Executed April 30, 2014 07:06 p.m. CDT by Lethal Injection in Oklahoma
20th murderer executed in U.S. in 2014
1379th murderer executed in U.S. since 1976
3rd murderer executed in Oklahoma in 2014
110th murderer executed in Oklahoma since 1976
(Race/Sex/Age at Murder-Execution) |
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Clayton Derrell Lockett B / M / 23 - 38 |
Stephanie Michelle Neiman W / F / 19 |
Clayton Lockett instructed Mathis to dig a grave and said :"Someone has got to go.” Neiman was taken to the hole dug by Mathis. When she refused to promise that she would not go to the police, Clayton Lockett shot her. The gun jammed, but he fixed it, returned and shot her again. While Mathis buried Neiman, Bornt and Hair were warned that if they told anyone they would be killed too. They then drove both pickups and dropped off Bornt, his son and Hair at Bornt's house and they left in Bornt's pickup. The following day, Bornt and Hair told the Perry police what had happened. Neiman's pickup and her body were recovered and all three men were subsequently arrested. Clayton Lockett ultimately confessed to police.
Citations:
Lockett v. State, 53 P.3d 418 (Okla. Crim. App. 2002). (Direct Appeal)
Lockett v. Trammel, 711 F.3d 1218 (10th Cir. Okla. 2013). (Habeas)
Final/Special Meal:
Lockett rejected his last meal after being told he could not have a particular kind of steak.
Final Words:
None.
Internet Sources:
Oklahoma Department of Corrections
CLAYTON D LOCKETTCRF# County Offense Conviction Term Term Code Start End
92-188 KAY Unauthorized Use Of Motor Vehicle N 05/14/1992 5Y 0M 0D Incarceration 11/19/1992 09/10/1996
92-188 KAY Unauthorized Use Of Motor Vehicle N 05/14/1992 5Y 0M 0D Incarceration 11/19/1992 09/10/1996
92-188 KAY Unauthorized Use Of Motor Vehicle N 05/14/1992 5Y 0M 0D Incarceration 11/19/1992 09/10/1996
92-188 KAY Unauthorized Use Of A Vehicle 05/14/1992 3Y 0M 0D Probation 05/14/1992 05/13/1995
92-287 KAY Burglary In The Second Degree 09/02/1992 0 Y Incarceration 09/08/1992 09/07/1992
92-287 KAY Burglary In The Second Degree 09/02/1992 7Y 0M 0D Incarceration 11/19/1992 12/20/1997
92-287 KAY Knowingly Concealing Stolen Property N 09/02/1992 5Y 0M 0D Incarceration 11/19/1992 09/10/1996
92-315 KAY Intimidation Of State Witness N 11/19/1992 5Y 0M 0D Incarceration 11/19/1992 09/10/1996
92-315 KAY Intimidation Of State Witness N 11/19/1992 5Y 0M 0D Incarceration 11/19/1992 09/10/1996
96-234 GRAD Conspiracy To Commit A Felony 08/19/1996 4Y 0M 0D Incarceration 09/11/1996 01/04/1999
96-234 GRAD Conspiracy To Commit A Felony 08/19/1996 6Y 0M 0D Probation 08/19/1996 08/18/2006
96-234 GRAD Conspiracy To Commit A Felony 08/19/1996 2.16 Y SUSPENDED 09/11/1996 11/09/1998
99-53A NOBL Conspiracy Afc4f 10/05/2000 45Y Incarceration
99-53A NOBL Forcible Oral Sodomy Afc4f 10/05/2000 150Y Incarceration
99-53A NOBL Forcible Oral Sodomy Afc4f 10/05/2000 150Y Incarceration
99-53A NOBL Forcible Oral Sodomy Afc4f 10/05/2000 300Y Incarceration
99-53A NOBL Robbery By Force And Fear Afc4f 10/05/2000 85Y Incarceration
99-53A NOBL Robbery With A Firearm Afc4f 10/05/2000 85Y Incarceration
99-53A NOBL Assault With A Dangerous Weapon Afc4f 10/05/2000 75Y Incarceration
99-53A NOBL Assault With A Dangerous Weapon Afc4f 10/05/2000 60Y Incarceration
99-53A NOBL Assault And Battery Afc4f 10/05/2000 90D Incarceration
99-53A NOBL Rape, First Degree Afc4f 10/05/2000 250Y Incarceration
99-53A NOBL Rape, First Degree Afc4f 10/05/2000 200Y Incarceration
99-53A NOBL Rape, Firist Degree Afc4f 10/05/2000 250Y Incarceration
99-53A NOBL Rape, First Degree Afc4f 10/05/2000 175Y Incarceration
99-53A NOBL Murder First Degree Afc4f 10/05/2000 DEATH Death 10/09/2000
99-53A NOBL Kidnapping Afc4f 10/05/2000 100Y Incarceration
99-53A NOBL Kidnapping Afc4f 10/05/2000 100Y Incarceration
99-53A NOBL Kidnapping Afc4f 10/05/2000 100Y Incarceration
99-53A NOBL Kidnapping Afc4f 10/05/2000 100Y Incarceration
99-53A NOBL First Degree Burglary Afc4f 10/05/2000 60Y Incarceration
Death Penalty Information
The current death penalty law was enacted in 1977 by the Oklahoma Legislature. The method to carry out the execution is by lethal injection. The original death penalty law in Oklahoma called for executions to be carried out by electrocution. In 1972 the U.S. Supreme Court ruled unconstitutional the death penalty as it was then administered.
Oklahoma has executed a total of 190 men and 3 women between 1915 and 2014 at the Oklahoma State Penitentiary. Eighty-two were executed by electrocution, one by hanging (a federal prisoner) and 110 by lethal injection. The last execution by electrocution took place in 1966. The first execution by lethal injection in Oklahoma occurred on September 10, 1990, when Charles Troy Coleman, convicted in 1979 of Murder 1st Degree in Muskogee County was executed.
Method of Execution: Lethal Injection
Drugs used: Midazolam - causes unconsciousness; Vecuronium Bromide - stops respiration: Potassium Chloride - stops heart. Two intravenous lines are inserted, one in each arm. The drugs are injected by hand held syringes simultaneously into the two intravenous lines. The sequence is in the order that the drugs are listed above. Three executioners are utilized, with each one injecting one of the drugs.
Brief in Opposition to Clemency Petition of Clayton Lockett (33 pages)
“In reality I am probably the most dangerous type of criminal . . . ‘cause I’m an assassin - point blank!”
AG's Statement on Execution Review
Wednesday, April 30, 2014
“It is important to review the events surrounding the execution of Clayton Lockett to ascertain what transpired and to ensure the death penalty is administered correctly. It’s equally important that any such review be conducted with a commitment to objectivity. Transparency and impartiality in the fact-finding surrounding this execution will give Oklahomans confidence and lend credibility to the state’s most solemn of duties: carrying out the sentence of death.
As the state’s chief legal officer, and to ensure the fair administration of justice, I am taking the following actions: • Assigning investigators from the Attorney General’s Office to work with DPS Commissioner Michael Thompson as he gathers information on the execution of Lockett; • Designating a special advisor(s) to assess the results of the review of Lockett’s execution, and Department of Corrections’ procedures, and then to recommend, if necessary, any changes surrounding such issues; • Instructing my staff to work with lawmakers on any relevant legislative proposals emanating from the review; • Ensuring victims’ concerns in the process are addressed.
Integrity and fairness are core values of Oklahomans, and my office is committed to upholding those values as we conduct this review.” – Attorney General Scott Pruitt
"Oklahoma prison report says collapsed vein botched execution," by Heide Brandes. (May 1, 2014 5:56pm)
OKLAHOMA CITY (Reuters) - The botched Oklahoma execution of Clayton Lockett was largely due to a collapsed vein during the lethal injection, and the needle was inserted in the groin area instead of the arm after prison officials used a stun gun to restrain him, a prisons report said on Thursday. Department of Corrections Director Robert Patton said in the report the state's execution protocols needed to be revised and called for an indefinite stay of executions until the new procedures are in place and staff trained.
Ahead of the Tuesday execution, Lockett, a convicted murderer, had refused to be restrained, the report said, and after being given a warning "an electronic shock device was administered," causing an injury to his arm. The state has come under a barrage of criticism for the botched execution that many saw as a violation of constitutional protections against cruel and unusual punishment. The White House said the process fell short of humane standards.
Lockett, 38, died of an apparent heart attack minutes after the lethal injection protocol failed. He was convicted of shooting 19-year-old Stephanie Nieman in 1999 and then helping to bury her alive in a shallow grave, where she died.
Witnesses to the execution said Lockett clenched his jaw and fists a few minutes after the drugs were injected and appeared to be in pain. Prison officials covered the windows to the death chamber soon after as it became apparent there was trouble. The doctor overseeing the execution reported that Lockett's vein had collapsed during the injection and the drugs had either absorbed into the tissue, or leaked out or both, Patton said.
Patton asked if enough drugs had been administered to cause death, and the doctor answered "no." Patton then asked if another vein was available and if enough drugs remained to finish the execution. The doctor responded "no" to both questions. Once the problem became apparent, Patton halted the execution. Lockett died 43 minutes after the execution started, and an autopsy was under way. "I intend to explore best practices from other states and ensure the Oklahoma protocol adopts proven standards," Patton said in his report.
Patton said in the report that medical officials examined Lockett's arms, legs, feet and neck for veins, but no viable entry point was located. After that, a lethal injection insertion point was used in Lockett's groin area. "As the Oklahoma Department of Corrections dribbles out piecemeal information about Clayton Lockett's botched execution, they have revealed that Mr. Lockett was killed using an invasive and painful method - an IV line in his groin," said Madeline Cohen, a lawyer who fought to halt the execution of another Oklahoma death row inmate.
That inmate, convicted murderer and rapist Charles Warner, had also been also scheduled for execution on Tuesday night, but was granted a 14-day stay after the botched execution of Lockett. The executions of Lockett and Warner, convicted in separate crimes, had been put on hold for several weeks because of a legal fight over the state's new lethal injection cocktail, with lawyers arguing Oklahoma was withholding crucial information about the drugs to be used.
Attorneys for death row inmates have argued that the drugs used in Oklahoma and other states could cause an unnecessarily painful death, in violation of the U.S. Constitution. (Writing by Jon Herskovitz; Editing by Cynthia Johnston and Mohammad Zargham)
"Obama to have attorney general look into botched Oklahoma execution," by Bill Trott. (May 2, 2014 5:26pm EDT)
WASHINGTON (Reuters) - President Barack Obama on Friday said the botched execution of a murderer in Oklahoma raises questions about the death penalty in the United States and he will ask the U.S. attorney general to look into the situation. "What happened in Oklahoma is deeply troubling," he said.
The condemned man, Clayton Lockett, 38, who was convicted of murder, rape, kidnapping and robbery in a 1999 crime spree, died of an apparent heart attack minutes after the lethal injection protocol failed. A prison report said the problem was largely due to a collapsed vein during the injection of the lethal drugs and that the needle was inserted in Lockett's groin instead of his arm. Oklahoma's director of corrections called for a revision of the state's execution methods and a suspension of executions until new procedures are in place.
Obama cited uneven application of the death penalty in the United States, including racial bias and cases in which murder convictions were later overturned, as grounds for further study of the issue. "And this situation in Oklahoma just highlights some of the significant problems," he said at a news conference. "I'll be discussing with (Attorney General) Eric Holder and others to get me an analysis of what steps have been taken - not just in this particular instance but more broadly - in this area," he said. "I think we do have to, as a society, ask ourselves some difficult and profound questions around these issues."
Oklahoma has sent Lockett's body to the Dallas County Medical Examiner's office for a complete post mortem examination, officials in the state said. It was also testing a batch of drugs that was to be used in a second execution planned to come just after Lockett was put to death on Tuesday. The second inmate, convicted rapist and murderer Charles Warner, was granted a temporary stay due to problems with Lockett's execution. (Writing by Bill Trott; Additional reporting by Heide Brandes in Oklahoma City; Editing by Tom Brown)
Oklahoma Coalition to Abolish Death Penalty
"Eyewitness account: A minute-by-minute look at what happened during Clayton Lockett’s execution," by Ziva Branstetter. (Thursday, May 1, 2014 12:00 am)
Tulsa World Enterprise Editor Ziva Branstetter was one of 12 media witnesses to attend a botched execution Tuesday at the Oklahoma State Penitentiary. Here is her account of what happened Tuesday in McAlester:
5:30 p.m. Reporters are taken in two white vans to the prison’s death row, called the H unit, to attend the execution. Media witnesses can take nothing with them into death row, not even a watch, and are issued a spiral notebook and pen after being searched by correctional officers. We are taken to the death row law library where we wait with two prison officials to be taken to the execution viewing chamber.
5:40 p.m. Inmates can be heard banging loudly on cell doors throughout death row, which prison officials explain is a sign of respect for the inmate to be executed. Not all inmates receive such a sendoff; it just depends on whether other inmates liked the condemned inmate.
5:50 p.m. We are taken from the law library down a long sterile hall, around a corner and into the viewing chamber. Media witnesses file into the back row of two rows of metal folding chairs. Before the execution starts, witnesses for the crime victim, Stephanie Neiman, file into a separate viewing room for victims’ relatives so they can watch the process through one-way glass. Two attorneys for inmate Clayton Lockett, his only witnesses, sit in front of us. Department of Public Safety Commissioner Michael Thompson, Department of Corrections Director Robert Patton and several other state officials also file in, sitting in the front row.
6:23 p.m. The beige blinds covering four windows into the execution chamber are raised and the execution is set to begin – 23 minutes past its scheduled time. This execution has taken longer to start than the three others I have covered and other media witnesses remark on the slow start as well. Oklahoma State Penitentiary Warden Anita Trammell asks Lockett, covered up to his shoulders by a white sheet, whether he has any last words. “No,” is all he says. This isn’t especially surprising. Earlier, Lockett rejected his last meal after being told he couldn’t have a particular kind of steak. “Let the execution begin,” Trammell says. Inside the room are four other people, including a physician and a uniformed correctional officer.
6:28 p.m. Fifty milligrams of midazolam have been injected into each of Lockett’s arms to start the process, an attempt to sedate him before the second and third drugs are administered to stop the breathing and the heart. Lockett has spent the past several minutes blinking and occasionally pursing his lips.
6:29 p.m. Lockett’s eyes are closed and his mouth is open slightly.
6:31 p.m. The doctor checks Lockett’s pupils and places his hand on the inmate’s chest, shaking him slightly. “Mr. Lockett is not unconscious,” Trammell states.
6:33 p.m. The doctor checks Lockett a second time after a full minute without movement. “Mr. Lockett is unconscious,” Trammell states. It seems like it took longer than expected for this to occur. In past executions I have attended, there has been no notice that the inmate was unconscious, just a pronouncement of death after about eight minutes without much reaction from the inmate.
6:36 p.m. Lockett kicks his right leg and his head rolls to the side. He mumbles something we can’t understand.
6:37 p.m. The inmate’s body starts writhing and bucking and it looks like he’s trying to get up. Both arms are strapped down and several straps secure his body to the gurney. He utters another unintelligible statement. Defense Attorney Dean Sanderford is quietly crying in the observation area.
6:38 p.m. Lockett is grimacing, grunting and lifting his head and shoulders entirely up from the gurney. He begins rolling his head from side to side. He again mumbles something we can’t understand, except for the word “man.” He lifts his head and shoulders off the gurney several times, as if he’s trying to sit up. He appears to be in pain.
6:39 p.m. The physician walks around to Lockett’s right arm, lifts up the sheet and says something to Trammell. “We’re going to lower the blinds temporarily,” she says. The blinds are lowered and we can’t see what is happening. Reporters exchange shocked glances. Nothing like this has happened at an execution any of us has witnessed since 1990, when the state resumed executions using lethal injection.
6:40 p.m. A black landline phone rings in the viewing chamber and Patton leaves to take the call, stretching the phone cord out into the hall and closing the door behind him. Though the clock on the wall in the execution chamber is no longer visible, it seems like several minutes pass before Thompson is summoned out to the hallway.
Approximately 6:50 p.m. Patton comes back to the viewing room and says the execution has been “stopped. We’ve had a vein failure in which the chemicals did not make it into the offender. … Under my authority, we are issuing a stay for the second execution.” The announcement is stunning and leaves us wondering what has happened to Lockett. Patton leaves for about 10 more minutes and reporters at the end of our row begin interviewing Sanderford and defense attorney David Autry, both clearly upset by the turn of events. “They will save him so they can kill him another day,” Autry says. We are told to leave the viewing chamber and are escorted back to a waiting white prison van. We have to tear the notes out of the spiral notebook and leave it plus the pen behind. Another van is on the way so I stay behind with reporters from the Associated Press, The Oklahoman, OETA and The Guardian to compare notes. After every execution, it’s important that reporters compare last words and other observations to make sure they have the most accurate version of events possible.
7:06 p.m. Lockett is pronounced dead in the execution chamber from a heart attack. The news of his death is provided to reporters by Patton during a brief statement at the media center on the prison grounds. He explains to reporters that prison officials do not know how much of the second and third drugs entered Lockett’s body. “His line failed,” Patton says. When asked what that means, Patton adds: “His vein exploded.”
"Oklahoma execution: Clayton Lockett writhes on gurney in botched procedure," by Katie Fretland. (30 April 2014)
• State calls off second execution after failure of first
• Heart attack kills Lockett 43 minutes after drugs injected
• Untested cocktail of drugs used in botched execution
• Eyewitness account of Clayton Lockett execution
The state of Oklahoma botched one execution and was forced to call off another on Tuesday when a disputed cocktail of drugs failed to kill a condemned prisoner who was left writhing on the gurney. After the failure of a 20-minute attempt to execute him, Clayton Lockett was left to die of a heart attack in the execution chamber at the Oklahoma state penitentiary in McAlester. A lawyer said Lockett had effectively been "tortured to death".
For three minutes after the first drugs were delivered Lockett struggled violently, groaned and writhed, lifting his shoulders and head from the gurney. Some 16 minutes after the execution began, and without Lockett being declared dead, the blinds separating the chamber from the viewing room were closed. The process was called off shortly afterwards. Lockett died 43 minutes after the first executions drugs were adminsitered. The execution of Charles Warner, scheduled for 8pm local time, was then postponed. Both were due to have been carried out with a drug cocktail using dosages never before tried in American executions. Lockett, 38, was convicted of the killing of 19-year-old, Stephanie Neiman, in 1999. She was shot and buried alive. Lockett was also convicted of raping her friend in the violent home invasion that lead to Neiman's death.
Warner, 46, was found guilty of raping and killing 11-month-old Adrianna Waller in 1997. He lived with the child's mother. Death penalty states have scrambled to find new execution methods after drugs companies opposed to capital punishment, mostly based in Europe, withdrew their supplies. Oklahoma decided to lethally inject Lockett and Warner with midazolam ,which acts as a sedative and is also used as an anti-seizure drug, followed by vecuronium bromide and potassium chloride. Florida has used a similar method but it employed a dose of midazolam five times greater. Ohio used midazolam alongside a different drug, hydromorphone, in the January execution of Dennis McGuire, which took more than 20 minutes. The grim outcome on Tuesday in Oklahoma appeared likely to fuel the debate over the death penalty in the US, in particular the use of these untested drugs combinations.
Madeline Cohen, an attorney for Warner, condemned the way Lockett was killed. "After weeks of Oklahoma refusing to disclose basic information about the drugs for tonight's lethal injection procedures, tonight Clayton Lockett was tortured to death," she said. Richard Dieter, the executive director of the Death Penalty Information Center, which monitors capital punishment, said: "This could be a real turning point in the whole debate as people get disgusted by this sort of thing. "This might lead to a halt in executions until states can prove they can do it without problems. Someone was killed tonight by incompetence," he told the Associated Press. Before the attempted executions in Oklahoma, corrections spokesman Jerry Massie said they would probably take longer than normal because the first drug was expected to work more slowly. "Don't be surprised," Massie said.
The Guardian watched as Lockett was asked if he had final words. He said "no." He lay covered in a white sheet when the execution began at 6.23pm. At 6.30pm he was found to be still conscious. Lockett was then pronounced unconscious at 6.33pm but his violent struggle began three minutes later. He tried to speak and was heard to say "man" at 6.39pm. An official in the execution room then lowered the blinds so viewers could no longer witness the process.
Robert Patton, the director of Oklahoma's department of corrections, said later that when doctors felt that the drugs were not having the required effect on Lockett, they discovered that a vein had ruptured. "After conferring with the warden, and unknown how much drugs went into him, it was my decision at that time to stop the execution," Patton told reporters. Massie said that all three drugs in the cocktail used by the state were administered, but that a vein "blew" during the execution process and Lockett later suffered a heart attack. He was pronounced dead at 7.06pm, 43 minutes after the process began. The execution of Charles Warner was postponed for 14 days.
The double executions were scheduled after an unprecedented legal and political dispute in Oklahoma. The inmates challenged the secrecy surrounding Oklahoma's source of lethal injection drugs, winning at the state district court level, but two higher courts argued over which could grant a stay of execution. When the state supreme court stayed their executions so that it could consider their constitutional claim, the Republican governor, Mary Fallin, declared in a controversial statement that it had no authority to grant the stay. A member of the Oklahoma House of Representatives said he would try to have the justices who wanted the stay impeached. Amid accusations of undue political pressure, the court then ruled against the prisoners and lifted the stay.
On Tuesday night Fallin said she had directed her officials to conduct an investigation. "I have asked the department of corrections to conduct a full review of Oklahoma's execution procedures to determine what happened, and why, during this evening's execution of Clayton Derrell Lockett," she said in a statement. "I have issued an executive order delaying the execution of Charles Frederick Warner for 14 days to allow for that review to be completed."
Susanna Gattoni and Seth Day, attorneys for Lockett and Warner, said Lockett's execution demonstrated the harm caused by secrecy surrounding the drugs used in the attempted executions. "This is exactly why we fought so hard to get this information known not just for our clients but for everyone," said Gattoni. " This shouldn't be kept secret. This is unfortunately what happens." "There will be a next step," Day said. "Whatever it is there will be a next step." Cohen, Warner's attorney, said no executions should proceed in Oklahoma in light of Lockett's execution. "My feeling about this is there can be no more executions in Oklahoma until there is a full investigation into what went wrong, an autopsy by an independent pathologist and full transparency about this process including the drugs," Cohen said.
"Officials refuse to say if they tried to revive Clayton Lockett," by Ziva Branstetter. (May 1, 2014 12:00 am)
Inmate Clayton Lockett spent three minutes writhing in pain at the Oklahoma State Penitentiary before prison officials said they had halted his execution. Shades were drawn in the execution chamber 16 minutes after the execution began, preventing media witnesses from seeing what happened to Lockett, 38. Department of Corrections Director Robert Patton later said Lockett had been pronounced dead of a heart attack at 7:06 p.m., a total of 43 minutes after the execution began.
Lockett was injected with midazolam, a sedative, and then was supposed to be injected with vecuronium bromide, a paralytic drug intended to stop the breathing; and potassium chloride, a drug intended to stop the heart. It is unclear how much of the drugs were administered, DOC officials said. Alex Weintz, a spokesman for Gov. Mary Fallin, referred questions to DOC about what happened to Lockett before his death. A spokesman said the agency would not comment on the execution or make a statement Wednesday. Officials said previously that Lockett died on the gurney and was not removed from the execution chamber before his death.
Records show DOC's new execution protocol, approved April 14, lists no policies for such situations. It allows the prison to choose from five drug combinations, including the untested combination used Tuesday. A physician in the execution chamber declared Lockett unconscious. DOC officials cited the state's execution secrecy law in refusing to identify the doctor. David Autry, one of two defense attorneys for Lockett who witnessed the execution, told the World: "This was obviously a botched execution. ... For them to claim that he was sedated appropriately and adequately is ridiculous."
Autry said he is unaware of what happened to Lockett after the blinds were drawn. "All I know is Director (Robert) Patton came in and said he was halting the execution," he said. "I assumed that they were going to try to revive him. What efforts if any they made to revive him or try to counteract the drugs, I don't know." Autry questioned DOC's statement that Lockett's vein had collapsed, preventing full administration of the drugs. "I'm not a medical professional, but Mr. Lockett was not someone who had compromised veins," Autry said. "He was in very good shape. He had large arms and very prominent veins." Autry said the state's pledge to investigate the botched execution before Warner's death "is not going to cut it."
"They are going down the same path they've gone down before trying to get this done at all costs regardless," he said. "... That's going to be a whitewash. They are going to paper over this." A medical expert who has testified in death penalty cases said, based on witness accounts, Lockett was conscious and experienced a painful execution. Dr. David Waisel, associate professor of anesthesiology at Harvard Medical School, said midazolam is typically given in small doses to patients before surgery. Waisel, who has testified or consulted in about eight death penalty cases, said he is not aware of another execution using the same three-drug combination used by Oklahoma on Tuesday.
After conferring with the physician, OSP Warden Anita Trammell declared Lockett was unconscious at 6:33 p.m., 10 minutes after the procedure began. Less than five minutes later, a World reporter and other witnesses to the execution saw Lockett convulsing and writhing, apparently in pain. He tried to speak, although what he said was not clear. Waisel said people who are unconscious are not capable of speaking and bodily movements. Waisel said given the timeline and drugs used, "it is possible that he received enough midazolam to make him sleepy, but not the full intended dose." He said if the second and third drugs were administered directly to Lockett's blood stream through a vein "he would have died right away." "What I suspect happened was that the two drugs were not injected into the vein, but were injected in the soft tissue around the vein," he said. "That can be very painful, and would be consistent with the reaction being reported."
Waisel said because so many minutes had elapsed between administering of the midazolam and Lockett's violent reaction, "clearly this sounds like a new injection of something that was very painful." Attorney General Scott Pruitt's office said in a statement Tuesday that an expert witness had testified in court cases to the safety of midazolam used in Florida executions. Pruitt's statement cited court testimony by Dr. Mark Dershwitz, professor of anesthesiology at the University of Massachusetts, that "a 50 mg dose prevented his patients from perceiving the noxious stimuli associated with neurosurgery."
"The state is using twice as much midazolam (100 mg) in the executions of Lockett and Warner," Pruitt's statement says. However, Florida uses 500 milligrams of midazolam in its executions, records show.
Three-drug protocol
1. Oklahoma's execution protocol allows officials to choose from five drug combinations. The state chose the fifth option for the scheduled executions of two inmates Tuesday night. Here are the three drugs chosen by the state.
1. Midazolam: A sedative, 50 milligrams in each arm.
2. Vecuronium bromide: Paralytic drug intended to stop breathing, 20 milligrams in each arm. The drug "will not be administered until at least 5 minutes after the beginning of the administration of the midazolam."
3. Potassium chloride: A drug intended to stop the heart, 50 cc in each arm.
"Clayton Lockett's mother demands thorough investigation, expresses sorrow for her son's victim," by Zita Branstetter. (Thursday, May 1, 2014 12:00 am)
The morning after convicted killer Clayton Lockett died of a heart attack after his execution went awry, his mother expressed sorrow for Lockett's victim and demanded answers for what went wrong Tuesday in McAlester. Lockett's mother, Ladonna Hollins, told the Tulsa World Wednesday she expected a complete investigation from the state about how her son died. "He was in pain and in our Constitution it clearly states that we should not make a man suffer like this so I’m torn. My heart aches that he had to suffer like that. … Stephanie suffered I’m sure but now here’s the end result. They are both dead now. She’s not any more alive than she was the day before," said Hollins, of Oklahoma City. "My heart bleeds as well as Mrs. Neiman's heart bleeds."
Lockett, 38, was convicted in the 1999 murder of Stephanie Neiman, 19, of Perry. Tuesday night, Gov. Mary Fallin issued a statement saying she had issued an executive order delaying the execution of convicted killer Charles Warner. “I have asked the Department of Corrections to conduct a full review of Oklahoma’s execution procedures to determine what happened and why during this evening’s execution of Clayton Derrell Lockett,” Fallin said in the statement. “I have issued an executive order delaying the execution of Charles Frederick Warner for 14 days to allow for that review to be completed.”
Hollins awaits the results of that investigation. "The reason for the drugs was to kill him, not to make him suffer like that," Hollins said. "... I have faith that through my son’s death that we can change a wrong that needs to be changed." The Neiman family provided a statement -- handwritten before the execution -- saying: "God blessed us with our precious daughter, Stephanie, for 19 years. Stephanie loved children. She worked in vacation Bible school and always helped with our church nativity scenes. She was the joy of our life. We are thankful this day has finally arrived and justice will be served."
The family declined comment Wednesday and issued a statement through the state Attorney General's Office asking that their privacy be respected. Tuesday's execution was the first in Oklahoma using a new three-drug cocktail of vecuronium bromide, midazolam and potassium chloride.
David Autry, one of two defense attorneys for Lockett who witnessed the execution, told the Tulsa World on Wednesday that it was “extremely distressing to watch let alone to go through like Mr. Lockett did.” During Lockett’s violent reaction, Autry said he thought “this was obviously a botched execution. I was thinking that Mr. Lockett was not fully sedated and that he was experiencing a great deal of pain.” “For them to claim that he was sedated appropriately and adequately is ridiculous.” Autry said he is unaware of what happened to Lockett after the blinds were drawn 16 minutes into the execution.
“All I know is Director (Robert) Patton came in and said he was halting the execution. I assumed that they were going to try to revive him. What efforts if any they made to revive him or try to counteract the drugs I don’t know.” Autry said the state’s pledge to investigate the botched execution in the two weeks before Warner’s execution “is not going to cut it.” “They are going down the same path they’ve gone down before trying to get this done at all costs regardless. … That’s going to be a whitewash. They are going to paper over this.”
"Death row inmate killed teen because she wouldn't back down," by Ziva Branstetter. (Sunday, April 20, 2014)
Stephanie Neiman was proud of her shiny new Chevy truck with the Tasmanian Devil sticker on it and a matching "Tazz" license plate. Her parents had taught the teenager to stand up for "what was her right and for what she believed in." Neiman was dropping off a friend at a Perry residence on June 3, 1999, the same evening Clayton Lockett and two accomplices decided to pull a home invasion robbery there. Neiman fought Lockett when he tried to take the keys to her truck.
The men beat her and used duct tape to bind her hands and cover her mouth. Even after being kidnapped and driven to a dusty country road, Neiman didn't back down when Lockett asked if she planned to contact police. The men had also beaten and kidnapped Neiman's friend along with Bobby Bornt, who lived in the residence, and Bornt's 9-month-old baby.
"Right is right and wrong is wrong. Maybe that's what Clayton was so scared of, because Stephanie did stand up for her rights," her parents later wrote to jurors in an impact statement. "She did not blink an eye at him. We raised her to work hard for what she got." Steve and Susie Neiman asked jurors to give Lockett the death penalty for taking the life of their only child, who had graduated from Perry High School two weeks before her death. Tuesday, 15 years later, the state plans to carry out that penalty.
Lockett later told police "he decided to kill Stephanie because she would not agree to keep quiet," court records state. Neiman was forced to watch as Lockett's accomplice, Shawn Mathis, spent 20 minutes digging a shallow grave in a ditch beside the road. Her friends saw Neiman standing in the ditch and heard a single shot. Lockett returned to the truck because the gun had jammed. He later said he could hear Neiman pleading, "Oh God, please, please" as he fixed the shotgun.
The men could be heard "laughing about how tough Stephanie was" before Lockett shot Neiman a second time. "He ordered Mathis to bury her, despite the fact that Mathis informed him Stephanie was still alive." Bornt and Neiman's friend "were threatened that if they told anybody about these events, they too would be murdered," court records state. "Every day we are left with horrific images of what the last hours of Stephanie's life was like," her parents' impact statement says.
"We were left with an empty home full of memories and the deafening silence of the lack of life within its walls. ... We feel that the only thing left to do is let Clayton Lockett serve out the sentence of death that a jury sentenced him to. Anything less is a travesty of justice." Bornt wrote a letter Feb. 7 stating: "Clayton being put to death by lethal injection is almost too easy of a way to die after what he did to us. ... He will just be strapped to the table and will go to sleep and his heart will stop beating." 'A base instinct'
Madeline Cohen, an assistant federal public defender who has represented another inmate involved in the case, said she can understand why some people say defendants in murder cases should endure a painful death. "Why should we give them a humane death when they didn't give their victim a humane death? I think that's a base instinct, but that is not what the Constitution provides. ... When we allow our government to take illegal and unconstitutional actions in our name, then all of our rights are jeopardized," she said. Cohen has represented Charles Warner, scheduled to die April 29 for the rape and murder of his girlfriend's 11-month-old daughter, Adriana Waller, in 1997.
Attorneys representing Lockett and Warner have fought a legal battle on multiple fronts against the state's execution-secrecy law. Defense attorneys argue the state should have to reveal the sources of its drugs and other details to ensure the inmates aren't subjected to cruel and unusual punishment. "States have turned to secrecy in the face of drug shortages. It's a reaction to this combination of poorly experimental execution procedures and some frighteningly botched executions," Cohen said. An Oklahoma County District Court judge ruled the state law allowing Oklahoma to withhold most information about execution drugs and procedures violates the state Constitution. The state has appealed that ruling to the state Supreme Court, but Lockett and Warner may be executed before the appeal is considered.
The state Court of Criminal Appeals has refused to grant a stay, saying it can only consider such requests from inmates challenging their convictions before the court. Attorney General Scott Pruitt's office said in an email the state will fight to defend the secrecy law because pharmacies must be protected from "threats of violence and political pressure." In a letter to defense attorneys April 1, the state announced it planned to use a new combination of drugs to execute the men: midazolam, pancuronium bromide and potassium chloride. Defense attorneys cite several cases in which inmates apparently experienced slow or painful deaths during executions.
"This drug regimen has never before been used to execute a prisoner, not only in Oklahoma, but anywhere in the United States," defense attorneys state in their request for a stay. Cohen said protecting pharmacies should not be a reason for the state to "hide information" about the execution process. "As far as the anti-death penalty activists, those people are trying to stop violence and killing," he said. "They are mostly people of faith and conviction. The idea that they would threaten a pharmacist is hard to believe."
LaDonna Hollins, Lockett's stepmother, told an Oklahoma City television station last month her son deserved to be executed for his crimes but should not be made to suffer. "I want to know what mixture of drugs are you going to use now. Is this instant? Is this going to cause horrible pain?" Hollins said. "I know he's scared. He said he's not scared of the dying as much as the drugs administered." Hollins told friends and relatives in a recent Facebook post: "The death penalty is to kill a man for his injustice ... by lethal injection not lethal suffocation."
"Oklahoma Botches Clayton Lockett's Execution," by Baily Elise McBride and Sean Murphy. (04/29/2014 8:32 pm)
McALESTER, Okla. (AP) -- An Oklahoma death row inmate writhed, clenched his teeth and appeared to struggle against the restraints holding him to a gurney before prison officials halted an execution in which the state was using a new drug combination for the first time. The man later died of a heart attack.
Clayton Lockett, 38, was declared unconscious 10 minutes after the first of three drugs in the state's new lethal injection combination was administered Tuesday evening. Three minutes later, he began breathing heavily, writhing, clenching his teeth and straining to lift his head off the pillow. Officials later blamed a ruptured vein for the problems with the execution, which are likely to fuel more debate about the ability of states to administer lethal injections that meet the U.S. Constitution's requirement they be neither cruel nor unusual punishment.
The blinds eventually were lowered to prevent those in the viewing gallery from watching what was happening in the death chamber, and the state's top prison official later called a halt to the proceedings. Lockett died of a heart attack shortly thereafter, the Department of Corrections said. "It was a horrible thing to witness. This was totally botched," said Lockett's attorney, David Autry. Questions about execution procedures have drawn renewed attention from defense attorneys and death penalty opponents in recent months, as several states scrambled to find new sources of execution drugs because drugmakers that oppose capital punishment -- many based in Europe -- have stopped selling to U.S. prisons and corrections departments.
Defense attorneys have unsuccessfully challenged several states' policies of shielding the identities of the source of their execution drugs. Missouri and Texas, like Oklahoma, have both refused to reveal their sources and both of those states have carried out executions with their new supplies. Tuesday was the first time Oklahoma used the sedative midazolam as the first element in its execution drug combination. Other states have used it before; Florida administers 500 milligrams of midazolam as part of its three-drug combination. Oklahoma used 100 milligrams of that drug. "They should have anticipated possible problems with an untried execution protocol," Autry said. "Obviously the whole thing was gummed up and botched from beginning to end. Halting the execution obviously did Lockett no good."
Republican Gov. Mary Fallin ordered a 14-day stay of execution for an inmate who was scheduled to die two hours after Lockett, Charles Warner. She also ordered the state's Department of Corrections to conduct a "full review of Oklahoma's execution procedures to determine what happened and why during this evening's execution." Robert Patton, the department's director, halted Lockett's execution about 20 minutes after the first drug was administered. He later said there had been vein failure. The execution began at 6:23 p.m., when officials began administering the midazolam. A doctor declared Lockett to be unconscious at 6:33 p.m.
Once an inmate is declared unconscious, the state's execution protocol calls for the second drug, a paralytic, to be administered. The third drug in the protocol is potassium chloride, which stops the heart. Patton said the second and third drugs were being administered when a problem was noticed. He said it's unclear how much of the drugs made it into the inmate's system. Lockett began writhing at 6:36. At 6:39, a doctor lifted the sheet that was covering the inmate to examine the injection site. "There was some concern at that time that the drugs were not having that (desired) effect, and the doctor observed the line at that time and determined the line had blown," Patton said at a news conference afterward, referring to Lockett's vein rupturing.
After an official lowered the blinds, Patton made a series of phone calls before calling a halt to the execution. "After conferring with the warden, and unknown how much drugs went into him, it was my decision at that time to stop the execution," Patton told reporters. Lockett was declared dead at 7:06 p.m. Autry, Lockett's attorney, was immediately skeptical of the department's determination that the issue was limited to a problem with Lockett's vein. "I'm not a medical professional, but Mr. Lockett was not someone who had compromised veins," Autry said. "He was in very good shape. He had large arms and very prominent veins."
The American Civil Liberties Union of Oklahoma, which was not a party in the legal challenge to the state's execution law, called for an immediate moratorium on state executions. "This evening we saw what happens when we allow the government to act in secret at its most powerful moment and the consequences of trading due process for political posturing," said ACLU executive director Ryan Kiesel.
In Ohio, the January execution of an inmate who made snorting and gasping sounds led to a civil rights lawsuit by his family and calls for a moratorium. The state has stood by the execution but said Monday that it's boosting the dosages of its lethal injection drugs. A four-time felon, Lockett was convicted of shooting 19-year-old Stephanie Neiman and watching as two accomplices buried her alive in rural Kay County in 1999. Neiman and a friend had interrupted the men as they robbed a home.
Warner had been scheduled to be executed two hours later in the same room and on the same gurney. The 46-year-old was convicted of raping and killing his roommate's 11-month-old daughter in 1997. He has maintained his innocence. Lockett and Warner had sued the state for refusing to disclose details about the execution drugs, including where Oklahoma obtained them. The case, filed as a civil matter, placed Oklahoma's two highest courts at odds and prompted calls for the impeachment of state Supreme Court justices after the court last week issued a rare stay of execution. The high court later dissolved its stay and dismissed the inmates' claim that they were entitled to know the source of the drugs. By then, Fallin had issued a stay of her own -- a one-week delay in Lockett's execution that resulted in both men being scheduled to die on the same day.
"Execution failure in Oklahoma: Clayton Lockett dies of heart attack after vein explodes," by Graham Lee Brewer. ( Modified: April 30, 2014 at 10:07 am)
Oklahoma Corrections Department officials stopped the execution of Clayton Derrell Lockett just before 6:30 p.m. Tuesday after a botched lethal injection that caused Lockett’s body to violently convulse on the table. He died of a heart attack about 40 minutes later. He was declared dead at 7:06 p.m. His death was not witnessed by the media.
Patton later announced Lockett had suffered a “blown vein” and had died of a heart attack. He said all three execution drugs had been administered, but “the drugs were not having the effect.” Concerns about drugs Madeline Cohen, a lawyer representing Warner, expressed deep concern over Tuesday’s execution. “I was in the room with Mr. Warner’s family, so I could not see Clayton Lockett being tortured to death,” Cohen said.
“From our perspective, there should be no further executions in Oklahoma until a full autopsy has been done on Mr. Lockett by an independent pathologist and there has to be full transparency.” Tuesday night, Fallin postponed Warner’s execution until May 13, “to allow the Corrections Department to evaluate the current execution protocol and to allow exhaustion of all possible legal remedies.” The two death penalty cases have been subject to much legal wrangling and court action in the past several weeks.
Lockett was scheduled to be executed April 22, but his execution, along with Warner’s, was stayed by the state Supreme Court. The Supreme Court later dissolved its stay after an executive order from Fallin called the ruling an overreach.
The inmates initially had their executions delayed after a district judge agreed with their attorneys that a law allowing the state to keep secret its source of lethal injection drugs was unconstitutional. The inmates sued the state in January over a law allowing the state to keep its source of lethal injection drugs secret. Lawyers for the inmates argued without validating the purity of the compounded drugs likely to be used in the lethal injections, their clients had no way of knowing whether or not their civil rights would be violated. Cohen said Lockett’s execution validated worry over the never-before-used drugs. “My concerns are certainly are a lot less uncertain than they were a day ago,” Cohen said. “I have to say that I did not want to be validated in this way. It feels very awful.”
"Ponca City man convicted in crime spree." (August 25, 2000)
PERRY - A Ponca City man has been convicted of first-degree murder and 18 other counts involving a crime spree that left Stephanie Neiman dead and two other people injured. A Noble County jury deliberated more than three hours Wednesday before returning the guilty verdicts for Clayton Derrell Lockett, 24.
The penalty phase of the trial began Thursday and was expected to continue until early next week. The June 1999 spree began when Lockett and two others forced their way into Bobby Bornt's residence in Perry, police said. Neiman, 19, of Perry and another 19-year-old from Perry arrived at the home and were accosted by the men. Their hands were bound with duct tape. One of the women was raped. Authorities said the women did not know the suspects.
Bornt, his 9-month-old son and the two women were taken to a location in Kay County where Neiman was shot. Police said the others were put back in trucks, driven back to Perry and released. The child was not harmed. Neiman's body was found in a shallow grave along a dirt road near Tonkawa. One of the suspects led police to the body. The woman's two friends have said they believed they were allowed to live because they had children. In addition to the murder charge, Lockett was found guilty of conspiracy, first-degree burglary, three counts of assault with a dangerous weapon, three counts of forcible oral sodomy, four counts of first-degree rape, four counts of kidnapping and two counts of robbery by force and fear. The charges were after former convictions of two or more felonies, according to the court clerk's office.
Alfonzo LaRon Veasey Lockett, 19, of Ponca City and Shawn C. Mathis, 27, also have been ordered held for trial in Neiman's death. The Locketts are cousins. The three were arrested at Mathis' home in Enid.
"Three Jailed in Kidnappings, Rapes, Woman's Slaying," by Michael McNutt. (June 6, 1999)
(PERRY) - A late-night social visit turned into a deadly nightmare for two Perry women whose arrival interrupted their friend being beaten by three men, authorities said Saturday. One woman was killed. One was raped. Both were beaten and kidnapped, Perry police said. Three men, two of them cousins, were in custody Saturday in the fatal shooting of Stephanie Michelle Neiman, 19, and the kidnapping of three others. Neiman suffered a fatal shotgun wound, authorities said. Neiman's body was found Friday night in a shallow grave along a dirt road west of Ponca City, about 40 miles north of Perry.
The three others kidnapped, including a 9-month-old baby, were taken back to Perry and released. Bobby Lee Bornt, 23, and an 18-year-old woman were beaten. They were treated and released at a local hospital. Bornt's infant son was not hurt. Police Chief Fred LeValley gave no motive for the attacks in his prepared statement. He earlier said the three men knew Bornt.
Two Ponca City men said to be first cousins were being held Saturday night in Noble County jail in Perry. Police identified them as Clayton Derrell Lockett, 23, and Alfhonzo Laron Lockett Veasey, 17. However, the teen gave the name Veasey Alfhonzo Lockett when he was jailed Friday night. Shawn Mathis, 26, of Enid was being held at Perry's police department. All three were arrested Friday afternoon at Mathis' house in Enid after Enid officers spotted Bornt's stolen pickup by the house. Perry police officers drove to Enid to talk with the three men. They brought them to Noble County jail Friday night.
Police suspect the three men were beating Bornt at his house late Friday night when the 18-year-old woman and Neiman arrived, police said. The attackers entered the house a short time earlier by smashing down the front door. They grabbed Bornt and tied him up before beating him, police said. The attackers, armed with a knife and a 12-gauge shotgun, held Bornt, his son and the two women in the house for the next several hours, police said. During this time, the three attackers each raped one of the women, police said.
Eventually, the three men ordered the captives into two pickups and drove them to a secluded spot in Kay County. They were taken out of the pickups and Neiman was shot, police said. Bornt, his son and the woman were returned to Bornt's house. The men left in Bornt's pickup. Police learned about the events about 9 a.m. Friday when one of the victims went to the police station to report what happened. Perry police officers along with deputies from Noble County and nearby Kay County spent the next several hours looking for Neiman. Her body was found about 7:45 p.m. Friday.
"The Botched Execution of Clayton Lockett and Why I’m Ambivalent About the Death Penalty," by Bob Cesca. (April 30, 2014)
In the Summer of 1999, Clayton Lockett and two accomplices, including a man named Shawn Mathis, were burglarizing a home when they were interrupted by 19-year-old Stephanie Neiman as she dropped off her friend who happened to live there. Neiman put up a fight when Lockett attempted to grab the keys to her new Chevy pickup truck. So the men beat her, wrapped her arms, mouth and legs with duct tape and then Lockett and his cohorts beat up Neiman’s friend, as well as another resident of the home and that person’s 9-month-old child. It gets worse.
Neiman and her friends were abducted and driven out to a remote country road. Lockett and his victims waited while Mathis chipped away at the ground, digging a small grave along the road. Neiman was placed in the ditch and Lockett shot her with a sawed off shotgun. But she survived and began pleading for her life. Another shot, but this time the gun jammed. A third shot hit its target. But Stephanie Neiman was still alive. So Lockett and Mathis buried her anyway. Alive.
Fast forward to Tuesday night. After being prosecuted, convicted and sentenced to death, with the ruling upheld by an Oklahoma appellate court, Lockett was scheduled to be executed by lethal injection at the state penitentiary in McAlester, OK. The chemical cocktail used for the execution hadn’t been tested. The Guardian‘s Katie Fretland reported earlier in the week: The state plans to lethally inject Lockett…with midazolam followed by vecuronium bromide and potassium chloride. Florida has used a similar method, but it employed a dose of midazolam that is five times greater. And Ohio used midazolam with a different drug, hydromorphone, in the January execution of Dennis McGuire, which took longer than 20 minutes.
Oklahoma corrections spokesman Jerry Massie briefed the media and said the executions will likely take longer than normal, because the first drug is expected to work more slowly. “Don’t be surprised,” Massie said. In spite of Massie’s eerie caveat, it appears as though corrections officials administering the injections were very surprised when the execution went nightmarishly awry.
Ten minutes into the procedure, Lockett lapsed into unconsciousness. But then, minutes later, he began to writhe and convulse. The AP reported that Lockett was “clenching his teeth and straining to lift his head off the pillow.” The convulsing and gasping reportedly continued for another 10 minutes. Spectators were blocked from continuing to view the scene. The execution was finally aborted after an agonizing 24 minutes. But Lockett died of a heart attack more than an hour later.
It turns out the chemicals failed to rush into Lockett’s body quickly enough — something having to do with a “vein failure” — and hence the slow death. Clayton Lockett was sentenced in a court of law to die, and death is what he got. Though it should never have happened this way. I wanted to lead off this post with the story of what exactly Lockett did to find himself strapped to a gurney inside an execution chamber. In discussions of the death penalty, it’s often too easy to overlook or even forget what execution-worthy trespasses were committed, therefore the criminal is often granted undue sympathy. Make no mistake, Lockett was the worst of the worst — burying a teenager alive, beating a 9-month-old baby, multiple kidnappings, burglary and inflicting psychological torture upon the slain teen’s friends by forcing them to watch. Unforgivable and worthy of harsh punishment.
Clearly, I’m ambivalent about the death penalty. On one hand, I can’t help but to be satisfied that Lockett is gone. Admittedly, this is nothing more than gut instinct and a very emotional, primal, human sense of cold, hard justice. This man took a young woman’s life in one of the most grisly ways possible and therefore I refuse to shed a tear, nor am I capable of doing so, over the fact that the state of Oklahoma forcibly shuffled him off this mortal coil.
On the other hand, and objectively speaking, the death penalty has proved to be an ineffective deterrent, and in terms of recidivism, locking up murderers like Lockett for the rest of his life without parole takes care of that. But what truly makes the death penalty less appealing are circumstances like this horrendously botched execution along with the reality that, according to a recent study, 4.1 percent or one in 25 Americans who are sentenced to die happen to be innocent.
That’s egregiously unacceptable. Unless the penalty can be carried out in a more humane way, and unless there’s indisputable proof of guilt either ascertained by a full and uncoerced confession or based on undeniable DNA evidence which has been verified, tested, re-tested and exhaustively adjudicated, the death penalty shouldn’t be a sentencing option. There’s no reason, in spite of the brutal nature of his crimes, that Lockett should have died in that practically medieval way. His penalty was death, not 24 minutes of what can only be defined as state-induced torture… and then eventual death. Torture wasn’t part of the deal. If Jerry Massie and others knew there could be a problem, why risk the Department of Corrections’ reputation as well as the possibility that the felon might survive? Why attempt an experimental process? The DOC had one job: make sure Lockett dies, and dies expeditiously. They failed to do their job in the most spectacularly cruel and unusual way possible.
It turns out death penalty states including Oklahoma have been scrambling to find new chemical combinations due to the fact that pharmaceutical companies stopped producing the “safest” drug previously used in lethal injections: sodium thiopental. So the guilt is obviously shared among many, though many drug companies have discontinued sodium thiopental for humanitarian reasons.
Do I believe the world is a better place without Lockett in it? I have to be honest and say absolutely — yes. But that is in no way an endorsement of how it occurred or the system as it currently exists. Executions, if they are to continue here, should be noticeably rare and reserved for the most vile and unrepentant among us. However, unless we can guarantee proof of guilt beyond a reasonable doubt and with airtight certainty, and unless a process can be devised that’s both quick and fool-proof, the death penalty, as with any policy this morally delicate and yet this disturbingly imperfect, should be shelved.
One last thing: don’t forget Stephanie Neiman. The reason Lockett chose to bury her alive was because she bravely told him that if she were to be set free she would call the police. For that, she was killed and under circumstances arguably more harrowing than Lockett’s. She died trying to do the right thing, and her killer died because he did one of the worst things imaginable.
"Remembering Stephanie Neiman: Oklahoma Murder Victim's Tragic Story." (Apr 30, 2014 2:56 PM)
PERRY, Oklahoma - The teenager whose murder led to a controversial execution on Tuesday was known for her sweetness and her fondness for her pickup truck. The parents of murder victim Stephanie Neiman have not spoken publicly since the execution of Clayton Derrell Lockett went awry. But a letter they wrote for Lockett's clemency hearing in February indicates what they were feeling leading up to Tuesday night.
Lockett murdered Neiman on June 3, 1999. Stephanie, 19, had just graduated from Perry High School, where she played the saxophone in the band, two weeks earlier. Neiman and a female friend had stopped to visit another friend named Bobby Bornt, 23, who was at his Perry home with his 9-month-old son. Clayton Lockett, 23, his cousin, Alfonzo Lockett, 17 and Shawn Mathis, 26, were already there. While Bornt's baby son slept in another room, they had tied up and were beating Bornt because he owed money to Clayton Lockett. When Neiman's friend went inside the home they hit her with a shotgun then forced her to call Neiman into the home.
They repeatedly raped Neiman's 18-year-old friend, tied up the two women then used Neiman's truck to take the adults and the baby to a rural part of Kay County. When Neiman refused to give Clayton Lockett the keys to her truck or provide him the alarm code, he ordered Stephanie to kneel while Mathis dug a grave. Lockett shot her and the gun jammed. While Neiman lay there screaming, the attackers cleared the jam and Lockett shot her a second time. Even though she was still breathing, he ordered the other two attackers to drag her into the grave and bury her. They threatened to kill Bobby Bornt and Neiman's friend if they went to police, but they did anyway. Perry police arrested the three attackers just three days later.
Alfonzo Lockett and Shawn Mathis are each serving life terms for their parts in the crime. On February 28, 2014, the Oklahoma Attorney General's office presented a packet of information at a clemency hearing for Clayton Lockett. The packet contains details of the case, as well as the results of Lockett's appeals to that point. It details his long criminal history and the punishment he's received for making threats and misbehaving since being convicted of the murder, including throwing urine and feces at the corrections officers bringing him food.
It also contains heartwrenching victim impact statements from Bornt, Neiman's friend and fellow victim, Neiman's parents and law enforcement officers involved in the case. Writing on behalf of her husband, Steven, Susie Neiman said that the last 15 years have been "HELL." Read Susie Neiman's Victim Impact Statement. "Every day we are left with horrific images of what the last hours of Stephanie's life was like. Did she cry out for us to help her? We are left with the knowledge that she needed us and we were not aware of it therefore unable [to] help her."
"We go through the motions of living, we eat, we sleep, Steve goes to work and comes home again. We do what we have to do to make it through the day and we start all over again the next. We exist," she wrote. "We were left with an empty home full of memories and the deafening silence of the lack of life within it's [sic] walls. We have moved, but in our new home Stephanie also has a bedroom which is filled with her treasures and belongings." She also writes that she and her husband will never know the joy of grandchildren because Stephanie was an only child.
"Clayton Lockett made choices on June 3, 1999. Actions have consequences. It is time that he face the full consequences of murdering our daughter Stephanie. She deserves that. A jury decided Clayton Lockett's fate and we believe it is time for justice to finally be carried out." Susie and Steve Neiman released a statement Tuesday night and said they do not wish to issue any further statements on their daughter's murder or the execution and ask their privacy be respected. "God blessed us with our precious daughter, Stephanie for 19 years. Stephanie loved children. She worked in Vacation Bible School and always helped with our church nativity scenes. She was the joy of our life. We are thankful this day has finally arrived and justice will finally be served."
"Oklahoma Team Struggled to Find Vein Before Botched Execution," by Pete Williams. (May 2, 2014)
The lethal injection in the botched Oklahoma execution was given through the inmate’s groin after a specialist could not find a good spot on his arms, legs or feet, the state’s prison chief revealed Thursday. Clayton Lockett’s legal team denounced the method as “invasive and painful,” speculated that it was done incorrectly and accused the state of trying to “whitewash” the death-row debacle.
The new details about how the three-drug combination was administered came in a letter from Department of Corrections director Robert Patton to Governor Mary Fallin, which also disclosed that Lockett was Tasered and cut his own arm in the hours before the execution. Patton recommended an indefinite delay in executions until a review of the state's lethal injection protocol ordered by Fallin is complete.
Fallin had ordered a two-week delay in the next execution, but Patton said it could take longer "to refine the new protocols." "I intend to explore best practices from other states and ensure the Oklahoma protocol adopts proven standards," he wrote.
He also suggested that state officials more senior than a prison warden should have the responsibility of making execution decisions. Lockett’s death has renewed debate over the use of lethal injections amid drug shortages that have forced states to come up with new execution formulas. Oklahoma was trying a new drug protocol on Lockett, who raped one woman, shot another and ordered two accomplices to bury her alive.
Witnesses have said Lockett, 38, appeared to be awake, in pain and struggling several minutes after he was declared unconscious. His movements on the death-chamber gurney were not mentioned in Patton's timeline of the execution, which did reveal that Lockett was not cooperative during execution preparations. Prison officers used a stun-gun on condemned man when he refused to be restrained for pre-execution medical X-rays, Patton said. During the subsequent exam, a "self-inflicted laceration" was discovered on his right arm, but it did not require stitches, he wrote.
Lockett, 38, also refused final visits with his lawyers and his last meal. After he was brought to the execution chamber, a phlebotomist could not find a good place on his arms, legs and feet to put the IV and instead ran the line into his groin.
Other key points in the timeline:
•6:18 p.m. — Lethal injection IV lines are inserted.
•6:23 p.m. — The first drug, midazolam, is given to cause loss of consciousness.
•6:33 p.m. — Doctor declares Lockett unconscious and begins administering two other drugs, the paralytic vecuronium bromide and the heart-stopper potassium chloride.
•6:42 p.m. — Shades lowered to block view by witnesses.
•6:44 to 6:56 p.m. — Doctor reports blood vein collapsed, drugs either absorbed into tissue, leaked out, or both. Doctor says not enough drugs have been administered to cause death, that no other vein is available, and that not enough drugs remain. The doctor detects a faint heartbeat.
•6:56 p.m. — Execution is halted.
•7:06 p.m. — Lockett pronounced dead.
A second inmate, Charles Warner, who raped and killed an 11-month-old baby, was due to be executed right after Lockett but his lethal injection was rescheduled for May 13.
"Is Lethal Injection Painful? by Pete Williams. (May 1, 2014)
Warner’s lawyer, Madeline Cohen, said she agrees with Patton’s call for an indefinite stay of execution and urged that the probe be carried out by someone outside Fallin’s administration. “Oklahoma is revealing information about this excruciatingly inhumane execution in a chaotic manner, with the threat of execution looming over Charles Warner,” she said.
“No execution should take place in Oklahoma until there has been time for a thorough and truly independent investigation into the protocol, the drugs and the manner in which Oklahoma carries out executions. “This most recent information about the tortuous death of Mr. Lockett, and the State's efforts to whitewash the situation, only intensifies the need for transparency."
"White House: Botched Execution Was Not Humane," by Tracy Connor. (April 30, 2014)
The White House is criticizing Oklahoma's botched execution of Clayton Lockett, who appeared to be in pain and struggling to sit up minutes after he was pronounced unconscious. Press Secretary Jay Carney said that while he has not discussed the case with President Barack Obama, anyone would agree Tuesday's lethal injection was not humane. "He has long said that while the evidence suggests that the death penalty does little to deter crime, he believes there are some crimes that are so heinous that the death penalty is merited," Carney said.
"In this case, or these cases, the crimes are indisputably horrific and heinous. But it's also the case that we have a fundamental standard in this country that even when the death penalty is justified, it must be carried out humanely. And I think everyone would recognize that this case fell short of that standard." Lockett's execution was halted by prison officials who said an intravenous line blew, but he died afterward of a massive heart attack.
A second execution scheduled for that night was postponed for at least two weeks while state officials conduct a review. It was the first execution using Oklahoma's new three-drug protocol, which defense lawyers have denounced as experimental. Lockett also fought unsuccessfully to force the state to reveal where it obtained the chemical.
Lockett's aunt, Deanna Parker, told NBC News that she agreed with the White House's characterization of her nephew's death. "I wish they would have spoken up before all this," she said.
"Oklahoma Execution: Family of Inmate Eyes Lawsuit," by Tracy Connor.
The family of a death-row prisoner who died after a botched lethal-injection said they are considering a lawsuit against Oklahoma to force changes in the execution process. "I'm not seeking financial gain from this," said Ladonna Hollins, the stepmother of convicted killer and rapist Clayton Lockett, who appeared to regain consciousness and struggle in pain in the middle of his execution Tuesday night.
"My main thing is I want the process changed," Hollins told NBC News as she waited for her son's body to be released so she could begin planning a funeral. "I want them to admit they did wrong and after that, let’s change this," said Hollins, who has not retained a lawyer yet. "If we are going to put people to death, let's do it the right way."
Prison officials — who halted the execution, but not in time to save Lockett — said an intravenous line blew while the deadly drugs were being administered. The governor has ordered an investigation. But the dead man's family suspects a last-minute switch to new execution drugs, which were obtained behind a veil of secrecy, is to blame. They are seeking an independent autopsy. "If we are going to put people to death, let's do it the right way."
Relatives of an Ohio inmate who was executed in January with an untested combination of drugs filed a federal suit against the state, charging it violated the constitutional protection against cruel and unusual punishment. A lawyer for the family of Dennis McGuire — who took 25 minutes to die and appeared to gasp for air — said they are not interested in collecting damages, just getting the court to bar the chemicals from being used again. The case is pending. Meanwhile, Ohio's prison agency just announced its internal review of the execution found it was "humane" and it's moving ahead with more lethal injection using the same drug combination.
Post-execution lawsuits on behalf of the condemned are rare, experts said. The family of Joseph Clark — whose 2006 execution took 86 minutes after the team struggled to find a usable vein — filed a $150,000 suit that was ultimately thrown out by a judge who ruled his suffering was not "intolerable." In his decision, the judge said he had not been able to find another case where a prisoner's estate sued after the execution for an Eighth Amendment violation. "It's largely an uncharted area because there is not a whole lot of prospect of winning," said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment.
He said death-row inmates often have very distant relationships with family, who can't argue economic losses from their death. "And I don't think any court will want to award too much to the family of a killer," he said.
But he said that Lockett's family might have the best shot at success — because the state was using a new protocol and had to stop the execution before it was complete. "Oklahoma has broken new ground in a lot of bad ways," he said.
Brian Ted Jones in General Writing: Idea, Thinking, Opinion
The Life of Clayton Lockett: A short biography
Clayton Derrell Lockett was born on November 22, 1975. His mother used drugs during the pregnancy, and when Clayton was three years old, she placed him on his father’s doorstep and walked away. When his father found him, he was soaked in urine. After his mother abandoned him, Clayton became uniquely attached to his father, coming to idolize the man. Yet Clayton’s father beat his son, regularly and severely, stripping him naked and striking him with belts and boards. He would also frequently threaten the child with guns.
Clayton first began using drugs at age three—at his father’s insistence. Clayton’s father was a criminal, and taught his son to steal, punishing the boy if he were caught. He watched pornographic movies in the child’s presence, and encouraged his son to become sexually active at a very early age, telling the boy that women are “no good,” and that they exist only to do what men want. Several members of Clayton’s family believed his older brother had sexually abused him when he was little. Clayton sucked his thumb and wet the bed until he was 12. While still very young, he suffered a bad fall, with a concussion. When Clayton was 16, he was incarcerated at a correctional center meant for adults. While there, he was raped by three men.
On June 3, 1999, Clayton was 23 years old, and already a convicted felon (for burglary). Around 10:30 that night, Clayton and two other men broke into the house of a Perry, Oklahoma resident named Bobby Bornt. Bobby had been asleep on the couch, while his nine-month-old son, Sam, lay sleeping in a back bedroom. Clayton struck Bobby with a shotgun; all three men then beat Bobby, tied his hands with duct tape, gagged him, and left him on the couch while they searched the house for drugs. Around that time, Bobby’s friend, Summer Hair, approached the front door. She was pulled inside, beaten, and told to call for her friend, Stephanie Neiman, who was outside waiting in her pickup truck. Summer did as the men said, and when Stephanie entered the house, she, too, was captured. Two of the men, including Clayton, then raped Summer.
The captors bound their victims, and Clayton instructed one of the two men to look in the garage and find a shovel. The victims, including Sam, were loaded into two pickups, one belonging to Bobby, the other to Stephanie. They drove to a country road in Kay County, Oklahoma. There, Clayton raped Summer again. The men dug a shallow hole, and decided to kill Stephanie. Clayton shot her, but the shot did not kill her right away. She was buried alive in the shallow hole. The men then returned to Bobby’s house, where they left Bobby, Sam, and Summer behind. Police arrested Clayton the next day, and he confessed to the murder.
Trials in Oklahoma where the State seeks the death penalty are split in two: the first stage determines guilt, and the second, punishment. At the guilt stage, the State presented Clayton’s videotaped confession. He admitted he’d gone to Bobby’s house to rob him; admitted to beating him, and Summer, and Stephanie; admitted to binding them all with duct tape; admitted to kidnapping them; admitted to making the decision that Stephanie would die; admitted to shooting her, while she wept; and he admitted to insisting that she be buried while she was still living. He denied raping Summer, and claimed to have held, comforted, and fed Sam at the house (he also claimed to have changed the baby’s diaper at the murder site). The jury found Clayton guilty, and in the second stage of the trial—the stage for determining whether Clayton would receive the death penalty—the State presented evidence that Clayton had sent jail-letters to friends suggesting that his gang, the Crips, kill Bobby and Summer ahead of his trial. He also claimed to be tracking his surviving victims’ movements—a claim corroborated by his knowledge of Bobby and Summer’s addresses and Social Security Numbers. Clayton had also written letters to jail personnel where he boasted about his IQ (190), martial arts prowess (two black belts), and advanced criminality (claiming he’d stabbed multiple corrections officers, started a prison riot, and would not be convicted, because his gang would not allow it). On October 5, 2000, the jury sentenced Clayton to death.
On that date, Oklahoma law required that Clayton’s execution result from a continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent. On April 1, 2014, Oklahoma’s Department of Corrections sent notice to Clayton, through his lawyer, that his execution would instead result from a combination of midazolam, pancuronium bromide, and potassium chloride—a combination which had never been used before in Oklahoma (Oklahoma had never once used midazolam, a sedative, in any execution). Also, while midazolam had been used in executions in other states, it had only been used in a few, and in different dosages than the ones Oklahoma would use to execute Clayton. Oklahoma law also forbade the disclosure of the identities of anyone who supplied the State with drugs for lethal injections.
Clayton’s lawyers attacked that last portion of the law as an unconstitutional interference with Clayton’s right to know exactly how he would be killed. On March 26, 2014, a trial judge agreed with Clayton’s lawyers, and the matter went up on appeal to the Oklahoma Supreme Court, which reviews civil cases, and holds no express legal authority to stay an execution, even if the manner of that execution is under attack in the civil courts. The Supreme Court transferred Clayton’s request for a stay of execution to the Oklahoma Court of Criminal Appeals—which does possess legal authority to stay executions—and retained for review the civil-law questions Clayton had raised. On April 18, the Court of Criminal Appeals refused to consider the stay, claiming a lack of jurisdiction (over the dissent of two of its five members). On April 21, the Supreme Court, with admitted hesitation, stayed Clayton’s execution while it finished the review of his civil-law claims. On April 22, Oklahoma’s Governor entered her own stay of Clayton’s execution, but merely to intercept and override the stay ordered by the Supreme Court. She directed that Clayton die, seven days later, on April 29, at 6 pm. On April 23, the Supreme Court dissolved its stay, and rendered a ruling on Clayton’s civil-law claims (it denied them).
Clayton wanted his last meal to be “chateaubriand steak,” but this exceeded the $15 budget allocated for last meals by the Oklahoma State Penitentiary in McAlester. (Clayton was offered an alternative choice, a steak from the local Western Sizzlin’, but refused it.) Clayton offered no last words, and his execution began late, at 6:23 pm. Five minutes later, a doctor injected fifty milligrams of midazolam into each of Clayton’s arms—this was intended to sedate him, prior to administration of the fatal drugs. After all the drugs had entered his body, Clayton closed his eyes and opened his mouth, slightly.
At 6:31, the doctor checked his pupils and placed a hand on his chest. He shook him. “Mr. Lockett is not unconscious,” the warden said. At 6:33, the doctor checked him again; this time the warden said Clayton was unconscious. Three minutes later, Clayton kicked his right leg and rolled his head to the side. He mumbled, writhed, and bucked. He grimaced and grunted, lifting his shoulders off the gurney and rolling his head from side to side, still mumbling.
At 6:39, the doctor checked Clayton’s right arm: afterward, the blinds over the glass window between the execution chamber and the viewing room were lowered.
At 6:50, DOC officials stopped Clayton’s execution. Clayton’s vein, into which the fatal drugs had been injected, had exploded. He was pronounced dead of a heart attack at 7:06 pm.
(The facts presented above were obtained from several sources, primarily the opinion of the Federal Court of Appeals for the Tenth Circuit in Lockett v. Trammel, the opinion of the Oklahoma Court of Criminal Appeals in Lockett v. State, the pleadings related to Clayton Lockett’s 2014 civil actions in Oklahoma state court, the opinions of the Oklahoma appellate courts regarding those actions, and, of particular note, an eyewitness account of Clayton’s execution, published by Ziva Branstetter in the Tulsa World.)
At around 10:30 p.m. on June 3, 1999, Bobby Bornt was asleep on the couch at his house in Perry, Oklahoma, when his front door was kicked in. Three men, Clayton Derrell Lockett, Shawn Mathis and Alfonzo Lockett, entered his house and immediately started beating and kicking him. Bornt recognized Lockett because Lockett had recently covered a tattoo for him. Lockett was carrying a shotgun which he used to hit Bornt. After the beating, Bornt's attackers used duct tape to secure his hands behind his back and they gagged him and left him on the couch while they ransacked the house looking for drugs.
As Bornt lay restrained on the couch his friend, Summer Hair, approached the open door. She was pulled inside, hit in the face and thrown against a wall. One of the men put a gun to her head and ordered her to call to her friend, Stephanie Neiman, who was outside sitting in her pickup. When Stephanie came inside, they hit her several times to get the keys to her pickup and the code to disarm the alarm on her pickup. The men put all three victims in the bedroom where Bornt's nine-month old son, Sam, had been sleeping.
Alfonzo Lockett came into the bedroom and got Summer. He took her into the bathroom where he made her perform oral sodomy on him. He then took her into Bornt's bedroom where he told her to get undressed and he raped her. When he was finished, he left her there and Lockett came into the bedroom. He raped her vaginally and anally and he made her perform oral sodomy on him. When he was finished, he told her to get dressed and she went back into Sam's bedroom with the others.
Alfonzo Lockett came into the bedroom and used duct tape to secure Summer's and Stephanie's hands behind their backs. He also put tape across their mouths. Lockett instructed Mathis to look in the garage for a shovel. When he returned with a shovel, the victims were loaded into Bobby Bornt's and Stephanie Neiman's pickups. Bornt and his son were placed in his pickup with Lockett. Summer and Stephanie were placed in Stephanie Neiman's pickup with Mathis and Alfonzo Lockett.
They took off driving with Lockett in the lead. They left Perry and drove to a rural area in Kay County. Lockett stopped on a country road where he got out of the pickup he was driving and went over to Stephanie Neiman's pickup. He made Summer get out and go with him to a ditch where he raped her and forced her to perform oral sex on him. When he was finished, he took her back to Bornt's pickup. While Summer was sitting in the pickup, Mathis got her and took her back to Stephanie Neiman's pickup where he made her perform oral sex on him. He grabbed her head and said, “In order for you to live, this is what you have got to do.”
While stopped on the country road, Lockett told Mathis to get the shovel and start digging. When Mathis was digging in the ditch, Bornt heard Lockett say, “Someone has got to go.” Stephanie was taken to the hole dug by Mathis and Lockett shot her. The gun jammed and Lockett came back up to the pickup to fix it. While he was doing this, Bornt could hear Stephanie's muffled screams. When the gun was fixed, Lockett went back down to the ditch and shot Stephanie again. While Mathis buried Stephanie's body, Lockett and Alfonzo Lockett warned Bobby and Summer that if they told anyone they would be killed too.
They then drove both pickups to another location where they left Stephanie's pickup. All of them rode back to Bornt's house in his pickup. Lockett, Mathis and Alfonzo Lockett dropped off Bornt, his son and Summer Hair at Bornt's house and they left in Bornt's pickup. The following day, Bobby Bornt and Summer Hair told the Perry police what had happened. Stephanie Neiman's pickup and her body were recovered and Lockett, Mathis and Alfonzo Lockett were subsequently arrested. Lockett was interviewed by the police three times. The first time he terminated the interview and asked for an attorney. He later reinitiated the interview and although he denied shooting Stephanie Neiman during the second interview, he confessed to having killed her in a third interview.
Wikipedia: Oklahoma Executions
A total of 110 individuals convicted of murder have been executed by the State of Oklahoma since 1976, all by lethal injection:
1. Charles Troy Coleman 10 September 1990 John Seward
2. Robyn Leroy Parks 10 March 1992 Abdullah Ibrahim
3. Olan Randle Robinson 13 March 1992 Shiela Lovejoy, Robert Swinford
4. Thomas J. Grasso 20 March 1995 Hilda Johnson
5. Roger Dale Stafford 1 July 1995 Melvin Lorenz, Linda Lorenz, Richard Lorenz, Isaac Freeman, Louis Zacarias, Terri Horst, David Salsman, Anthony Tew, David Lindsey
6. Robert Allen Brecheen [1][2][3] 11 August 1995 Marie Stubbs
7. Benjamin Brewer 26 April 1996 Karen Joyce Stapleton
8. Steven Keith Hatch 9 August 1996 Richard Douglas, Marilyn Douglas
9. Scott Dawn Carpenter 7 May 1997 A.J. Kelley
10. Michael Edward Long 20 February 1998 Sheryl Graber, Andrew Graber
11. Stephen Edward Wood 5 August 1998 Robert B. Brigden
12. Tuan Anh Nguyen 10 December 1998 Amanda White, Joseph White
13. John Wayne Duvall 17 December 1998 Karla Duvall
14. John Walter Castro 7 January 1999 Beulah Grace, Sissons Cox, Rhonda Pappan
15. Sean Richard Sellers 4 February 1999 Paul Bellofatto, Vonda Bellofatto, Robert Bower
16. Scotty Lee Moore 3 June 1999 Alex Fernandez
17. Norman Lee Newsted 8 July 1999 Larry Buckley
18. Cornel Cooks 2 December 1999 Jennie Elva Ridling
19. Bobby Lynn Ross 9 December 1999 Steven Mahan
20. Malcolm Rent Johnson 6 January 2000 Ura Alma Thompson
21. Gary Alan Walker 13 January 2000 Eddie O. Cash, Valerie Shaw-Hartzell, Jane Hilburn, Janet Jewell, Margaret Bell Lydick, DeRonda Gay Roy
22. Michael Donald Roberts 10 February 2000 Lula Mae Brooks
23. Kelly Lamont Rogers 23 March 2000 Karen Marie Lauffenburger
24. Ronald Keith Boyd 27 April 2000 Richard Oldham Riggs
25. Charles Adrian Foster 25 May 2000 Claude Wiley
26. James Glenn Rodebeaux 1 June 2000 Nancy Rose Lee McKinney
27. Roger James Berget 8 June 2000 Rick Lee Patterson
28. William Clifford Bryson 15 June 2000 James Earl Plantz
29. Gregg Francis Braun 10 August 2000 Gwendolyn Sue Miller, Barbara Kchendorfer, Mary Rains, Pete Spurrier, Geraldine Valdez
30. George Kent Wallace 10 August 2000 William Von Eric Domer, Mark Anthony McLaughlin
31. Eddie Leroy Trice 9 January 2001 Ernestine Jones
32. Wanda Jean Allen 11 January 2001 Gloria Jean Leathers
33. Floyd Allen Medlock 16 January 2001 Katherine Ann Busch
34. Dion Athansius Smallwood 18 January 2001 Lois Frederick
35. Mark Andrew Fowler 23 January 2001 John Barrier, Rick Cast, Chumpon Chaowasin
36. Billy Ray Fox 25 January 2001
37. Loyd Winford Lafevers 30 January 2001 Addie Mae Hawley
38. Dorsie Leslie Jones, Jr. 1 February 2001 Stanley Eugene Buck, Sr.
39. Robert William Clayton 1 March 2001 Rhonda Kay Timmons
40. Ronald Dunaway Fluke 27 March 2001 Ginger Lou Fluke, Kathryn Lee Fluke, Suzanna Michelle Fluke
41. Marilyn Kay Plantz 1 May 2001 James Earl Plantz
42. Terrance Anthony James 22 May 2001 Mark Allen Berry
43. Vincent Allen Johnson 29 May 2001 Shirley Mooneyham
44. Jerald Wayne Harjo 17 July 2001 Ruther Porter
45. Jack Dale Walker 28 August 2001 Shely Deann Ellison, Donald Gary Epperson
46. Alvie James Hale, Jr. 18 October 2001 William Jeffery Perry
47. Lois Nadean Smith 4 December 2001 Cindy Baillee
48. Sahib Lateef Al-Mosawi 6 December 2001 Inaam Al-Nashi, Mohamed Al-Nashi
49. David Wayne Woodruff 21 January 2002 Roger Joel Sarfaty, Lloyd Thompson
50. John Joseph Romano 29 January 2002
51. Randall Eugene Cannon 23 July 2002 Addie Mae Hawley
52. Earl Alexander Frederick, Sr. 30 July 2002 Bradford Lee Beck
53. Jerry Lynn McCracken[10] 10 December 2002 Tyrrell Lee Boyd, Steve Allen Smith, Timothy Edward Sheets, Carol Ann McDaniels
54. Jay Wesley Neill 12 December 2002 Kay Bruno, Jerri Bowles, Joyce Mullenix, Ralph Zeller
55. Ernest Marvin Carter, Jr. 17 December 2002 Eugene Mankowski
56. Daniel Juan Revilla 16 January 2003 Mark Gomez Brad Henry
57. Bobby Joe Fields 13 February 2003 Louise J. Schem
58. Walanzo Deon Robinson 18 March 2003 Dennis Eugene Hill
59. John Michael Hooker 25 March 2003 Sylvia Stokes, Durcilla Morgan
60. Scott Allen Hain 3 April 2003 Michael William Houghton, Laura Lee Sanders
61. Don Wilson Hawkins, Jr. 8 April 2003 Linda Ann Thompson
62. Larry Kenneth Jackson 17 April 2003 Wendy Cade
63. Robert Wesley Knighton 27 May 2003 Richard Denney, Virginia Denney
64. Kenneth Chad Charm 5 June 2003 Brandy Crystian Hill
65. Lewis Eugene Gilbert II 1 July 2003 Roxanne Lynn Ruddell
66. Robert Don Duckett 8 July 2003 John E. Howard
67. Bryan Anthony Toles 22 July 2003 Juan Franceschi, Lonnie Franceschi
68. Jackie Lee Willingham 24 July 2003 Jayne Ellen Van Wey
69. Harold Loyd McElmurry III 29 July 2003 Rosa Vivien Pendley, Robert Pendley
70. Tyrone Peter Darks 13 January 2004 Sherry Goodlow
71. Norman Richard Cleary 17 February 2004 Wanda Neafus
72. David Jay Brown 9 March 2004 Eldon Lee McGuire
73. Hung Thanh Le 23 March 2004 Hai Hong Nguyen
74. Robert Leroy Bryan 8 June 2004 Mildred Inabell Bryan
75. Windel Ray Workman 26 August 2004 Amanda Hollman
76. Jimmie Ray Slaughter 15 March 2005 Melody Sue Wuertz, Jessica Rae Wuertz
77. George James Miller, Jr. 12 May 2005 Gary Kent Dodd
78. Michael Lannier Pennington 19 July 2005 Bradley Thomas Grooms
79. Kenneth Eugene Turrentine 11 August 2005 Avon Stevenson, Anita Richardson, Tina Pennington, Martise Richardson
80. Richard Alford Thornburg, Jr. 18 April 2006 Jim Poteet, Terry Shepard, Kevin Smith
81. John Albert Boltz 1 June 2006 Doug Kirby
82. Eric Allen Patton 29 August 2006 Charlene Kauer
83. James Patrick Malicoat 31 August 2006 Tessa Leadford
84. Corey Duane Hamilton 9 January 2007 Joseph Gooch, Theodore Kindley, Senaida Lara, Steven Williams
85. Jimmy Dale Bland 26 June 2007 Doyle Windle Rains
86. Frank Duane Welch 21 August 2007 Jo Talley Cooper, Debra Anne Stevens
87. Terry Lyn Short[4] 17 June 2008 Ken Yamamoto
88. Jessie Cummings 25 September 2008 Melissa Moody
89. Darwin Brown 22 January 2009 Richard Yost
90. Donald Gilson 14 May 2009 Shane Coffman
91. Michael DeLozier 9 July 2009 Orville Lewis Bullard, Paul Steven Morgan
92. Julius Ricardo Young 14 January 2010 Joyland Morgan, Kewan Morgan
93. Donald Ray Wackerly II 14 October 2010 Pan Sayakhoummane
94. John David Duty 16 December 2010 Curtis Wise
95. Billy Don Alverson 6 January 2011 Richard Kevin Yost
96. Jeffrey David Matthews 11 January 2011 Otis Earl Short Mary Fallin
97. Gary Welch 5 January 2012 Robert Dean Hardcastle
98. Timothy Shaun Stemple 15 March 2012 Trisha Stemple
99. Michael Bascum Selsor 1 May 2012 Clayton Chandler
100. Michael E. Hooper 14 August 2012 Cynthia Jarman, Timothy Jarman, Tonya Jarman
101. Garry T. Allen 06 November 2012 Gail Titsworth
102. George Ochoa 04 December 2012 Francisco Morales, Maria Yanez
103. Steven Ray Thacker 12 March 2013 Laci Dawn Hill
104. James L. DeRosa 18 June 2013 Curtis and Gloria Plummer
105. Brian Darrell Davis 25 June 2013 Jody Sanford
106. Ronald C. Lott 10 December 2013 Anna Laura Fowler, Zelma Cutler
107. Johnny D. Black 17 December 2013 Bill Pogue
108. Michael L. Wilson 09 January 2014 Richard Kevin Yost
109. Kenneth Hogan 24 January 2014 Lisa Rene Stanley
110. Clayton Derrell Lockett 30 April 2014 Stephanie Michelle Neiman
Lockett v. State, 53 P.3d 418 (Okla. Crim. App. 2002). (Direct Appeal)
After jury trial, defendant was convicted in the District Court, Noble County, D.W. Boyd, J., of first degree burglary, assault with a dangerous weapon, forcible oral sodomy, first degree rape, kidnapping, robbery by force and fear, and first degree murder, and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Strubhar, J., held that: (1) examination of jurors outside defendant's presence did not require reversal; (2) evidence was sufficient to support defendant's convictions for aiding and abetting oral sodomy and rape; (3) counsel's failure to present defense to crimes charged did not constitute complete concession of guilt; (4) counsel was not ineffective; (5) use of non-violent burglary conviction to support continuing threat aggravating circumstance did not deprive defendant of fair sentencing proceeding; and (6) evidence of unadjudicated crimes was sufficiently reliable to support application of continuing threat aggravating circumstance. Affirmed. Chapel, J., concurred in result and filed opinion. Lumpkin, P.J., concurred in result.
STRUBHAR, Judge.
¶ 1 Appellant, Clayton Derrell Lockett, was charged in the District Court of Noble County, Case No. CF-99-53, with Conspiracy (Count I), First Degree Burglary (Count II), Assault with a Dangerous Weapon (Counts III, IV and V), Forcible Oral Sodomy (Counts VI, XV and XVI), First Degree Rape (Counts VII, VIII, IX and XIV), Kidnapping (Counts X, XI, XII and XIII), Robbery by Force and Fear (Counts XVII and XVIII) and First Degree Murder (Count XIX). Counts I-XVIII were alleged to have occurred after former conviction of two or more felonies. With regard to First Degree Murder, Count XIX, the State filed a Bill of Particulars alleging five aggravating circumstances: 1) that Appellant was previously convicted of a felony involving the use or threat of violence,FN1 2) that Appellant knowingly created a great risk of death to more than one person,FN2 3) that the murder was especially heinous, atrocious or cruel,FN3 4) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution,FN4 and 5) that there exists a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society.FN5
FN1. 21 O.S.1991, § 701.12(1). FN2. 21 O.S.1991, § 701.12(2). FN3. 21 O.S.1991, § 701.12(4). FN4. 21 O.S.1991, § 701.12(5). FN5. 21 O.S.1991, § 701.12(7).
¶ 2 The jury found Appellant guilty on all counts and assessed punishment at forty-five years on Count I, sixty years on each of Counts II and V, seventy-five years on Count III, ninety days on Count IV, one hundred fifty years on each of Counts VI and XVI, one hundred seventy-five years on Count VII, two hundred fifty years on each of Counts VIII and XIV, two hundred years on Count IX, one hundred years on each of Counts X, XI, XII and XIII, three hundred years on Count XV, and eighty-five years on each of Counts XVII and XVIII. With regard to Count XIX, First Degree Murder, the jury found the existence of each alleged aggravating circumstance and assessed punishment at death. The trial court sentenced Appellant accordingly, ordering the sentences be served consecutively.
FACTS
¶ 3 At around 10:30 p.m. on June 3, 1999, Bobby Bornt was asleep on the couch at his house in Perry, Oklahoma, when his front door was kicked in. Three men, Appellant, Shawn Mathis and Alfonzo Lockett, entered his house and immediately started beating and kicking him. Bornt recognized Appellant because Appellant had recently covered a tattoo for him. Appellant was carrying a shotgun which he used to hit Bornt. After the beating, Bornt's attackers used duct tape to secure his hands behind his back and they gagged him and left him on the couch while they ransacked the house looking for drugs. As Bornt lay restrained on the couch his friend, Summer Hair, approached the open door. She was pulled inside, hit in the face and thrown against a wall. One of the men put a gun to her head and ordered her to call to her friend, Stephanie Neiman, who was outside sitting in her pickup. When Neiman came inside, they hit her several times to get the keys to her pickup and the code to disarm the alarm on her pickup.
¶ 4 The men put all three victims in the bedroom where Bornt's nine-month old son, Sam, had been sleeping. Alfonzo Lockett came into the bedroom and got Hair. He took her into the bathroom where he made her perform oral sodomy on him. He then took her into Bornt's bedroom where he told her to get undressed and he raped her. When he was finished, he left her there and Appellant came into the bedroom. He raped her vaginally and anally and he made her perform oral sodomy on him. When he was finished, he told her to get dressed and she went back into Sam's bedroom with the others. Alfonzo Lockett came into the bedroom and used duct tape to secure Hair's and Neiman's hands behind their backs. He also put tape across their mouths.
¶ 5 Appellant instructed Mathis to look in the garage for a shovel. When he returned with a shovel, the victims were loaded into Bornt's and Neiman's pickups. Bornt and his son were placed in his pickup with Appellant. Hair and Neiman were placed in Neiman's pickup with Mathis and Alfonzo Lockett. They took off driving with Appellant in the lead. They left Perry and drove to a rural area in Kay County. Appellant stopped on a country road where he got out of the pickup he was driving and went over to Neiman's pickup. He made Hair get out and go with him to a ditch where he raped her and forced her to perform oral sex on him. When he was finished, he took her back to Bornt's pickup. While Hair was sitting in the pickup, Mathis got her and took her back to Neiman's pickup where he made her perform oral sex on him. He grabbed her head and said, “In order for you to live, this is what you have got to do.”
¶ 6 While stopped on the country road, Appellant told Mathis to get the shovel and start digging. When Mathis was digging in the ditch, Bornt heard Appellant say, “Someone has got to go.” Neiman was taken to the hole dug by Mathis and Appellant shot her. The gun jammed and Appellant came back up to the pickup to fix it. While he was doing this, Bornt could hear Neiman's muffled screams. When the gun was fixed, Appellant went back down to the ditch and shot Neiman again. While Mathis buried Neiman's body, Appellant and Alfonzo Lockett warned Bornt and Hair that if they told anyone they would be killed too. They then drove both pickups to another location where they left Neiman's pickup. All of them rode back to Bornt's house in his pickup. Appellant, Mathis and Alfonzo Lockett dropped off Bornt, his son and Hair at Bornt's house and they left in Bornt's pickup.
¶ 7 The following day, Bornt and Hair told the Perry police what had happened. Neiman's pickup and her body were recovered and Appellant, Mathis and Alfonzo Lockett were subsequently arrested. Appellant was interviewed by the police three times. The first time he terminated the interview and asked for an attorney. He later reinitiated the interview and although he denied shooting Neiman during the second interview, he confessed to having killed her in a third interview.
VOIR DIRE ISSUE
¶ 8 Appellant concedes and the record reflects that the majority of the voir dire was conducted in open court and in his presence. However, several times, jurors were questioned individually, usually in chambers, without Appellant there. In each instance, defense counsel was present and lodged no objection to Appellant's absence. Appellant complains in his first proposition that he did not waive his right to be present during the entire voir dire and that by conducting portions of the voir dire in his absence, the trial court violated his constitutional and statutory rights.
¶ 9 The Unites States Supreme Court has acknowledged that voir dire is a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present. See Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 2246, 104 L.Ed.2d 923 (1989), citing Lewis v. United States, 146 U.S. 370, 374, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892). In addressing the constitutional right to be present during this portion of the trial, the Supreme Court noted early on that, “defense may be made easier if the accused is permitted to be present at the examination of jurors ... for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself.” Snyder v. Com. of Mass., 291 U.S. 97, 106, 54 S.Ct. 330, 331, 78 L.Ed. 674 (1934). The Court went on to state that a defendant has a due process right to be present where his presence “bears, or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend.” Id. The Court added, however, that it did not intend to hold in any way that “the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow.” Id., 291 U.S. at 106-107, 54 S.Ct. at 331. “So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id., 291 U.S. at 107-108, 54 S.Ct. at 333. See also Bland v. State, 2000 OK CR 11,
¶ 19, 4 P.3d 702, 712, cert. denied, 531 U.S. 1099, 121 S.Ct. 832, 148 L.Ed.2d 714 (2001); Perry v. State, 1995 OK CR 20,
¶ 25, 893 P.2d 521, 527-28.
¶ 10 Appellant also complains that the portions of the voir dire conducted outside his presence violated 22 O.S.1991, § 583 which requires that a defendant be personally present at his trial if the prosecution is for a felony. This statute has never been interpreted to require a defendant's presence during all communications with jurors. See Bland, 2000 OK CR 11, at
¶ 20, 4 P.3d at 712.
¶ 11 Nineteen jurors were examined by the trial court outside Appellant's presence. Most were questioned about whether they had been prejudiced by pretrial publicity and others were questioned about issues which were of embarrassment to them or which the trial court did not want brought up before the entire panel. Of the jurors questioned in Appellant's absence, ten were excused for cause upon a finding by the trial court that they could not be fair to Appellant. The jurors who were not excused for cause were allowed to remain on the panel where they were later questioned by the prosecutor and defense counsel within the presence of Appellant. Of the jurors who were not excused by the trial court for cause, only three remained on the panel after the open voir dire. Appellant has made no objection to any of these three jurors and we find nothing in the record indicating that the presence of any of them on the jury panel prejudiced him.
¶ 12 We hold that in the future the trial court should hold all voir dire proceedings within the presence of the defendant. However, as the failure of the trial court to follow this procedure in the present case did not deny Appellant his constitutional rights or operate in any way to deny him his right to a fair trial, this assignment of error must be denied.
FIRST STAGE ISSUES
¶ 13 Appellant was convicted in Counts VI and VII of aiding and abetting oral sodomy and rape committed by Alfonzo Lockett and in Count XVI with aiding and abetting oral sodomy committed by Mathis. He complains in his second proposition that the evidence was insufficient to support his conviction on these counts. In order for an accused to be convicted as a principal to a crime, it must be established that he directly committed each element of the offense, or that he aided and abetted another in its commission. 21 O.S.1991, § 172. “Aiding and abetting in a crime requires the State to show that the accused procured the crime to be done, or aided, assisted, abetted, advised or encouraged the commission of the crime.” Spears v. State, 1995 OK CR 36,
¶ 16, 900 P.2d 431, 438, cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527. This Court has held that “[w]hile mere presence or acquiescence, without participation, does not constitute a crime, only slight participation is needed to change a person's status from mere spectator into an aider and abettor.” Barnett v. State, 1993 OK CR 26,
¶ 16, 853 P.2d 226, 231.
¶ 14 While there was no evidence that Appellant was present during the sexual assaults committed by Alfonzo Lockett and Mathis, the evidence strongly suggests that Appellant was in control of every aspect of the evening. Appellant was the person who initially kicked in the door and hit both Hair and Neiman. He also carried the shotgun most of the time. Bornt testified that Appellant gave the orders and told others what to do. From this evidence, a rational trier of fact could find, beyond a reasonable doubt, that Appellant aided and abetted in the sexual assaults committed upon Hair by Alfonzo Lockett and Mathis. This proposition is without merit.
¶ 15 Appellant argues in his fourth proposition that trial counsel was ineffective for conceding his guilt in the first stage of trial without first obtaining his consent to this trial strategy and also for failing to marshal and direct the evidence of his mental illness into a coherent defense strategy. FN6 “To prevail on a claim of ineffective assistance of counsel, Appellant must overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance by showing: [1] that trial counsel's performance was deficient; and [2] that he was prejudiced by the deficient performance.” Humphreys v. State, 1997 OK CR 59,
¶ 40, 947 P.2d 565, 577-78, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). See also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “To establish prejudice, Appellant must show a reasonable probability that, but for trial counsel's errors, the result of his [trial] would have been different.” Humphreys, 1997 OK CR 59, at
¶ 40, 947 P.2d at 578. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Failure to prove either of the required elements is fatal to Appellant's entire claim. See Black v. State, 2001 OK CR 5,
¶ 65, 21 P.3d 1047, 1071, cert. denied, 534 U.S. 1004, 122 S.Ct. 483, 151 L.Ed.2d 396.
FN6. In conjunction with his Sixth Amendment claims, Appellant has filed a motion for an evidentiary hearing in accordance with Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002). This rule allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to “utilize available evidence or adequately investigate to identify evidence which could have been made available during the course of trial....” Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains “sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.” Rule 3.11(B)(3)(b)(i). Upon review of the application and supporting exhibits, we find Appellant has not shown by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to utilize or identify the complained-of evidence. Accordingly, we deny Appellant's application for an evidentiary hearing.
¶ 16 We first address Appellant's complaint that his trial counsel was ineffective for conceding Appellant's guilt in the first stage of trial without his consent. As Appellant correctly asserts in his Reply Brief, this Court recently addressed this issue in Jackson v. State, 2001 OK CR 37,
¶ 15, 41 P.3d 395, 399, wherein we noted that “there is no per se violation of due process in conceding guilt.” However, in Jackson, this Court found a complete concession of guilt to be a serious strategic decision to be made only after consulting with the defendant and after receiving his or her consent. Id. at 400-01. We ultimately held that where the concession of guilt effectively prevented the defendant from presenting a defense to the crime(s) charged, a complete concession of guilt without the defendant's consent constituted deficient performance which was prejudicial to the defendant and which rendered trial counsel ineffective. Id. We do not depart from this ruling at this time. While this ruling required relief in Jackson, the same result is not required in the present case.
¶ 17 The record in the present case reveals that while defense counsel made abundantly clear to the jury that he would present no defense to the crimes charged-two victims were available to testify at trial and Appellant had confessed to the majority of the crimes alleged-he fell far short of making a complete concession of guilt to the crimes charged. In fact, trial counsel stated several times in his opening statement that he was not conceding Appellant's guilt and he repeatedly asked the jury to require the State to prove each and every element of each crime charged. This was not a complete concession of guilt which precluded Appellant from presenting a defense and accordingly, we do not find that this trial strategy denied Appellant his constitutional right to effective assistance of counsel.
¶ 18 Appellant next complains that trial counsel was ineffective for failing to marshal and direct the evidence of Appellant's mental illness into a coherent defensive strategy. The record reveals that defense counsel explored the possibility of presenting an insanity defense but declined to do so when “the statements and examination of [his] doctors and expert witnesses” failed to support this defense.FN7 Instead, he presented his expert witness in second stage to testify about Appellant's mental illness in mitigation. Thus, the record before this Court supports neither a finding that trial counsel was deficient or that any alleged deficient performance prejudiced the Appellant. FN7. Trial Transcript at p. 1218.
ISSUES AFFECTING BOTH STAGES OF TRIAL
¶ 19 Appellant complains in his third proposition that the admission into evidence of eight photographs depicting the shallow grave in which the victim was buried and the exhumation of her body by authorities from that grave constituted error undermining the fairness of the trial and sentencing determination. “The test for admissibility of photographs is not whether they are gruesome or inflammatory, but whether [their] probative value is substantially outweighed by the danger of unfair prejudice.” Hooks v. State, 1993 OK CR 41,
¶ 24, 862 P.2d 1273, 1280, cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994); 12 O.S.1991, § 2403. Whether to introduce photographs of a homicide victim is a decision largely within the trial court's discretion and this decision will not be disturbed absent an abuse of discretion. Id.
¶ 20 It is well established that “photographs of murder victims can be probative in many respects.... They can show the nature, extent and location of wounds, establish the corpus delicti, corroborate testimony of medical examiners and expert witnesses and depict the crime scene.” Smallwood v. State, 1995 OK CR 60,
¶ 33, 907 P.2d 217, 228, cert. denied, 519 U.S. 980, 117 S.Ct. 431, 136 L.Ed.2d 330 (1996). Here, the photographs at issue are probative insofar as they depict the crime scene and establish corpus delicti. The prejudicial effect of the photographs does not substantially outweigh their probative value. The trial court did not abuse its discretion in admitting the photographs into evidence.
SECOND STAGE ISSUES
¶ 21 In his fifth proposition, Appellant argues that improper comments made by the prosecutor denied him his constitutional right to a fair trial. Specifically, Appellant complains that in four instances during second stage opening and closing arguments, the prosecutor told the jurors that “justice” demanded they impose the death sentence. Appellant acknowledges that none of the complained of comments were met with objection and accordingly, can only be reviewed for plain error. See Hammon v. State, 2000 OK CR 7, ¶ 62, 999 P.2d 1082, 1097, cert. denied, 531 U.S. 1090, 121 S.Ct. 812, 148 L.Ed.2d 697 (2001). However, he asserts that these comments were improper expressions of personal opinion which rose to the level of plain error. It is true that this Court has condemned instances where prosecutors have improperly expressed their personal opinion as to the appropriateness of the death penalty. See Washington v. State, 1999 OK CR 22, ¶ 63, 989 P.2d 960, 979. See also Ochoa v. State, 1998 OK CR 41, ¶ 55, 963 P.2d 583, 601, cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999). However, we have also found such comments did not rise to the level of plain error where they were “not phrased in personal terms, but appealed to the jury's understanding of justice and asked that standard be upheld.” Mitchell v. State, 1994 OK CR 70, ¶ 44, 884 P.2d 1186, 1202, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995). See also Hammon, 2000 OK CR 7, at ¶ 62, 999 P.2d at 1097. In the present case, when taken in context, it is clear that the prosecutor basically argued to the jury that justice required the death penalty be imposed under the particular facts of this case, not based upon his personal opinion. We find no plain error here.
¶ 22 During the course of preparing for trial, defense counsel investigated the possibility of presenting an insanity defense and Appellant was examined by mental health experts hired by both the defense and the State. However, because the conclusions reached by Appellant's experts precluded defense counsel from following through with the presentation of this defense, he did not present a defense or call any witnesses to testify in the first stage of trial. Defense counsel did, however, call Dr. John R. Smith to testify in second stage about Appellant's mental health. Dr. Smith testified that while he did not believe Appellant to be insane, have a severe psychotic disorder or suffer from dissociative identity disorder, he opined that Appellant showed signs of posttraumatic stress disorder. He testified that Appellant was mentally ill. He also testified that he could not say with any degree of certainty whether Appellant would or would not be violent in a prison setting but he felt certain that Appellant would protect his territory.
¶ 23 In second stage rebuttal, the State presented its mental health expert, Dr. John Call, who testified that he performed a forensic psychological evaluation of Appellant based upon multiple sources. Dr. Call reached his professional diagnosis after reviewing police reports, Appellant's videotaped interviews, documents generated by Dr. Smith and Dr. Ferguson, and records from the Department of Corrections. He also interviewed the surviving victims, Mathis and Undersheriff Henry. He testified that he tried to test Appellant but Appellant would not cooperate. Based upon his review of all these sources, Dr. Call opined that Appellant was not insane, mentally ill or suffering from posttraumatic stress disorder. Rather, he testified that Appellant had a antisocial personality disorder and was a psychopath. When asked which portion of his review was most significant in contributing to his analysis, Dr. Call indicated that the videotaped interviews had a dramatic impact.
¶ 24 In his sixth proposition, Appellant complains that his Fifth and Sixth Amendment rights were violated when the statements he made to State's forensic psychologist, Dr. Call, were used against him in the second stage to secure the death penalty. In support of his Fifth Amendment claim, Appellant cites primarily to Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), in which the Supreme Court held that the admission of a psychiatrist's testimony on the topic of future dangerousness, based on a defendant's uncounseled statements, violated the Fifth Amendment. However, the facts in Estelle differ significantly from those in the present case. In Estelle, the defendant neither initiated the psychiatric examination nor attempted to introduce any psychiatric evidence. Rather, the psychiatric examination was ordered by the trial court and the defendant was not advised prior to questioning that he had the right to remain silent and that his statement could be used against him in the sentencing proceeding to establish his future dangerousness. The United States Supreme Court has recently noted that Estelle's Fifth Amendment holding has not been extended beyond its particular facts. Penry v. Johnson, 532 U.S. 782, 793, 121 S.Ct. 1910, 1919, 150 L.Ed.2d 9 (2001).
¶ 25 In the present case, Appellant initiated a psychiatric evaluation for the purpose of exploring an insanity defense, thus entitling the State to have Appellant examined by its own mental health expert. See Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987). While Appellant did not present an insanity defense in first stage, he did introduce psychiatric evidence in the sentencing proceeding, ostensibly in mitigation of the alleged aggravating circumstances. The State presented its mental health expert in second stage to rebut Appellant's psychiatric evidence. This Court has held that where the defendant opens the door with the introduction of psychological evidence, the State is entitled to introduce such evidence in rebuttal without implicating the Fifth or Sixth Amendments. See Martinez v. State, 1999 OK CR 33, ¶ 62, 984 P.2d 813, 829, cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000).
¶ 26 As the Supreme Court has declined to draw the Fifth Amendment protections afforded in Estelle either more broadly or more narrowly than is required by the facts of that case, we too are so limited. Thus, we find that Appellant suffered no Fifth Amendment violation by the introduction of the State's psychiatric testimony in the second stage rebuttal. However, even if this Court were to find that Appellant's Fifth Amendment rights were violated by the State's mental health expert's reliance upon evidence gained from his interview with Appellant, we would find that under the facts of this case, any error was harmless beyond a reasonable doubt. This is because although the State's expert spent some time with Appellant, he testified that Appellant refused to cooperate and did not complete the psychological tests. Thus, the bulk of the expert's information was gained from sources other than Appellant.
¶ 27 Appellant next complains that the introduction of the State's psychiatric evidence in the second stage violated his Sixth Amendment right to counsel because his defense counsel was not given advance notice of the scope of Dr. Call's examination. This argument is based upon the premise that Dr. Call's examination of Appellant went beyond what was necessary to defend against an insanity defense. The record simply does not support this claim. Again, as Appellant refused to complete tests for the State's forensic psychiatrist, it can hardly be said that the State's expert exceeded the scope of the evaluation to which he was entitled. It is clear that most of the evidence relied upon by the State's forensic psychiatrist came from sources other than Appellant to which the State was clearly entitled. There was no Sixth Amendment violation here.
¶ 28 In his seventh proposition Appellant raises several issues relating to the propriety of the victim impact statement prepared by the victim's parents. Proper victim impact evidence is limited to information “about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family....” 22 O.S.Supp.1998, § 984(1). Victim impact testimony may include “information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence.” Id. Appellant first claims that the victim impact statement was unfairly prejudicial as it included statements about the victim's childhood and her future plans. It is true that statements about a victim's childhood have no relevance in victim impact evidence. See Brown v. State, 1998 OK CR 77, ¶ 84, 989 P.2d 913, 933. See also Cargle v. State, 1995 OK CR 77, ¶ 80, 909 P.2d 806, 829, cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996) (pointing out victim's positive attributes as a child “in no way provides insight into the contemporaneous and prospective circumstances surrounding his death”). It is also true that statements about the victim's plans for the future may not have been relevant victim impact evidence. See Phillips v. State, 1999 OK CR 38, ¶ 100, 989 P.2d 1017, 1043, cert. denied, 531 U.S. 837, 121 S.Ct. 97, 148 L.Ed.2d 56 (2000).
¶ 29 Appellant also complains that the victim impact statement was improper because it contained characterizations of the crime and requested the jury to return a sentence of death. He contends that such statements are prohibited by the Supreme Court's holding in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). This Court discussed this argument in Ledbetter v. State, 1997 OK CR 5, ¶ 27, 933 P.2d 880, 890-91, where we found that the Supreme Court's ruling in Booth regarding the constitutionality of victim impact statements which contain characterizations of the crime and opinion of the appropriate punishment was overruled by Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). We acknowledged in Ledbetter that while the Eighth Amendment is not implicated by this type of statement, the Due Process Clause of the Fourteenth Amendment may be if the statement is so unduly prejudicial that it renders the trial fundamentally unfair. Ledbetter, 1997 OK CR 5 at ¶ 28, 933 P.2d at 891.
¶ 30 While a portion of the victim impact testimony was improper, when taken as a whole, the testimony did not have such a prejudicial effect or so skew the presentation as to divert the jury from its duty to reach a reasoned moral decision on whether to impose the death penalty. There was no constitutional violation here.
¶ 31 Finally, Appellant argues that victim impact evidence is unconstitutional as applied in Oklahoma's capital sentencing scheme. We have previously considered and rejected such claims and see no reason to depart from this precedent at this time. See Myers v. State, 2000 OK CR 25, ¶ 67, 17 P.3d 1021, 1036, cert. denied, 534 U.S. 900, 122 S.Ct. 228, 151 L.Ed.2d 163 (2001). See also Young v. State, 2000 OK CR 17, ¶ 87, 12 P.3d 20, 44, cert. denied, 532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030 (2001).
¶ 32 In his eighth proposition, Appellant complains that he was deprived of a fair sentencing proceeding by the State's improper use of a non-violent conviction to support the continuing threat aggravating circumstance. He claims that his prior burglary conviction was not relevant to prove that he constituted a continuing threat to society. “To support the aggravator of continuing threat, the State must present evidence showing the defendant's behavior demonstrated a threat to society and a probability that threat would continue to exist in the future.” Hain v. State, 1996 OK CR 26, ¶ 67, 919 P.2d 1130, 1147, cert. denied, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996). Generally speaking, when a defendant's prior criminal convictions are at issue for purposes of continuing threat, the focus is only on those crimes which indicate the likelihood of future violence. See Torres v. State, 1998 OK CR 40 ¶ 70, 962 P.2d 3, 23, cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683. In Medlock v. State, 1994 OK CR 65, ¶ 41, n. 30, 887 P.2d 1333, 1346 n. 30, cert. denied, 516 U.S. 918, 116 S.Ct. 310, 133 L.Ed.2d 213 (1995), this Court explicitly declined to adopt the position that only criminal acts of violence which would be applicable to the “prior conviction of a violent crime” aggravating circumstance are relevant to the question of continuing threat. The Court held that evidence of non-violent offenses may be admissible to prove continuing threat where “the prior offenses must relate to and indicate whether there exists a probability that the defendant would commit future criminal acts of violence constituting a continuing threat to society.” Id.
¶ 33 While a prior burglary conviction would not usually indicate the existence of a probability that the defendant would commit future criminal acts of violence constituting a continuing threat to society, it did so in the present case. When Appellant committed the burglary he took five shotguns, two rifles, two pistols and three hunting knives along with several boxes of ammunition. The nature of the items taken relate to and indicate the existence of a probability that Appellant will commit future criminal acts of violence constituting a continuing threat to society and accordingly, the prior burglary conviction was properly used to support the continuing threat aggravating circumstance.
¶ 34 In support of the continuing threat aggravating circumstance the State presented evidence that while incarcerated, Appellant vandalized jail property, made and possessed weapons and threatened law enforcement officers and witnesses. In his ninth proposition, Appellant asserts that the State's use of unadjudicated crimes to support the continuing threat aggravating circumstance was unconstitutional. Appellant acknowledges that this Court has held prior unadjudicated acts of violent conduct are relevant to the determination of whether a defendant is likely to commit future acts of violence that would constitute a continuing threat to society. See Wackerly v. State, 2000 OK CR 15, ¶ 52, 12 P.3d 1, 16-17, cert. denied, 532 U.S. 1028, 121 S.Ct. 1976, 149 L.Ed.2d 768 (2001). See also Darks v. State, 1998 OK CR 15, ¶ 41, 954 P.2d 152, 164. However, he complains that some of the evidence introduced against him was so unreliable that its admission violated due process. We disagree. There was nothing unreliable about the testimony of the various jailers that Appellant vandalized property and possessed hand-made weapons in jail. Undersheriff Henry testified about the contents of letters written by Appellant while in jail. In these letters, he boasted of possessing large amounts of guns and ammunition, he boasted of his own dangerousness, he discussed his gang affiliation and he made threats toward the surviving victims in this case. Appellant complains that the contents of these letters were unreliable because there was no evidence that the representations he made in them were true. The value of these letters relevant to the aggravating circumstance of continuing threat lies not in the truth of what Appellant asserts, but in the fact that he made such claims. As Appellant's death sentence was not based upon unreliable evidence, this proposition must fail.
¶ 35 Defense counsel hired Joyce Turner, a clinical social worker, to testify in the second stage of trial. He anticipated that she would testify about how the physical and sexual abuse Appellant suffered as a child influenced his subsequent development and behavior. The State filed a motion in limine to prevent Turner from testifying. The trial court reserved ruling on the motion until after Turner was voir dired. During the voir dire examination it was established that Turner was a licensed clinical social worker whose area of expertise was human behavior in the social environment-“how different things that happen to a person have an impact upon them and their subsequent behavior.” FN8 She testified during voir dire that she believed Appellant had been affected by things that had happened to him as a child. She stated that she had interviewed Appellant and consulted with Dr. Smith, the investigator and with various members of Appellant's family. At the end of the voir dire, the trial court found that Turner was “qualified by training and expertise to testify on the effects of certain behaviors and experiences on children in the general population.” FN9 However, because Turner was not offering psychological testimony or a diagnosis regarding Appellant, the trial court limited her testimony to generalizations about how children who have been subjected to abuse are at a greater risk for certain behaviors. Appellant complains in his tenth proposition that the trial court unconstitutionally interfered with his right to present mitigating evidence by refusing to allow Turner to testify specifically about how his experiences as a child affected his behavior as an adult.
FN8. Trial Transcript at p. 2508. FN9. Trial Transcript at p. 2527.
¶ 36 This Court has held that, “[a] defendant must be permitted to present all relevant mitigating evidence in support of his plea for a sentence less than death.” Ochoa, 1998 OK CR 41, at ¶ 71, 963 P.2d at 605, citing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise.” 12 O.S.1991, § 2702. This Court has held that social workers may qualify as expert witnesses and when they do they should be permitted to render relevant expert opinions within their field of expertise. Salazar v. State, 1996 OK CR 25, ¶ 32-33, 919 P.2d 1120, 1129, cert. denied, 528 U.S. 895, 120 S.Ct. 226, 145 L.Ed.2d 190 (1999).
¶ 37 Based upon the voir dire of Turner, it is clear that the trial court was correct in ruling that she was qualified by training and expertise to testify as an expert witness regarding the effects of certain behaviors and experiences on children. However, the court's decision to limit her testimony to hypothetical generalizations because she did not intend to proffer a psychological diagnosis of Appellant was in error as there was nothing in the record to indicate that a psychological diagnosis was necessary to Turner's expert opinion regarding how Appellant's experiences as a child affected his behavior as an adult. Turner testified she had specialized knowledge which she acquired through formal education. She further testified that she had developed skills through training and working in the field. She described how she arrived at her opinions regarding Appellant. Turner was qualified to render relevant expert opinions within her field of expertise and the trial court erred in limiting her testimony.
¶ 38 If Turner had been the only witness testifying in second stage, the trial court's improper limitation on her testimony may well have deprived Appellant of a reliable sentencing proceeding. However, when the defense's second stage case is reviewed in whole, it appears that this error can be found to have been harmless beyond a reasonable doubt. Turner was allowed to testify about how physical and sexual abuse and abandonment of children can affect their behavior as adults. Dr. Smith offered a psychological evaluation of Appellant and Appellant's step-mother and other relatives testified that Appellant had suffered from the same types of abuse and abandonment discussed by Turner. Thus, the jury was provided evidence from which it could conclude that Appellant's adult behavior may have been influenced by his childhood abuse. Accordingly, we find that under these circumstances, the trial court's error was harmless beyond a reasonable doubt.
¶ 39 In his eleventh proposition, Appellant claims the evidence was insufficient to sustain the jury's finding that he knowingly created a great risk of death to more than one person. “When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, this Court reviews the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt.” Washington, 1999 OK CR 22, at ¶ 44, 989 P.2d at 974. We have held the great risk of death aggravating circumstance is proved by acts of a defendant which create a great risk of death to another in close proximity, in terms of time, location, and intent to the killing. Thornburg v. State, 1999 OK CR 32, ¶ 42, 985 P.2d 1234, 1248, cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000). This Court has also held that,
[E]vidence is sufficient to support the aggravating circumstance of knowingly creating a great risk of death to more than one person where a defendant during the continuing course of conduct in which a murder is committed, threatens the life of another and has the apparent ability and means of taking that person's life. Smith v. State, 1986 OK CR 158, ¶ 31, 727 P.2d 1366, 1373, cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 780 (1987). Appellant acknowledges that both Bornt and Hair testified that he threatened them. Bornt testified that Appellant threatened to kill him and Hair testified that she overheard Appellant and the other assailants discuss killing them all and taking the baby to a shelter. Even Appellant in his third interview with the police said that they planned to take Bornt, Hair and Neiman to the country to kill them before they changed their minds and decided that Bornt and Hair did not need to die because they said they would not tell. The evidence that Appellant threatened to kill all three victims and had the apparent ability to do so if they did not cooperate with him provides sufficient evidence from which the jury could have found the existence of the great risk of death aggravating circumstance beyond a reasonable doubt.
¶ 40 In his twelfth proposition, Appellant argues that the heinous, atrocious or cruel aggravating circumstance as applied in Oklahoma does not constitutionally narrow the class of murderers eligible for the death penalty. He specifically complains that under the present definition in the jury instructions any person of ordinary sensibilities could find any murder to be heinous, atrocious or cruel. This Court has rejected similar attacks upon the constitutionality of this aggravating circumstance. See Le v. State, 1997 OK CR 55, ¶ 41-45, 947 P.2d 535, 552-53, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). See also Hooker v. State, 1994 OK CR 75, ¶ 44, 887 P.2d 1351, 1364-65, cert. denied, 516 U.S. 858, 116 S.Ct. 164, 133 L.Ed.2d 106 (1995); Revilla v. State, 1994 OK CR 24, ¶ 42, 877 P.2d 1143, 1154-55, cert. denied, 513 U.S. 1096, 115 S.Ct. 764, 130 L.Ed.2d 661 (1995); Berget v. State, 1991 OK CR 121, ¶ 29-34, 824 P.2d 364, 372-74, cert. denied, 506 U.S. 841, 113 S.Ct. 124, 121 L.Ed.2d 79 (1992). In each of these cases we found that the instructions given regarding the heinous, atrocious or cruel aggravating circumstance sufficiently narrow its application and pass constitutional muster. Appellant has not persuaded us to hold otherwise.
¶ 41 In his thirteenth assignment of error, Appellant argues the continuing threat aggravator is unconstitutional as it is vague and overbroad. We have previously upheld the constitutionality of this aggravator finding it neither vague nor overbroad. See Williams v. State, 2001 OK CR 9, ¶ 82, 22 P.3d 702, 722-23, cert. denied, 534 U.S. 1092, 122 S.Ct. 836, 151 L.Ed.2d 716 (2002); Young v. State, 2000 OK CR 17, ¶ 75, 12 P.3d 20, 42, cert. denied, 532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030 (2001); Wilson v. State, 1998 OK CR 73, ¶ 78, 983 P.2d 448, 466, cert. denied, 528 U.S. 904, 120 S.Ct. 244, 145 L.Ed.2d 205 (1999); Toles v. State, 1997 OK CR 45, ¶ 62, 947 P.2d 180, 192, cert. denied, 524 U.S. 958, 118 S.Ct. 2380, 141 L.Ed.2d 746 (1998). We decline to reconsider our previous decisions at this time.
¶ 42 Appellant argues in his fourteenth proposition that the Eighth Amendment bars his execution because he suffers from mental illness which diminished his culpability. Both the defense and the prosecution presented evidence regarding Appellant's mental health. However, Appellant points to no testimony, by any witness, which indicates that his mental illness was such that it could be found to have diminished his culpability. Although a review of the record reveals conflicting testimony regarding the extent of Appellant's mental illness, we continue to hold that, “[i]t is the province of the jury to resolve conflicts and to reconcile testimony concerning the motives of the witnesses and other circumstances of the case.” Bernay v. State, 1999 OK CR 46, ¶ 23, 989 P.2d 998, 1008, cert. denied, 531 U.S. 834, 121 S.Ct. 92, 148 L.Ed.2d 52 (2000). “Further, this Court will accept all reasonable inferences and credibility choices that support the jury's verdict.” Id. Thus, we accept the jury's conclusion that Appellant harbored a culpability deserving of the death penalty.
CUMULATIVE ERROR
¶ 43 In his final proposition, Appellant asks this Court to review the aggregate impact of the errors in his case in addition to reviewing the errors individually. This Court has held that where there is no error present, there can be no accumulation of error. However, when there have been numerous irregularities during the course of the trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial. (citation omitted) Smith v. State, 1996 OK CR 50, ¶ 62, 932 P.2d 521, 538, cert. denied, 521 U.S. 1124, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997). See also Bechtel v. State, 1987 OK CR 126, ¶ 12, 738 P.2d 559, 561. While it can be found in the present case that there were irregularities during the course of the trial, even taken together, these cannot be found to have been so great as to have denied Appellant a fair trial. Accordingly, after reviewing the errors in aggregate, we find that they were harmless beyond a reasonable doubt. Relief is not warranted.
MANDATORY SENTENCE REVIEW
¶ 44 In accordance with our statutory duty, we must now determine whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and also whether the evidence supports the jury's finding of the alleged statutory aggravating circumstances. See 21 O.S.2001, § 701.13(C). We are satisfied that neither passion, prejudice nor any other arbitrary factor contributed to the jury's sentencing determination. After carefully reviewing the evidence presented, we also find that it supported the jury's finding of the aggravating circumstances.
¶ 45 Finding no error warranting reversal or modification, Appellant's Judgment and Sentence is AFFIRMED. LUMPKIN, P.J. and CHAPEL, J. concur in results. JOHNSON, V.P.J. and LILE, J. concur.
CHAPEL, Judge, Concurs in Results.
I concur in the majority opinion except for those portions which resolve Proposition IX concerning the use of unadjudicated offenses to support the continuing threat aggravator and Proposition IV concerning the Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, claim. I would invalidate the continuing threat aggravator found in this case. However, I would affirm the sentence of death, as there was sufficient evidence to support the other aggravators.
Lockett v. Trammel, 711 F.3d 1218 (10th Cir. Okla. 2013). (Habeas)
Background: Following affirmance of his first degree murder conviction and death sentence, 53 P.3d 418, petitioner sought a writ of habeas corpus. The United States District Court for the Western District of Oklahoma denied habeas relief on all grounds, and petitioner appealed, and also moved to modify a certificate of appealability (COA) which he had obtained.
Holdings: The Court of Appeals, Matheson, Circuit Judge, held that: (1) erroneous exclusion of social worker's testimony did not have a “substantial and injurious effect” on jury's death sentence; (2) admission of victim impact evidence in violation of defendant's Eighth Amendment rights did not have a substantial and injurious effect on the jury's sentence; (3) Strickland standard, rather than Cronic standard, applied in analyzing defense counsel's effectiveness under Sixth Amendment; and (4) defense counsel's performance was strategic, and not constitutionally deficient. Affirmed; motion denied.
MATHESON, Circuit Judge.
In August 2000, an Oklahoma state court jury convicted Clayton Lockett of 19 counts, including burglary, assault, rape, and first degree murder. He was sentenced to 2,285 years and 90 days of imprisonment for his non-capital crimes and sentenced to death for his murder conviction. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Mr. Lockett's convictions and sentence and later denied post-conviction relief.
Mr. Lockett filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. He challenged his conviction and death sentence on 15 grounds. The federal district court denied relief but granted a certificate of appealability (“COA”) on seven grounds. Mr. Lockett asks this court to grant a COA on three additional issues. We affirm the district court's denial of habeas relief on all grounds. We also deny Mr. Lockett's request for a COA on additional grounds.
I. BACKGROUND
A. Factual History
The OCCA outlined the facts of Mr. Lockett's crimes, and “[w]e presume that the factual findings of the state court are correct” unless Mr. Lockett presents clear and convincing evidence otherwise. Fairchild v. Workman, 579 F.3d 1134, 1137 (10th Cir.2009); see also 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”).
As set forth by the OCCA, the relevant facts are as follows: At around 10:30 p.m. on June 3, 1999, Bobby Bornt was asleep on the couch at his house in Perry, Oklahoma, when his front door was kicked in. Three men, [Petitioner], Shawn Mathis and Alfonzo Lockett, entered his house and immediately started beating and kicking him. Bornt recognized [Petitioner] because [Petitioner] had recently covered a tattoo for him. [Petitioner] was carrying a shotgun which he used to hit Bornt. After the beating, Bornt's attackers used duct tape to secure his hands behind his back and they gagged him and left him on the couch while they ransacked the house looking for drugs. As Bornt lay restrained on the couch his friend, Summer Hair, approached the open door. She was pulled inside, hit in the face and thrown against a wall. One of the men put a gun to her head and ordered her to call to her friend, Stephanie Neiman, who was outside sitting in her pickup. When Neiman came inside, they hit her several times to get the keys to her pickup and the code to disarm the alarm on her pickup.
The men put all three victims in the bedroom where Bornt's nine-month old son, Sam, had been sleeping. Alfonzo Lockett came into the bedroom and got Hair. He took her into the bathroom where he made her perform oral sodomy on him. He then took her into Bornt's bedroom where he told her to get undressed and he raped her. When he was finished, he left her there and [Petitioner] came into the bedroom. He raped her vaginally and anally and he made her perform oral sodomy on him. When he was finished, he told her to get dressed and she went back into Sam's bedroom with the others. Alfonzo Lockett came into the bedroom and used duct tape to secure Hair's and Neiman's hands behind their backs. He also put tape across their mouths.
[Petitioner] instructed Mathis to look in the garage for a shovel. When he returned with a shovel, the victims were loaded into Bornt's and Neiman's pickups. Bornt and his son were placed in his pickup with [Petitioner]. Hair and Neiman were placed in Neiman's pickup with Mathis and Alfonzo Lockett. They took off driving with [Petitioner] in the lead. They left Perry and drove to a rural area in Kay County. [Petitioner] stopped on a country road where he got out of the pickup he was driving and went over to Neiman's pickup. He made Hair get out and go with him to a ditch where he raped her and forced her to perform oral sex on him. When he was finished, he took her back to Bornt's pickup. While Hair was sitting in the pickup, Mathis got her and took her back to Neiman's pickup where he made her perform oral sex on him. He grabbed her head and said, “In order for you to live, this is what you have got to do.”
While stopped on the country road, [Petitioner] told Mathis to get the shovel and start digging. When Mathis was digging in the ditch, Bornt heard [Petitioner] say, “Someone has got to go.” Neiman was taken to the hole dug by Mathis and [Petitioner] shot her. The gun jammed and [Petitioner] came back up to the pickup to fix it. While he was doing this, Bornt could hear Neiman's muffled screams. When the gun was fixed, [Petitioner] went back down to the ditch and shot Neiman again. While Mathis buried Neiman's body, [Petitioner] and Alfonzo Lockett warned Bornt and Hair that if they told anyone they would be killed too. They then drove both pickups to another location where they left Neiman's pickup. All of them rode back to Bornt's house in his pickup. [Petitioner], Mathis and Alfonzo Lockett dropped off Bornt, his son and Hair at Bornt's house and they left in Bornt's pickup.
The following day, Bornt and Hair told the Perry police what had happened. Neiman's pickup and her body were recovered and [Petitioner], Mathis and Alfonzo Lockett were subsequently arrested. [Petitioner] was interviewed by the police three times. The first time he terminated the interview and asked for an attorney. He later reinitiated the interview and although he denied shooting Neiman during the second interview, he confessed to having killed her in a third interview. Lockett v. Oklahoma, 53 P.3d 418, 421–22 (Okla.Crim.App.2002).
Mr. Lockett presents additional facts in his brief to challenge the OCCA's inferences on several issues, which we address later as they become relevant to our discussion.
B. Procedural History
1. Mr. Lockett's Trial: Guilt Phase
The State charged Mr. Lockett with 19 counts: Conspiracy (Count 1), First Degree Burglary (Count 2), Assault with a Dangerous Weapon (Counts 3, 4 and 5), Forcible Oral Sodomy (counts 6, 15, and 16), First Degree Rape (Counts 7, 8, 9, and 14), Kidnapping (Counts 10, 11, 12, and 13), Robbery by Force and Fear (Counts 17 and 18), and Murder in the First Degree (Count 19).
a. The State's Evidence
At trial, the State introduced a videotaped confession by Mr. Lockett, in which he provided a lengthy and detailed narrative of the evening's events. He confessed to going to Mr. Bornt's home to rob him; to personally hitting and beating Mr. Bornt, Ms. Hair, and Ms. Neiman with his fists or with the shotgun; to binding the victims with duct tape; to planning to kill all three adult victims; to forcing them (along with the baby) to leave Mr. Bornt's house and go to the country, where the adults were to be killed; to taking Ms. Neiman's and Mr. Bornt's trucks; to being the ultimate decision maker as to which victims would be killed; to instructing Mr. Mathis on how to dig the grave; to personally shooting Ms. Neiman while she cried; to threatening to kill them if they told anyone of his crimes; and to insisting that his accomplices bury Ms. Neiman when he knew she was still alive.
Mr. Lockett denied sexually assaulting Ms. Hair at the house or at the murder site. He also denied any knowledge of Alfonzo Lockett sexually assaulting Ms. Hair, but he admitted knowing that Mr. Mathis had sexually assaulted her at the murder site. Mr. Lockett claimed to have done several things to help the victims. For example, he said that he held, comforted, and fed Mr. Bornt's young son at the house and made sure that the child's diaper was changed at the murder site. He said that he had massaged Mr. Bornt's legs after removing the tape because they had become numb while he was bound. He also said that he and his accomplices had cleaned Mr. Bornt's house when they returned from the country and that he had expressed concern about Mr. Bornt's head injury and urged him to seek medical attention.
Throughout the videotaped confession, Mr. Lockett's demeanor was relaxed and conversational. He made no statements of remorse. The federal district court described the confession as “a step-by-step account of the evening,” which Mr. Lockett delivered “[w]ith clarity, detail and the absence of emotion.” Lockett, CIV–03–734–F at 14. Mr. Lockett explained that he initially planned to kill all of his adult victims so that the police would not find out that he had violated his probation by leaving his home county. He said that he ultimately decided to kill Ms. Neiman because she said that she would tell the police about his crimes. He calmly spoke of watching his accomplices bury Ms. Neiman while she was still alive, describing her coughing while the dirt hit her face.
The surviving adult victims, Mr. Bornt and Ms. Hair, also testified. Their testimony was largely consistent with Mr. Lockett's confession with respect to the crimes charged.FN1 Both victims described their experiences throughout that night. They told the jury that Mr. Lockett had beaten, bound, and gagged them and that he threatened to kill them. Both testified to hearing the men planning to kill them and take the baby to a shelter or to Mr. Bornt's parents' house. Ms. Hair testified to seeing one of the men hit Ms. Neiman multiple times. She testified that Ms. Neiman was bleeding from a head injury after the beating. Mr. Bornt testified to seeing Mr. Lockett shoot Ms. Neiman twice and to hearing muffled screams from Ms. Neiman in the few minutes that lapsed between the two shots. He testified that the men laughed about “how tough [Ms. Neiman] was” when she did not die immediately after the first shot. Tr. IX at 1629.
FN1. Their testimony did not, however, support portions of Mr. Lockett's confession in which he claimed to have helped the victims. For example, Mr. Bornt did not remember seeing Mr. Lockett hold or comfort the baby, and Ms. Hair testified only that Alfonzo Lockett (whom she referred to as “the little one”) had held and helped feed the baby. Mr. Bornt testified that Mr. Lockett had not helped massage his legs or expressed concern about Mr. Bornt's head injury.
Ms. Hair testified that Mr. Lockett had sexually assaulted her multiple times, at the house and at the murder site. She testified that both of Mr. Lockett's accomplices had sexually assaulted her. She told the jury that while assaulting her, Mr. Mathis had said “in order for you to live, this is what you have got to do.” Tr. X at 1746. The State introduced photographs of Mr. Bornt and Ms. Hair taken more than a week after the crimes. In the photographs, both victims' faces and bodies are bruised. Both victims described to the jury how their injuries appeared immediately after the event. Mr. Bornt described bleeding from his injuries earlier in the evening, and Ms. Hair said that her eye had been swollen shut. Ms. Hair testified to losing consciousness more than once during the evening as a result of her head injury.
Over Mr. Lockett's objections, the State also introduced photographs of Ms. Neiman's body being recovered from the shallow gravesite.
b. Mr. Lockett's Lack of Defense
Mr. Lockett's trial counsel did not present a defense. In his opening statement, counsel told the jury that Mr. Lockett had no defense. He referred to the prosecutor's statement that the jury would have “no doubt, not just beyond a reasonable doubt, but no doubt” of Mr. Lockett's guilt and conceded that the prosecutor was right. Tr. VIII at 1263. Mr. Lockett contends that his trial counsel did not consult with him before making these statements to the jury. Counsel did, however, ask the jury to hold the State to its burden to prove every element beyond a reasonable doubt, stating that the initial guilt phase was still necessary because “[t]he law in Oklahoma does not allow me to come in here and tell you, as a jury, we have done it, this happened, now sentence us.” Id. at 1263.
At closing arguments, trial counsel offered no argument with respect to the first degree murder charge. Mr. Lockett contends that his counsel conceded his guilt without notifying him of this planned strategy. The jury convicted Mr. Lockett on all 19 counts.
2. Mr. Lockett's Trial: Penalty Phase
The State sought the death penalty. During the penalty phase, the State alleged five aggravating circumstances: (1) Mr. Lockett had previous felony convictions “involving the use or threat of violence”; (2) he “knowingly created a great risk of death to more than one person”; (3) “the murder was especially heinous, atrocious, or cruel”; (4) the murder was committed to avoid or prevent “a lawful arrest or prosecution”; and (5) he was likely to commit future “acts of violence that would constitute a continuing threat to society.” Lockett, 53 P.3d at 421.
a. The State's Aggravating Evidence
The State presented two witnesses who testified about Mr. Lockett's prior conviction for burglary and a prior instance of witness intimidation. The State also presented testimony from five correctional officers regarding Mr. Lockett's behavior in jail after his arrest and before his trial. One officer testified that Mr. Lockett had written several threatening letters. Some letters were addressed to friends outside jail in which Mr. Lockett suggested that his Crips gang should kill Mr. Bornt and Ms. Hair. He claimed to be tracking their movements and demonstrated this by providing accurate Social Security numbers, addresses, and other private information for Mr. Bornt and Ms. Hair. In another letter, written to a relative, Mr. Lockett made threats against Alfonzo Lockett for his cooperation with the investigation.
All of the corrections officers who testified described Mr. Lockett's misbehavior in jail, including weapons he made (some of which he voluntarily gave to guards) and threatening statements to guards. The jury heard about other letters written to jail personnel, in which Mr. Lockett falsely boasted that he had an IQ of 190 and a black belt in two martial arts, that he had stabbed multiple corrections officers and once started a prison riot, and that his gang would prevent him from being convicted.
Finally, the State presented victim impact testimony in the form of a statement prepared by Ms. Neiman's parents and read by an extended family member. In their statement, the Neimans characterized the crimes and directly asked the jury to sentence Mr. Lockett to death. They described what Ms. Neiman was like as a child and the future plans and goals she had before she died. They described their experiences when Ms. Neiman did not come home, when they searched for her, and when they learned she had been kidnapped and shot. The federal district court quoted the following excerpt of this statement: The police told me what had happened. Stephanie gave Summer a ride to Bobby Bornt's house. When Stephanie went in, they tried to get her truck keys. They have a struggle. Stephanie is not going to give up her truck keys, because she's very proud of her truck.... [S]he works every day. So, of course she's not going to give up her truck ... The next thing she knows, Clayton [Lockett] hits her over the head with a shotgun. They tell me that they duct-tape Stephanie's hands and mouth where she cannot scream or yell at them anymore. That['s] because Stephanie is going to stand up for her rights no matter what.... Why didn't, at any point, didn't any of them leave? .... If Shawn [Mathis] was so scared of Clayton, why didn't they leave them when [Clayton Lockett was in the other truck]? ....
Stephanie didn't know him, didn't owe him anything. She stood up for what was her right and for what she believed in. And when Clayton asked her if she would tell, she said, yes, she would tell. Right is right and wrong is wrong. Maybe that's what Clayton was so scared of, because Stephanie did stand up for her rights. She did not back down to him. She did not blink an eye at him. If you ask Stephanie a question, she's not going to lie to you. She's going to tell you the truth. Tr. XIII at 2317–19. The statement concluded with this request: [F]or killing our only child, Stephanie, we ask this jury to sentence him to death. Id. at 2324. At least one juror was moved to tears by the Neimans' statement.
b. Mr. Lockett's Mitigating Evidence
In the penalty phase, defense counsel asked the jury to remember that he had been up front with them during the first stage. Tr. XIII 2169. He conceded that Mr. Lockett's crimes were brutal, but he urged the jury to “spare his life” out of “sympathy” or “empathy.” Id. at 2185. Mr. Lockett's mitigation evidence focused on his childhood trauma. He presented testimony from three family members (his stepmother, aunt, and uncle) and two expert witnesses. Family members testified that Mr. Lockett's mother abandoned him when he was three years old and that he was devastated by this abandonment. They testified that after this abandonment, the young Mr. Lockett became extremely attached to his father and idolized him. But Mr. Lockett's father was abusive and a poor role model. His father severely abused him physically, forced him to use drugs beginning at age three, encouraged sexual activity, and watched pornographic movies in front of him when he was very young. These family members also testified that Mr. Lockett's father was a criminal who taught him to steal and punished him if he was caught. Finally, family members testified that Mr. Lockett was likely sexually abused by his older brother and that he sucked his thumb and wet the bed until he was 12.
The first expert witness was social worker Joyce Turner. Ms. Turner was prepared to testify about specific traumatic events and circumstances in Mr. Lockett's childhood. She intended to share specific facts she had learned about Mr. Lockett's childhood and to offer her opinion that this trauma contributed directly to his adult criminal behaviors. The State filed a motion in limine to prevent Ms. Turner from testifying, arguing that she was unqualified. The trial court granted the motion in part. It concluded that Ms. Turner was qualified to testify in general terms about how certain types of experiences may affect children, but it limited her testimony to these generic theories. The court reasoned that because her training did not qualify her to diagnose psychological illnesses, she was unqualified to testify about Mr. Lockett as an individual. Ms. Turner was therefore prevented from discussing facts specific to Mr. Lockett or his life and was unable to offer her opinion about how Mr. Lockett's childhood experiences affected him.
Ms. Turner testified in generalities, telling the jury that certain types of childhood trauma were harmful to emotional development, especially physical and sexual abuse and/or abandonment that occurs within the first three years of a child's life. She testified that these experiences can cause children not to trust others as they grow up, citing bedwetting and thumb-sucking as common symptoms of emotional damage. Ms. Turner explained that anger from these experiences can build up to dangerous levels and can cause individuals to become aggressive as adults.
As a result of the trial court's decision to limit Ms. Turner's testimony, the jury did not hear certain facts about Mr. Lockett's childhood that were not introduced through other sources. For example, jurors did not hear that Mr. Lockett's father threatened him with a gun when he was a child or that this father taught him “that women are ‘no good’ and exist only to ‘do what you wish.’ ” Aplt. Br. at 35; Tr. XIV at 2513. They also did not hear that Mr. Lockett's mother used drugs while pregnant with him or that he experienced a bad fall and concussion as a child. Furthermore, the jury was not able to hear Ms. Turner's opinion that there “was a direct connection between [Mr.] Lockett's abusive background and his crimes.” Aplt. Br. at 38.
Mr. Lockett's second expert witness was Dr. John Smith, who performed a neurological and psychiatric exam on Mr. Lockett at the jail. He testified that Mr. Lockett suffered from post-traumatic stress disorder and was extremely psychologically damaged as a result of his childhood, especially his mother's abandonment. Dr. Smith described additional trauma Mr. Lockett experienced as a child and adolescent, including being raped by several men at age 16 while he was incarcerated at an adult correctional facility. Dr. Smith told the jury that these traumatic events had affected Mr. Lockett's brain development. He further testified that Mr. Lockett's upbringing and experiences had taught him anti-social attitudes and behaviors, such as “toughness,” “gangness,” and “meanness.” Tr. XV at 2665. He insisted, however, that Mr. Lockett was not a psychopath and that Mr. Lockett had feelings of remorse and empathy, especially toward young children.
c. The State's Rebuttal Witness
In response to Dr. Smith's testimony, the State presented rebuttal testimony from Dr. John Call. Before trial, Mr. Lockett briefly explored the possibility of asserting an insanity defense. At the time, both parties agreed that if Mr. Lockett pursued this defense, the State would bear the ultimate burden of proving that Mr. Lockett was sane at the time of the crimes. Mr. Lockett and his trial counsel therefore agreed that the State was entitled to have its own expert evaluate Mr. Lockett for this purpose. Dr. Call interviewed Mr. Lockett for one-and-a half to two hours. Because Mr. Lockett ultimately chose not to present an insanity defense, neither party introduced evidence related to his mental health during the guilt phase of trial. During the penalty phase, however, the State called Dr. Call to offer an opinion regarding Mr. Lockett's future dangerousness and to rebut Dr. Smith's psychiatric testimony. In response to a defense objection that Dr. Call's testimony violated doctor-patient privilege, the State argued that Dr. Call's opinion was based upon multiple sources, including interviews with other witnesses, reports, and Mr. Lockett's videotaped confession. Even so, the prosecutor acknowledged that he “would have to assume” that information Dr. Call had gathered in the interview was “interwoven” throughout his opinion and testimony. Tr. XV at 2727.
The trial court allowed the testimony. Dr. Call told the jury that he had interviewed Mr. Lockett and tried to administer a personality test but that Mr. Lockett had refused to cooperate. But even without the personality test, Dr. Call testified, he was able to conclude that Mr. Lockett did not suffer from any mental illness. Dr. Call asserted that Mr. Lockett displayed no symptoms of post-traumatic stress disorder. Dr. Call testified, however, that Mr. Lockett had anti-social personality disorder and was a psychopath.
d. The Jury's Sentencing Decision
The jury found that all five aggravating circumstances were present and sentenced Mr. Lockett to death for first degree murder. For the non-capital crimes, the jury assessed a total punishment of 2,250 years and 90 days of imprisonment.
3. Mr. Lockett's Direct Appeal
Mr. Lockett appealed to the OCCA, alleging 15 reversible errors, including the six issues we review on appeal. The OCCA found error on several issues but concluded that reversal was unwarranted. The OCCA agreed with Mr. Lockett that the trial court erred in limiting Ms. Turner's mitigation testimony, but it found the error harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The OCCA also held that portions of the victim impact testimony, specifically, the description of Ms. Neiman as a child and discussion of her future goals, violated Oklahoma law. However, the OCCA concluded that this “improper” admission did not violate the Eighth Amendment or the Due Process Clause, stating “[t]here was no constitutional violation here.” Lockett, 53 P.3d at 427.FN2
FN2. The OCCA raised one additional concern regarding Mr. Lockett's trial. During the initial voir dire process, the trial court held individual interviews with 19 potential jurors outside Mr. Lockett's presence. Mr. Lockett claimed that this violated his due process rights. The OCCA held that future trial courts should ensure that the defendant is present for all voir dire proceedings, but it nevertheless concluded that Mr. Lockett's absence from these portions of jury voir dire did not rise to the level of constitutional error. The federal district court agreed and denied Mr. Lockett's request for a COA on this ground. Mr. Lockett has asked this court to expand the COA to include this ground. We discuss the issue at the conclusion of this opinion.
The OCCA affirmed Mr. Lockett's conviction and sentence. Mr. Lockett petitioned the United States Supreme Court for a Writ of Certiorari, which was denied on April 21, 2003. Lockett v. Oklahoma, 538 U.S. 982, 123 S.Ct. 1794, 155 L.Ed.2d 673 (2003). Mr. Lockett then sought post-conviction relief from the OCCA, which was denied. Lockett v. State, No. PCD–2002–631 (Okla.Crim.App. Oct. 22, 2002) (unpublished).
4. Mr. Lockett's § 2254 Petition in Federal District Court
Mr. Lockett filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. He asserted 15 grounds for habeas relief: (1) his exclusion from portions of voir dire; (2) ineffective assistance of trial counsel (three separate claims); FN3 (3) suppression of Ms. Turner's mitigating testimony; (4) insufficient evidence on the aiding and abetting counts; (5) admission of gravesite and exhumation photographs; (6) inclusion of unconstitutional victim impact testimony; (7) inclusion of Dr. Call's testimony based on Mr. Lockett's uncounseled statements; (8) jury instructions regarding weighing of aggravating and mitigating circumstances; (9) constitutionality of the heinous, atrocious, or cruel aggravator; (10) constitutionality of the continuing threat aggravator; (11) inclusion of unreliable evidence of unadjudicated prior bad acts; (12) insufficient evidence to support the great risk aggravator; (13) inappropriateness of the death penalty due to his mental illness; (14) prosecutorial misconduct during the penalty stage; and (15) cumulative error.
FN3. In his direct appeal, Mr. Lockett made two claims for ineffective assistance of counsel. The first concerned trial counsel's alleged concession of guilt during the first phase of trial. The second claim concerned counsel's alleged failure to “marshal ... evidence of his mental illness into a coherent defense strategy” during the penalty phase. Lockett, 53 P.3d at 424. In his habeas petition, Mr. Lockett added a third claim for ineffective assistance, arguing that counsel should have introduced into evidence a letter of remorse he wrote to Ms. Neiman's parents.
The federal district court addressed the merits of the first two claims and denied relief. It granted a COA on the first claim related to counsel's performance during the guilt phase, and we review the issue in this opinion. Mr. Lockett asks this court to grant a COA on the second claim related to counsel's alleged failure to marshal mental health evidence. We respond to Mr. Lockett's COA motion later in this opinion.
Mr. Lockett presented the third claim regarding the letter of remorse to the OCCA for the first time in his post-conviction petition. The OCCA concluded that this claim was procedurally barred because the facts of the claim were available at the time of his direct appeal. The federal district court affirmed. See Lockett v. Workman, No. CIV–03–734–F at 20 (W.D.Okla. Jan. 19, 2011). Mr. Lockett does not appeal this determination. The federal district court concluded that the trial court made two constitutional errors. First, the court agreed with the OCCA that the trial court erred in suppressing portions of Ms. Turner's testimony. Second, the court held that the trial court erred in admitting unconstitutional victim impact testimony. Nevertheless, the district court concluded the errors were individually and cumulatively harmless. It therefore denied habeas relief on all 15 grounds. Lockett v. Workman, No. CIV–03–734–F (W.D.Okla. Jan. 19, 2011).
On the same day, the district court granted a COA to Mr. Lockett on seven of the 15 issues: Ground Two (ineffective assistance of trial counsel, as to the guilt-phase only); Three (testimony of Joyce Turner); Four (insufficient evidence of aiding and abetting); Six (victim impact testimony); Seven (testimony of Dr. Call); Twelve (insufficient evidence of the great risk aggravator); and Fifteen (cumulative error). See Lockett v. Workman, No. CIV–03–734–F (W.D.Okla. Jan. 19, 2011) (order granting COA). Mr. Lockett has filed a motion with this court to modify the COA to include three additional issues: Grounds One (right to be present at voir dire); Two (ineffective assistance of trial counsel, as to penalty phase); and Eight (jury instructions at the penalty phase). See Lockett v. Workman, No. 11–6040 (10th Cir. Mar. 11, 2011) (appellant's motion to expand COA).
II. JURISDICTION AND STANDARD OF REVIEW
A COA is a prerequisite to appellate jurisdiction in a habeas action. See 28 U.S.C. § 2253(c)(1)(A); Miller–El v. Cockrell, 537 U.S. 322, 335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We therefore have jurisdiction to review the seven issues on which the district court granted COA pursuant to 28 U.S.C. §§ 1291 and 2253. It appears, however, that Mr. Lockett has abandoned one of these issues—sufficiency of the evidence of aiding and abetting sexual assault. We therefore consider that issue waived and do not address it. “[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief.” Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007).FN4
FN4. We note that even if Mr. Lockett had argued this issue successfully on appeal, it would have little practical effect on his sentence. Mr. Lockett was convicted on three charges of aiding and abetting rape and/or oral sodomy (Counts 6, 7, and 16) and sentenced to 475 years for these convictions. These crimes do not affect his death sentence for the first degree murder conviction. Even if Mr. Lockett succeeded in overturning his death sentence and the three aiding and abetting convictions, his remaining sentence for the 15 other non-capital convictions would be 1,775 years and 90 days. [ See Lockett, 53 P.3d at 421.]
Mr. Lockett has filed a Motion to Modify Certificate of Appealability, in which he asks us to grant a COA on three additional issues. We consider this motion later in this opinion. The OCCA considered on direct appeal the merits of each of the six claims we review here. Our review is therefore governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which requires federal courts to give significant deference to state court decisions. See Hooks v. Workman, 689 F.3d 1148, 1162–63 (10th Cir.2012) (“This highly deferential standard for evaluating state-court rulings demands that state-court decisions be given the benefit of the doubt.” (quotations omitted)). Under AEDPA deference, a federal court's habeas review is limited to determining whether the OCCA's conclusion is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or whether the conclusion “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see Harrington v. Richter, –––U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011).
“Clearly established law is determined by the United States Supreme Court, and refers to the Court's ‘holdings, as opposed to the dicta.’ ” House v. Hatch, 527 F.3d 1010, 1015 (10th Cir.2008) (quoting Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). An OCCA decision is “contrary to” a clearly established law if it “applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). An OCCA decision is an “unreasonable application” of clearly established federal law if it “identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of petitioner's case.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quotations omitted).
Notably, an application of Supreme Court law may be incorrect without being unreasonable. Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). We may reverse only if all “fairminded jurists” would agree that the state court got it wrong. Richter, 131 S.Ct. at 786. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 786. Our review “is limited to the record that was before the” OCCA. Cullen v. Pinholster, –––U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Finally, “we review the federal district court's conclusions of law de novo and its findings of fact, if any, for clear error.” Hain v. Gibson, 287 F.3d 1224, 1229 (10th Cir.2002).
III. DISCUSSION
We first analyze the six issues on which the federal district court granted a COA and which Mr. Lockett addresses in his briefs.FN5 We address these issues in the order in which the parties briefed them, beginning with five challenges related to the sentencing phase of trial: (A) restriction of Ms. Turner's mitigation testimony; (B) admission of victim impact testimony; (C) admission of rebuttal testimony by Dr. Call; (D) sufficiency of the evidence supporting the great risk aggravating circumstance; and (E) cumulative error. We then turn to the sole guilt-phase issue briefed on appeal, (F) trial counsel's alleged ineffective assistance by conceding guilt.
FN5. As we explain above, a seventh issue included in the district court's grant of COA, insufficient evidence of aiding and abetting, has been waived because Mr. Lockett did not address it in his brief.
Finally, we address Mr. Lockett's motion to expand the COA to include three additional issues: (A) the trial court's decision to conduct voir dire interviews with 19 jurors outside Mr. Lockett's presence; (B) trial counsel's alleged ineffective assistance in the penalty phase for failing to marshal specific evidence of mental illness; and (C) the constitutionality of the jury instruction regarding the weighing of aggravating and mitigating circumstances.
A. The Erroneous Limitation of Ms. Turner's Mitigation Testimony
Mr. Lockett asserts that the trial court erred in limiting Ms. Turner's mitigation testimony to generic statements. The OCCA agreed but found the error to be harmless. The federal district court upheld the OCCA's decision under AEDPA deference, and we affirm.
1. Legal Background
The Eighth and Fourteenth Amendments protect a defendant's right to present mitigating evidence in a capital case.FN6 Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). A jury may not be prevented from considering “any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Id. at 604, 98 S.Ct. 2954.FN7 Moreover, Oklahoma law allows social workers to render expert opinions like the excluded portion of Ms. Turner's proposed testimony. E.g., Salazar v. State, 919 P.2d 1120 (Okla.Crim.App.1999). Because the State concedes that the limitation on Ms. Turner's testimony was constitutional error, we consider only whether it was harmless.
FN6. In his opening brief, Mr. Lockett offers this explanation of the role of mitigating evidence: By the time a capital case reaches the sentencing stage, the jury's knowledge about the defendant is usually limited to the worst thing he has ever done.... If the defendant is to escape [a death sentence], he must convince at least one juror that there is more to him than that terrible day, that despite his crimes the jury should show mercy, that there may be in his past something that helps explain his seemingly senseless crime. Aplt. Br. at 32. FN7. To avoid confusion with the present case, we refer to the Supreme Court's Lockett v. Ohio decision by its full name throughout this opinion.
In a direct review of a state court criminal judgment, a constitutional error is harmless only if a court finds that it was “harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24, 87 S.Ct. 824. But in a collateral review of a state court's criminal judgment, we apply the “more forgiving standard” first articulated in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007).
Under the Brecht standard, an error is deemed “harmless unless it ‘had a substantial and injurious effect or influence in determining the jury's verdict.’ ” Fry, 551 U.S. at 116, 127 S.Ct. 2321 (quoting Brecht, 507 U.S. at 631, 113 S.Ct. 1710). A substantial and injurious effect exists if a “court finds itself in grave doubt about the effect of the error on the jury's [sentencing decision].” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.2006). Brecht explains that “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” 507 U.S. at 634, 113 S.Ct. 1710 (quotations omitted). “However, when a court is “in virtual equipoise as to the harmlessness of the error” ... the court should treat the error ... as if it affected the verdict ...” Selsor v. Workman, 644 F.3d 984, 1027 (10th Cir.2011) (quotations omitted). Because a death sentence requires a unanimous jury, “the ultimate inquiry is: ‘Do we harbor a significant doubt that this evidence would have caused at least one juror to choose life rather than death?’ ” Moore v. Reynolds, 153 F.3d 1086, 1110 (10th Cir.1998) (quoting Castro v. Oklahoma, 71 F.3d 1502, 1516 (10th Cir.1995)).
2. The Error Did Not Have a Substantial and Injurious Effect on the Jury's Decision
Our careful review of the record leads us to conclude that the erroneous limitation on Ms. Turner's testimony did not have a “substantial and injurious effect” on the jury verdict. Fry, 551 U.S. at 116, 127 S.Ct. 2321. We discern in Mr. Lockett's arguments three possible ways in which the excluded portions of Ms. Turner's testimony could have influenced the jury's decision. First, did missing factual details prevent the jury from genuinely understanding the context of Mr. Lockett's childhood experiences? Second, did the absence of Ms. Turner's explicit opinion testimony that Mr. Lockett's adult criminal behavior was connected to his childhood trauma prevent the jury from understanding that this connection may have existed? Third, could the jury have inferred from Ms. Turner's failure to draw this explicit connection that she did not believe such a connection existed?
a. Missing Facts
We do not harbor significant doubt as to whether the handful of missing facts had a substantial and injurious effect on the jury's decision. Jurors heard substantial evidence that would have allowed them to understand the context of Mr. Lockett's childhood. The few missing details were not significantly different from the numerous details introduced through the testimony of Mr. Lockett's family members. For example, jurors did not hear that Mr. Lockett's father pointed guns at his family, but they did hear that his father routinely and severely beat his family members, that he was a criminal who taught young Mr. Lockett to commit crimes and punished him for getting caught, and that he showed Mr. Lockett pornography and forced him to do drugs when he was a young child. Although the missing facts were relevant to mitigation, they were not significantly different in kind from the many facts the jury heard. They represent cumulative evidence of severe child abuse and poor parenting. We therefore harbor no significant doubt about the effect of these missing facts on the jury's sentencing decision.
b. Missing Opinion
We also do not harbor significant doubts as to whether the omission of Ms. Turner's expert opinion about Mr. Lockett had a substantial and injurious influence on the jury's decision. Taken together, the mitigating evidence, including Dr. Smith's testimony, was sufficient to allow the jury to understand how and why childhood trauma may influence adult behavior. Although she was not able to explicitly state her opinion that Mr. Lockett's adult crimes were tied to childhood trauma, her general testimony pointed to these conclusions. For example, Ms. Turner testified that abuse and abandonment, especially in the first three years of life, erode children's sense of trust and safety and cause “a buildup of repressed rage” that may eventually release in the form of aggressive behavior. Aplt. Br. at 20. The jury likely understood that these points related to the testimony from Mr. Lockett's family members about the abuse and abandonment he experienced in childhood, including the first three years of life.
Dr. Smith reinforced this connection, testifying that Mr. Lockett was mentally ill as a result of his childhood trauma, which influenced his criminal acts. Dr. Smith testified at length to specific connections between Mr. Lockett's childhood and adolescent trauma, on the one hand, and his brain development and adult criminal behavior, on the other. He told the jury that as a 3–year–old child, Mr. Lockett was abandoned by his mother and “found on [his father's] doorstep, urine-soaked,” and that Mr. Lockett's father frequently stripped him naked and beat him with belts or boards. Tr. Vol. XV at 2637. Dr. Smith told the jury that this type of early childhood trauma “may affect the neuron connections in the brain,” which in turn control how he “integrates, perceives, and expresses [himself] throughout life.” Tr. Vol. XV at 2633. According to Dr. Smith, this trauma caused him to develop “an extremely deep mistrust of human relationships.” Id. at 2642. This led Mr. Lockett to join a gang, which gave him a sense of belonging but also taught him criminal behaviors and “deviant” values. Id. at 2643. Dr. Smith said that beneath his “cloak of gangland meanness,” Mr. Lockett was “very insecure, full of anxiety” and often felt “very vulnerable.” Id. at 2649.
Dr. Smith testified that Mr. Lockett had been raped in prison by a group of three men when he was 16 years old and that this experience, along with possible early childhood sexual assault, may have led him to “repress[ ] or dissociate[ ]” his sexual assault of Ms. Hair. Id. at 2647. Dr. Smith also offered an explanation for why Mr. Lockett allowed two of his victims to live while killing Ms. Neiman: Mr. Lockett may have become enraged at Ms. Neiman's defiance because “his very earliest rage and hurt was from women.” Id. at 2663. Dr. Smith suggested that Mr. Lockett did not kill Mr. Bornt and Ms. Hair because “he was touched ... by their quickness and willingness to agree” not to report him and because they had young children and Mr. Lockett knew “what it's like to go without mothering ... [or] decent parenting.” Id. at 2664. In short, Dr. Smith offered a clear and emphatic opinion that Mr. Lockett's crimes were linked to his childhood and adolescent trauma. We therefore do not harbor significant doubt as to whether the absence of Ms. Turner's opinion on the issue affected the jury's sentencing decision.
c. Potential Negative Inference
Mr. Lockett's strongest argument relates to the third question: whether the jury may have drawn a negative inference from Ms. Turner's missing analysis. Mr. Lockett argues that upon hearing Ms. Turner's extensive testimony about hypothetical effects of childhood trauma on individuals, the jury likely expected her to conclude that, in her expert opinion, Mr. Lockett's childhood trauma was connected to his adult behavior. When this opinion did not come, Mr. Lockett argues, the jury may have drawn the false conclusion that Ms. Turner did not believe there was such a connection. But this potential negative inference does not overcome our highly deferential standard of review. Although it may have been possible for jurors to conclude that Ms. Turner believed Mr. Lockett's actions were not linked to childhood trauma, another inference was just as likely: that Ms. Turner did not testify to specifics because she was not familiar with Mr. Lockett's individual situation and that it was the role of the other expert witness, Dr. Smith, to provide these specifics. It is also possible that jurors did not draw any particular inference about what was not included in her testimony.
Moreover, even if jurors did draw a negative inference, it is not likely to have substantially influenced their verdict in the context of all aggravating and mitigating evidence. Mr. Lockett presented four witnesses in mitigation. As the State argues, “the jury was well aware of the trials and tribulations [he] faced growing up.” Aplee. Br. at 13. His mitigating evidence was countered by extensive aggravating evidence, including the testimony of Dr. Call and evidence of Mr. Lockett's jailhouse misbehavior (e.g., making weapons and making threats about his surviving victims). Furthermore, certain evidence presented during the guilt phase no doubt influenced the jury's sentencing decision. The jury viewed a videotape of Mr. Lockett's matter-of-fact confession and saw and heard detailed testimony from two surviving witnesses. In the end, the jury found the presence of five aggravating factors beyond a reasonable doubt. Viewed in this context, we do not find ourselves “in grave doubt” about the effect of the suppressed portions of Ms. Turner's testimony on the jury's sentencing decision. Bland, 459 F.3d at 1009 (quotations omitted). We therefore affirm the district court's refusal to grant Mr. Lockett relief on this ground.
B. The Admission of Unconstitutional Victim Impact Testimony
Mr. Lockett asserts that the trial court erred in admitting victim impact testimony that included sentencing recommendations and descriptions of the crime. Relying on its own precedent, the OCCA disagreed and found no constitutional error.FN8 The federal district court found that the victim impact testimony violated Mr. Lockett's Eighth Amendment rights under clearly established Supreme Court law. It concluded, however, the admission was harmless under Brecht and Tenth Circuit precedent. We affirm. FN8. The OCCA did, however, find that portions of the Neimans' statement “about the victim's childhood and her future plans” were impermissible under Oklahoma law. Lockett, 53 P.3d at 427 (citing Brown v. State, 989 P.2d 913, 933 (Okla.Crim.App.1998)). The OCCA labeled these portions of the victim impact statement as “improper,” but insisted that they did not have any “prejudicial effect” and concluded “[t]here was no constitutional violation here.” Id.
1. Legal Background
In Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the Supreme Court held that introduction of a victim impact statement to a jury at the sentencing phase of a capital murder trial violated the Eighth Amendment. Id. at 509, 107 S.Ct. 2529. In that case, the victim impact statement included two types of evidence. The first type involved statements about the victim's “personal characteristics” and the emotional impact of the crime on the victim's family. Id. at 503, 107 S.Ct. 2529. The second type of evidence involved the victim's family's opinions about the crime, the defendant, and the appropriate sentence. Id. at 508, 107 S.Ct. 2529; Payne v. Tennessee, 501 U.S. 808, 830, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Booth held that both types of evidence are “irrelevant to a capital sentencing decision” and “create[ ] a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.” 482 U.S. at 502–03, 107 S.Ct. 2529.
The Court revised its ruling four years later in Payne v. Tennessee, to allow victim testimony that includes the first type of evidence, description of the victim and the effects on the victim's family. 501 U.S. at 827, 111 S.Ct. 2597. The Payne Court held that there is no per se bar against such victim impact testimony under the Eighth Amendment. Id. The Payne Court specifically noted, however, that its holding did not affect Booth 's rule that “admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment.” Id. at 830 n. 2, 111 S.Ct. 2597.FN9 FN9. The Payne Court also stated that the Fourteenth Amendment's Due Process Clause still prohibits testimony that is “so unduly prejudicial that it renders the trial fundamentally unfair.” Id. at 825, 111 S.Ct. 2597. In the courts below, Mr. Lockett challenged the victim impact statements on both Eighth Amendment and due process grounds. On appeal, he argues only the Eighth Amendment ground.
The Supreme Court has explained that sentencing decisions are properly based upon “the defendant's personal responsibility and moral guilt.” Booth, 482 U.S. at 502, 107 S.Ct. 2529 (quotations omitted). The danger that an improper victim impact statement poses to a defendant's Eighth Amendment rights is “that the jury may impose the death penalty in an arbitrary and capricious manner,” by focusing on irrelevant factors such as “the degree to which the victim's family is willing and able to express its grief” or the perceived quality of the victim's character. Id. at 505–06, 107 S.Ct. 2529. The Tenth Circuit has clearly held on numerous occasions that Booth continues to prohibit victim impact statements that describe characteristics of the crime or request the death sentence. E.g., Hain, 287 F.3d at 1238–39. In spite of this, Oklahoma law expressly authorizes the admission of victim impact testimony, including victims' characterization of the crime and opinions as to what sentence a defendant should receive, Okla. Stat. tit. 21, § 142A–1, and the OCCA has repeatedly allowed the practice, see, e.g., Ledbetter v. State, 933 P.2d 880, 890–91 (Okla.Crim.App.1997).
This court has found error in numerous OCCA opinions allowing prohibited victim impact statements in capital cases. E.g. Selsor v. Workman, 644 F.3d 984, 1026–27 (10th Cir.2011); Hooper v. Mullin, 314 F.3d 1162, 1174 (10th Cir.2002); Hain, 287 F.3d at 1239. The OCCA has acknowledged this Tenth Circuit case law but refuses to follow it. See Coddington v. State, 254 P.3d 684 (Okla.Crim.App.2011). FN10. Nine circuits and 38 states have addressed the admissibility of victim impact testimony. With the lone exception of Oklahoma, our research shows that no jurisdiction permits the admission of victim impact testimony that includes opinions about the crime, the defendant, or the appropriate sentence.
All nine of the federal circuits that have considered this issue have concluded that Booth's prohibition on this type of victim impact testimony survives Payne. See Williams v. Norris, 612 F.3d 941, 951 (8th Cir.2010); United States v. Whitten, 610 F.3d 168, 192 (2d Cir.2010); Fautenberry v. Mitchell, 515 F.3d 614, 638 (6th Cir.2008); United States v. Corley, 519 F.3d 716, 729 (7th Cir.2008); Welch v. Sirmons, 451 F.3d 675, 702–03 (10th Cir.2006); United States v. Brown, 441 F.3d 1330, 1351 (11th Cir.2006); Humphries v. Ozmint, 397 F.3d 206, 217 (4th Cir.2005); Summerlin v. Stewart, 341 F.3d 1082, 1112 n. 15 (9th Cir.2003), rev'd on other grounds by Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); United States v. Bernard, 299 F.3d 467, 480 (5th Cir.2002).
Twenty-two of the 33 death penalty states have explicitly recognized that Booth's prohibition on victim statements containing opinions about the crime, the defendant, or the appropriate sentence remains the law. Florida prohibits this type of victim statement through statute. Fla. Stat. § 921.141(7). Twenty-one states have done so through judicial decisions. Ex parte McWilliams, 640 So.2d 1015, 1017 (Ala.1993); Lynn v. Reinstein, 205 Ariz. 186, 68 P.3d 412, 417 (2003); Miller v. State, 2010 Ark. 1, 362 S.W.3d 264, 285 (2010); People v. Smith, 30 Cal.4th 581, 134 Cal.Rptr.2d 1, 68 P.3d 302, 330 (2003); Ortiz v. State, 869 A.2d 285, 301–02 (Del.2005); Bryant v. State, 288 Ga. 876, 708 S.E.2d 362, 381–82 (2011); State v. Payne, 146 Idaho 548, 199 P.3d 123, 148 (2008); State v. Taylor, 669 So.2d 364, 370 (La.1996); Ware v. State, 360 Md. 650, 759 A.2d 764, 783 (2000); Moffett v. State, 49 So.3d 1073, 1106–07 (Miss.2010); State v. Simmons, 944 S.W.2d 165, 186–87 (Mo.1997) (en banc); State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169, 214 (2000); Kaczmarek v. State, 120 Nev. 314, 91 P.3d 16, 33–34 (2004); State v. Thompson, 359 N.C. 77, 604 S.E.2d 850, 862 (2004); State v. Goodwin, 84 Ohio St.3d 331, 703 N.E.2d 1251, 1262 (1999); State v. Guzek, 336 Or. 424, 86 P.3d 1106, 1109 n. 3 (2004), vacated on other grounds, Oregon v. Guzek, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006); State v. Nesbit, 978 S.W.2d 872, 888 n. 8 (Tenn.1998); Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003); State v. Ott, 247 P.3d 344, 351 (Utah 2010); Juniper v. Commonwealth, 271 Va. 362, 626 S.E.2d 383, 420–21 (2006); State v. Gregory, 158 Wash.2d 759, 147 P.3d 1201,1249–50 (2006) (en banc).
An additional five states that no longer allow the death penalty have explicitly recognized that Payne did not overrule Booth 's prohibition on victim impact statements containing opinions about the crime, the defendant, or the appropriate sentence. People v. Scott, 148 Ill.2d 479, 171 Ill.Dec. 365, 594 N.E.2d 217, 248 (1992); State v. Muhammad, 145 N.J. 23, 678 A.2d 164, 172 (1996); State v. Allen, 128 N.M. 482, 994 P.2d 728, 750 (1999); State v. Tyler, 211 W.Va. 246, 565 S.E.2d 368, 377 n. 11 (2002); State v. Eggenberger, 242 Wis.2d 471, 625 N.W.2d 360, 2001 WL 118894 at *7–9 & n. 7 (Wis.Ct.App.2001) (unpublished table).
Ten death penalty states have allowed victim impact evidence in some form, such as information about the victim's personal qualities or the impact of the crime on the victim's family—as authorized by Payne—without addressing the prohibited victim evidence at issue here. Three states have enacted statutes permitting victims to make statements of the type upheld in Payne. Colo.Rev.Stat. § 24–4.1–302.5(1)(g); N.H.Rev.Stat. Ann. § 21–M:8–k; 42 Pa. Cons.Stat. § 9711(a)(2). Six states have permitted Payne—approved victim impact evidence through judicial decisions. Bivins v. State, 642 N.E.2d 928, 956–57 (Ind.1994); State v. Kleypas, 272 Kan. 894, 40 P.3d 139, 196–97 (2001), overruled on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006); Kills on Top v. State, 303 Mont. 164, 15 P.3d 422, 437 (2000); State v. Rocheville, 310 S.C. 20, 425 S.E.2d 32, 36 (1993); State v. Rhines, 548 N.W.2d 415, 445–47 (S.D.1996); Harlow v. State, 70 P.3d 179, 193–96 (Wyo.2003). We found no precedent indicating any of these states allows juries to hear the types of victim impact testimony prohibited under the surviving portions of Booth. Finally, Kentucky has a statute purporting to allow victims' families to make sentencing recommendations to the probation officer responsible for preparing the presentence report, Ky.Rev.Stat. § 421.520, but it does not appear Kentucky allows juries to hear such statements. Case law reveals only instances in which the commonwealth has allowed evidence explicitly permitted by Payne. See, e.g., Gray v. Commonwealth, 203 S.W.3d 679, 689–90 (Ky.2006) (upholding admission of evidence about victims' personal qualities and lives); Bowling v. Commonwealth, 942 S.W.2d 293, 303 (Ky.1997), overruled on other grounds by McQueen v. Commonwealth, 339 S.W.3d 441 (Ky.2011) (upholding admission of “humanizing” evidence about victims' lives and personal qualities).
Oklahoma stands alone in permitting juries to hear victim impact statements that “contain characterizations of the crime and opinion of the appropriate punishment” and in concluding that Booth 's prohibition against such evidence “was overruled by Payne.” Lockett v. State, 53 P.3d 418, 427 (Okla.Crim.App.2002); see also, e.g., Dodd v. State, 100 P.3d 1017, 1046 (Okla.Crim.App.2004).
2. The Victim Impact Statement Violated Clearly Established Law But Did Not Have a Substantial and Injurious Effect on the Jury's Decision
We are convinced that some portions of the victim impact statement were unconstitutional, but our careful review of the record indicates that this unconstitutional evidence did not have a substantial and injurious effect on the jury's sentencing decision. In the following analysis, we first address Mr. Lockett's claim that the victim impact evidence violated his Eighth Amendment rights and then turn to whether the violation satisfies Brecht 's harmless error standard.
a. Constitutional Violation
In determining whether the challenged portions of the statement were unconstitutional, we apply AEDPA deference. We reject the OCCA's conclusion only if it is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).
The OCCA explicitly relied on an incorrect statement of the law when it stated that “[v]ictim impact testimony may include ... circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence.” Lockett, 53 P.3d at 427 (quotations omitted). The OCCA also assumed that Payne overruled Booth in its entirety. Id. This is contrary to the Supreme Court's plain statement that Payne did not affect Booth 's Eighth Amendment prohibition on “victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence.” Payne, 501 U.S. at 830 n. 2, 111 S.Ct. 2597; see also DeRosa v. Workman, 679 F.3d 1196, 1237 (10th Cir.2012) (“[I]t remains constitutionally improper for the family members of a victim to provide characterizations and opinions about the crime, the defendant, and the appropriate sentence.” (quotations omitted)); Selsor v. Workman, 644 F.3d 984, 1026–27 (10th Cir.2011) (“The Supreme Court's decision in Payne and our own post- Payne cases clearly establish that it is a violation of the Eighth Amendment to allow a victim or a victim's family member to comment, during second-stage proceedings, on the appropriate sentence for a capital defendant.”).
The victim impact statement in this case involved two types of evidence prohibited by the Eighth Amendment: characterization of the crime and the defendant and a sentencing recommendation. The Neimans' statement described portions of the crime, including Mr. Lockett's beating of Ms. Neiman with the shotgun, his successful attempt to take her truck, and his taping her hands and mouth so “she cannot scream or yell at them anymore.” Tr. Vol. XIII at 2318. The statement speculated about Ms. Neiman's thoughts and feelings during the crime, telling the jury that her refusal to cooperate with Mr. Lockett was based on her moral code and attributing motives to Mr. Lockett. Id. at 2318 (“Stephanie is going to stand up for her rights no matter what.... Right is right and wrong is wrong. Maybe that's what Clayton was so scared of.”). The Neimans' statement ended with an unambiguous plea to the jury to sentence Mr. Lockett to death. Id. at 2324. In short, the admission of portions of the Neimans' victim impact statement was unconstitutional in light of clearly established Supreme Court law.
b. Harmless Error
We now consider “whether the erroneous admission of victim impact testimony so clearly swayed the jury as to cause [Mr. Lockett] actual prejudice.” Welch v. Workman, 639 F.3d 980, 1002 (10th Cir.2011). FN11 Our harmless error analysis is governed by Brecht 's “substantial and injurious effect” standard. See Fry, 551 U.S. at 121–22, 127 S.Ct. 2321. Thus, the error is reversible only if we find ourselves “in grave doubt” about whether the victim impact testimony affected the jury's verdict. See Bland, 459 F.3d 999, 1009 (10th Cir.2006) (quotations omitted). FN11. This opinion discusses two cases involving a defendant with the last name Welch: Welch v. Workman, 639 F.3d 980 (10th Cir.2011), and Welch v. Sirmons, 451 F.3d 675 (10th Cir.2006). To avoid confusion, we use the full name of these cases in every instance.
Because the OCCA erred in finding no Eighth Amendment violation, we grant no deference to its harmless error analysis and consider the question de novo. See Welch v. Sirmons, 451 F.3d 675, 703–04 (10th Cir.2006), overruled on other grounds by Wilson v. Workman, 577 F.3d 1284 (10th Cir.2009). To determine whether the Neimans' statement had a substantial and injurious effect on the jury's decision, we must consider it in the overall context of the trial and the “record as a whole.” Brecht, 507 U.S. at 638, 113 S.Ct. 1710. We first examine the statement itself and then address the broader context of mitigating and aggravating evidence presented at trial. We find guidance for our analysis in Tenth Circuit precedent addressing harmless error with respect to unconstitutional victim impact statements.
i. The Victim Impact Statement
The federal district court described the challenged portions of the statement as “noticeably more pallid[ ] than might have been expected” and “not nearly as inflammatory as they, under the facts of this case, could have been.” Lockett, No. CIV–03–734–F at 43. The most emotional and expressive part of the Neimans' statement was constitutionally permissible: statements about the effect the murder had on them as a family, about their daughter's unique and positive qualities, and about how much they missed her. We agree that the statement was relatively pallid in comparison to other victim impact statements this circuit has found harmless. For example, this case involved a single victim impact statement read to the jury by an extended family member, and not by the Neimans themselves. In contrast, Welch v. Sirmons involved unconstitutional victim impact statements from five separate family members. 451 F.3d at 710. Similarly, DeRosa v. Workman involved multiple unconstitutional victim impact statements. 679 F.3d at 1238. In both cases, we found the inclusion of the unconstitutional evidence to be harmless under Brecht.
In the Neimans' statement, the description of the crime was brief and devoid of colorful or inflammatory language. It did not relay any facts that had not already been clearly established by the evidence. In contrast, Welch v. Workman involved unconstitutional victim impact statements from three family members that described the crimes in vivid and emotional detail. For example, the victim's father told the jury that the defendant “chased my son down and ... butchered him with a knife.” 639 F.3d at 997. The victim's mother testified that “there is no doubt that they're the ones who killed him. They planned it.” Id. at 999. The Neimans' statement also did not include any characterization of Mr. Lockett. The statements that were held to be harmless in Welch v. Workman described the defendant in highly emotional terms. The victim's mother told the jury the defendant “sits in this courtroom, smug and uncaring” and never “show[ing] one sign of remorse. No shame.” Id. Multiple statements described the defendant as a “murderous animal” and a “parasite.” Id. at 990, 999.
The Neimans' request for the death penalty was a single, concise sentence. In contrast, the three victim statements that were held to be harmless in Welch v. Workman contained extremely emotional pleas for the death penalty. The family members in that case “implored” and “begged” the jury to sentence the defendant to death. Id. at 990, 1000. The victim's father told the jury his request was on behalf of his “grandsons, Robert and James, who are not old enough to speak for themselves,” and who would grow up without their father. Id. at 997. The victim's mother asked the jury to disregard the mitigating evidence, criticized the defense counsel for suggesting the defendant's childhood circumstances warranted mercy, and stated that her own childhood was also difficult but that this did not give anyone “the right to brutally attack another human being.” Id. at 999.
Finally, as in Welch v. Workman, Mr. Lockett's jury was correctly instructed that its decision about whether to sentence the defendant to death was “limited to a moral inquiry into the culpability of the defendant, not an emotional response to the evidence.” Lockett, No. CIV–03–734–F at 43. See Welch v. Workman, 639 F.3d at 1004.
ii. Context of All Mitigating and Aggravating Evidence
In evaluating whether the unconstitutional portions of the Neimans' statement had a substantial and injurious effect on the jury, we must consider it in the context of all of the aggravating and mitigating evidence. First, the evidence of aggravating circumstances was substantial. During the guilt phase, the jury heard Mr. Lockett's confession, in which he described his brutal crimes in unemotional terms and without expressing remorse, as well as emotional testimony from two surviving victims. During the penalty phase, the jury heard from seven State witnesses. Two witnesses described Mr. Lockett's past criminal and violent behavior. Five correctional officers testified that during his time in jail, Mr. Lockett had been repeatedly found with contraband weapons and had threatened guards. Moreover, the jury heard evidence that Mr. Lockett had threatened the safety of both surviving victims—individuals whom jurors knew from earlier guilt phase testimony—in retaliation for their cooperation with authorities.
After hearing all aggravating and mitigating evidence from both sides, the jury found the presence of five aggravating circumstances beyond a reasonable doubt. In Welch v. Workman, we held that overwhelming evidence of guilt, testimony about the brutality of the crime, and the jury's finding of three aggravating circumstances clearly outweighed any potential impact of unconstitutional victim impact testimony. 639 F.3d at 1004. We emphasized that, as here, the jury was correctly instructed on the role of mitigating evidence in its sentencing decision. Id. We explained:
The family members' testimony violated every category of impermissible expression.... But “[t]he principle that collateral review is different from direct review resounds throughout our habeas jurisprudence.” Brecht, 507 U.S. at 633, 113 S.Ct. 1710. Considering all of the evidence in both stages of this trial.... [w]e cannot conclude that the jury's verdict was substantially influenced by the victim impact testimony. See Brecht, 328 U.S. at 776. Id. at 1003–04. Given our precedent in cases like Welch v. Workman, which involved more extensive unconstitutional victim impact testimony and fewer aggravating circumstances, we cannot conclude that the erroneously admitted victim impact testimony in this case was prejudicial. Remembering that “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment,” Brecht, 507 U.S. at 634, 113 S.Ct. 1710, we affirm the district court's finding that this error was harmless.
C. Admission of Dr. Call's Rebuttal Evidence
Mr. Lockett argues that the trial court erred by allowing Dr. Call to testify because his examination of Mr. Lockett exceeded the scope agreed to by Mr. Lockett's counsel and therefore violated his Sixth Amendment rights.FN12 The OCCA found that the record did not support the factual contention that Dr. Call's interview exceeded the agreed scope. It further found no constitutional error and held alternatively that any error was harmless. The federal district court echoed these conclusions. We affirm the federal district court's determination that the trial court's admission of Dr. Call's testimony survives AEDPA deference. We do not reach the harmless error question. FN12. Mr. Lockett argued both Fifth and Sixth Amendment grounds in his original habeas petition, but only the Sixth Amendment argument is at issue in this appeal.
1. Legal Background
The Sixth Amendment requires that a defendant be afforded the right to effective assistance of counsel in determining whether to submit to an interview or examination with a State expert. See Estelle v. Smith, 451 U.S. 454, 470–71, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). The Supreme Court has held that defense counsel must be given advance notice of the scope and substance of the expert examination. See id.; Buchanan v. Kentucky, 483 U.S. 402, 424, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987). In Estelle, the Supreme Court rejected the prosecution's use of psychiatric testimony regarding the defendant's future dangerousness during the penalty phase because the expert drew his opinion from a court-ordered competency examination. 451 U.S. at 456–60, 101 S.Ct. 1866. The Court determined this violated the defendant's Fifth and Sixth Amendment rights because statements during the examination were made without the benefit of counsel and because the defendant's counsel did not have advance notice of the scope and substance of the examination. Id. at 467–71, 101 S.Ct. 1866. The Estelle Court emphasized that the psychiatric testimony was based on a court-ordered competency examination that the defendant did not request and that the defendant did not put his mental health at issue. 451 U.S. at 466, 468.
Several years after Estelle, the Supreme Court issued its opinion in Buchanan, which clarified that the prosecution retains the right to rebut psychological evidence presented by the defendant. 483 U.S. at 422–23, 107 S.Ct. 2906. In Buchanan, the defense counsel joined a prosecution motion requesting a psychiatric examination by a state expert pursuant to a state law governing involuntary hospitalization. Id. at 410–11, 107 S.Ct. 2906. The state psychiatric expert conducted the interview and prepared a psychological evaluation. Id. at 408–10, 107 S.Ct. 2906. At trial, the defendant presented an affirmative defense of extreme emotional disturbance and called his own mental health expert to support the defense. Id. at 408, 107 S.Ct. 2906. The prosecutor responded with rebuttal evidence from the state psychiatric expert's report. Id. at 410, 107 S.Ct. 2906.
The Buchanan Court held that admitting this evidence was constitutional. Id. at 422, 107 S.Ct. 2906. It distinguished Estelle, explaining that Estelle involved “distinct circumstances”—in particular, that the defendant had not requested the examination or put his mental health at issue. Id. The Court explained that, “if a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.” Id. at 422–23, 107 S.Ct. 2906. Moreover, the Court specifically held that the defendant's Sixth Amendment rights were not implicated because the defendant's counsel requested the examination and was therefore on notice that the psychological evidence could be used by the prosecution in rebuttal. Id. at 424–25, 107 S.Ct. 2906.
2. Admission of Dr. Call's Rebuttal Testimony Was Not Unreasonable
We conclude that the OCCA's holding that the admission of Dr. Call's rebuttal testimony did not violate Mr. Lockett's Sixth Amendment rights was based on a reasonable application of Estelle and Buchanan and a reasonable determination of the facts. The OCCA reasonably concluded that Estelle 's restrictions do not apply to Dr. Call's testimony because this case does not meet the “distinct circumstances” on which Estelle was based. Buchanan, 483 U.S. at 422, 107 S.Ct. 2906. For example, unlike Mr. Estelle, Mr. Lockett requested the psychiatric interview and put his own mental health at issue during the penalty phase.
The OCCA reasonably applied Buchanan when it concluded that Mr. Lockett put his mental health at issue. Mr. Lockett presented psychological evidence in the penalty phase of trial, including Dr. Smith's testimony that he was mentally ill because his childhood trauma affected his brain development and his ability to relate with others. Dr. Smith also testified that Mr. Lockett's mental health issues could be effectively treated and that Mr. Lockett had the capacity for empathy and kindness. Applying Buchanan, the OCCA held that because Dr. Smith's testimony placed Mr. Lockett's mental health at issue, the State was therefore entitled to rebut with its own mental health expert. Dr. Call offered this rebuttal by testifying that in his expert opinion Mr. Lockett was not mentally ill, was a psychopath, and did not have genuine empathy for others. He further testified that Mr. Lockett could likely not be effectively treated. As our previous summary of Buchanan illustrates, this application was not unreasonable.
Finally, the OCCA's conclusions were not based on an unreasonable determination of the facts. Mr. Lockett's counsel originally agreed to allow the interview for the purpose of determining whether Mr. Lockett was insane at the time of the crimes. Dr. Call testified that the interview was brief (one-and-a-half to two hours) and that Mr. Lockett was uncooperative. Mr. Lockett now alleges that the interview exceeded the agreed scope of evaluating his sanity at the time of the crimes. He does not offer evidence about the interview itself, such as questions Dr. Call asked or statements Mr. Lockett made. Instead, he reasons that, because Dr. Call later formed an opinion about something outside the interview's agreed scope, the interview itself must have exceeded that scope. The OCCA made two factual findings concerning this issue. First, it rejected Mr. Lockett's assertion that the interview exceeded its agreed scope. This finding is not unreasonable. Dr. Call testified that he relied on many sources to form his opinions, including interviews with other witnesses, reports, and Mr. Lockett's videotaped confession. It is reasonable to conclude from the record that Dr. Call limited his interview to the insanity question and then later used information gleaned from numerous sources (including the limited interview) to form an opinion about a different question: Mr. Lockett's mental health at the time of the trial.
In its second fact finding with respect to Dr. Call's testimony, the OCCA concluded that the interview did not significantly influence Dr. Call's opinion testimony regarding Mr. Lockett's mental health. Mr. Lockett argues that this conclusion is contrary to the record. We do not review this finding, however, as it is only relevant to a harmless error analysis. Because we accept as reasonable the OCCA's finding that the interview was not improper, we need not address harmlessness. In short, we conclude that the OCCA's holding on this issue was based on a reasonable application of Estelle and Buchanan and on a reasonable determination of the facts in light of the evidence presented. We therefore affirm.
D. Sufficiency of Evidence for the Great Risk Aggravator
Mr. Lockett argues that the evidence was insufficient to support the jury's finding with respect to one of the five aggravating circumstances: that he created a great risk of death to more than one person. The OCCA held that the evidence was sufficient under Supreme Court precedent and its own precedent. The federal district court agreed, and we affirm.
1. Legal Background
To support a sentence of death, a jury must find the presence of at least one aggravating circumstance beyond a reasonable doubt. See Romano v. Gibson, 278 F.3d 1145, 1154 (10th Cir.2002). When reviewing the sufficiency of the evidence to support the finding of an aggravating circumstance, we follow the standard articulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, the Supreme Court held that in reviewing a defendant's collateral appeal of the sufficiency of the evidence, a federal court considers 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.” 443 U.S. at 319, 99 S.Ct. 2781. In Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), the Court clarified that “[t]hese considerations apply with equal force to federal habeas review of a state court's finding of aggravating circumstances.” Id. at 782, 110 S.Ct. 3092.
“Like findings of fact, state court findings of aggravating circumstances often require a sentencer to ‘resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). “We must accept the jury's determination as long as it is within the bounds of reason. Our review is even more limited given that AEDPA governs this issue.” Boltz v. Mullin, 415 F.3d 1215, 1232 (10th Cir.2005). On direct appeal, the OCCA also looked to its own precedent to review this issue. The OCCA's case law provides that evidence is sufficient to support a great risk of death to others if, reading the evidence in light most favorable to the State, the State shows that the defendant created a great risk of death “in close proximity in terms of time, location, and intent to the killing,” Lockett, 53 P.3d at 430 (citing Thornburg v. State, 985 P.2d 1234, 1248 (Okla.Crim.App.1999)), or “threaten[ed] the life of another and ha[d] the apparent ability and means of taking that person's life,” Smith v. State, 727 P.2d 1366, 1373 (Okla.Crim.App.1986).
Mr. Lockett's arguments rely on another OCCA case, Valdez v. State, 900 P.2d 363 (Okla.Crim.App.1995). In Valdez, the OCCA found the evidence was insufficient to support a jury's finding of the great risk aggravator where the defendant had killed the victim in front of a friend, then threatened to kill the friend if he reported the crime. Id. at 382. The OCCA decided that the friend in Valdez was not genuinely at risk because he knew the defendant well and was never the target of the defendant's anger. Id. at 384. It also noted that it had rarely found sufficient evidence for the great risk aggravator when the person allegedly at risk was not physically injured. Id. at 383 n. 97. This court considered a challenge to an Oklahoma jury's finding of the great risk aggravator in Ross v. Ward, 165 F.3d 793 (10th Cir.1999). In that case, the defendant robbed a motel. Id. at 795. He threatened and physically assaulted the night clerk, who survived. Id. Although the night clerk did not see a weapon, the defendant told her he would kill her if she did not cooperate. Id. at 801. As he left the motel, the defendant fatally shot a police officer. Id. at 795. We upheld the jury's finding that the defendant had created a great risk of death to more than one person because the night clerk was at risk of death “in close proximity to the killing itself in terms of time, location, and intent.” Id. at 801.
2. The Jury's Finding Was Supported by Sufficient Evidence
We agree with the federal district court that the OCCA's conclusion was reasonable under the Jackson standard.
Mr. Lockett argues that the OCCA and the federal district court failed to consider all of the relevant facts and therefore the OCCA's ultimate fact conclusions on this issue were unreasonable. He points to several facts that he believes demonstrate that Mr. Bornt and Ms. Hair were not at great risk of death. For example, the surviving victims testified at trial that at some points during their ordeal they believed they would survive, their hands and feet were untaped at the murder site, and only a single grave was dug. Although Mr. Lockett acknowledges that he threatened to kill Mr. Bornt and Ms. Hair, he insists that his threats were not temporally close to Ms. Neiman's murder.
Mr. Lockett further argues that the federal district court erred in distinguishing Valdez. He reads Valdez to say that, in Oklahoma, a threat of death, even coupled with physical assault, is insufficient to create a great risk of death. Under the Jackson standard, we “must accept the jury's determination as long as it is within the bounds of reason.” Boltz, 415 F.3d at 1232. The jury heard evidence that would allow it to conclude beyond a reasonable doubt that several victims other than Ms. Neiman were at great risk of death, including Ms. Hair, Mr. Bornt, and Mr. Bornt's infant son. It heard that Mr. Lockett and his co-assailants forcibly entered Mr. Bornt's house carrying weapons, and that Mr. Lockett repeatedly threatened the surviving adult victims, physically assaulted them, planned to kill them, and allowed them to live only after they promised not to report the crimes. The jury heard that the one victim who resisted Mr. Lockett, Ms. Neiman, was killed. Ms. Hair testified that she was repeatedly sexually assaulted by three intruders. Mr. Bornt testified that Mr. Lockett directed the actions of the others and apparently controlled the decision whether to kill them.
The facts Mr. Lockett points to, considered in context, do not indicate that the surviving victims were somehow safe. For example, Ms. Hair's testimony that she did not expect to be killed does not suggest that she was not at great risk of being killed—to the contrary, her testimony was that she “had faith” that both she and Ms. Neiman would survive. Tr. X at 1687. At the murder site, Mr. Lockett used a knife to remove the tape from Ms. Hair's hands immediately before sexually assaulting her. And after being untaped, Ms. Hair and Mr. Bornt were kept in close proximity to their armed kidnappers while the kidnappers planned and executed Ms. Neiman's murder. In Ross, we found evidence sufficient to support the great risk aggravator under Jackson in circumstances that were arguably less dangerous than the facts in the present case. For example, the hotel clerk in Ross was placed in danger for a relatively short time, whereas Mr. Lockett's victims were in danger for many hours. And the clerk was not assaulted or kidnapped, as Mr. Lockett's victims were.
As the federal district court noted, Valdez is easily distinguishable. Unlike the friend in that case, Mr. Bornt and Ms. Hair were physically assaulted, bound with duct tape, held against their will, and kidnapped. Mr. Lockett's confession establishes that they were taken to the country to be killed. Unlike in Valdez, Ms. Hair was repeatedly sexually assaulted. Also unlike in Valdez, Mr. Lockett made the same threats to three adult victims and carried out that threat with the one victim who did not cooperate. Moreover, the OCCA is in the best position to determine the meaning of its own precedent, and it has clearly explained that Valdez is not so broad as to extend to the facts of this case.
The fact that only one person was murdered on that day does not make it unreasonable for a jury to conclude that Mr. Lockett's actions caused a great risk of death to other victims. The jury's finding that Mr. Lockett created a great risk of death to more than one person was “within the bounds of reason.” Boltz, 415 F.3d at 1232. We therefore affirm the OCCA's holding on this issue.
E. Cumulative Error
Mr. Lockett argues that the cumulative effect of the penalty phase errors—the erroneous restriction of Ms. Turner's testimony and the admission of unconstitutional victim impact evidence—was prejudicial and demands reversal. The OCCA and the federal district court concluded that the cumulative effect of the errors was harmless. We affirm.
1. Legal Background
“[T]he cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990). We must aggregate all errors and ask whether collectively they can no longer be determined to be harmless. Id. at 1470. The cumulative effect of the errors will be deemed harmful if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process, or rendered the sentencing fundamentally unfair in light of the heightened degree of reliability demanded in a capital case.” Wilson v. Sirmons, 536 F.3d 1064, 1122 (10th Cir.2008) (quotations omitted). Mr. Lockett raised this claim on direct appeal, and the OCCA considered its merits. Even so, AEDPA deference does not apply because the OCCA failed to consider all of the constitutional errors present in the case. Welch v. Sirmons, 451 F.3d at 710. We therefore review this issue de novo, applying the Brecht “substantial and injurious effect” standard. See id.
2. Analysis
We conclude that the cumulative effect of the errors in the penalty phase of Mr. Lockett's trial was not prejudicial. The trial court made two constitutional errors during the penalty phase—the exclusion of Ms. Turner's mitigating testimony and the introduction of the victim impact statement. Mr. Lockett urges that the cumulative effect of these errors simultaneously undercut his mitigation case while artificially bolstering the State's aggravation case. He insists that this should leave us in grave doubt as to whether the errors caused at least one juror to choose death over life. See Moore, 153 F.3d at 1110.
As we have discussed, each error was harmless by itself. Although the jury was unable to hear Ms. Turner's complete testimony, it nevertheless heard similar expert opinion from Dr. Smith; it also heard many facts about Mr. Lockett's childhood from Dr. Smith and from Mr. Lockett's family members that were similar to the few facts it missed hearing from Ms. Turner. And although the victim impact statement included an unconstitutional sentence recommendation and description of the crimes, these portions of the statement were brief and less inflammatory than victim impact testimony we have found to be harmless in the past, see, e.g., Welch v. Workman, 639 F.3d at 998–999. Moreover, the victim impact statement was arguably less inflammatory or shocking than other evidence the jury heard, including Mr. Lockett's emotionless confession, the emotional testimony of the surviving victims, and the evidence that Mr. Lockett had threatened to harm his surviving victims in retaliation for their testimony.
We cannot conclude that the combined effect of these two errors had a substantial and injurious effect on the jury's verdict. Nor do we believe they “so infected the trial with unfairness as to make the resulting conviction a denial of due process, or rendered the sentencing fundamentally unfair in light of the heightened degree of reliability demanded in a capital case.” Wilson, 536 F.3d at 1122. The jury heard extensive evidence of both mitigating and aggravating factors, and it found the presence of five aggravating circumstances beyond a reasonable doubt. Any effect these combined errors may have had on the jury's deliberations could not have been significant enough to “infect the trial with unfairness” or deny Mr. Lockett due process of law. Id. For these reasons, we affirm the district court's conclusion that reversal is not warranted on Mr. Lockett's cumulative error claim.
F. Ineffective Assistance of Counsel at the Guilt Phase
Mr. Lockett argues that he received ineffective assistance of counsel during the guilt phase of his trial because his counsel effectively conceded his guilt. He also argues that he is entitled to an evidentiary hearing to demonstrate that his counsel did not discuss the guilt-concession strategy with him before trial.FN13 The OCCA and the federal district court concluded that Mr. Lockett's counsel's performance was not defective and alternatively that Mr. Lockett did not suffer prejudice from his counsel's performance. Both courts denied the evidentiary hearing request. We affirm. FN13. Mr. Lockett raised three separate claims of ineffective assistance of counsel in the district court, but the court granted a COA on only this issue regarding the alleged guilt-phase concession.
1. Legal Background
The parties disagree about which of two legal standards of review applies to Mr. Lockett's claim of ineffective assistance of counsel. One standard is the familiar Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard. Under Strickland, a defendant is entitled to relief if (1) counsel's performance was deficient, and (2) the defendant was prejudiced by it. Id. at 687–88, 104 S.Ct. 2052. A defendant establishes the first Strickland requirement by showing counsel's performance “fell below an objective standard of reasonableness.” Id. To meet this requirement, the defendant must overcome a “strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance ... [and] might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (quotations omitted). A defendant establishes the second requirement by showing “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.
The other standard at issue is from United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Under Cronic, a defendant is entitled to a presumption of prejudice if defense counsel failed “to subject the prosecution's case to meaningful adversarial testing.” Id. at 658–89, 104 S.Ct. 2039. The Supreme Court has emphasized the narrow scope of Cronic, however. For Cronic 's presumption of prejudice to apply, “the attorney's failure must be complete.” Bell v. Cone, 535 U.S. 685, 696–97, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). The Tenth Circuit has applied Cronic only where the evidence “overwhelmingly established that [the] attorney abandoned the required duty of loyalty to his client ... apparently with the intention to weaken his client's case.” Turrentine v. Mullin, 390 F.3d 1181, 1208 (10th Cir.2004) (quotations omitted). In Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), the Supreme Court held that a concession of guilt in the first stage of a death penalty case may be a reasonable trial strategy when evidence of guilt is overwhelming. Id. at 190–92, 125 S.Ct. 551. The Court specifically held that such a course should be gauged under Strickland, not Cronic. Id. Moreover, the Nixon Court held that defense counsel is not obligated to obtain a defendant's express consent before pursuing this strategy. See id. at 187–89, 125 S.Ct. 551. Mr. Lockett nevertheless argues that Cronic should apply because his counsel failed even to discuss the guilt-concession strategy with him, much less obtain his express consent. Nixon is silent as to whether defense counsel is constitutionally obligated to notify a defendant before conceding guilt.
Mr. Lockett raised this claim on direct appeal, and the OCCA considered the merits of the claim. Therefore, AEDPA deference applies, and Mr. Lockett is entitled to relief only if he shows that the OCCA's decision is “contrary to” or “an unreasonable application of” clearly established Supreme Court law or is otherwise “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).
2. Mr. Lockett Has Not Demonstrated Ineffective Assistance Under Strickland
We conclude that the OCCA's decision to apply Strickland rather than Cronic was not contrary to, or an unreasonable application of, clearly established Supreme Court law. We further conclude that Mr. Lockett cannot overcome AEDPA deference with respect to the OCCA's Strickland analysis. We also affirm the federal court's denial of Mr. Lockett's request for an evidentiary hearing.FN14 FN14. To receive an evidentiary hearing in a collateral appeal, Mr. Lockett must show that “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found [him] guilty of the underlying offense,” and that his claim relies on either (1) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” and (2) “a factual predicate that could not have been previously discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2).
The record is silent as to whether trial counsel provided Mr. Lockett with notice of his strategy, and Mr. Lockett argues that an evidentiary hearing will show that his counsel failed to give notice. However, as our analysis demonstrates, this fact would not be sufficient to meet the requirements of § 2254(e)(2) or to show that the OCCA's application of Strickland was unreasonable.
a. Decision to apply Strickland rather than Cronic
The OCCA's decision to apply Strickland rather than Cronic was reasonable and therefore survives AEDPA deference. In Cronic, the Supreme Court explained that a presumption of prejudice arises when defense counsel entirely fails to subject the prosecution's case to meaningful adversarial testing. 466 U.S. at 659, 104 S.Ct. 2039. Notably, the Court did not find that the circumstances in Cronic itself—a young, inexperienced real estate attorney appointed 25 days before trial to represent a criminal defendant charged with mail fraud—qualified for this presumption. The Court pointed to only one example of a case that would justify a presumption of prejudice without inquiring into counsel's actual performance at trial: Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), where an out-of-state attorney was appointed to represent multiple young, illiterate defendants on the day of their trial for a highly publicized “atrocious crime regarded with especial horror in the community.” Cronic, 466 U.S. at 660, 104 S.Ct. 2039 (quoting Powell, 287 U.S. at 57–58, 53 S.Ct. 55).
Since that time, the Supreme Court and this court have emphasized the narrow application of Cronic. In Bell, for example, the Court explained that Cronic applies to the narrow circumstances in which counsel fails to oppose the prosecution throughout an entire proceeding. 535 U.S. at 696–97, 122 S.Ct. 1843 (“When we spoke in Cronic of the possibility of presuming prejudice ... we indicated that the attorney's failure must be complete.” (emphasis added)); Turrentine, 390 F.3d at 1208 (“This court has repeatedly found the Cronic presumption inapplicable where counsel actively participated in all phases of the trial proceedings.” (quotations omitted)). The OCCA found that Mr. Lockett's trial counsel participated in every aspect of the trial, made objections, and conducted cross-examinations. Mr. Lockett does not dispute these findings, but he argues that trial counsel effectively conceded guilt and thus completely failed to subject the prosecution's case to meaningful adversarial proceedings. But Mr. Lockett does not point to any Supreme Court holding on point. To the contrary, the case that appears to be most on point, Nixon, suggests that the Strickland standard applies. Nixon, 543 U.S. at 190–91, 125 S.Ct. 551. Nixon held that defense counsel's concession of guilt without a defendant's express consent does not necessarily render counsel ineffective. Id. at 187–89, 125 S.Ct. 551. And the Nixon Court applied Strickland in concluding that counsel's strategy was not deficient. Id. at 190–92, 125 S.Ct. 551.
Finally, Mr. Lockett's attempts to distinguish Nixon do not succeed. He argues that Nixon 's holding that Strickland applies to a counsel's decision to concede guilt at the trial phase should not apply to his case because Nixon involved counsel's failure to obtain a client's explicit approval, whereas he alleges here that his trial counsel failed even to notify him of the concession strategy. But under AEDPA deference, we cannot overturn the OCCA's holding unless it is conflicts with “clearly established” federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d). Mr. Lockett does not point to any such clearly established federal law that limits Nixon 's holding in this way. The OCCA's decision to apply Strickland therefore survives AEDPA deference.
b. Application of the Strickland standard
Having determined that the OCCA's decision to apply Strickland was reasonable, we review its analysis under the considerable deference required by Strickland itself—in addition to AEDPA deference. Mr. Lockett does not attempt to argue that his claim succeeds under Strickland. The OCCA concluded that Mr. Lockett's trial counsel was not deficient, and the federal district court agreed. Both courts noted that the evidence of Mr. Lockett's guilt was overwhelming. The jury saw Mr. Lockett's videotaped confession, in which he gave a detailed description of his crimes. Two surviving victims testified and identified him. Nothing in the record suggests there were weaknesses or inconsistencies in the victims' testimony that could have been exploited. As the Supreme Court explained in Nixon: [T]he gravity of the potential sentence in a capital trial ... vitally affect[s] counsel's strategic calculus[, and] when the evidence is overwhelming and the crime heinous ... avoiding execution [may be] the best and only realistic result possible.... [C]ounsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in a useless charade. Nixon, 543 U.S. at 190–92, 125 S.Ct. 551 (quotations and citations omitted).
In light of Nixon, it was reasonable for the OCCA to conclude that Mr. Lockett's trial counsel's performance was not deficient, but rather strategic. Mr. Lockett therefore failed to establish the first Strickland factor, which is fatal to a Strickland claim. The second Strickland factor—whether there is a reasonable likelihood that the jury's verdict would have been different but for counsel's deficient performance—is irrelevant because counsel was not deficient. We therefore affirm the federal district court's holding that the OCCA's rejection of Mr. Lockett's claim of ineffective assistance of counsel was reasonable. Because we uphold the OCCA's resolution of the claim under AEDPA deference regardless of whether counsel notified Mr. Lockett of the guilt-concession strategy, we deny Mr. Lockett's request for an evidentiary hearing.
IV. MOTION TO EXPAND THE COA
In addition to the seven issues on which the federal district court granted a COA, Mr. Lockett asks this court to grant a COA on three more issues. We first review the standard for determining whether a COA may be granted. We then address each of the three issues and conclude that COA should be denied in each instance. As we previously noted, Mr. Lockett may not appeal the federal district court's decision without a COA. Miller–El, 537 U.S. at 335–36, 123 S.Ct. 1029; Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir.2006). We may issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires Mr. Lockett to demonstrate “that reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted).
The OCCA addressed the three issues Mr. Lockett proposes for COA. Thus, in deciding whether Mr. Lockett meets the requisite standard, “AEDPA's deferential treatment of state court decisions must be incorporated into our consideration of his request for COA.” Charlton v. Franklin, 503 F.3d 1112, 1115 (10th Cir.2007) (quotations omitted). As we previously explained, a federal court cannot grant habeas relief unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). We turn to the three additional issues for which Mr. Lockett has requested a COA: (A) whether voir dire interviews of 19 jurors outside his presence violated his due process rights; (B) whether trial counsel was ineffective for failing to marshal evidence of mental illness during the penalty phase; and (C) whether the jury instruction regarding the weighing of aggravating and mitigating circumstances was constitutionally deficient.
A. Voir Dire Interviews Outside Mr. Lockett's Presence
Mr. Lockett asserts that his due process rights were violated when the trial court held voir dire interviews with 19 jurors outside of his presence. The OCCA and the district court rejected this claim, and the district court concluded that a COA was not warranted. We deny Mr. Lockett's motion for a COA on this ground.
1. Legal Background
A defendant has a due process right to be present during critical stages of trial, which may include the voir dire process. See Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). The right to be present during voir dire is not absolute, however. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the Supreme Court noted that the Fourteenth Amendment did not grant “the privilege of presence when presence would be useless, or the benefit but a shadow.” Id. at 106–07, 84 S.Ct. 1489. “[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. at 107–08, 84 S.Ct. 1489. In other words, the right to be present is limited to circumstances where a defendant's “presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” Id. at 105–06, 84 S.Ct. 1489. In Bland, this court considered Snyder in a habeas appeal involving exclusion from voir dire. 459 F.3d at 1020. The defendant in Bland was absent from individual voir dire discussions involving 32 jurors. We noted that Mr. Bland had been present for the majority of voir dire proceedings and had sufficient opportunity to observe the jurors and participate in peremptory challenge decisions. Id. at 1021. We therefore determined that his presence during the specific portions of voir dire would have been “a mere shadow.” Id. (quoting Snyder, 291 U.S. at 106–07, 54 S.Ct. 330).
2. Procedural Background
The initial jury voir dire process for Mr. Lockett's trial lasted four days. Mr. Lockett was present for all voir dire that took place in open court, but the trial judge held 19 individual conferences with jurors outside his presence. Three of the 19 individuals were seated on the jury. The trial judge held these individual conferences in chambers or at the bench. Mr. Lockett's trial counsel was present at all individual conferences, and they were conducted on the record. Only the trial judge was permitted to ask questions of the jurors. Of the 19 jurors questioned outside Mr. Lockett's presence, 11 were removed and eight were sent back to the jury panel for additional questioning in open court.FN15 Of these, five were excluded via peremptory challenges and three were seated on the jury.
FN15. During the individual conferences, 14 of the 19 jurors were questioned about their prior knowledge of the case. Nine were excused immediately based on their responses. Two jurors were questioned about their own criminal cases, and one was immediately excused because he had criminal charges pending in the same county court. One juror asked to speak privately with the judge to disclose that he had lost a child and did not feel he could be impartial. He was excused. Two more jurors were questioned about their personal connections with law enforcement or correctional officers, but were not excused.
Mr. Lockett notes that the juror who was excused because of his own pending criminal charges was the sole black juror. Mr. Lockett asserts in his COA motion that the trial court erred in dismissing this juror because Oklahoma law does not require dismissal because of pending criminal charges. He does not argue this as a separate claim, however, and he does not explain how his presence at this voir dire interview would have prevented the alleged error. Mr. Lockett did not object to his absence from voir dire at the time. At one point during the individual conferences, the trial judge asked defense counsel if Mr. Lockett's absence was a problem, and counsel responded that it was not.
3. Analysis
Mr. Lockett's case is similar to our decision in Bland. There we held that a defendant's absence from 32 individual voir dire interviews did not violate his due process rights because he was present for the majority of voir dire and because the trial judge asked all questions. 459 F.3d at 1020. Similarly, Mr. Lockett was absent from 19 individual voir dire interviews, was present for the majority of voir dire, and the trial judge asked all questions during the individual conferences. Mr. Lockett has offered no explanation as to why his presence was necessary during the challenged portions of voir dire. He does not claim that he was prevented from effectively assessing the jurors or from participating in peremptory challenge decisions. And nothing in his arguments or in the record suggests he was prejudiced by his absence from these limited portions of voir dire. We therefore deny his motion for a COA on this ground.
B. Trial Counsel's Handling of Evidence of Mental Illness
Mr. Lockett asserts that his counsel was ineffective because he failed to present available evidence that Mr. Lockett suffered from specific mental illnesses. The OCCA and the district court rejected this claim, and the district court concluded that a COA was not warranted. We agree and deny Mr. Lockett's motion for a COA on this ground.
1. Procedural Background
Before trial, counsel raised concerns about Mr. Lockett's mental health. A mental health evaluation was conducted, and a competency hearing was held in November 1999. The trial court found Mr. Lockett to be competent. Counsel next considered asserting an insanity defense, but opted against it after the defense's expert, Dr. Smith, concluded that Mr. Lockett was sane. Given the overwhelming evidence of Mr. Lockett's guilt, counsel shifted his focus to building a mitigation case. Counsel leveraged Dr. Smith's opinion that Mr. Lockett, although sane, suffered from mental health problems as a result of traumatic experiences during childhood and adolescence. Counsel presented seven witnesses during the penalty phase, including three family members, Dr. Smith, and another mental health expert, social worker Joyce Turner. Family members provided shocking details of Mr. Lockett's childhood trauma, including abandonment and severe abuse. The testimony of both experts established that these experiences would have negatively affected Mr. Lockett's brain development and his emotional development in ways that helped to explain his criminal activities and violent aggression, especially toward women.
Mr. Lockett argued to the OCCA that his counsel was ineffective for “failure to marshal and direct the evidence of his mental illness into a coherent defense strategy.” Lockett, 53 P.3d at 424. He sought to supplement the record with testimony of a new expert who believed Mr. Lockett's mental health issues were more severe than Dr. Smith described. The OCCA rejected this claim under Strickland, concluding that Mr. Lockett failed to establish either of the two Strickland requirements. It found that the record supported counsel's decision not to pursue an insanity defense, particularly because Mr. Lockett's own expert did not support the defense. It also determined that counsel's presentation of mental health evidence in his mitigation case was not deficient and that Mr. Lockett had not experienced any prejudice as a result of his counsel's performance.
The federal district court agreed with the OCCA's analysis. The district court also reviewed the report Mr. Lockett had presented from the new mental health expert and found that it “contain[ed] little additional information and [was] largely consistent with the mental health evidence presented” at trial. Lockett, No. CV–03–734 at 19. It therefore concluded that even if counsel had presented the additional expert at trial, the evidence would have been cumulative and would not have affected the jury's verdict.
2. Analysis
Mr. Lockett has not established—nor has he even argued—that his counsel's performance fell below “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. As the district court noted, “[t]his is not a case where counsel overlooked and/or failed to discover powerful mental health evidence.” Lockett, No. CV–03–734 at 18–19. Mr. Lockett does not dispute that trial counsel chose the correct strategy—he argues only that counsel might have done a more persuasive job at it. Even if this is true, it falls far short of demonstrating that his counsel's performance fell “below an objective standard of reasonableness” as required under the Strickland standard. 466 U.S. at 688, 104 S.Ct. 2052.
Mr. Lockett has failed to show that reasonable jurists could debate whether the district court correctly resolved this issue. We therefore deny a COA.
C. Jury Instruction on the Weighing of Aggravating and Mitigating Circumstances
Mr. Lockett's COA motion challenges the district court's conclusion that jury instructions in the penalty phase were constitutionally permissible. He argues that Supreme Court law does not allow a death sentence unless the jury finds that aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt. Mr. Lockett's jury was given two separate instructions with respect to aggravating and mitigating circumstances. The first instruction advised the jury that it could issue a death sentence only if it unanimously found the presence of at least one aggravating circumstance beyond a reasonable doubt. The second instruction then required the jury to weigh the aggravating and mitigating circumstance(s) and allowed a death sentence only if the jury unanimously found that aggravating circumstance(s) outweighed mitigating circumstance(s). In other words, the “beyond a reasonable doubt” standard was attached to the first step but not to the second step of weighing aggravating and mitigating circumstances. The OCCA and the district court rejected this claim of error, concluding that Oklahoma's jury instructions complied with Sixth Amendment requirements as articulated by Supreme Court case law. The district court further concluded that a COA was not warranted. We deny Mr. Lockett's motion for a COA on this ground.
1. Legal Background
In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Court extended this rule to capital cases. In Ring, the Supreme Court addressed a capital defendant's right to a jury trial. Arizona law required that aggravating circumstances be found beyond a reasonable doubt before a death sentence could be imposed. Id. at 588, 122 S.Ct. 2428. However, state procedure allowed the trial judge to determine the appropriate sentence once a jury had found the defendant guilty of first degree murder. Id. at 592–93, 122 S.Ct. 2428. This procedure authorized the judge to sentence the defendant to death if the judge found at least one aggravating circumstance and no mitigating circumstance substantial enough to justify leniency. Id. The Supreme Court held that this scheme violated the Sixth Amendment because it allowed a death sentence to be imposed where the required aggravating circumstance had not been found by a jury beyond a reasonable doubt as required by Arizona law. Id. at 609, 122 S.Ct. 2428.
In short, Apprendi and Ring stand for the proposition that any fact finding that increases a sentence beyond the statutory maximum must be determined by a jury beyond a reasonable doubt. In the context of a capital case, the finding of at least one aggravating circumstance is generally a statutory prerequisite for a sentence of death and therefore falls under this requirement. Notably, neither Apprendi nor Ring held that the Sixth Amendment itself requires any particular standard of proof with respect to the weighing of aggravating and mitigating circumstances.
In the present case, the constitutionality of the challenged jury instructions depends in large part on whether they comply with Oklahoma law. Oklahoma's statutory scheme requires that, in recommending a death sentence, the jury shall designate in writing ... the statutory aggravating circumstance or circumstances which it unanimously found beyond a reasonable doubt.... [but] if it is found that any such aggravating circumstance is outweighed by the finding of one or more mitigating circumstances, the death penalty shall not be imposed. Okla. Stat. tit. 21, § 701.11 (emphasis added); see also Torres v. Oklahoma, 58 P.3d 214, 216 (Okla.Crim.App.2002). This language requires that jurors find the presence of aggravating circumstances beyond a reasonable doubt before they may consider a death sentence. Once this finding is made, the statute explicitly authorizes a sentence of death.
2. Procedural Background
At the trial, Mr. Lockett's counsel submitted a proposed jury instruction that allowed the jury to impose a death sentence only if it first concluded that aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt. The trial court did not adopt this instruction and instead gave Oklahoma's uniform instructions, which provide: Should you unanimously find that one or more aggravating circumstances existed beyond a reasonable doubt, you are authorized to consider imposing a sentence of death. If you do not unanimously find beyond a reasonable doubt that one or more of the aggravating circumstances existed, you are prohibited from considering the penalty of death. Okla. Unif. Jury Instr. Criminal 2d 4–76. If you unanimously find that one or more of the aggravating circumstances existed beyond a reasonable doubt, the death penalty shall not be imposed unless you also unanimously find that any such aggravating circumstance or circumstances outweigh the finding of one or more mitigating circumstances. Id. at 4–80. The OCCA addressed the merits of this issue on direct appeal in a separate slip opinion.FN16 It denied relief, finding that Oklahoma's uniform jury instructions used in Mr. Lockett's case accurately reflected Oklahoma statutory requirements and that the overall scheme was constitutional. FN16. This slip opinion was not included in the record. Our understanding of the OCCA's reasoning is therefore drawn from Mr. Lockett's § 2254 petition and the federal district court's opinion.
The OCCA reviewed the Oklahoma statute and determined that once jurors find the presence of at least one aggravating circumstance beyond a reasonable doubt, the statute explicitly authorizes a sentence of death, and death then becomes the prescribed statutory maximum sentence. See Okla. Stat. tit. 21, § 701.11; Torres, 58 P.3d at 216. The OCCA therefore reasoned that the Apprendi/Ring requirement—that any finding that extends punishment beyond a statutory maximum must be determined beyond a reasonable doubt—does not apply. Rather, the OCCA understood Ring to require only “that jurors make the [initial] factual finding of an aggravating circumstance beyond a reasonable doubt.” Torres, 58 P.3d at 216. It concluded that the challenged instructions met this requirement.
The federal district court affirmed this conclusion. It determined that Ring was not applicable to the Oklahoma scheme because Ring focused on death eligibility whereas Mr. Lockett challenged an instruction involving the jury's discretionary decision among the sentences authorized by statute. The court stated that although Ring happened to involve facts in which a judge weighed aggravators and mitigators, the Ring holding did not rely on or address the weighing process. The federal district court pointed to Supreme Court and Tenth Circuit case law that undercut Mr. Lockett's reading of Ring. In Kansas v. Marsh, 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006), the Supreme Court said that “a State enjoys a range of discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are to be weighed.” Id. at 174, 126 S.Ct. 2516.
The federal court also pointed to our decision in Matthews v. Workman, 577 F.3d 1175 (10th Cir.2009). In Matthews, the defendant challenged this same Oklahoma uniform jury instruction and sentencing statute, arguing that, under Apprendi and Ring, the jury should be instructed that it may not impose the death penalty unless aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt. Id. at 1195. We flatly rejected this claim, holding that the jury's weighing of aggravating and mitigating factors “is not a finding of fact subject to Apprendi, but a ‘highly subjective, largely moral judgment regarding the punishment that a particular person deserves.’ ” Id. at 1195 (quoting United States v. Barrett, 496 F.3d 1079, 1107 (10th Cir.2007)).
3. Analysis
We agree with the district court that Mr. Lockett's arguments are foreclosed by our decisions in Barrett and Matthews. Mr. Lockett has offered no reason why we should reverse this precedent. This issue therefore needs no further analysis, and we deny Mr. Lockett's request for a COA. * * * Having concluded that Mr. Lockett is not entitled to a COA on any of the three additional issues proposed, we deny Mr. Lockett's motion to expand COA.
V. CONCLUSION
For all of the foregoing reasons, we affirm Mr. Lockett's conviction and death sentence.