. Kirby then drove to Mr. Boltz's trailer searching for her son. When she arrived, she found her son's body laying outside his car. He had suffered eight stab wounds to the neck, chest and abdomen, and his neck had been cut three times. His neck was injured so severely that both carotid arteries had been severed, the voice box and esophagus were cut, and the spinal column was damaged. One of the stab wounds pierced through his back. Blood stains were discovered leading from the front porch to the driver's side door of Mr. Kirby's car as well as inside the vehicle. A .22 caliber revolver was recovered from the passenger seat; the gun had no blood on it although the seat was splattered with blood.

After the killing, Mr. Boltz drove to the American Legion in Midwest City, where he told some friends that he had killed Mr. Kirby and that he had “probably cut his head off.” The police were called and Mr. Boltz was arrested without incident. Thereafter, he confessed to the killing but did not elaborate on the circumstances leading up to it.

Mr. Boltz was charged with first-degree murder. After refusing to plead guilty to voluntary manslaughter, Mr. Boltz went to trial. At trial, Mr. Boltz did not dispute the State's contention that he stabbed Mr. Kirby to death. Rather, his strategy was to present a self-defense theory. He testified that Mr. Kirby had called him that evening and threatened to kill him. Mr. Boltz claimed that when Mr. Kirby arrived *1221 at his trailer, he kicked in the front door and as he went for a gun, Mr. Boltz stabbed him twice, but did not remember anything after that point. The jury convicted Mr. Boltz of first-degree murder.

During the penalty phase, the State contended that two aggravating circumstances-that the crime was especially heinous, atrocious or cruel, and that Mr. Boltz constituted a continuing criminal threat to society-warranted a sentence of death. In his defense, Mr. Boltz argued that he had no prior criminal record and referenced the testimony of three character witnesses who had testified on his behalf in the guilt phase. The jury imposed the death penalty.

Over the course of several years, Mr. Boltz filed a direct appeal, an application for state post-conviction relief, and a federal petition for habeas relief under 28 U.S.C. § 2254, all of which were denied. Most recently, the District Court rendered an exhaustive eighty-page opinion thoroughly reviewing each of Mr. Boltz's habeas claims. He now timely appeals the District Court's denial of his federal habeas petition on the three grounds for which a COA has been issued. See28 U.S.C. § 2253(c). Mr. Boltz argues on appeal: (1) that he received ineffective assistance of counsel; (2) that the evidence was insufficient to support the continuing threat aggravating circumstance; and (3) that the jury should have been instructed on heat of passion voluntary manslaughter.

* * *

First, Mr. Boltz contends that the introduction of an unadjudicated offense-namely, the burglary of Ms. Kirby's home-during the sentencing phase in a capital case is a violation of due process; he argues that due process is satisfied only when there is sufficient “indicia of reliability” supporting the claim that the defendant committed the offense. He argues that no such indicia of reliability exist here, pointing out that his appellate counsel's investigator drove the route between Mr. Boltz's trailer, Mr. Kirby's house, and the American Legion, and concluded that it would have been impossible for Mr. Boltz to have committed the burglary in the time frame alleged by the State.

The Supreme Court has emphasized the “ ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’ ” Caldwell v. Mississippi, 472 U.S. 320, 340, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (vacating sentence where prosecution misled jury into believing that responsibility for determining the appropriateness of a death sentence lies with the appellate court which will review the jury's decision, rather than with the jury itself) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion)). Nonetheless, the Supreme Court itself has never indicated, as is required for Mr. Boltz to obtain relief, see Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), that only those unadjudicated offenses which are supported by sufficiently reliable evidence may be introduced in the sentencing phase of a capital case. To the contrary, in Williams v. New York, the Court held that due process is not implicated when the sentencing judge imposes death based in part on evidence of the defendant's unadjudicated offenses that were not introduced at trial and which were therefore not subject to cross-examination by the defendant. 337 U.S. 241, 250-52, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); see also Nichols v. United States, 511 U.S. 738, 747-48, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (citing Williams and stating that “[s]entencing courts have not only taken into consideration a defendant's prior convictions, but have also considered a defendant's past criminal behavior, even if no conviction resulted from that behavior.”). And, following Williams, this Court has flatly held that “the admission of evidence of unadjudicated offenses at a sentencing proceeding does not violate due process.” Hatch v. Oklahoma, 58 F.3d 1447, 1465 (10th Cir.1995). Therefore, the OCCA did not act contrary to clearly established federal law when it determined that evidence that Mr. Boltz burglarized Mr. Kirby's home could properly be presented to the jury.

Mr. Boltz next argues that a nonviolent crime, such as the alleged burglary, is insufficient to support a finding of a probability of future criminal acts of violence. While it is true that under Oklahoma law, a nonviolent crime standing alone cannot be the basis for finding the continuing threat aggravator, see Torres v. State, 962 P.2d 3, 23 (Okla.Crim.App.1998), neither Oklahoma nor the United States Supreme Court has ever prohibited a jury from considering the defendant's nonviolent offenses in conjunction with other factors when determining whether the defendant poses a future risk to society. Because the OCCA affirmed the jury's finding based on facts other than simply the burglary-namely, that Mr. Boltz had talked about killing people and how it did not bother him to do so, and that he had threatened to kill Ms. Kirby later on in the evening (a threat that was directly linked to his forced entry of Mr. Kirby's home)-the OCCA did not act contrary to federal law when it accounted for the burglary in its analysis of the continuing threat aggravator.

Finally, Mr. Boltz contends that allowing the continuing threat aggravator to be supported only by the callous nature of the murder violates the Eighth Amendment under clearly established law because every first-degree murder is “callous.” See Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (explaining that an aggravating circumstance “must apply only to a subclass of defendants convicted of murder.”); Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993) (“If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm.”). We disagree.

First, and most important, Mr. Boltz mischaracterizes the OCCA opinion. It did not rest its determination on callousness alone. As that court held: The record reveals that appellant lured the victim to his trailer, and while he was en route, appellant called Ms. Kirby to tell her that he was going to kill Doug and threatened to kill her within the hour. There was further evidence that appellant had attempted to enter Doug's house in an attempt to find her. Other testimony revealed that appellant had bragged about killing before. These facts combined with the sheer callousness in which this murder was committed amply support the jury's finding of this aggravating circumstance. Boltz, 806 P.2d at 1125. Moreover, Mr. Boltz fails to satisfy the demanding § 2254(d)(1) standard here. It is far from clearly established that every first-degree murder is callous, thereby making callousness an impermissible basis for the imposition of the death penalty. Therefore, because we cannot conclude that the OCCA's conclusion is contrary to clearly established federal law as established by the Supreme Court or an unreasonable application of Supreme Court precedent, we must deny habeas relief on this ground as well.

2. Sufficiency of the Evidence

Having determined that the OCCA did not act contrary to clearly established federal law when it relied on the foregoing evidence in considering the jury's finding of the continuing threat aggravating factor, we turn now to whether it acted contrary to clearly established federal law when it concluded that the evidence was sufficient to sustain the jury's finding. Sufficiency of the evidence claims are reviewed under the “rational fact-finder” standard announced in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and require appellate courts to determine, after reviewing the evidence presented at trial in the light most favorable to the government, whether any rational trier of fact could have found the aggravating circumstance existed beyond a reasonable doubt. This standard is based on our system's longstanding principle that it is the province of the jury to evaluate the evidence and to draw reasonable inferences from trial testimony. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Our review under Jackson is “sharply limited, and a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Turrentine, 390 F.3d at 1197 (quotations and alterations omitted). We must accept the jury's determination as long as it is within the bounds of reason. Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir.1996). Our review is even more limited given that AEDPA governs this issue. See28 U.S.C. § 2254(d)(1).

In this case, evidence of Mr. Boltz's comments to Mr. Morrison about killing people and cutting off their heads, in conjunction with Mr. Boltz's threat to Ms. Kirby that he would kill her after he finished killing her son, and evidence that Mr. Boltz entered Mr. Kirby's home looking for Ms. Kirby after the killing, is more than sufficient for a rational factfinder to find that there was a probability that Mr. Boltz would commit criminal acts of violence that would constitute a continuing threat to society. Mr. Boltz contends that these statements were only “false braggadocio.” He points out that he had no prior criminal record at the time and many character witnesses testified that he was a peaceful and law-abiding citizen. Even if Mr. Boltz's implied threats were empty, however, a rational juror could conclude that he was telling the truth and was threatening similar action in the future. This is all that is necessary under Jackson, and Mr. Boltz's argument that he had not in fact killed anyone in Korea does not prevent the jury from coming to its own reasonable conclusion about Mr. Boltz's intent in making the statements. Therefore, the OCCA did not act contrary to Jackson or other clearly established federal law in upholding the jury's finding of this aggravating circumstance. Accordingly, habeas relief is not warranted on this issue.

* * *

Mr. Miller's performance at both the guilt and sentencing phases of Mr. Boltz's trial does not cause us to question either the jury's verdict or its decision to impose the death penalty; therefore, habeas relief based on Mr. Boltz's claim of ineffective assistance of counsel is not warranted. In addition, the OCCA did not act contrary to clearly established federal law or base its decision on an unreasonable determination of the facts when it concluded that the evidence supported the jury's finding of the continuing threat aggravating circumstance and when it concluded that Mr. Boltz was not entitled to an instruction on heat of passion voluntary manslaughter. Accordingly, we AFFIRM the District Court's denial of Mr. Boltz's habeas petition.