Inmate: Kenneth Chad Charm
ODOC#: 139411
Birthdate: 01/18/1966
Race: Black
Sex: Male
Height: 5 ft. 07 in
Weight: 162 pounds
Hair: Black
Eyes: Brown
Location: Oklahoma State Penitentiary, Mcalester

The Oklahoman

"Charm Executed for the Murder of a 14-year-old Girl." (AP June 5, 2003)

McALESTER (AP) - Michael Davis watched a friend die when his daughter's killer was put to death Thursday. Kenneth Chad Charm, 37, was put to death at 6:05 p.m. for the 1993 rape and murder of 14-year-old Brandy Crystian Hill. Charm is the ninth inmate to be put to death by the state this year.

"It's kind of sad," said Davis, who recently changed his last name from Hill to Davis. "There were two lives lost here. It's not like I didn't know him. It's still hard for me to dislike him, even though he took my little girl." A spiritual adviser, an attorney and an investigator witnessed Charm's execution. None of his family members were present. "I want to apologize to the victim's family and to my family and ask their forgiveness," Charm said before his execution. As the execution began, Charm grimaced his face, closed his eyes and puffed out a few deep breaths.

Hill, an honor student who wanted to become the first female black president, was visiting her father for the summer when she was lured into a car with Charm and co-defendant Ron Jessie. On a remote Comanche County road, the men raped, strangled and bludgeoned the girl to death with a sledgehammer. Hill lived with her mother in Michigan and was visiting her father, in Lawton. Her parents divorced when she was 2.

On the day of the murder, Charm and Jessie had visited Brandy Hill's father. The two men left the house, picked up Brandy Hill, raped and killed her and then returned to the Hill home to establish an alibi, court records show. Charm testified that he and Jessie both delivered blows that killed the girl. Jessie, who was 16 at the time, received a life sentence without parole.

Death penalty opponents had rallied against the execution because Charm's attorneys claimed he was retarded. The U.S. Supreme Court ruled last year against executing mentally retarded people and the Oklahoma Court of Criminal Appeals ruled that people with an IQ of 70 or below shouldn't face the death penalty. Charm has an IQ of 75, but his attorneys claim IQ tests have a margin of error of plus or minus five points. P>Charm's attorneys appealed the death sentence to the nation's high court, asking justices to review the state's standard. The Supreme Court denied the appeals Thursday afternoon. The state Pardon and Parole Board voted unanimously last month to deny Charm clemency.

Reuters

"Oklahoma Man Executed for Murder of Teen-age Girl." (June 5, 2003) MCALESTER, Okla., June 5 (Reuters) - An Oklahoma man convicted in the 1993 rape and murder of a 14-year-old girl was executed by lethal injection on Thursday in a state prison. Attorneys for Kenneth Charm, 37, tried to stop the execution on grounds that Charm was mentally retarded, but the U.S. Supreme Court rejected their appeal, said prison spokesman Jerry Massie.

Charm was condemned for the kidnap, rape and murder of Brandy Hill in the southwestern Oklahoma city of Lawton on July 20, 1993. Police said he and accomplice Ronald Jessie picked up Hill under the guise of giving her a ride home and drove her to a remote area where she was raped, strangled and beaten with a sledgehammer. Jessie, who was 16 at the time of the crime, was convicted and sentenced to life in prison.

In a final statement while awaiting the lethal injection, Charm made a brief apology. "I'd like to apologize to the victim's family. To my family, I ask your forgiveness," he said, according to Massie. For his final meal, Charm requested fried chicken, french fries, hot peppers, corn on the cob, ketchup and hot sauce.

Charm was the ninth person put to death this year in Oklahoma and the 63rd since the state resumed executions in 1990, 14 years after the U.S. Supreme Court lifted a national death penalty ban.

Oklahoma Attorney General News Release

News Release - W.A. Drew Edmondson, Attorney General - Court Sets Execution Date for Charm (4/10/03)

The Oklahoma Court of Criminal Appeals today set June 5 as the execution date for death row inmate Kenneth Chad Charm. Attorney General Drew Edmondson requested the date April 1 after the United States Supreme Court denied Charm's final appeal.

Charm, 37, was sentenced to death for the July 20, 1993, murder of Brandy Crystian Hill, 14. Hill disappeared from her Lawton home July 20 and her body was found two days later in a pasture one mile west of Lawton. After his arrest, Charm told investigators he and his cousin, Ron Jessie, kidnaped Hill because Jessie believed Hill's father "snitched" on him, sending him to jail. Charm admitted sexually assaulting Hill and said both he and Jessie strangled her and hit her repeatedly with a sledge hammer. Jessie was sentenced to life without parole for his part in the murder.

ProDeathPenalty.Com

The Oklahoma Court of Criminal Appeals has set a June 5 execution date for death row inmate Kenneth Chad Charm. Charm, 37, was sentenced to death for the July 20, 1993, slaying of Brandy Crystain Hill, 14, of Lawton. Hill disappeared from her home July 20, 1993, and her body was found two days later in a pasture a mile west of Lawton. Attorney General Drew Edmondson asked the Oklahoma Court of Criminal Appeals to set the execution date after Charm's final appeal was denied March 24. The U.S. Supreme Court in March denied the final appeals of the Comanche County death row inmate. Edmondson said his office delayed seeking the execution date in order to study a mental retardation claim Charm's lawyers indicated they will file with the state Court of Criminal Appeals. Charm's attorney likely would use the 2002 Supreme Court decision in Atkins v. Virginia that ruled the execution of the mentally retarded is a violation of the Eighth Amendment. Edmondson said he could find no evidence in the appellate record to support Charm's claim he is mentally retarded. After his arrest, Charm told investigators he and his cousin, Ron Jessie, kidnapped Hill because Jessie believed Hill's father "snitched" on him, sending him to jail, authorities said. Charm said he and Jessie strangled Hill and hit her repeatedly with a sledge hammer, according to authorities. Jessie was sentenced to life without parole for his part in the killing.

National Coalition to Abolish the Death Penalty

Kenneth Charm, Oklahoma - June 5, 2003

The state of Oklahoma is scheduled to execute Kenneth Charm June 5 for the murder of 14-year-old Brandy Hill in Lawton. Charm, a black man, allegedly kidnapped and raped the young girl before beating her with a sledgehammer on the afternoon of July 20, 1993. He confessed to the crime and received a death sentence in 1994; however, he should receive a commutation on account of the U.S. Supreme Court’s decision in Atkins v. Virginia in 2002. In Atkins, the court ruled that the practice of executing people with mental retardation constitutes cruel and unusual punishment. Shortly after the court handed down Atkins, the Oklahoma Indigent Defense System compiled a list of death row inmates with possible mental retardation and placed Charm at the very top. The Oklahoma courts have since established guidelines for determining mental retardation, and the state should give Charm a complete and thorough review so as to adhere to the U.S. Supreme Court’s decision. Throughout his appeals, Charm has argued that he received ineffective assistance of counsel at trial, and that given adequate representation, he would not be facing execution. His death sentence represents another result of a process plagued by socio-economic and racial discrimination. Overrepresentations of poor people and African-Americans on death row taint the fairness of the capital punishment system, and the states can only rectify that by conducting complete re-evaluations of their sentencing schemes. The Court of Criminal Appeals set Charm’s June 5 date after the U.S. Supreme Court denied his appeal on March 24. Oklahoma has executed seven people thus far in 2003, ranking second only to Texas. The state also holds the embarrassing distinction of being the only jurisdiction in the world to have executed a juvenile offender this year. Every execution creates another set of victims, and the death penalty only perpetuates the cycle of violence in society. Please write Gov. Brad Henry and the Oklahoma Pardon and Parole Board to request clemency for Kenneth Charm.

The Death House.Com

"Oklahoma Man Who Raped, Murdered 14-year-old Executed," by Robert Anthony Phillips. (June 5, 2003)

McAlester, Okla. - A man who kidnapped, raped and murdered the 14-year-old daughter of a "drinking buddy" was executed by lethal injection at the state prison Thursday night. Kenneth Charm, 37, became the nineth convicted killer put to death in Oklahoma in 2003 when he received a lethal injection of chemicals at 6:05 p.m. Before he died, Charm used his last statement to apologize to the family of the victim and ask not only their forgiveness, but for the forgiveness of his family. Charm's lawyers had attempted to halt the execution, claiming Charm was mentally retarded, but the U.S. Supreme Court rejected the appeal.

Visiting Father The murder occurred on July 20, 1993. The victim was Brandy Hill. Charm and Ronald Jessie, 16, who were cousins, had driven to the Lawton area to visit Hill’s father. Brandy was visiting her father during summer vacation. They saw the girl walking on a street. The two men then lured her into the car, wrapped a cloth around her neck and drove her to a field, prosecutors stated. Charm and Jessie each raped the victim twice. After failing to choke her to death with the cloth, Jessie got the sledgehammer from the trunk of the car and hit the girl twice in the head. Charm then struck her with the sledgehammer. They then left the body in a field.

Long Criminal Record

Charm, who had nine prior non-violent felony convictions, was sentenced to death. He gave a videotaped confession and, during pre trial motions, also said he was guilty. Jessie received life in prison. Charm told lawmen that the girl kept pleading with he and Jessie to take her home and not hurt her. While imprisoned, Charm has been cited for fighting with other inmates and possession of a homemade knife. In addition, during his confession, Charm threatened to kill his wife. And he had previously threatened to kill a former work supervisor. A few days after the kidnapping, rape and murder of Hill, Charm robbed a convenience store by pretending to have a weapon and threatening to kill the clerk. Brandy Hill's father and stepson witnessed the execution, an Oklahoma Department of Corrections spokesman said. Charm's lawyer, spiritual advisor and case investigator also witnessed the execution.

McAlester News-Capital

"Clemency Denied for Murderer," by Doug Russell. (May 23, 2003)

"If she wasn't dead, we killed her." The words coming from the television might have been from a movie, but they weren't. They were coming from the lips of a man scheduled to be executed June 5 for the rape and murder of a Lawton girl. In a videotaped confession, Kenneth Chad Charm puffed a cigarette and talked to an investigator off screen. "If she wasn't dead from the impact of the blows, she was dead from being left there, so what difference does it make?"

Charm, 37, was sentenced to death for the 1993 murder of Brandy Crystian Hill in Comanche County. The 14-year-old girl was lured away from her Lawton home on July 20 of that year. Her body was found two days later in a Comanche County pasture. She had been raped, choked and bludgeoned with a sledge hammer. Thursday the Oklahoma Pardon and Parole Board unanimously voted to deny clemency for Charm.

A co-defendant in the case, Ronald "Ron Ron" Jessie, was 16 years old when Hill was murdered. He is currently serving a life without parole sentence for his part in the murder. During the clemency hearing Charm's attorneys asked the pardon and parole board to recommend clemency because Charm, they said, is mentally retarded. But others said he's not.

Assistant Attorney General Seth Branham reminded the board that the Oklahoma Court of Criminal Appeals had set standards for what should be considered mental retardation. The court set the standards after the U.S. Supreme Court ruled that executing the mentally retarded was unconstitutional. The OCCA ruled that persons with an IQ of 70 or below should be considered mentally retarded, Branham said. Charm received a score of 75 on IQ tests.

Attorneys Gloyd McCoy and Vickie Werneke presented the board with a report from Dr. Denis Keyes, a psychologist from South Carolina, who found that Charm was retarded. McCoy and Werneke pointed out that IQ tests can often be read five points higher or lower than the scores achieved. In Charm's case, they said, that "standard deviation of error" could mean his actual IQ is 70. "All we're saying is this case is close enough we'd like you to send it to the governor and have him make the decision," McCoy said, adding that mentally retarded people are often followers and get into trouble while doing things someone else wants them to do.

But Fred Smith, first assistant district attorney for Comanche County, said Charm was not a follower. Smith, who prosecuted Charm for Hill's murder, told Pardon and Parole board members Charm had been the one who planned Hill's rape and murder. He added prosecutors had taken a variety of things, including Jessie's age at the time of the murder, into account when offering a plea bargain to Jessie.

Hill's father, Mike Davis, wiped his eyes with a tissue and took several deep breaths before addressing the board. "Kenneth Charm was sentenced to death but he hasn't died," he said as emotion twisted his voice. "My baby's dead. "This is hard." "Children sometimes make bad decisions," Davis said. "No kid deserves to die for making a bad decision."

Charm v. Mullins (Habeas - 10th Circuit Court of Appeals)

Before TACHA, Chief Judge, BALDOCK, and EBEL, Circuit Judges.

Kenneth Charm appeals the district court’s decision denying him habeas relief, see 28 U.S.C. § 2254, from his Oklahoma first-degree murder conviction and death sentence. Among other issues, Charm challenges his trial attorney’s conceding Charm’s guilt during first-stage opening argument. Because defense counsel was not constitutionally ineffective in doing so, we affirm the district court’s denying Charm relief on this, and his remaining claims for habeas relief.

I. FACTS

Fourteen-year-old Brandy Hill had traveled to Lawton, Oklahoma, to spend several weeks with her father during her summer vacation. On July 20, 1993, Charm and his sixteen-year-old cousin, Ronald Jessie, visited Michael Hill, the girl’s father. Charm and Hill were described as drinking buddies.

As Charm and Jessie drove away from the Hill residence that afternoon, they spied Brandy walking down the street. The two men lured her into their car. Jessie then wrapped a piece of cloth around Brandy Hill’s neck. The men drove the victim to a field. There, both Charm and Jessie each twice raped the girl. Afterwards, Jessie tried to choke her to death with the piece of cloth. He could not kill her, however. Charm then tried, still without success. Finally, Jessie retrieved a sledgehammer from the car’s trunk and hit the girl twice in the head. Charm then hit her several more times. The two men left Brandy Hill’s body there in the field, where it was discovered several days later.

Jurors convicted Charm of first-degree malice-aforethought murder, kidnapping and first-degree rape. They sentenced Charm to fifty-four and one hundred twenty years’ imprisonment, respectively, on the kidnapping and rape convictions, which were enhanced in light of Charm’s nine prior felony convictions. After finding the existence of the three charged aggravating factors--Charm had killed the victim to avoid arrest or prosecution for kidnapping and raping her, the killing was especially heinous, atrocious or cruel, and Charm was a continuing threat to society--the jury sentenced Charm to death on the murder conviction.

* * * *

C. Was there sufficient evidence to support the aggravating factors? Charm argues there was insufficient evidence to support the jury’s finding the existence of the three charged aggravating factors. In this habeas proceeding, the relevant question presented is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the [presence of the aggravating factor] beyond a reasonable doubt.” Fields v. Gibson, 277 F.3d 1203, 1220 (10th Cir. 2002) (applying Jackson v. Virginia, 443 U.S. 307 (1979)) (further quotation omitted); see also Lewis v. Jeffers, 497 U.S. 764, 780-83 (1990). The Oklahoma Court of Criminal Appeals, however, in addressing these claims, applied a different legal standard, considering instead only whether there was “competent” evidence to support the aggravators. Charm, 924 P.2d at 770. We will, therefore, review these claims de novo, applying Jackson. See Romano, 278 F.3d at 1150; see also Fields, 277 F.3d at 1220 (noting that, prior to AEDPA, this court reviewed similar claim de novo).

1. Continuing threat. Under Oklahoma law, the continuing-threat aggravator may be established solely on the basis of the callous nature of the crime itself. See, e.g., Sallahdin, 275 F.3d at 1232. Here, then, the facts of the kidnapping, rape and murder alone are sufficient to support this aggravating factor. See, e.g., James v. Gibson, 211 F.3d 543, 559 (10th Cir. 2000). In addition, however, the defense’s own psychologist testified that Charm was a continuing threat to society. See Trial tr., vol. 5 at 1311. The State’s psychologist, too, asserted that Charm’s personal insecurity made it possible that he would become aggressive or assaultive. And while his nine prior felonies had generally been nonviolent, Charm had received prison disciplinary reports for fighting, threatening to kill another inmate and possessing a homemade weapon. See, e.g., James, 211 F.3d at 559 (determining evidence was sufficient to support jury’s finding this aggravator, relying in part on threats defendant made while in custody and his possession of homemade weapons while in prison). In addition, during his confession, Charm threatened to kill his wife. And he had previously threatened to kill a former work supervisor. Furthermore, a few days after this kidnapping, rape and murder, Charm robbed a convenience store by pretending to have a weapon and threatening to kill the clerk. The record, therefore, was sufficient for a rational jury to find beyond a reasonable doubt that Charm was a continuing threat to society.

2. Avoid arrest or prosecution. The jury found that Charm killed the victim to avoid arrest or prosecution. “Under Oklahoma law,” the avoid-arrest aggravating factor “focuses on the defendant’s intent, which can be proven either through his own statements or circumstantial evidence, and additionally requires proof of a predicate crime, other than the murder, for which the defendant seeks to avoid arrest or prosecution.” Romano, 278 F.3d at 1154.

Here, the kidnapping and rape supply the necessary predicate crimes. Further, the victim knew both her attackers. See, e.g., Romano v. Gibson, 239 F.3d 1156, 1179 (10th Cir.) (determining evidence was sufficient for jury to find this aggravator, where defendant told acquaintance he would have to kill victim after robbing him, because victim knew and could identify petitioner), cert. denied, 122 S. Ct. 624, 628 (2001). Additionally, according to Charm’s own confession, after the rapes, Jessie had asked Charm what they were going to do with the victim. It was only then that Jessie began choking her. Because Jessie was unable to kill her, however, Charm then tried to choke her to death. According to Charm, “she wouldn’t die.” Trial tr., vol. 3 at 847. Finally, after stating that somebody was going to come, Jessie retrieved the sledgehammer from the car’s trunk and hit the victim in the head several times with it. After noting that “she was still moving,” Charm remarked, “‘[m]an, we’re going to go to jail,’” and then he hit her, too, to “make sure she was dead.” Id. at 847, 863-64. See LaFevers v. Gibson, 182 F.3d 705, 723 (10th Cir. 1999) (determining evidence was sufficient for jury to find this aggravating factor under similar circumstances). The two men then hid the victim’s body and returned to Michael Hill’s home to establish an alibi. This evidence was more than sufficient for a rational trier of fact to find this aggravating factor beyond a reasonable doubt.

3. Especially heinous, atrocious or cruel. “A murder is especially heinous, atrocious or cruel under Oklahoma law if it is preceded by torture or serious physical abuse. Torture includes the infliction of either great physical anguish or extreme mental cruelty, while physical abuse requires evidence of conscious physical suffering.” Toles v. Gibson, 269 F.3d 1167, 1183 (10th Cir. 2001) (further quotation omitted). Here, again, the evidence was sufficient for the jury to find this aggravating factor beyond a reasonable doubt. Charm and Jessie abducted the victim, wrapping a piece of cloth around her neck. According to Charm’s own confession, the victim kept pleading with them, asking them over and over again to please take her home and not hurt her. See Jones v. Gibson, 206 F.3d 946, 953 (10th Cir. 2000) (noting that under Oklahoma law, victim’s uncertainty as to her fate will suffice to establish mental anguish or torture).

In addition, according to the medical examiner, the victim sustained physical injuries during the kidnapping and rapes, including scratches or a bruise over her right eye and on her right cheek, neck, abdomen and chest, and her left wrist, front and back, as well as her left elbow and arm. See Moore v. Gibson, 195 F.3d 1152, 1177 (10th Cir. 1999) (determining evidence was sufficient to support jury’s finding that murder was especially heinous, atrocious or cruel under similar circumstances). The injuries to her left wrist were consistent with defensive wounds. See Fox, 200 F.3d at 1299 (determining evidence was sufficient to support this aggravating factor where, among other things, victim suffered defensive wounds). Additionally, trauma to her vaginal area corroborated the confessed rapes. Charm also confessed that the victim continued pleading during the rapes, asking that they not hurt her. See id. (testimony that victim cried out and begged for his life during attack supports finding victim endured conscious physical suffering). After the rapes, both Charm and Jessie each attempted, unsuccessfully, to strangle the victim. Finally, they each hit her several times over the head with a sledgehammer. While it is unclear when, between the strangulation and the bludgeoning, the victim finally lost consciousness, the preceding events were more than sufficient to establish both torture and conscious physical suffering during the attack. See, e.g., Hooks, 184 F.3d at 1240.

IV. CONCLUSION

For these reasons, we AFFIRM the denial of habeas relief.

Charm v. State, 953 P.2d 47 (Okla.Crim.App. 1998) (PCR)

Following affirmance of convictions for first-degree murder with malice aforethought, first-degree rape, and kidnapping, petitioner sought postconviction relief from the Court of Criminal Appeals. The Court, Chapel, P.J., held that: (1) petitioner was precluded by res judicata from challenging issues previously raised and decided in petitioner's direct appeal; (2) petitioner was precluded from challenging issues which could have been raised on direct appeal, but were not; and (3) petitioner was not entitled to relief for ineffective assistance of counsel. Petition denied. Lumpkin and Lane, JJ., filed opinions concurring in the result. CHAPEL, Presiding Judge.
Kenneth Chad Charm was tried by a jury in Comanche County District Court, Case No. CRF-93-259, and convicted of First Degree Murder with Malice Aforethought, First Degree Rape, and Kidnapping. During the capital sentencing phase of the trial, the jury found three aggravating circumstances: (1) the murder was committed to avoid lawful arrest or prosecution; (2) the murder was especially heinous, atrocious or cruel; and (3) Charm would constitute a continuing threat to society. In accordance with the jury recommendation, the trial court sentenced Charm to death on Count I, to 125 years imprisonment on Count II and to fifty-four years imprisonment on Count III. On appeal, this Court affirmed Charm's judgment and sentence and denied Charm's petition for rehearing. The United States Supreme Court denied Charm's petition for certiorari.

On August 18, 1997, Charm filed directly with this Court an Application for Post-Conviction Relief, Request for an Evidentiary Hearing and Request for Discovery. Oklahoma's capital post-conviction procedure severely limits the issues Charm may raise in this application. Charm may only raise claims that: "(1) [w]ere not and could not have been raised in a direct appeal; and (2) [s]upport a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." In reviewing Charm's application, this Court shall determine: "(1) whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist; (2) whether the applicant's grounds were or could have been previously raised; and (3) whether relief may be granted under this act." In addition, the doctrine of res judicata precludes the Court from considering issues previously raised and decided in Charm's direct appeal, and the principles of waiver bar the Court from addressing issues that Charm failed to raise in his direct appeal. We now turn to Charm's application.

In Proposition I, Charm claims the evidence is insufficient to support his convictions for rape and kidnapping, and, in an aside, claims, without further explanation, that he is innocent of murder. Apparently, these claims are premised on the assertion that Charm's confession was not reliable, that his confession was not corroborated, that the State failed to prove the corpus delicti of rape and kidnapping, and that the prosecutor misled the jury. These issues could have been raised on direct appeal, but were not. Accordingly, the claims are waived and barred from review under § 1089(C). Charm also claims the evidence is insufficient to support the avoiding arrest aggravating circumstance and the especially heinous, atrocious or cruel aggravating circumstance. Both of these issues were raised on direct appeal and the Court ruled on the issues. Res judicata bars further litigation of these claims.

* * * *

We have carefully reviewed Charm's application for post-conviction relief, request for an evidentiary hearing and request for discovery, and find that Charm is not entitled to relief. The Application for Post-Conviction Relief, Request for an Evidentiary Hearing and Request for Discovery are DENIED.

Charm v. State, 924 P.2d 754 (Okla. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997)

Defendant was convicted in the District Court, Comanche County, Roy D. Moore, J., of first-degree malice aforethought murder, first-degree rape, and kidnapping, and he was sentenced to death. On appeal, the Court of Criminal Appeals, Chapel, V.P.J., held that: (1) information was sufficient to put defendant on notice that he was being charged with and had to defend against first-degree malice aforethought murder; (2) defendant was not entitled to instruction on lesser included offenses of second-degree murder or first-degree manslaughter; (3) defendant's confession was properly admitted after hearing was held to determine whether confession was voluntary; (4) posthomicide evidence was properly admitted to establish that defendant posed continuing threat to society; (5) victim impact statements did not have to be memorialized in written form and given to defendant before being presented; (6) there was no evidence that jury relied upon victim impact evidence to find existence of three alleged aggravating circumstances; (7) any error of trial court in administering flight instruction during sentencing phase was harmless beyond reasonable doubt; (8) defendant's agreement with trial court to testify in his own behalf during second stage proceedings only on condition that he answer every question asked by prosecutor on cross-examination did not violate his constitutional right to effective assistance of counsel and his right to present his defense; (9) prosecutor's cross-examination could exceed scope of direct examination for impeachment purposes; (10) defendant failed to establish any prosecutorial misconduct during closing argument in sentencing phase; (11) evidence was sufficient to prove that murder was preceded by serious physical abuse sufficient to support heinous, atrocious, or cruel aggravator; (12) evidence of predicate crime for which defendant was trying to avoid arrest when he killed victim was sufficient to support aggravating factor that defendant had intent to kill to avoid lawful arrest or prosecution; and (13) evidence supported jury's finding that defendant posed continuing threat to society, sufficient to sustain continuing threat aggravating circumstance. Affirmed. Lane, J., filed dissenting opinion.

CHAPEL, Vice Presiding Judge:
Kenneth Chad Charm was tried by a jury in Comanche County District Court Case No. CRF-93-259 and convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1991, § 701.7 (Count I), First Degree Rape, After Former Conviction of Two or More Felonies in violation of 21 O.S.1991, (Count II), and Kidnapping, After Former Conviction of Two or More Felonies in violation of 21 O.S.1991, § 741 (Count IV). [Count III pertained solely to Charm's codefendant] The jury found the existence of the following three aggravators: that the murder was committed to avoid lawful arrest or prosecution; that the murder was especially heinous, atrocious or cruel; and, that Charm constituted a continuing threat to society. In accordance with the jury's recommendation, the Honorable Roy D. Moore sentenced Charm to death on Count I, to one hundred-twenty years imprisonment on Count II, and to fifty-four years imprisonment on Count IV.

On July 20, 1993, Kenneth Charm and Ron Jessie kidnapped, raped and murdered fourteen year-old Brandy Hill. Charm confessed to police, describing in detail how the events unfolded and how he was involved in their development. His defense at trial was that he was too intoxicated on drugs and liquor to have formulated the specific intent to kill.