Executed January 9, 2006 06:14 p.m. CDT by Lethal Injection in Oklahoma
1st murderer executed in U.S. in 2007
1058th murderer executed in U.S. since 1976
1st murderer executed in Oklahoma in 2007
84th murderer executed in Oklahoma since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
|
Corey Duane Hamilton B / M / 23 - 38 |
Ted Kindley W / M / 19 Sandy Lara W / F / 26 Joseph Gooch W / M / 17 Stephen Williams W / M / 24 |
Citations:
Hamilton v. Mullin 436 F.3d 1181 (10th Cir. 2006) (Habeas).
Hamilton v. State, 937 P.2d 1001 (Okla.Crim. 1997) (Direct Appeal).
Final/Special Meal:
Combination barbecue platter, with chicken, chopped brisket, ribs and hot links, baked beans, bread and barbecue sauce, and a large side dish of baked beans, sauce and extra bread.
Final Words:
In his last words, he offered no apologies but said: "I wish everyone could experience the love of God the way I have. I love everyone. To the victims' families, I pray that you have peace and all that you are in need of." As the mixture of lethal drugs flowed into his veins, Hamilton said, "Into thy hands I commit my spirit, O Lord."
Internet Sources:
Oklahoma Department of Corrections
Inmate: COREY D HAMILTON
ODOC#: 220423
Birth Date: 01/01/1969
Race: Black
Sex: Male
Height: 5 ft. 09 in.
Weight: 185 pounds
Hair: Black
Eyes: Brown
County of Conviction: Tulsa
Case#: 92-3584
Date of Conviction: 12/09/93
Location: Oklahoma State Penitentiary, Mcalester
"Oklahoma carries out first U.S. execution in 2007," by Ben Fenwick." (Tue Jan 9, 2007 9:52 PM ET)
McALESTER, Oklahoma (Reuters) - Oklahoma executed a man by lethal injection on Tuesday for the 1992 murders of four restaurant employees, the first execution to be carried out in the United States in 2007. Corey Duane Hamilton, 38, was condemned for the gangland-style slayings of Joseph Gooch, Theodore Kindley, Senaida Lara and Steven Williams. The victims were all in their late teens or 20s. All four were shot at close range in the back of the head during a restaurant robbery in east Tulsa, according to the Oklahoma Attorney General's office.
Hamilton's was the first of 30 U.S. executions scheduled for this year, according to the Washington-based Death Penalty Information Center. Hamilton was also the first person put to death in the United States since California and Florida imposed moratoriums last month on the lethal injection procedure in the wake of botched executions. "It is disturbing that Oklahoma decided to go ahead with this execution without reviewing its protocol. There is no reason why they can't do what Florida and California are doing," said Sarah Tofte, a researcher with New York-based Human Rights Watch.
Experts have said that eroding support for capital punishment in the United States is one reason why death sentences fell to a 30-year low last year and why executions hit the lowest level in a decade in 2006. The Death Penalty Information Center, which opposes capital punishment, said there were 53 executions in 2006, the lowest number since 1996 when there were 45. There were 114 death sentences handed out in 2006, the lowest level in 30 years and down from nearly 300 each year in the 1990s.
But the death sentence still has political support in the United States, where rates for violent and gun-related crimes are high in comparison to other developed countries. In neighboring Texas, five inmates are scheduled to be executed this month -- the first slated for Wednesday. Hamilton's execution was the 84th in Oklahoma since the state reinstituted the death penalty in 1990.
"I wish everybody could experience the love of God the way I have experienced it. I love everybody and hope to see you on the other side," Hamilton said in his last statement, prison spokesman Jerry Massie said. Hamilton's last meal was a combination barbecue platter, with chicken, chopped brisket, ribs and hot links, baked beans, bread and barbecue sauce. (Additional reporting by Ed Stoddard in Dallas)
Oklahoma Attorney General (Press Release)
W.A. Drew Edmondson, Attorney General
"Execution Date Set for Hamilton."
12/07/2006
The Oklahoma Court of Criminal Appeals today set Jan. 9 as the execution date for Tulsa County death row inmate Corey Duane Hamilton. Attorney General Drew Edmondson requested the execution date Nov. 6 after the U.S. Supreme Court denied Hamilton’s final appeal.
Hamilton, 37, was convicted of the Aug. 17, 1992, murders of Theodore Kindley, 19, Senaida Lara, 27, Joseph Gooch, 17 and Steven Williams, 24. The four victims, all restaurant employees, were murdered during a robbery at Lee’s Famous Recipe Chicken, a restaurant on South Sheridan Road. Each died of a close-range gunshot wound to the back of the head. There are currently no other Oklahoma inmates scheduled for execution.
"Victims' family members say Hamilton showed no remorse despite prayers," by Barbara Hoberock. (World Capitol Bureau 1/10/2007)
McALESTER -- Corey Duane Hamilton, who killed four employees during a Tulsa restaurant robbery 15 years ago, was put to death Tuesday at Oklahoma State Penitentiary.
In his last words, he offered no apologies but said: "I wish everyone could experience the love of God the way I have. I love everyone. "To the victims' families, I pray that you have peace and all that you are in need of." As the mixture of lethal drugs flowed into his veins, Hamilton said, "Into thy hands I commit my spirit, O Lord."
He took a few labored breaths before he appeared to lapse into unconsciousness. Hamilton, 38, took his last breath at 6:14 p.m.
He was put to death for the Aug. 17, 1992, shooting deaths of Ted Kindley, 19; Sendy Lara, 26; Joseph Gooch, 17; and Stephen Williams, 24, at Lee's Famous Recipe Chicken in Tulsa. The four were herded into the restaurant's walk-in cooler and shot during a robbery that netted slightly more than $2,000. Each died of a close-range gunshot wound to the back of the head.
Williams' mother, Janice Ramsey, commented after the execution that "these four beautiful people were put on their knees and executed like they were a piece of trash." She said she hopes Hamilton was sincere in what he did say, but she said his lack of an apology indicates that he might not have been. "He had no remorse," Ramsey said. "None at all."
Gooch's mother, Patricia Hudson, said after the execution that "I am grateful it is over." Gilbert Lara, the husband of Sendy Lara, said he was not troubled by Hamilton's lack of an apology in his last words. "He took my wife," Lara said after the execution. "He'd just be wasting his time saying, 'I'm sorry.' "
Before the execution took place, a written statement was released from the Laras' daughter, Amanda Lara of Dallas. She was 6 when her mother was killed. "After all of these years of pain and suffering, of sleepless nights and nightmares, the day has finally come when Corey Duane Hamilton will be executed," she wrote. "My mother was only 26 years old when she was taken away from us. . . . Today my sister turned 16 years old. She was 18 months old when our mother passed away. "I regret that she did not get to know how wonderful our mother was. I try to make sure that in some way, through our memories, she can know her as I did."
Oklahoma Attorney General Drew Edmondson said in a press release shortly before the execution: "Four innocent people died at the hands of Corey Hamilton in 1992. It is time the sentence imposed upon him by a jury be carried out. "My thoughts today are with the families of his victims."
Tulsa County District Attorney Tim Harris was not at the prison to witness the execution because of an unavoidable conflict. He said he wanted to be present to support the victims' families. Hours before the lethal dose was administered, Harris said the state and his office take no pleasure in executions but that some crimes are so horrendous and calculated that they "cry out for the ultimate punishment." "The community spoke justice through the verdict," Harris said. "Justice will be served through the execution of Corey Hamilton."
Tulsa County Sheriff Stanley Glanz was at the prison to witness the execution. He said the crime had a dramatic impact on the victims' family members and the police who worked the scene. "It is really senseless the way this happened," said Glanz, who has witnessed several executions.
The Oklahoma Pardon and Parole Board unanimously voted Dec. 27 to deny clemency for Hamilton, despite allegations from his attorney that Hamilton was not the shooter. Harris said he had no doubt that Hamilton pulled the trigger. The U.S. Supreme Court on Monday denied his appeal challenging the execution process.
Ann and Bruce Scott of Tulsa were among a handful of relatives of homicide victims who gathered outside the prison walls around 4:30 p.m. with a large display of pictures of murder victims from across the state. The Scotts' daughter, Elaine Marie Scott, 21, was murdered in 1991 in Oklahoma City. "We want people to know who the victims were," Ann Scott said.
Hamilton was the first inmate put to death in the nation this year, according to the Death Penalty Information Center. Hamilton was the 84th Oklahoma inmate executed by lethal injection, said Jerry Massie, Oklahoma Department of Corrections spokesman. The most recent previous execution in the state was that of Grady County killer Patrick Malicoat, who was put to death on Aug. 31, 2006. No other Oklahoma executions are scheduled, but Oklahoma has 84 men and one woman on death row.
"Killer executed." (Associated Press Web-Posted Jan. 11, 2007 03:29: AM )
McALESTER (AP) -- Seventeen-year-old Joseph "Joey" Gooch took a job at Lee's Famous Recipe Chicken Restaurant in Tulsa to earn some extra money to fix up an old Camaro he bought with his stepfather. But he never got the chance.
After three days on the job, an armed robber forced Gooch and three of his co-workers into the restaurant's walk-in refrigerator on Aug. 17, 1992. All four were shot once in the back of the head with a .38-caliber pistol and left to die. On Tuesday, convicted killer Corey Duane Hamilton was put to death by injection at the Oklahoma State Penitentiary for his role in the crime.
Hamilton, 38, was pronounced dead at 6:14 p.m. at the maximum security prison. The U.S. Supreme Court denied the Tulsan's final appeals on Monday. Hamilton received four death sentences after he and three others were convicted of killing Gooch; Theodore Kindley, 19; Senaida Lara, 27; and Stephen Williams, 24.
As he lay strapped to a gurney Tuesday, with intravenous tubes attached to his arms, Hamilton talked of his love for God and acknowledged members of the victims' families, who witnessed the execution through one-way glass. "To the victims' family, I pray that you have peace and all that you're in need of." The drugs began to flow at about 6:08 p.m., and Hamilton took several deep breaths. He appeared to stop breathing around 6:10 p.m.
Gooch's mother, Patricia Hudson, said she was grateful the 14-year wait for Hamilton's execution was over. "God can sort it out now," Hudson said after witnessing the execution. "If Corey's last statement was sincere, then that's what these kids died for, to save one soul. "If it's not sincere, I'd certainly hate to be in his shoes."
Janice Ramsey, Williams' mother, said she forgave Hamilton for his role in the crime, but will never forget the heinous nature of the crime. Gilbert Lara, Senaida Lara's husband, said he wasn't expecting an apology from Hamilton. "He'd just be wasting his time saying he's sorry," Lara said. "Anything he had to say, from day one, didn't matter to me."
Three other men were convicted and sentenced to life in prison in the case, but Hamilton received the death penalty in part because one of the co-defendants testified Hamilton was the shooter. William Hamilton, Corey Hamilton's brother, Donnie Daniels and Tyrone Johnson all were sentenced to life in prison for their part in the crime.
Assistant Attorney General Jennifer Dickson, who has represented the state during Corey Hamilton's appeals, said she's confident Hamilton shot the four victims. "I don't have any doubts. I think it was very well investigated," Dickson said. "I don't feel there is any problem with the guilt phase of this case at all."
Hamilton's attorney, Robert Nigh Jr., had argued the state's method of lethal injection constitutes cruel and unusual punishment because it creates "a severe and unnecessary risk of failure and conscious physical suffering." The 10th U.S. Circuit Court of Appeals in Denver denied Hamilton's appeal on Thursday, ruling that he did not file his argument in a timely manner and that he was unlikely to win on the merits of his argument, Nigh said.
Department of Corrections spokesman Jerry Massie said Hamilton's final meal request was for barbecue chicken, ribs, chopped brisket and hot wings. He also asked for a large side dish of baked beans, sauce and extra bread.
"Killer executed for four slayings; Fourteen years after brutal murders, victim's families still remember," by Chad Previch. (Associated Press Wed January 10, 2007)
McALESTER, Okla. - More than 14 years after four restaurant workers in Tulsa were ushered into a refrigerator and shot in their heads, their killer was executed Tuesday. Corey Duane Hamilton, 38, died at 6:14 p.m. by lethal injection at the Oklahoma State Penitentiary in McAlester, becoming the first prisoner in the United States to be executed this year. The procedure started at 6:08 p.m.
His last words were partially addressed to his victims' families. He smiled to some supporters in the viewing room. "I wish everyone could experience the love of God to the degree I have experienced,” he said. "I love everybody and hope to see you on the other side. "To the victims' families, I pray you have peace and all that you're in need of. To thy hands I commit my spirit, oh Lord.”
Forgive and forget Patricia Hudson, mother of victim Joseph Gooch, said while some family members may have forgiven Hamilton, they can never forget what he did. "If Corey's last statement ... was sincere, then that's what those kids died for, was to save one soul,” she said. "If it's not sincere, I'd certainly hate to be in his shoes.”
Amanda Lara, daughter of victim Sendy Lara, said she is finally able to put closure into her life. Amanda was six when her mother was murdered. Amanda's sister, Miranda, turned 16 on Tuesday. "I regret that she did not get to know how wonderful our mother was, but I try to make sure that in some way, through our memories, she can know her as I did,” Amanda said. "I have a lot of mixed emotions today, but I hope my family and I can finally put an end to a long and difficult chapter of our lives.”
An effort to spare Hamilton's life was rejected by the U.S. Supreme Court Monday. Rob Nigh, an attorney for Hamilton, asked the court during the weekend to block the execution on grounds that the process posed a risk of excruciating pain. Oklahoma Attorney General Drew Edmondson's office filed a response to that attempt during the weekend.
Hamilton and three other men were convicted in the Aug. 17, 1992, robbery of Lee's Famous Recipe Chicken in east Tulsa. Four employees, ages 16 to 27, were murdered. Prosecutors said Hamilton shot the employees after forcing them to kneel in a walk-in refrigerator. They were shot in the back of their heads. Hamilton and his brother fled to a Detroit suburb, where they have family. The victims were Gooch, 17; Theodore Kindley, 19; Lara, 27; and Stephen Williams, 24. Several of their relatives pleaded with the state Pardon and Parole Board not to spare Hamilton's life. The board denied clemency Dec. 27.
While the fatal drugs flowed through his veins, Hamilton prayed, mouthing several words, including "Jesus.” He gargled through his mouth about a half-dozen times before he became silent. He died with his mouth open.
William Hamilton, the condemned man's brother, and Donnie Daniels were sentenced to life without parole on each of the four counts of murder, and Tyrone Johnson was sentenced to life on each counts.
Hamilton is the 167th person executed in Oklahoma, the 84th by lethal injection. There are 84 others on death row, but no executions are scheduled.
On August 17, 1993, a man discovered the bodies of four employees of Lee's Famous Recipe Chicken Restaurant. They were found dead in the cooler of the restaurant. All four died of close-range gunshot wounds to the back of the head.
The gun was recovered from a field near the apartment complex where Corey Hamilton lived. Co-defendant Donnie Daniels' blue Chevrolet automobile was found parked at the apartment complex where Hamilton lived. A woman who resided behind Lee's testified that she observed a black male drive a blue Chevrolet up and down 9th Street several times. He picked up another black male, wearing a distinctive shirt with a blue seven, who retrieved what appeared to be a shotgun from a ditch. She also observed the male with the blue seven shirt with what appeared to be a shotgun as he walked across the street under the lights. He then proceeded to walk up the wood embankments on the side of Lee's and behind the privacy fence at Lee's.
Another witness testified he saw three black males. The first two he saw standing in a field between a car lot and a vacant building. He described them as between 20 and 25 years of age. The first male, wearing all black clothes, went behind the building never to be seen again. The second male, wearing black shorts and a black top with a gold number seven on it, met up with a third male who was wearing a dark top and white "fleece" looking shorts. The witness further testified he saw the second male with a long gun to his side and a white bag in his hand. Both men got into a blue Chevrolet, which the witness had observed earlier going up and down the street several times.
Daniels' girlfriend testified that Daniels was wearing blue cut-off shorts, blue jacket and a black t-shirt on the night in question. Another witness testified that Hamilton was wearing a blue Bugle Boy tank top and white shorts with black stripes on them on the night in question. Daniels, the co-defendant, testified that during the evening hours of August 17, 1993, he, Hamilton, Will and Johnson played cards. Earlier in the day, Daniels and Johnson had obtained a .38 caliber pistol from a relative of Johnson's. They discussed robbing Lee's.
Daniels was a former employee of Lee's and was familiar with the closing procedures of the restaurant and with the procedure for opening the restaurant's safe. After discussing the robbery, the four men went back into the apartment and changed clothes. The men left at approximately 9:45 p.m., taking Daniels' car, so that they could be at Lee's before 10:00 p.m. when it closed. In addition to the .38 pistol, the men also had a shotgun. Hamilton and Daniels knew that both Ted Kindley and Sandy Lara were working at Lee's that night and would recognize them. However, they did nothing to disguise their appearance.
As Hamilton and Daniels entered the door of Lee's and were met by Kindley, Hamilton pulled the gun and told Kindley to lock the doors, which he did. The other three Lee's employees, Lara, Gooch, and Williams, were told to go into the walk-in cooler. There, they were made to kneel down. Kindley was up front attempting to open the store safe. Will Hamilton, carrying the shotgun, was guarding the back door. After Hamilton got the money from the safe, he placed Kindley in the cooler. Daniels walked out on the loading deck area and, shortly thereafter, heard shots from inside. Daniels walked away from the store and did not return. When the four men met a short time later, Hamilton told them that he shot "Ted and Sandy and them."
National Coalition to Abolish the Death Penalty
Do Not Execute Corey Hamilton!
Corey Hamilton, Jan. 9, 2007, OK
Corey Hamilton was convicted for an Aug. 1992 robbery of a Tulsa restaurant, and in the murder of 4 employees of that restaurant during the robbery. Three other codefendants were convicted for their roles in the robbery and murder and received life sentences.
Hamilton should not receive the death penalty for his role in these crimes. Executing Hamilton would violate the right to life as proclaimed in the Universal Declaration of Human Rights and would constitute the ultimate cruel, inhuman, and degrading punishment. Furthermore, he was only 23 years old at the time of the crime, and had no previous criminal record. No one else involved in the crime received a death sentence.
Corey Hamilton is the son of Wilbur and Joslyn Hamilton, who have been married for 37 years, and reside in Tulsa. Corey has two brothers, William and Brian, and a sister Roslyn.
Please write to Gov. Brad Henry on behalf of Corey Hamilton!
Hamilton v. State, 937 P.2d 1001 (Okla.Crim. 1997) (Direct Appeal).
Defendant was convicted in the District Court, Tulsa County, Jay D. Dalton, J., of robbery with a firearm and four counts of murder in the first degree, malice aforethought and felony. He appealed. The Court of Criminal Appeals, Johnson, J., held that: (1) defendant received adequate notice that codefendant could be called at trial; (2) state was entitled to flight instructions; (3) erroneous instruction regarding jury's evaluation of prior inconsistent testimony by witnesses was harmless; (4) defendant could not be convicted of robbery with a firearm, which was underlying felony for felony-murder conviction; (5) prosecutor's remarks that evidence had stripped away defendant's cloak of innocence did not prejudice defendant; (6) any error in trial court's failure to instruct jury on victim impact evidence was harmless; (7) defendant was not denied access to Court of Criminal Appeals by imposition of 65-page limit on length of brief; and (8) evidence supported imposition of death penalty. Affirmed in part; reversed and remanded in part with instructions to dismiss. Chapel, P.J., and Lumpkin, J., concurred in result. Land, J., concurred in result and filed statement.
JOHNSON, Judge:
Corey Duane Hamilton, hereinafter referred to as Appellant, was tried and convicted by jury of the crimes of Robbery with a Firearm (Count I) and Murder in the First Degree, Malice Aforethought and Felony (Counts II-V) in Case No. CF-92-3584 in the District Court of Tulsa County before the Honorable Jay D. Dalton, District Judge. The jury found four aggravating circumstances as to each victim: (1) Appellant had knowingly created a great risk of death to more than one person; (2) that the murder was especially heinous, atrocious or cruel; (3) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) that Appellant would constitute a continuing threat to society. The trial judge sentenced Appellant in accordance with the jury's recommendation of 500 years imprisonment for Count I and death for Counts II-V. From these judgments and sentences, Appellant has perfected this appeal.
FACTS
On August 17, 1993, State's witness Gaylon Frazier discovered the bodies of four employees of Lee's Famous Recipe Chicken Restaurant, hereinafter “Lee's.” They were found dead in the cooler of the restaurant. Dr. Distefano testified that all four died of close range gun shot wounds to the back of the head. The gun was recovered from a field near the apartment complex where Appellant lived. Co-defendant Donnie Daniels' blue Chevrolet automobile was found parked at the apartment complex where appellant lived. Appellant's brother Will Hamilton, who was visiting from Detroit, Michigan, and Tyrone Johnson were also co-defendants.
Lisa Frazier, who resides behind Lee's, testified that she observed a black male drive a blue Chevrolet up and down 9th Street several times. He picked up another black male, wearing a distinctive shirt with a blue seven, who retrieved what appeared to be a shotgun from a ditch. She also observed the male with the blue seven shirt with what appeared to be a shotgun as he walked across the street under the lights. He then proceeded to walk up the wood embankments on the side of Lee's and behind the privacy fence at Lee's.
Another witness, John Andrew Waltrip, testified he saw three black males. The first two he saw standing in a field between a car lot and a vacant building. He described them as between 20 and 25 years of age. The first male, wearing all black clothes, went behind the building never to be seen again. The second male, wearing black shorts and a black top with a gold number seven on it, met up with a third male who was wearing a dark top and white “fleece” looking shorts. Waltrip further testified he saw the second male with a long gun to his side and a white bag in his hand. Both men got into a blue Chevrolet, which Waltrip has observed earlier going up and down the street several times.
Denicsha Gunter, Daniels' girlfriend, testified that Daniels was wearing blue cut-off shorts, blue jacket and a black t-shirt on the night in question. Mildred Elaine Mangrum testified that Appellant was wearing a blue Bugle Boy tank top and white shorts with black stripes on them on the night in question.
Daniels, the co-defendant, testified that during the evening hours of August 17, 1993, he, Appellant, Will and Johnson played cards at Gunter's home. Earlier in the day, Daniels and Johnson had obtained a .38 caliber pistol from a relative of Johnson's. They discussed robbing Lee's. Daniels was a former employee of Lee's and was familiar with the closing procedures of the restaurant and with the procedure for opening the restaurant's safe.
After discussing the robbery, the four men went back into Gunter's apartment and changed clothes. The men left at approximately 9:45 p.m., taking Daniels' car, so that they could be at Lee's before 10:00 p.m. when it closed. In addition to the .38 pistol, the men also had a shotgun. Appellant and Daniels knew that both Ted Kindley and Sandy Lara were working at Lee's that night and would recognize them. However, they did nothing to disguise their appearance.
As Appellant and Daniels entered the door of Lee's and were met by Kindley, Appellant pulled the gun and told Kindley to lock the doors, which he did. The other three Lee's employees, Lara, Gooch, and Williams, were told to go into the walk-in cooler. There, they were made to kneel down. Kindley was up front attempting to open the store safe. Will Hamilton, carrying the shotgun, was guarding the back door. After Appellant got the money from the safe, he placed Kindley in the cooler. Daniels walked out on the loading deck area and, shortly thereafter, heard shots from inside. Daniels walked away from the store and did not return. When the four men met a short time later, Appellant told them that he shot “Ted and Sandy and them.” Other facts will be discussed as pertinent to the relevant propositions of error.
I. PRETRIAL ISSUES
Because Appellant's first and seventeenth propositions of error contain a similar issue, they will be considered together. In his first proposition of error, Appellant asserts that the trial court's application of Article II, § 20,FN2 of the Oklahoma Constitution in this case violated due process, equal protection, right to counsel and the ban on cruel and unusual punishment.
FN2. Article II, § 20 provides in part, that “in capital cases, at least two days before the case is called for trial, he [the accused] shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses.”
[1] The record reveals that at 5:00 p.m. on November 10, 1993, Appellant was given oral and written notice that any or all of the co-defendants might be called as a witness. Thursday, November 11, 1993, was Veterans Day, a legal holiday. Trial commenced on Monday, November 15. Thus, Appellant argues that he was given one working day's notice that any or all co-defendants might testify. Defense counsel informed the trial court that when she learned from an article in the local Saturday newspaper that Daniels would actually testify, she prepared a motion for continuance which was argued on the morning of trial. It was at this time that she learned from the State that Daniels would actually testify. The trial court denied Appellant's motion for a continuance reasoning that while the State failed to comply with the Allen v. District Court, 803 P.2d 1164 (Okl.Cr.1990) order, it did comply with Article II, § 20. Additionally, the trial court noted that Daniels would be the State's last witness, thus giving Appellant opportunity to interview him.
However, Appellant argues that he was forced into trial without complete discovery of Daniels' testimony and without time to modify jury selection, cross-examination,FN3 closing arguments, or his decision as to whether to testify, i.e. his whole trial strategy. With Daniels' testimony, the case against Appellant was changed from a totally circumstantial evidence case to a direct evidence case. In addition, defense counsel's prepared mitigation, which had been furnished to the State, had become a powerful tool for the State in its argument for the death penalty. See Prosecutorial Misconduct, No. 6, infra. Additionally, defense counsel was not given permission to interview Daniels until the third day of trial. Daniels testified on the fourth day.
FN3. Defense counsel made an offer of proof that she would have interviewed inmates in the various institutions where Daniels had been incarcerated; obtained prison, jail, and probation records; explored Daniels conduct and propensity for violence; and interviewed probation officers and others acquainted with Daniels.
Appellant concedes that his preparation for Daniels' testimony included a “two-hour video, a seventy (70) page transcription of his [Daniels'] statement to the police, and a forty (40) page transcription of the testimony at his [Daniels'] trial.” We note that Appellant had nine (9) days from November 10, 1993, to prepare for Daniels' testimony. Defense counsel must have been aware that a co-defendant could testify due to a plea bargain. This often happens just before trial and the attorney must be prepared. Thus, we find Appellant had adequate time to prepare for Daniels' testimony. See Article II, § 20. We also find no abuse of discretion in the trial court's denial of a continuance. This proposition is denied.
In light of the foregoing, we find no merit in proposition seventeen wherein Appellant argues that the failure to give notice of a critical witness [Daniels] denied him the opportunity to investigate Daniels and to revise his trial strategy to meet the surprise testimony of Daniels.
[2] Appellant argues in proposition seven that because the Information failed to allege the essential elements of the underlying felony, Robbery with a Firearm, in Felony Murder Counts II-V, the trial court was without subject matter jurisdiction.
[3] This issue was recently addressed by this Court in Parker v. State, 917 P.2d 980 (Okl.Cr.1996), where we held that “any failure to allege facts constituting the offense raises due process questions but does not affect the trial court's jurisdiction.” Id. at 985. We further held that “a trial court's jurisdiction is triggered by the filing of an Information alleging the commission of a public offense with appropriate venue.” Id. Thus, a due process violation due to insufficiency of the Information does not necessarily mean that jurisdiction was not conferred. In the instant case, the trial court did have jurisdiction. This proposition is without merit.
II. FIRST STAGE ISSUES
In his fourth proposition of error, Appellant claims that the trial court committed reversible error when, over his objection, flight instructions were given. Appellant argues that this Court's holding in Rivers v. State, 889 P.2d 288 (Okl.Cr.1994) making our holding in Mitchell v. State, 876 P.2d 682 (Okl.Cr.1993) prospective only is erroneous. Appellant reasons that this Court's finding in Mitchell that the flight instruction in question assumes the defendant committed the crime, in effect, found that the flight instruction presumed the defendant guilty. Thus, appellant argues that he was deprived of the following constitutional or statutory rights:
1. Statutory Presumption of Innocence
[4] Appellant asserts that his due process right to a fair trial was violated because the instruction, by assuming that he committed the crime, took away his presumption of innocence. He relies on Flores v. State, 896 P.2d 558 (Okl.Cr.1995) where we held the presumption of innocence to be a fundamental statutory right guaranteed to every criminal defendant. See 22 O.S.1991, § 836. We do not agree with Appellant's premise that because the instruction “assumes the defendant to have committed the alleged crime,” that the instruction presumes the defendant guilty of committing the alleged crime. Therefore, we do not find Flores applicable. Additionally, we note that the jury was given specific instructions regarding the presumption of innocence.
This Court has made clear that Mitchell is prospective in application. Cooper v. State, 889 P.2d 293, 310 (Okl.Cr.1995) overruled on other grounds, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996); Spears v. State, 900 P.2d 431, 446 (Okl.Cr.1995) cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995); Rivers v. State, 889 P.2d at 292. Appellant's trial was conducted prior to our ruling in Mitchell. Thus, we will determine if the flight instruction given in this case was proper under the standard used prior to Mitchell. Specifically, we must determine whether, when viewed in the context of the other evidence, the evidence of Appellant's alleged flight tends to establish guilt.
[5] In this case, the pivotal question is whether Appellant was one of the men who committed the robbery and took part in the murders. Evidence was presented that Appellant was one of the four men who planned and carried out the robbery. Evidence was also presented as to the clothing Appellant wore during the commission of the robbery and murders. There was also evidence that Appellant met the co-defendants to divide the stolen money. Further, the murder weapon was found near Appellant's apartment complex and a search of his van led to the discovery of a box of 12-gauge shotgun shells, a Lee's jacket, and a Tulsa World newspaper article about the murders. The evidence also revealed that Appellant and Will left Tulsa on the night of the murders without retrieving their belongings. The brothers traveled to Detroit, Michigan, where they were ultimately found. We find that, when viewed in the context of the other evidence, the evidence of Appellant's alleged flight tends to establish guilt. Thus, the flight instruction was properly given under Farrar v. State, 505 P.2d 1355, 1360-61 (Okl.Cr.1973). This contention is without merit.
2. Sixth Amendment Right to Trial by Jury
Appellant contends that his right to a trial by jury was violated because the flight instruction directed the jury to presume Appellant committed the crimes charged and by so doing precluded the jury from making an independent factual determination of each element of the offenses charged. Based on our determination in No. 1 above, this contention is moot.
3. Right to Testify
[6] Appellant argues that the flight instruction is analogous to denying him the right to testify. He relies on Rock v. Arkansas, 483 U.S. 44, 52-53, 107 S.Ct. 2704, 2708-10, 97 L.Ed.2d 37, 46-47 (1987), where the Supreme Court held the right to testify “is essential to due process in a fair adversary process” and “the choice of whether to testify in one's own defense is an exercise of the constitutional privilege.” Thus, where the flight instruction is given, without prior notice, after the close of the case, the State per se impermissibly infringed on his constitutional right to testify. We are not persuaded by Appellant's argument. Additionally, Appellant has offered no authority to support his contention. This Court has consistently held that where there is no case authority to support an argument and it is apparent that the appellant has not been deprived of any fundamental rights, we will not do the attorney's work nor search the books for authorities. See Wilson v. State, 737 P.2d 1197, 1204 (Okl.Cr.1987). This contention is denied.
4. Sixth Amendment Right to Counsel
[7] To support his claim that he was denied his Sixth Amendment right to counsel, Appellant relies on this Court's finding in Mitchell: “Throughout the history of the judicial development of our law on flight instructions as it pertains to departure, we have required that the defendant offer evidence in explanation of such conduct.” Thus, Appellant asserts that based on this finding, he did not plan to testify at trial and defense counsel could not have foreseen that the trial court would give the flight instruction where Appellant did not testify or otherwise offer evidence in explanation of flight. Appellant also argues that because the flight instruction was given after the close of the case and the opportunity to testify or to otherwise controvert flight evidence had passed, he was denied the effective assistance of counsel.
First, we are at a loss as to how defense counsel could rely on our holding in Mitchell when Mitchell was decided after Appellant's trial. Second, Appellant has failed to show this Court how he was denied his right to counsel. Third, we are not persuaded by counsel's argument about ineffective assistance of counsel. Fourth, counsel offers no authority to support her contention. This Court has consistently held that where there is no case authority to support an argument and it is apparent that the appellant has not been deprived of any fundamental rights, we will not search the books for authorities. See Wilson, 737 P.2d at 1204. This contention is denied.
5. Right to be Free of Cruel and Unusual Punishment
Appellant contends that because the flight instruction (1) stripped him of the presumption of innocence and (2) relieved the State of its burden of proof of proving each element of the crime beyond a reasonable doubt, the sentencing stage was tainted and unreliable under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Having found no merit in any of the foregoing, this contention is moot. This proposition of error is denied.
In his eighth proposition of error, Appellant claims the part of OUJI-CR 82, which reads, “you may not consider this impeachment evidence as proof of innocence or guilt[,]” improperly instructed the jury it could not consider the impeachment evidence as substantive evidence of guilt. Impeachment evidence was offered against State's witnesses, Gunter and Daniels. Appellant claims the State could not prove either the fact or extent of his involvement in the crimes apart from their testimony. Both witnesses admitted they lied under oath, Gunter at preliminary hearing and Daniels at his trial.
In our recent decision in Omalza v. State, 911 P.2d 286 (Okl.Cr.1995), this Court addressed the use of impeachment evidence in the form of inconsistent statements for substantive purposes. We expressly held that inconsistent statements which meet the requirements of 12 O.S.1991, § 2801(4)(a)(1), may be considered as substantive evidence. Id. at 300. Additionally, we held that inconsistent statements made to police whether sworn or unsworn do not meet the requirements of § 2801(4)(a)(1) because the statements are not made during any trial, hearing, deposition or proceeding. Thus, the statements can only be used for impeachment purposes. Id. at 302.
[8] [9] In this case, Gunter's inconsistent statements made at preliminary hearing and Daniels' inconsistent statements made during his trial can be used for substantive purposes. Any inconsistent statements made by them to police officers could be used for impeachment purposes only. Thus, the jury should have been instructed that any sworn inconsistent statements made during any trial, hearing, deposition or proceeding could be used as substantive evidence. However, in light of the overwhelming uncontradicted evidence of guilt we find the error harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
[10] In his ninth proposition of error, Appellant asks this Court to reverse his conviction for Robbery with a Firearm with directions to dismiss because the felony murder theory under which he was convicted was based on the underlying felony of Robbery With a Firearm. See Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). In this case, Appellant was found guilty under both the felony murder theory and the malice aforethought theory. Appellant cites Hain v. State, 852 P.2d 744, 752 (Okl.Cr.1993) cert. denied, 511 U.S. 1020, 114 S.Ct. 1402, 128 L.Ed.2d 75 (1994) and Castro v. State, 745 P.2d 394, 405 (Okl.Cr.1987) cert. denied, 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988) in support of his position that where alternative theories are charged, the verdict must be interpreted as one of felony murder in order for a defendant to receive the benefit of the rule precluding conviction of a lesser crime necessary to prove the greater crime.
The State is correct in pointing out that in Hain the jury did not indicate under which of the two theories it based its guilty verdict. However, in Hain, this Court relied on the following language in Munson v. State, 758 P.2d 324, 332 (Okl.Cr.1988) cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989):
Nonetheless, because the jury's verdict does not specify whether appellant was found guilty of malice-aforethought murder or kidnapping murder or armed-robbery murder, the verdict must be interpreted as one of felony murder in order that appellant receive the benefit of the rule that a defendant cannot be convicted of felony-murder and the underlying felony.
Thus, because the purpose of the rule is for the benefit of the defendant, Appellant's conviction for Robbery With a Firearm is REVERSED and REMANDED with instructions to DISMISS.
Tenth, Appellant asks this Court to reverse his conviction or in the alternative remand this case for an evidentiary hearing because the trial court failed to conduct an inquiry to determine the facts alleged in his motion for substitute counsel at the end of the first stage of trial. Appellant alleged (1) that he had been denied effective representation in the first stage, (2) that the Chief Public Defender had changed his view on capital punishment, (3) that news coverage had denied him a fair trial, and (4) that the trial judge's son, employed by the Tulsa County Public Defender's office, had compromised his representation by aiding the State. The trial judge summarily overruled Appellant's motion.
First, Appellant's reliance on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) is misplaced. In that case, the Supreme Court held the failure to conduct inquiry to ascertain the risks in conflicted representation was reversible error. We find no such issue here. Second, Appellant has failed to develop his argument beyond bald assertions. This Court has consistently held “[w]here [there is no case authority to support an argument], and it is apparent that the appellant has not been deprived of any fundamental rights, we will not search the books for authorities to support mere assertions that the trial court erred.” Wilson, 737 P.2d at 1204. This argument is without merit.
III. PROSECUTORIAL MISCONDUCT
In his eleventh proposition of error, Appellant asks this Court to reverse his convictions for the following comments which constituted prosecutorial misconduct:
1. “Cloak of Innocence”
[11] In his closing argument, the prosecutor on two occasions told the jury:
a. “When we started with this case, the defendant was presumed to be not guilty. You said you could do that. This evidence now strips the cloak of innocence from him.”
b. “Have we proved what we said we could prove? Yes. I submit to you, as I said a few minutes ago, the cloak of innocence is stripped away.”
Appellant asserts that these statements in effect told the jury there was no presumption of innocence to take with them in deliberations. Appellant relies on Miller v. State, 843 P.2d 389 (Okl.Cr.1992) where we considered a nearly identical comment.FN4 We held that the comment amounted to an unconstitutional restatement of the presumption of innocence. Id. at 390. Additionally, we found that the error went to the very fundamental principle of jurisprudence. Id. We reversed and remanded the case for a new trial. However, in light of the overwhelming uncontradicted evidence of guilt in this case, we find the error harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710. Additionally, we note that the jury was given specific instructions regarding the presumption of innocence. This contention is denied.
FN4. The comment was as follows: “Ladies and gentlemen, the defendant stands guilty as charged and the cloak of innocence that he wore, and he did indeed by our law wear it, when you heard the evidence, the evidence is all through now. The dust is settled, a term I used earlier, and that cloak is gone. It's been ripped away from him by the testimony of three men-four men, actually. He stands guilty as charged.”
2. “Reverse Caldwell Error”
[12] In his closing argument, the prosecutor told the jury three times that he asked and tried as hard as he could to get the jury in Donnie Daniels' case to give him the death penalty, but the jury took pity on him whether they should have or not. Appellant claims these comments call the jury to a heightened and broader sense of responsibility to return death verdicts because a previous jury did not render death verdicts in Donnie Daniels' case despite his best efforts. This created a “reverse Caldwell FN5 error.” We note that Appellant raised no objection to the first two remarks and raised only a general objection to the third. Therefore, he has waived all but plain error. Hunt v. State, 793 P.2d 1366, 1368 (Okl.Cr.1990); Quilliams v. State, 779 P.2d 990, 992 (Okl.Cr.1989); Harris v. State, 777 P.2d 1359, 1362 (Okl.Cr.1989). We find no plain error.
FN5. Caldwell v. Mississippi, 472 U.S. 320, 327-29, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) (holding it error to diminish the jury's responsibility for determining the appropriateness of a death sentence by informing the jury that the appropriateness of the death sentence rested not with the jury but with the appellate court who will automatically review the sentence.)
3. Right to Remain Silent
[13] In his closing argument, the prosecutor posed the rhetorical question: “What is the explanation for calling someone to take you across the street?” Appellant asserts that this question was a comment on his right to remain silent. We note that Appellant raised no objection to this remark. Therefore, he has waived all but plain error. Hunt, 793 P.2d at 1368; Quilliams, 779 P.2d at 992; Harris, 777 P.2d at 1362. We find no plain error. However, we find that this statement was not a comment on Appellant's right to remain silent.
4. Duty to Impose Death
[14] In his closing argument, the prosecutor made the following comments to the jury:
a. “I think I could and I think I could support it [the death penalty]. Based upon the moral standards and the history of this country, we have debated that and decided that it is morally permissible for a jury to make that decision.”
b. “Counsel, on the one hand, wants mercy for her client, yet has a hard time choking out the words that justice in any form is appropriate. You don't need mercy if you're not guilty. If you don't need justice, there's no need to grant mercy.”
Appellant, relying on Lalli v. State, 870 P.2d 175, 178 (Okl.Cr.1994), suggests that these arguments convey to the jury that their only moral course was to impose the death penalty. We do not agree. We find the comments to be proper argument.
5. Mitigation into Aggravation
[15] Appellant submits that it was prejudicial for the prosecutor to turn mitigation evidence into aggravation. He claims that the prosecutor, by negatively commenting on his mitigating evidence, effectively told the jury to disregard the mitigating evidence. Thus, the jury was denied the opportunity to consider and give effect to his mitigating evidence. Appellant relies on Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) where the Supreme Court, citing Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), held: “[I]t is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence.” Appellant's reliance on Penry is misplaced. In the case at bar, unlike Penry, the jury was properly instructed as to mitigating evidence. This proposition of error is denied.
IV. SECOND STAGE TRIAL ISSUES
In his second proposition of error, Appellant attacks the use of victim impact evidence in Oklahoma. He concedes that this Court's recent decision in Cargle v. Oklahoma, 909 P.2d 806, 824-30 (Okl.Cr.1995) cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996) has set forth the only permissible use of victim impact evidence in Oklahoma. Appellant points out that in Cargle, this Court found error in the amount and type of victim impact evidence presented to the jury. This Court held the error to be a classic trial error since it occurred during the presentation of the case to the jury and could be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.
Here, Appellant challenges not the amount and type of victim impact evidence, but the jury's potential misuse of that evidence in the absence of instructions setting forth its appropriate use. Thus, Appellant contends this error is not mere trial error occurring during the presentation of the case to the jury, as in Cargle, but rather “structural” error as recognized in Sullivan v. Louisiana, 508 U.S. 275, 278-79, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).
[16] [17] This Court in Bartell v. State, 881 P.2d 92, 98-99 (Okl.Cr.1994), held that a structural error affects the framework within which the trial proceeds, while trial error is an error in the trial process itself. As such, a trial error is subject to harmless-error standards. We find that any failure to instruct on victim impact evidence does not affect the entire conduct of the trial from beginning to end. Thus, if it is trial error, it would be subject to harmless-error analysis. In this case, the fact that the jury found four aggravating circumstances is sufficient to find the error harmless beyond a reasonable doubt. This proposition, as well as Appellant's claim of ineffective assistance of trial counsel for failure to request such an instruction, is denied.
Appellant's third proposition of error challenges the jury instruction on the weighing of aggravating and mitigating circumstances. Appellant compares the statutory language in 21 O.S.1991, § 701.11, with Jury Instruction No. 7. Appellant contends the instruction directs the jury to weigh mitigating factors found against the aggregate of the aggravators, whereas § 701.11 requires the jury to weigh the aggregate mitigating circumstances found against each individual aggravating circumstance found.
[18] This Court declines to construe § 701.11 in the manner requested by Appellant. We have repeatedly held that we will not establish specific standards for the balancing of aggravating and mitigating circumstances. See Duckett v. State, 919 P.2d 7, 23 (Okl.Cr.1995) and cases cited therein. In the instant case, the instructions clearly state that an “aggravating circumstance or circumstances [must] out weigh (sic) the findings of one or more mitigating circumstances.” Thus, the jury was adequately informed that aggravators must outweigh mitigators in order for the death penalty to be imposed. This proposition, as well as Appellant's argument that defense counsel was ineffective for failing to object or submit alternative instructions, is without merit.
[19] In his fifth proposition of error, Appellant asserts that the trial court violated his due process and Eighth Amendment rights by not allowing him to present evidence on the meaning of life without parole to rebut the continuing threat aggravator. The trial court sustained the State's objection to calling Steve Strode, Administrator, Oklahoma Department of Corrections, to testify that life without parole in Oklahoma means a defendant would serve his natural life in a maximum security prison. Appellant relies on Simmons v. South Carolina, 512 U.S. 154, 171, 114 S.Ct. 2187, 2198, 129 L.Ed.2d 133 (1994) which held that the State may not “create a false dilemma by advancing generalized arguments regarding the defendant's future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole.” However, this Court distinguished Simmons in Trice v. State 912 P.2d 349, 352 (Okl.Cr.1996) and held that it was not error to not define life without parole. Thus, this proposition is meritless.
In proposition six, Appellant asserts that his convictions for both malice murder and felony murder were used by the state as non-statutory aggravators violating his Fourteenth and Eighth Amendment rights. Appellant offers no direct case authority in support of this contention, instead making mere bald assertions. “An appellant must support his allegations of error by both argument and citation of authority.” Wilson, 737 P.2d at 1204. “Where this is not done, and it is apparent that the appellant has not been deprived of any fundamental rights, we will not search the books for authorities to support mere assertions that the trial court erred.” Id. Thus, this proposition is without merit.
[20] In his twelfth proposition of error, Appellant contends that the aggravator, heinous, atrocious, or cruel must fail as a matter of constitutional law because the jury was not instructed on mental torture. In Rogers v. State, 890 P.2d 959, 977 (Okl.Cr.) cert. denied, 516 U.S. 919, 116 S.Ct. 312, 133 L.Ed.2d 215 (1995), this Court held that “a victim must be conscious in order to suffer torture or serious physical abuse, but this is not a separate element on which the jury must be instructed.” Thus, the trial court was not required to give an instruction on mental torture. We find no merit in this proposition.
[21] Appellant in his thirteenth proposition argues that the aggravator “continuing threat” is unconstitutional as applied in Oklahoma. This Court has repeatedly rejected this argument and we are not persuaded to alter our prior position, notwithstanding Williamson v. Reynolds, 904 F.Supp. 1529 (E.D.Okl.1995). See Cooper, 889 P.2d at 315; Malone v. State, 876 P.2d 707, 715-16 (Okl.Cr.1994) and cases cited therein; Walker v. State, 887 P.2d 301, 320 (Okl.Cr.1994), cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995). Appellant's proposition is without merit.
In proposition fourteen, Appellant contends that aggravators heinous, atrocious, or cruel; knowingly creating a great risk of death to more than one person; and, killing in order to avoid prosecution are violative of both federal and state constitutions as they are vague and overbroad. This Court has reviewed and rejected these arguments previously. For cases addressing the unconstitutionality of the heinous, atrocious, or cruel aggravator, see Cooper, 889 P.2d at 313; Nuckols v. State, 805 P.2d 672, 674 (Okl.Cr.), cert. denied, 500 U.S. 960, 111 S.Ct. 2276, 114 L.Ed.2d 727 (1991). For cases addressing the unconstitutionality of knowingly creating a great risk of death to more than one person, see Malone, 876 P.2d at 716; Cartwright v. State, 695 P.2d 548 (Okl.Cr.1985); Cartwright v. Maynard, 802 F.2d 1203 (10th Cir.1986), on rehearing, 822 F.2d 1477 (10th Cir.1987), affirmed, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).
Appellant's argument regarding the issue of the unconstitutionality of the killing in order to avoid prosecution aggravator was presented in Cooper, 889 P.2d at 314. In Cooper, finding that because the appellant's contention was not supported with relevant argument and authority, we did not address it. In this case, we also find that Appellant did not support this contention with relevant argument and authority. Therefore, we will not address it. Id. at 314. As in Cooper, we note the Oklahoma death penalty statutes have been held previously to be constitutional. Id. This proposition of error must fail.
In his fifteenth proposition of error, Appellant argues that there is a likelihood that the submitted jury instructions led the jury to believe that mitigation findings had to be unanimous to be considered in the weighing process. This argument was addressed and rejected in Romano v. State, 909 P.2d 92, 123 (Okl.Cr.1995) cert. denied 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996). Thus, this proposition is without merit.
In his sixteenth proposition of error, Appellant claims it was error for the trial court to give an anti-sympathy instruction because the instruction vitiated consideration of mitigation. We reject this argument as we have on numerous occasions. See Romano v. State, 847 P.2d 368 (Okl.Cr.1993) aff'd 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994); Fox v. State, 779 P.2d 562, 574 (Okl.Cr.1989), cert. denied 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990); Woodruff v. State, 846 P.2d 1124, 1149-50 (Okl.Cr.), cert. denied, 510 U.S. 934, 114 S.Ct. 349, 126 L.Ed.2d 313 (1993); Clayton v. State, 840 P.2d 18, 34 (Okl.Cr.1992), cert. denied, 507 U.S. 1008, 113 S.Ct. 1655, 123 L.Ed.2d 275 (1993); Boyd v. State, 839 P.2d 1363, 1372 (Okl.Cr.1992) cert. denied, 509 U.S. 908, 113 S.Ct. 3005, 125 L.Ed.2d 697 (1993).
In his eighteenth proposition of error, Appellant asserts that the evidence used to support the aggravating circumstances in this case is insufficient as a matter of law because the aggravators are unconstitutional. This contention has been addressed in propositions five, seven, thirteen, and fourteen, supra, and is without merit.
In proposition twenty, Appellant asks this Court to find that the cumulative error in this case requires reversal. We found reversible error in proposition nine which resulted in the Robbery with a Firearm charge being remanded to the District Court with instructions to dismiss. However, in as much as we found all other errors to be harmless beyond a reasonable doubt, we find no cumulative error requiring reversal. This proposition is denied.
VI. MANDATORY SENTENCE REVIEW
[23] 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 aggravating circumstances as enumerated in 21 O.S.1991, § 701.12. We shall first determine whether the evidence was sufficient to support the imposition of the death penalty.
The jury found the following aggravators:
1. The defendant knowingly created a great risk of death to more than one person;
2. The murder was especially heinous, atrocious, or cruel;
3. The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and
4. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
In reviewing the evidence presented by the State, we find that the defendant knowingly created a great risk of death to more than one person by committing an armed robbery in an establishment with several employees. We find that the murder was especially heinous, atrocious, or cruel, in that the employees were forced to kneel in the back room cooler uncertain of their fate, while each but the first listened to his co-workers being killed. We find that the murder was committed for the purpose of avoiding lawful arrest or prosecution as the defendant entered the establishment knowing he would be recognized by some of the workers and thus would be identifiable to police. We further find that the callous nature of the crime, and the Appellant's blatant disregard for the importance of human life render him a continuing threat to society. The evidence substantially supports the finding of the four aggravators. It should be noted that the Appellant knew some of the workers and the location. He did not use any cover-up; he intended to kill.
As mitigation, Appellant offered:
1. That Corey Hamilton is 24 years old;
2. That he has a family who loves him and would be severely impacted if he was put to death;
3. It is the defendant's contention that Corey Hamilton was not the shooter;
4. That Corey Duane Hamilton's family, educational and spiritual backgrounds are inconsistent with one who would shoot four people in the manner described by the evidence;
5. That Corey Duane Hamilton's psychological profile is inconsistent with one who would shoot four people in the manner described by the evidence;
6. That Corey Duane Hamilton has no history of violence;
7. That Corey Duane Hamilton is the type of person who poses no threat of violence if incarcerated for life;
8. That Corey Duane Hamilton turned himself in, in Detroit, Michigan, after learning that there was an outstanding warrant for his arrest;
9. That neither Donnie Eugene Daniels nor Tyrone Johnson received a death sentence by the jury.
Upon carefully considering and reviewing the evidence which supports the aggravating circumstances, as well as the evidence which may be considered mitigating, this Court finds the sentence of death was factually substantiated and appropriate. Furthermore, we find that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor. Finding no error warranting reversal or modification, the Judgments and Sentences are AFFIRMED, EXCEPT that the judgment and sentence for Robbery with a Firearm is REVERSED and REMANDED to the District Court with instructions to DISMISS.
STRUBHAR, V.P.J., concurs.
CHAPEL, P.J., and LUMPKIN and LANE, JJ., concur in result.
LANE, Judge, concurs in result.
In keeping with my special vote in Parker v. State, 917 P.2d 980 (Okl.Cr.1996), I would find that the Information was sufficient on its face and therefore, Parker does not apply.
Hamilton v. Mullin 436 F.3d 1181 (10th Cir. 2006) (Habeas).
Background: State prisoner petitioned for writ of habeas corpus after he was convicted of first-degree murder, sentenced to death, and his conviction was affirmed on appeal, 937 P.2d 1001. The United States District Court for the Northern District of Oklahoma, Sven Erik Holmes, J., denied the petition but granted certificate of appealability.
Holdings: The Court of Appeals, Tymkovich, Circuit Judge, held that:
TYMKOVICH, Circuit Judge.
At sentencing, the jury found four aggravating circumstances as to each murder. Accordingly, upon the jury's recommendation, the trial court imposed the death penalty. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the murder convictions and death sentence on direct appeal but reversed the robbery conviction. See Hamilton v. State, 937 P.2d 1001 (Okla.Crim.App.1997). The United States Supreme Court denied certiorari, Hamilton v. Oklahoma, 522 U.S. 1059, 118 S.Ct. 716, 139 L.Ed.2d 657 (1998), and the OCCA denied state post-conviction relief in an unpublished opinion. Subsequently, Hamilton filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Oklahoma. The district court denied the petition but granted a certificate of appealability, see 28 U.S.C. § 2253(c)(1)(A).
On appeal, Hamilton argues five issues merit habeas relief: (1) prosecutorial misconduct during closing argument violated his right to a fair trial; (2) the state trial court's exclusion of testimony and jury instructions defining the life without parole sentencing option violated due process; (3) the trial court's failure to instruct the jury on use of victim impact evidence violated due process; (4) the state presented insufficient evidence to support the heinous, atrocious or cruel aggravating circumstances; and (5) the individual errors at the guilt and sentencing phases together warrant reversal.
Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253. Having thoroughly reviewed the record and applicable law, we conclude Hamilton is not entitled to habeas relief. Accordingly, we affirm the district court's denial of the petition.
I. Background
The background facts are not in dispute and are set forth in the OCCA's opinion on direct appeal. See Hamilton, 937 P.2d 1001. We only briefly summarize them here. On August 17, 1992, the bodies of Lee's employees Joseph Gooch, Theodore Kindley, Senaida Lara and Steven Williams were found in the restaurant's walk-in cooler. All four died of a close-range gunshot wound to the back of the head. On the evening of the murders, Hamilton and his accomplices discussed robbing the restaurant. They arrived at the restaurant near its scheduled closing time. Upon entering, Hamilton pulled a gun and told one employee to lock the doors. The other three employees were ordered to enter the cooler and kneel. A few minutes later, after Hamilton retrieved money from the restaurant safe, he placed the fourth employee in the cooler. Hamilton later stated to his accomplices that he shot the employees.
An Oklahoma jury convicted Hamilton of four counts of first-degree murder and recommended that the trial court impose the death penalty. The jury made its sentencing recommendation after finding four aggravating circumstances as to each murder: (1) Hamilton had knowingly created a great risk of death to more than one person; (2) each murder was especially heinous, atrocious or cruel; (3) Hamilton committed each murder for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) Hamilton would constitute a continuing threat to society.
* * *
A. Prosecutorial Misconduct
Hamilton makes one claim of error arising from the guilt phase of his trial. He argues that the government engaged in prosecutorial misconduct, citing a number of comments by the lead prosecutor during closing argument. Hamilton argues one statement disparaged his Fifth Amendment right to remain silent, and two additional statements wrongfully stripped him of the presumption of innocence. While two of the prosecutor's comments crossed the line of permissible closing argument, we agree with the OCCA that the statements as a whole did not undercut the fundamental fairness of Hamilton's trial.
[3] [4] When a defendant asserts claims of prosecutorial misconduct in a habeas petition, those claims are reviewed for a violation of due process. See Patton v. Mullin, 425 F.3d 788, 811 (10th Cir.2005) (citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). “[N]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a failure to observe that fundamental fairness essential to the very concept of justice.” Patton, 425 F.3d at 811 (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). To be entitled to relief, a defendant must establish that the prosecution's conduct or remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Patton, 425 F.3d at 811 (citing Donnelly, 416 U.S. at 643, 94 S.Ct. 1868). Such a determination may be made only after “tak[ing] notice of all the surrounding circumstances, including the strength of the state's case.” Coleman v. Brown, 802 F.2d 1227, 1237 (10th Cir.1986).
[5] In some circumstances, however, when “prosecutorial misconduct directly affects a specific constitutional right,” as is alleged here, “a habeas petitioner need not establish that the entire trial was rendered unfair, but rather that the [specific] constitutional guarantee was so prejudiced that it effectively amounted to a denial of that right.” Torres v. Mullin, 317 F.3d 1145, 1158 (10th Cir.2003) (emphasis added). With this guidance, we turn to the individual instances of misconduct alleged by Mr. Hamilton.
1. The Right to Remain Silent
[6] The evidence at trial disclosed that a short time after the murders, Hamilton received a ride in a friend's car from his girlfriend's house to a motel. The motel was next door. Discussing this evidence during his closing argument, the prosecutor rhetorically raised the following questions:
[W]e ask you to use your common sense about people's behavior. What are they doing? What's he doing? What is the explanation for calling someone to take you across the street?
Tr. at 1202. Hamilton argues this statement was a comment on his Fifth Amendment right to remain silent, because the proffered questions could be answered only by Hamilton himself, and he had chosen not to testify.
[7] [8] Our precedent holds that “[t]he state may not use a defendant's exercise of his right to remain silent to obtain his conviction.” Jones v. Stotts, 59 F.3d 143, 146 (10th Cir.1995). See also Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir.2001). Where a prosecutor's remarks “ ‘concern matters that could have been explained only by the accused, ··· [they] give rise to an innuendo that the matters were not explained because [petitioner] did not testify’ and, thus, amount to indirect comment on the defendant's failure to testify.” Battenfield, 236 F.3d at 1225. (quoting Pickens v. Gibson, 206 F.3d 988, 999 (10th Cir.2000)). Simply put, the question is “whether the language used [by the prosecutor] was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent.” Id. at 1225 (quoting Pickens, 206 F.3d at 998). Nonetheless, any error in permitting the prosecutor to comment upon the defendant's right to silence is subject to a harmless error analysis. See Brecht v. Abrahamson, 507 U.S. 619, 628-29, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). We agree with the district court that the statement was permissible. A review of the context in which the prosecutor made the statements reveals he was discussing a particular jury instruction and was asking the jury to use their “common sense” regarding the defendant's flight. Following the statement to which Hamilton objects, the prosecutor continued, “The explanation is an obvious one. You don't want to be seen. Somehow or another you need to get a very short distance without anyone seeing you. And the police, as you know, were everywhere.” Tr. at 1202. We further agree with the district court and the OCCA that the prosecutor's queries were entirely rhetorical and not, in essence, remarks “of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent.” United States v. Toro-Pelaez, 107 F.3d 819, 826-27 (10th Cir.1997) (quoting United States v. May, 52 F.3d 885, 890 (10th Cir.1995)). Even if the comments crossed the line, our independent review of the record convinces us any prejudice arising from the statement was harmless, see Brecht, 507 U.S. at 628-29, 113 S.Ct. 1710, and that the OCCA's resolution of the issue was not contrary to, or an unreasonable application of, clearly established federal law.
2. The Presumption of Innocence
[9] During closing argument, the prosecutor also made two statements regarding Hamilton's right to a presumption of innocence. In the first instance he said:
When we started with this case, the defendant was presumed to be not guilty. You said you could do that. This evidence now strips the cloak of innocence from him.
Tr. at 1139. Counsel's objection to this statement was overruled. Id. Following these remarks, the prosecutor argued:
Have we proved what we said we could prove? Yes. I submit to you, as I said a few minutes ago, the cloak of innocence is stripped away.
Tr. at 1168. Counsel's objection to this statement was also overruled. Id.
Hamilton argues that in Miller v. State, 843 P.2d 389, 390 (Okla.Crim.App.1992), a previous case with similar prosecutorial remarks, the OCCA reversed the defendant's conviction. In Miller, the prosecutor stated, “[t]he dust is settled ··· and that cloak [of innocence] is gone. It's been ripped away from him by the testimony of three men-four men, actually. He stands guilty as charged.” Id. Likewise, in one of our circuit cases, Mahorney v. Wallman, 917 F.2d 469 (10th Cir.1990), the prosecutor stated, “I submit to you ··· under the law and under the evidence, that [the presumption of innocence] has been removed, that that presumption no longer exists, that that presumption has been removed by evidence and he is standing before you now guilty. That presumption is not there any more.” Id. at 471.
In Mahorney, we held the comments violated the defendant's constitutional rights and were not harmless error. “[T]he jury,” we explained, “was basically presented with two relatively credible, competing stories related by the complaining witness and the accused, neither of which was conclusively confirmed or disproportionately discredited by extrinsic evidence ··· [and] we cannot say that the constitutional infirmity in petitioner's criminal trial was harmless.” Id. at 474.
Recognizing the objectionable nature of the remarks in light of its own precedent, the OCCA acknowledged in Hamilton's state appeal it had reversed other cases with similar commentary. The court went on to explain, however, “in light of the overwhelming uncontradicted evidence of guilt in this case,” any error was harmless beyond a reasonable doubt. Hamilton, 937 P.2d at 1010 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). The OCCA further noted that the “jury was given specific instructions regarding the presumption of innocence.” Id.
We recently had occasion to examine prosecutorial comments that were strikingly similar to the ones made here. In Patton v. Mullin, 425 F.3d 788 (10th Cir.2005), the prosecutor said during the guilt phase:
The Defendant is presumed innocent. He is presumed innocent until you consider all of the evidence in this case and you make the decision to strip that presumption away from him and leave him with what he is, which is guilty. What has to be proved to you before you can strip that cloak of innocence from him is proof beyond a reasonable doubt of each and every material element of the crime charged and we talked about that. The State of Oklahoma always has the burden of proof. But we have the burden of proof to show you beyond a reasonable doubt each and every element of the crimes charged.
Id. at 812 (emphasis added).
During the closing argument of the sentencing phase, the prosecutor also stated:
Mr. Patton is to be presumed innocent unless and until the State proves to you beyond a reasonable doubt one or more of the aggravating circumstances. And at that time you are authorized to strip that cloak away and punish this Defendant as he is worthy of being punished.
Id. In context, we found the prosecutor's comments plainly reminded the jury that it was the state's burden to prove its case beyond a reasonable doubt. In light of the prosecutor's recognition of that burden, and in light of the entire record in that case, “the OCCA did not unreasonably apply federal law in ruling that these comments did not deprive [defendant] of a fair trial.” Id.
We have some similar contextual statements here. During the closing argument in Hamilton's trial, for example, the prosecutor stated:
Question, have we proved it? Counsel said you'll want to be able to walk up there and put your finger on it. I agree. Have we done that, though? Have I proved what I said we could prove? Has the evidence convinced you beyond a reasonable doubt that the man is guilty of these crimes? Yes.
Tr. at 1145.
The prosecutor also said:
I have no problem telling you this evidence is more than enough. It's beyond a reasonable doubt that this man is involved in the killing of these four people.
Tr. at 1169. Finally, we have the following instruction to the jury regarding the presumption of innocence:
The defendant is presumed innocent of the crime charged, and the presumption continues unless, after consideration of all of the evidence, you are convinced of his guilt beyond a reasonable doubt. The State has the burden of presenting the evidence that establishes guilt beyond a reasonable doubt. The defendant must be found not guilty unless the State produces evidence which convinces you beyond a reasonable doubt of each element of the crime.
Jury Instruction 1, ROA Vol. V at 711.
Even with these clarifications, the prosecutor's statements regarding presumption of innocence test the bounds of permissibility. This case is unlike Patton, where the prosecutor made abundantly clear the State of Oklahoma bore the burden of proof beyond a reasonable doubt. The statements here are closer to the facts of Mahorney, where we considered whether the presence of a jury instruction on the presumption of innocence mitigated the prejudice of improper prosecutorial comments. There, we determined that prejudice persisted despite the instruction because “the trial court's overall charge on the presumption of innocence and burden of proof was not sufficiently specific to preserve that presumption in light of the prosecutor's specific statement that it had been extinguished from the case.” Mahorney, 917 F.2d at 473-74.
We need not reach the same conclusion in this context, however. Even if there were a due process violation, as with any constitutional error, we must still review for harmlessness. See Pickens, 206 F.3d at 998. The OCCA considered the circumstances at trial and determined that any error was harmless beyond a reasonable doubt due to the “overwhelming uncontradicted evidence of guilt [.]” Hamilton, 937 P.2d at 1010. We agree. On this record, the evidence against Hamilton is substantial. A number of eyewitnesses placed Hamilton in the getaway car. A co-conspirator identified Hamilton as the shooter. The car and murder weapon were recovered next to Hamilton's apartment. Accordingly, we cannot conclude the OCCA misapplied federal law in determining that the error was harmless beyond a reasonable doubt. See Spears v. Mullin, 343 F.3d 1215, 1232-33 n. 14 (10th Cir.2003) (In a federal habeas proceeding where a state court applied the harmless-beyond-a-reasonable-doubt standard set forth in Chapman, 386 U.S. at 24, 87 S.Ct. 824, “we must decide whether the state court's finding of harmless error was contrary to or an unreasonable application of Chapman ”).
In sum, Hamilton is not entitled to habeas relief based on statements made during the prosecutor's closing argument.
B. Life Without Parole
[10] [11] Under Oklahoma law, a prisoner sentenced to life without parole is not entitled to be released from prison. Hamilton argues the state trial court violated his right to due process at sentencing by denying his requests (1) to allow witness testimony, and (2) to submit an instruction explaining to the jury that he would not be parole-eligible. The OCCA rejected the claim on direct appeal. Interpreting the Supreme Court's holding in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), which requires juries to be informed about the option of life without parole, the OCCA concluded that defendants have no constitutional right to witness testimony or a jury instruction containing such information. See Hamilton v. State, 937 P.2d at 1011-12 (citing Trice v. State, 912 P.2d 349, 352 (Okla.Crim.App.1996)). Hamilton claims the OCCA's conclusion is contrary to or represents an unreasonable application of Simmons and more recent Supreme Court cases explaining its holding.FN1 We disagree.
FN1. At oral argument, Hamilton's counsel stated that the excluded evidence also violated his right to present mitigating circumstances under the Supreme Court's holding allowing such evidence. See Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1, (1986). This claim fails for the same reasons as Hamilton's life without parol argument.
The Supreme Court in Simmons addressed whether due process required a state trial court “to instruct the jury in the penalty phase of a capital trial that under state law the defendant was ineligible for parole.” Simmons, 512 U.S. at 156, 114 S.Ct. 2187 (plurality opinion). The Court concluded that due process required such an instruction, but only under narrow circumstances: “[w]here the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury-by either argument or instruction-that he is parole ineligible.” Id. at 178, 114 S.Ct. 2187 (O'Connor, J., concurring in the judgment). The Supreme Court has reinforced this holding in subsequent cases. See Shafer v. South Carolina, 532 U.S. 36, 51, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001) (holding that whenever future dangerousness is at issue in a capital sentencing proceeding, due process requires the jury be informed a life sentence carries no possibility of parole); Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002) (where the state places a defendant's future dangerousness at issue in seeking the death penalty, the jury must be properly instructed as to the possibility of life without parole).
We have already examined Oklahoma's capital sentencing scheme in the wake of Simmons and subsequent Supreme Court authority. In Mayes v. Gibson, 210 F.3d 1284 (10th Cir.2000), we held that Oklahoma's three-option sentencing scheme-(1) death, (2) life imprisonment without the possibility of parole, or (3) life imprisonment-are consistent with the Supreme Court's rulings since the options do not create a “false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration.” Id. at 1294. It is enough that the jury is provided the three choices. Providing further explanation, in Mollett v. Mullin, 348 F.3d 902, 909-10 (10th Cir.2003), we held that due process concerns arise under Simmons only when four factors are met: “(1) the prosecution seeks the death penalty; (2) the prosecution places the defendant's future dangerousness at issue; (3) the jury asks for clarification of the meaning of ‘life imprisonment,’ or a synonymous statutory term; and (4) the judge's response threatens to cause a jury's misunderstanding so the jury will perceive a false choice of incarceration when future dangerousness is at issue.” Mollett, 348 F.3d at 914 (internal citations and quotations omitted).
Recognizing he can meet only the first two of these factors, Hamilton acknowledges his claim does not satisfy Mollett. Instead, he asserts our cases misconstrue the Supreme Court's holding in Kelly v. South Carolina, supra, and should be revisited. In Kelly (construing South Carolina law), the Supreme Court reversed a death sentence where the trial court did not adequately explain parole eligibility when the prosecutor raised the defendant's future dangerousness. We disagree with Hamilton's argument for two reasons. First, the Mollett court in fact examined Oklahoma's three-option sentencing scheme in light of Kelly and found it inapplicable. Mollett, 348 F.3d at 912 n. 3, 914-15, 917, 921 n. 6. Importantly, unlike in Kelly, Oklahoma's jury instructions provide a “without parole” option for the jury's consideration. Second, Hamilton points to nothing in the record on appeal that would suggest jury confusion. Without some reason to believe the jury actually was misled, Hamilton suggests a nearly per se presumption of confusion. Our prior cases foreclose that result.
Two final considerations influence our conclusion. First, our review of the record shows that Hamilton's counsel never sought to argue the implications of the life without parole option during closing argument. The court's earlier preclusion of witness testimony did not necessarily preclude comment at the argument stage. Additionally, the record discloses that Hamilton's counsel made a variation of this argument by stating, “Cory Hamilton is going to die in the penitentiary.” This could only suggest to the jury that the life without parole option would keep him in prison until death.
In the end, Hamilton's argument is, at best, a matter for our en banc review or certiorari review by the Supreme Court. Under existing precedent, capital defendants must show that the jury asked for clarification of the meaning of life imprisonment or the judge's instructions created the possibility of jury misunderstanding. Since Hamilton cannot establish either element, the OCCA's decision does not unreasonably apply Supreme Court law. He is therefore not entitled to habeas relief on this issue.
C. Victim Impact Evidence
[12] Hamilton next argues that the failure of the trial court to instruct the jury on how to use victim impact evidence during its sentencing deliberations violated due process. At trial, Hamilton did not request such an instruction. Nor did he object to the trial court's failure to give such an instruction. On direct appeal to the OCCA, Hamilton argued the absence of the jury instruction constituted structural error-an error so fundamental to the trial process that a retrial is required. See Hamilton v. State, 937 P.2d at 1011. Rejecting the structural error argument, but agreeing that the instruction was nonetheless “trial error,” the OCCA concluded “the fact that the jury found four aggravating circumstances is sufficient to find the error harmless beyond a reasonable doubt.” Id.
Abandoning the structural error argument on appeal, Hamilton argues that the OCCA's harmless error determination was unreasonable as a matter of federal law. He claims the absence of an instruction allowed the jury to rely on the victim impact evidence to bolster its findings of four aggravating circumstances. In support of this argument, Hamilton points to the fact the OCCA in a subsequent case established that jury instructions are necessary to clarify the difference between victim impact evidence and evidence of aggravating circumstances. See Cargle v. State, 909 P.2d 806, 828-29 (Okla.Crim.App.1995). Under the new requirement, jurors must consider
victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstance has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating circumstance(s) found outweigh the finding of one or more mitigating circumstances.
Id. at 829.
In sum, Hamilton argues the victim impact evidence improperly prejudiced the jury's weighing of the evidence as to each of the four aggravating circumstances. Since the OCCA rejected Hamilton's arguments on the merits, our review is directed to whether its decision was inconsistent with federal law. At the federal district court level, Hamilton argued that the inflammatory nature of the victim impact testimony violated his due process rights under Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The district court found (1) the claim was procedurally barred, and (2) Hamilton had not asserted sufficient grounds to excuse that bar. On appeal, Hamilton does not challenge the district court's determinations concerning the applicability of the procedural bar. Instead he simply reasserts the claim that the substance of the evidence violated the Constitution. To the extent Hamilton seeks to have us review the constitutionality of the substance of the admitted evidence, we are precluded from doing so. See Turrentine v. Mullin, 390 F.3d 1181, 1206 (10th Cir.2004) (“Generally, where a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can show either cause for the default and actual prejudice, or, alternatively, that failure to consider the claims will result in a fundamental miscarriage of justice.” (internal quotations and citation omitted)). We will, however, look to the substance of the evidence to the extent it is necessary to assess the OCCA's harmless error analysis.
The Supreme Court has made clear that “[a] State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). In the majority of cases, such evidence “serves entirely legitimate purposes.” Id. at 825, 111 S.Ct. 2597. But in some cases, victim impact evidence could be “so unduly prejudicial that it renders the trial fundamentally unfair” in violation of the due process clause of the Fourteenth Amendment. Id. Hamilton argues the victim impact evidence presented exceeded the bounds permitted by the Supreme Court.FN3
FN3. For instance, one relative of a victim testified “God only knows the fear and sheer terror and pain and the intense agony those last few moments of his life brought him. How ··· cold he must have been in that freezer.” Tr. at 1243. Another testified “There is no greater crime than murder. It violates very human right.” Tr. at 1244. A third described one of the killings as “senseless” and stated one of the victim's “was shot in the head like an animal and killed in cold blood without mercy.” Tr. at 1247.
The OCCA concluded that no jury instruction was required. Hamilton did not ask for one; the jury moreover received detailed instructions as to how to consider the aggravating factors in their deliberations. The court then concluded “[i]n this case, the fact that the jury found four aggravating circumstances is sufficient to find the error harmless beyond a reasonable doubt.” Hamilton v. State, 937 P.2d at 1011.
We agree with the district court that even if we accept Hamilton's contention that the jury inappropriately considered the victim testimony in the context of finding aggravating circumstances, any error was harmless. At worst, the evidence characterized the crime in a way that could have influenced a finding only as to two of the four aggravating factors:
(1) the murders were especially heinous, or
(2) Hamilton could constitute a continuing threat to society.
The evidence could not have influenced a finding as to the other two aggravators:
(3) Hamilton knowingly created a great risk of death to more than one person, and
(4) that he committed the murders for the purpose of avoiding or preventing a lawful arrest or prosecution.
We therefore cannot conclude the OCCA unreasonably applied federal law. The absence of a victim impact jury instruction, even if constitutionally necessary, was harmless.
D. Aggravating Circumstances
[13] Hamilton's last challenge to the penalty phase of his trial contests the sufficiency of the evidence presented at trial in support of one of the four aggravating circumstances found by the jury. Under Oklahoma law, a jury is entitled to consider the “especially heinous, atrocious or cruel” circumstances of the crime. Okla. Stat. tit. 21 § 701.12.4. Hamilton asserts the prosecution failed to present sufficient evidence of conscious physical suffering by the victims or “extreme mental cruelty” as required by the aggravator. At trial, the jury found the aggravator with respect to all four victims.
[14] [15] When reviewing the sufficiency of the evidence on a habeas corpus petition, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)(emphasis in original). This standard reflects the “longstanding principle that it is the jury's province to weigh the evidence and to draw reasonable inferences from testimony presented at trial.” Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir.2004). Our review under this standard 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.’ ” Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir.1996) (quoting Wright v. West, 505 U.S. 277, 296-97, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992)).
The OCCA rejected Hamilton's sufficiency challenge on the merits, and we look to AEDPA for the appropriate degree of deference to the state court decision. We have not yet settled whether a challenge to the sufficiency of the evidence on a habeas petition is a question of fact or a question of law, and therefore whether 28 U.S.C. § 2254(d)(1) or § 2254(d)(2) should apply. See Turrentine, 390 F.3d at 1197; Moore v. Gibson, 195 F.3d 1152, 1176-77 (10th Cir.1999); Torres v. Mullin, 317 F.3d 1145, 1151 (10th Cir.2003). Section 2254(d)(1) governs questions of law and requires us to determine whether the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal Law.” Section 2254(d)(2), in contrast, applies to questions of fact and asks whether the state court decision was “based on an unreasonable determination of the facts in light of the evidence presented.” Despite the lack of clarity in this area, “we need not decide [the] question here because [the defendant] is not entitled to habeas relief under either standard.” Dockins v. Hines, 374 F.3d 935, 939 (10th Cir.2004).
[16] When applying the Supreme Court's sufficiency standard in Jackson, we look to Oklahoma substantive law to determine the elements of the “heinous, atrocious, or cruel” aggravator. See, e.g., Turrentine, 390 F.3d at 1197. Under Oklahoma law the aggravator “requires proof that the death was preceded by torture or serious physical abuse.” Id. The OCCA has determined that the “torture” element of this aggravating factor “may take any of several forms,” including “the infliction of either great physical anguish or extreme mental cruelty.” Berget v. State, 824 P.2d 364, 373 (Okla.Crim.App.1991). The OCCA has also concluded there are no “specific, uniform criteria, applicable to all murder cases, which would make the application of the ‘heinous, atrocious or cruel’ aggravator a mechanical procedure.” Robinson v. State, 900 P.2d 389, 401 (Okla.Crim.App.1995). “Rather, the examination of the facts of each and every case is necessary in determining whether the aggravator was proved.” Id. As we noted in Turrentine, “[t]his rule necessarily makes the determination a case by case inquiry.” Turrentine, 390 F.3d at 1197-98 (citations omitted).
In its review of this case, the OCCA addressed whether the evidence supported the death penalty and explained that “the murder was especially heinous, atrocious or cruel, in that the employees were forced to kneel in the back room uncertain of their fate, while each but the first listened to his co-workers being killed.” Hamilton, 937 P.2d at 1014. Accordingly, “[t]he evidence substantially supports the finding of the four aggravators.” Id. The court also noted “that [Hamilton] knew some of the workers and the location. He did not use any cover-up; he intended to kill.” Id. Our independent review of the record supports the OCCA's conclusion that Hamilton inflicted extreme cruelty on his victims before he killed them.
[17] [18] The prosecution in this case did not attempt to argue, through medical testimony or otherwise, that the victims in this case were subjected to serious physical abuse. With this limitation, we examine the evidence solely for evidence of mental torture. We have previously stated that the evidence must support anguish that goes beyond “that which necessarily accompanies the underlying killing.” Jones v. Gibson, 206 F.3d 946, 953 (10th Cir.2000). To that end, “[e]vidence that the victim was conscious and aware of the attack supports a finding of torture.” Id. (citing Le v. State, 947 P.2d 535, 550 (Okla.Crim.App.1997); Hooks v. Ward, 184 F.3d 1206, 1240 (10th Cir.1999); Neill v. State, 896 P.2d 537, 556 (Okla.Crim.App.1994). While Oklahoma law regarding the element of torture is rather unclear regarding required time frame,FN4 Oklahoma courts do require that “[a]nalysis must focus on the acts of the defendant toward the victim and the level of tension created.” Cheney v. State, 909 P.2d 74, 80 (Okla.Crim.App.1995). The OCCA has also held that “conscious[ness] ··· is the critical inquiry in determining whether a murder was especially heinous, atrocious or cruel.” Spears v. State, 900 P.2d 431, 443 (Okla.Crim.App.1995). See also Jones v. Gibson, 206 F.3d at 953 (10th Cir.2000).
FN4. See Jones v. Gibson, 206 F.3d 946, 953 (10th Cir.2000) (comparing Turrentine v. State, 965 P.2d 955, 976 (Okla.Crim.App.1998) (“[t]he length of time which the victim suffers mental anguish is irrelevant”), with Washington v. State, 989 P.2d 960, 975 (Okla.Crim.App.1999) (“[t]he mental torture element is confined to cases in which the victim is terrorized for a significant period of time before death”). Ultimately this apparent discord is irrelevant, as the OCCA itself has interpreted Oklahoma law to determine the application of the aggravator was appropriate in this case.
The OCCA has also recognized that the presence of fellow victims in a multiple homicide, with each of the victims realizing they might be the next to die, satisfied the heinousness requirement. In Neill v. State, 896 P.2d 537, 556 (Okla.Crim.App.1994), for example, the defendant took three women to the back of a bank and stabbed each to death. The OCCA found sufficient evidence for the aggravator in part due to physical suffering, but also because at least two of the three victims witnessed the brutal attacks on their co-workers before the killer turned to them. A fourth victim was placed in the same room after the murders, before he was shot in the head. In finding that the conduct constituted mental torture, the OCCA concluded, “[m]ental anguish includes the victim's uncertainty as to his ultimate fate.” Id. at 556. That same uncertainty is fully met here. Finally, we are instructed by our decision in McCracken v. Gibson, 268 F.3d 970, 982 (10th Cir.2001). In that decision, we upheld a finding of aggravation where the third and fourth victims of a quadruple homicide heard two other victims shot first and likely feared they would be next.
Hamilton counters this authority with the OCCA holding in Davis v. State, 888 P.2d 1018 (Okla.Crim.App.1995). In Davis, the court determined the evidence insufficient where two victims died of gunshot wounds but the “evidence could not predict either victim's time of death or the order in which wounds were inflicted.” Id. at 1021. Along these lines, in Crawford v. State, 840 P.2d 627, 640-41 (Okla.Crim.App.1992), the OCCA found insufficient evidence to support the aggravator based on physical abuse where there was no indication whether blunt force injuries or strangulation occurred first, no evidence as to the level of suffering, and no evidence whether the victim was alive when put into a car trunk. The OCCA concluded “[a] record so bereft of evidence leads only to speculation and not to the rational drawing of reasonable inferences.” Id. at 641. The murders here require none of the attenuated guesswork necessary in Davis and Crawford. Although it is true the record does not disclose how much time passed between the death of each victim, or how long each victim was subject to mental torture, what we do know amply supports the aggravator. For example, all were in the back cooler for at least ten minutes on their knees at gunpoint. At least two of the victims knew Hamilton's identity and were therefore aware that his failure to wear a disguise suggested his intention to kill. Such a natural suspicion would have been confirmed after Hamilton murdered the first victim. And three witnessed the execution-style death of at least one other victim. Under this aggravator, it is not required that every victim know his fate to a certainty. In fact, uncertainty is often an aspect of cruelty inflicted upon victims. See Neill, 896 P.2d at 556. It is enough that the evidence of mental cruelty disclose that each victim likely experienced mental anguish at the hands of the defendant.
On this record, the jury's finding of the “heinous, atrocious or cruel” aggravator in this case was reasonable. The OCCA's decision, therefore, was neither contrary to nor an unreasonable application of federal law; nor was it based on an unreasonable determination of the facts in light of the evidence presented. Habeas relief on this ground is accordingly denied.
E. Cumulative Error
[19] [20] Hamilton's final argument is that the cumulative effect of trial errors in this case justifies habeas relief. The OCCA rejected this claim because it found any errors to be harmless. See Hamilton, 937 P.2d at 1013 (“in as much as we found all other errors to be harmless beyond a reasonable doubt, we find no cumulative error requiring reversal”). The district court agreed, finding that since it rejected each of Hamilton's claims, there were no errors to aggregate.
[21] Contrary to the OCCA's analysis, however, our cases explain that “[c]umulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir.2003). The OCCA therefore erred by failing to engage in cumulative error analysis. The very point of such a review, is to examine all the actual errors which are individually harmless to determine if together they render the defendant's trial unfair. See Cargle v. Mullin, 317 F.3d 1196, 1207 (10th Cir.2003) (explaining that “to deny cumulative-error consideration of claims unless they have first satisfied their individual substantive standards for actionable prejudice would render the cumulative error inquiry meaningless, since it would be predicated only upon individual error already requiring reversal”) (internal quotations and citations omitted).
Because the OCCA did not consider in the aggregate the prejudicial effect of the individual errors, we review Hamilton's cumulative error claim de novo. See Malicoat v. Mullin, 426 F.3d 1241, 1263 (10th Cir.2005) (“the OCCA's opinion does not clearly indicate that it considered, in the aggregate, the prejudicial effect of the individual errors[;][a]ccordingly ··· we afford [the defendant] the benefit of the doubt and review his cumulative error claim de novo”). We thus consider whether the two possible errors we identified in the trial-(1) whether the “cloak of innocence” statements (a first stage error), and (2) the lack of instructions on victim impact evidence (a second stage error)-together rendered the trial unfair. In assessing cumulative error, only first stage errors are relevant to the conviction, but all errors are relevant to the ultimate sentence. Darks v. Mullin, 327 F.3d 1001, 1018 (10th Cir.2003).
Even under the de novo standard, we conclude Hamilton has failed to demonstrate the cumulative effect of the individual errors deprived him of a fair trial. In light of the overwhelming evidence against him, we see nothing to suggest the prosecutor's remarks influenced the jury's finding of guilt. The lawyer's rhetorical flourish at closing pales in comparison to the physical and testimonial evidence of guilt introduced at trial. Likewise, the omission of a victim impact instruction in the context of the instructions as a whole also could only have minimally affected the jury's consideration of the aggravated nature of the quadruple homicide. Moreover, the victim impact evidence bore on only two of the four aggravating circumstances found by the jury, any one of which was sufficient to support the death penalty. Even together, the weight of these alleged errors did not rob Hamilton of a fair trial.
We thus conclude Hamilton has failed to establish that individual harmless errors should collectively justify habeas relief.
IV. Conclusion
Accordingly, for the reasons set forth above, we AFFIRM the district court's decision denying Mr. Hamilton's 28 U.S.C. § 2254 petition for a writ of habeas corpus.
(1) prosecutor did not violate petitioner's right to remain silent;
(2) any error in prosecutor's “cloak of innocence” statements made during closing argument were harmless beyond reasonable doubt;
(3) petitioner had not been denied due process in penalty phase by refusal of trial court to allow witness testimony, and its refusal to submit jury instruction, to effect that petitioner would not have been parole-eligible; and
(4) absence of victim impact jury instruction in penalty phase, even if necessary under due process clause in context of finding aggravating circumstances, was harmless;
(5) jury's finding of “heinous, atrocious or cruel” aggravator in penalty phase of capital case was reasonable;
(6) petitioner had not been deprived of fundamentally fair trial by cumulative effect of two possible errors.
Affirmed.
This death penalty appeal arises out of the 1992 killings of four employees of Lee's Famous Recipe Chicken Restaurant in Tulsa, Oklahoma. In the course of a robbery in which Corey Hamilton participated, the employees were placed in a food locker and forced to kneel at gunpoint. Hamilton shot each in the head. A jury convicted Hamilton of four counts of first-degree murder and one count of robbery with a firearm.