Ronald Clinton Lott #1357

Ronald Clinton Lott

Executed December 10, 2013 06:06 p.m. CDT by Lethal Injection in Oklahoma

37th murderer executed in U.S. in 2013
1357th murderer executed in U.S. since 1976
4th murderer executed in Oklahoma in 2013
106th murderer executed in Oklahoma since 1976

Since 1976 Date of Execution State Method Murderer
(Race/Sex/Age at Murder-Execution) Date of
Birth Victim(s)
(Race/Sex/Age at Murder) Date of
Murder Method of
Murder Relationship
to Murderer Date of
Sentence

1357
(37)
12-10-13 OK Lethal Injection Ronald Clinton Lott
B / M / 25, 26 - 53
09-22-60 Anna Laura Fowler
W / F / 83
Zelma Cutler
W / F / 93 09-02-86

01-11-87 Asphyxiation

Asphyxiation None 01-18-02

Summary:
83 year old Anna Laura Fowler lived alone in Oklahoma City when an intruder broke into her home through the back screen door and attacked her. Fowler was raped and a knotted cloth was used to bind her hands. She had multiple injuries, including rib fractures and bruising on her wrists, hands, eyes, lips and cheeks. She died from asphyxiation, and her grandson found her dead on her bed the next morning. 93 year old Zelma Cutler’s home was across the street from Fowler and she also lived alone. Four months later, police found her dead on her bed in her home. The electricity to the home had been shut off at the breaker box and the phone wire had been cut. She had been raped and had multiple rib fractures and bruising. Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott. Miller was released in 1998. During the appeals process, DNA samples excluded the man and implicated Lott, who at the time was incarcerated for raping two other elderly women.

Citations:
Lott v. State, 2004 OK CR 27 (Okla. Crim. App. 2004). (Direct Appeal)
Lott v. Trammell, 705 F.3d 1167 (10th Cir. Okla. 2013). (Habeas)

Final/Special Meal:
Fish, fries and hush puppies with tartar sauce and ketchup from Long John Silver's.

Final Words:
At the clemency hearing, Lott apologized to the victims’ families and asked for their forgiveness. “I’m so sorry for what I’ve done. And I’d ask them to forgive me.” Lott made no final statement at the execution.

Internet Sources:

Oklahoma Department of Corrections

RONALD C LOTT
ODOC# 164924
Birth Date: 09/22/1960
Race: Black
Sex: Male
Height: 5 ft. 11 in.
Weight: 180 pounds
Hair: Black
Eyes: Brown
Convictions:

CASE# County Offense Conviction Term Start End
87-2865 OKLA Rape In The First Degree, Afcf 09/01/1987 25Y 0M 0D 09/14/1987 12/02/1998
87-2865 OKLA Burglary In The First Degree, Afcf 09/01/1987 25Y 0M 0D 09/14/1987 01/10/1998
87-2867 OKLA Burglary In The First Degree Afcf 09/01/1987 25Y 0M 0D 09/14/1987 12/02/1998
87-2867 OKLA Rape In The First Degree, Afcf 09/01/1987 25Y 0M 0D 09/14/1987 12/02/1998
87-2867 OKLA Robbery With Firearms, Afcf 09/01/1987 25Y 0M 0D 09/14/1987 12/02/1998
87-963 OKLA Murder In The First Degree (Death) 01/18/2002 12/10/2013
87-963 OKLA Murder In The First Degree (Death) 01/18/2002 12/10/2013

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 176 men and 3 women between 1915 and 2011 at the Oklahoma State Penitentiary. Eighty-two were executed by electrocution, one by hanging (a federal prisoner) and 96 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.

Execution Process

Method of Execution: Lethal Injection

Drugs used:
Sodium Thiopental or Pentobarbital - 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.

Casa Grande Dispatch

"Oklahoma executes man for killing women." (Associated Press Wednesday, December 11, 2013 10:27 am)

McALESTER, Okla. — Oklahoma on Tuesday executed a man who was convicted of killing two women — one 83, the other 93. Ronald Clinton Lott, 53, was pronounced dead at 6:06 p.m. after receiving a lethal injection at the Oklahoma State Penitentiary in McAlester. Lott was the fifth Oklahoma death row inmate to be executed this year.

Cutler’s home was across the street from Fowler and she also lived alone. Police found her dead on her bed on Jan. 11, 1987. The electricity to Cutler’s home had been shut off at the breaker box and the phone wire had been cut. She had been raped and had multiple rib fractures and bruising. Another man was initially charged and convicted and was sentenced to death.

During the appeals process, DNA samples excluded the man and implicated Lott, who at the time was incarcerated for raping two other elderly women. In November, the Oklahoma Pardon and Parole Board voted 4-1 to deny commuting Lott’s death sentence to life in prison.

At the clemency hearing, Lott apologized to the victims’ families and asked for their forgiveness. “I’m so sorry for what I’ve done. And I’d ask them to forgive me,” Lott told board members, victims’ family members and others during a teleconference from the Oklahoma State Penitentiary at McAlester. “I caused them so much hurt and pain.” Lott initially told members of the Pardon and Parole Board that he wanted to waive his clemency hearing, but made a statement after his attorney pleaded with him to do so. He refused to ask the board to spare his life, though, despite his attorney’s pleas.

Jim Fowler, the son of Anna Fowler, urged the board to spare Lott’s life “and let him rot in that damn cell.” Oklahoma is scheduled to execute another inmate before the end of the year. Johnny Dale Black, 48, is scheduled to be executed Dec. 17 for the 1998 stabbing death of a Ringling horse trainer.

NewsOK.Com

"Okla. executes man convicted of killing 2 women." (AP December 10, 2013 at 7:50 pm)

McALESTER, Okla. (AP) — Oklahoma on Tuesday executed a man who was convicted of killing two women — one 83, the other 93. Ronald Clinton Lott, 53, was pronounced dead at 6:06 p.m. after receiving a lethal injection at the Oklahoma State Penitentiary in McAlester. Lott was the fifth Oklahoma death row inmate to be executed this year.

As the curtains opened, Lott looked over at his brother, who raised his fist and nodded. Lott made no final statement. He again looked at his brother in the first row of the viewing room as the drugs were pumped into his body, then Lott's eyes closed. He started breathing heavily and gasped for air three times. Following the pronouncement of death, corrections workers tried to close the curtains, but one wouldn't despite repeated attempts. They ended up hanging a white sheet over the window.

Fowler lived alone in Oklahoma City when Lott broke into her home through the back screen door and attacked her on Sept. 2, 1986. Authorities said Fowler was raped and a knotted cloth was used to bind her hands. She had multiple injuries, including rib fractures and bruising on her wrists, hands, eyes, lips and cheeks. She died from asphyxiation, and her grandson found her dead on her bed the next morning. Cutler's home was across the street from Fowler and she also lived alone. Police found her dead on her bed on Jan. 11, 1987. The electricity to Cutler's home had been shut off at the breaker box and the phone wire had been cut. She had been raped and had multiple rib fractures and bruising.

Another man was initially charged and convicted and was sentenced to death. During the appeals process, DNA samples excluded the man and implicated Lott, who at the time was incarcerated for raping two other elderly women.

In November, the Oklahoma Pardon and Parole Board voted 4-1 to deny commuting Lott's death sentence to life in prison. At the clemency hearing, Lott apologized to the victims' families and asked for their forgiveness. "I'm so sorry for what I've done. And I'd ask them to forgive me," Lott told board members, victims' family members and others during a teleconference from the Oklahoma State Penitentiary at McAlester. "I caused them so much hurt and pain." Lott initially told members of the Pardon and Parole Board that he wanted to waive his clemency hearing, but made a statement after his attorney pleaded with him to do so. He refused to ask the board to spare his life, though, despite his attorney's pleas. Jim Fowler, the son of Anna Fowler, urged the board to spare Lott's life "and let him rot in that damn cell."

Lott's last meal was fish, fries and hush puppies with tartar sauce and ketchup from Long John Silver's. A planned protest at the Governor's Mansion over the execution was cancelled due to inclement weather. Oklahoma is scheduled to execute another inmate before the end of the year. Johnny Dale Black, 48, is scheduled to be executed Dec. 17 for the 1998 stabbing death of a Ringling horse trainer.

Reuters News

"Oklahoma executes inmate," by Heide Brandes. (Tue Dec 10, 2013 11:07pm EST)

(Reuters) - Oklahoma on Tuesday executed a man convicted of raping and murdering two elderly women in the 1980s, while Missouri appealed to the U.S. Supreme Court to be allowed to proceed with an execution. Ronald Clinton Lott, 53, was pronounced dead at 6:06 p.m. Central Time (0006 GMT on Wednesday) after a lethal injection at a state prison in Oklahoma, state Department of Corrections spokesman Jerry Massie said. Lott was the 37th person executed in the United States this year, according to the Death Penalty Information Center.

Lott was convicted of raping and killing Anna Laura Fowler, 83, in 1986 and Zelma Cutler, 90, in 1987 in their Oklahoma City homes. DNA evidence linked him to the crimes. He made no final statement, Massie said. "Ronald Lott was sentenced to death by a jury of his peers for the heinous and unconscionable acts he committed against Anna and Zelma in their homes," Attorney General Scott Pruitt said in a statement.

According to Oklahoma criminal appeals court records, evidence presented at trial suggested Lott attacked the women and sat on their chests, breaking their ribs. Both had numerous bruises and were asphyxiated. Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott. Miller was released in 1998.

Lott was the fifth man executed in Oklahoma in 2013. The state is also scheduled to execute Johnny Dale Black, 48, on December 17 for his conviction in the 1998 stabbing death of Ringling, Oklahoma, horse trainer Bill Pogue.

USA Today

"Man who killed, raped elderly Okla. women executed," by Kristi Eaton. (AP December 11, 2013)

McALESTER, Oklahoma (AP) — Oklahoma on Tuesday executed a man who was convicted of killing two women — one 83, the other 93. Ronald Clinton Lott, 53, was pronounced dead at 6:06 p.m. after receiving a lethal injection at the Oklahoma State Penitentiary in McAlester. Lott was the fifth Oklahoma death row inmate to be executed this year.

An Oklahoma County jury convicted Lott of two counts of first-degree murder in the deaths of Anna Laura Fowler, 83, in September 1986 and Zelma Cutler, 93, in January 1987. He was also convicted of raping the women. State and federal courts denied Lott's appeals. Fowler lived alone in Oklahoma City when Lott broke into her home through the back door and attacked her on Sept. 2, 1986. Authorities said Fowler was raped and a knotted cloth was used to bind her hands. She had multiple injuries, including rib fractures and bruising on her wrists, hands, eyes, lips and cheeks. She died from asphyxiation, and her grandson found her dead on her bed the next morning. Cutler's home was across the street from Fowler and she also lived alone. Police found her dead on her bed on Jan. 11, 1987. The electricity to Cutler's home had been shut off at the breaker box and the phone wire had been cut. She had been raped and had multiple rib fractures and bruising.

In November, the Oklahoma Pardon and Parole Board voted 4-1 to deny commuting Lott's death sentence to life in prison. Jim Fowler, the son of Anna Fowler, urged the board to spare Lott's life "and let him rot in that damn cell." Oklahoma is scheduled to execute another inmate before the end of the year. Johnny Dale Black, 48, is scheduled to be executed Dec. 17 for the 1998 stabbing death of a Ringling horse trainer.

Oklahoma Coalition to Abolish Death Penalty

ProDeathPenalty.Com

Sometime after 10:30 p.m., September 2, 1986, Anna Laura Fowler was attacked in her home, raped and murdered. Mrs. Fowler was 83 years old and lived alone. As a result of the attack, Mrs. Fowler suffered severe contusions on her face, arms and legs, and multiple rib fractures. She died from asphyxiation. Zelma Cutler lived across the street from Mrs. Fowler. Mrs. Cutler was 93 years old and lived alone. During the early morning hours of January 11, 1987, Mrs. Cutler was attacked, raped and murdered in her home. Mrs. Cutler suffered severe contusions on her arms and legs as a result of the attack. She also suffered multiple rib fractures. Mrs. Cutler died from asphyxiation. In both instances, the victims were vaginally raped and orally sodomized. Further, the evidence presented at trial suggested that Mrs. Fowler was anally raped and that the perpetrator attempted to anally rape Mrs. Cutler as well. Lastly, the evidence presented at trial suggested that the rib fractures sustained by both women occurred as a result of the perpetrator sitting directly on their chests and either orally sodomizing them and/or suffocating them with pillows after the attack.

Another individual, Robert Miller, was initially arrested, charged, and convicted of the Fowler and Cutler murders. But, notwithstanding Miller's arrest, two additional elderly women living in the Oklahoma City area were attacked and raped in their homes, in a manner similar to the attacks on Fowler and Cutler. And Lott proved to be responsible for those crimes: Subsequent to Miller's arrest, Grace M. was attacked and raped in her home on March 22, 1987. Eleanor H. was attacked and raped in her home on May 7, 1987. Both Mrs. M. and Mrs. H. were elderly ladies who lived alone. With the exception that Mrs. M. and Mrs. H. were not killed after being raped, there were striking similarities between the attacks on the four women.

Lott was arrested, charged, and ultimately pled guilty to committing the rapes against Mrs. M. and Mrs. H. In the early 1990s, DNA testing established that Lott, rather than Miller, had raped Mrs. Fowler and Mrs. Cutler. At that time, Lott was still incarcerated and serving time in connection with the other rape convictions.

On March 10, 1995, an amended information was filed in the District Court of Oklahoma County, Oklahoma, jointly charging Lott and Miller with two counts of first-degree malice aforethought murder (Count 1 was for the murder of Mrs. Fowler and Count 2 was for the murder of Mrs. Cutler) and, in the alternative, with two counts of first-degree felony murder. On January 30, 1996, however, those charges were dismissed at the request of the State. On or about March 19, 1997, the State reinstated the case by filing a third amended information against Lott and Miller. The trial court appointed the Oklahoma Indigent Defense System (OIDS) to represent Lott.

On March 20, 1998, the State filed a bill of particulars asserting that Lott “should be punished by death due to and as a result of” the existence of three “aggravating circumstance(s)”: (1) the murders were “especially heinous, atrocious, or cruel”; (2) the murders were “committed for the purpose of avoiding or preventing a lawful arrest or prosecution”; and (3) “[t]he existence of a probability that [Lott] would commit criminal acts of violence that would constitute a continuing threat to society.”

On November 13, 2000, the State filed a fourth amended information. Although the fourth amended information continued to charge Lott with two counts of first-degree malice aforethought murder and, in the alternative, two counts of first-degree felony murder, the charging language differed significantly from that of the third amended information. Whereas the third amended information alleged that the first-degree malice aforethought murder counts, as well as the felony murder counts, were “feloniously committed · by Robert Lee Miller Jr. and Ronald Clinton Lott acting jointly and willfully,” the fourth amended information (a) omitted from the first-degree malice aforethought murder charges the allegations that Lott acted jointly with Miller, thus leaving only Lott as the named defendant in those counts, and (b) altered the felony murder counts to allege that Lott was “aided and abetted by Miller.”

The case proceeded to trial on October 29, 2001. But a mistrial occurred: In the middle of trial, the State requested a continuance when the medical examiner revealed he had evidence in his possession that had never been tested. The State requested the continuance so LabCorp could test the newly discovered evidence. The defense requested a mistrial. The State agreed to the mistrial if the defense would agree to stipulate to a continuance and stipulate to the chain of custody. The mistrial was granted and the trial rescheduled for December 3, 2001. The December 2001 trial proceeded as scheduled. At the conclusion of the first-stage evidence, the jury found Lott guilty of both murders.

At the conclusion of the second-stage proceedings, the jury found, with respect to each of the counts of conviction, the existence of two of the three alleged aggravating circumstances: that the murders were especially heinous, atrocious, or cruel, and that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution. The jury in turn fixed Lott's punishment at death for each of the two counts of conviction. On January 18, 2002, the state trial court formally sentenced Lott to death for each of the two murder convictions.

Oklahoma Attorney General (News Release)

News Release - Ronald C. Lott
December 10th at 6 p.m. Oklahoma State Penitentiary in McAlester

Name: Ronald Lott
DOB: 09/22/1960
Sex: Male
Age at Date of Crime: 26
Victim(s): Anna Laura Fowler, 83 - Zelma Cutler, 93
Date of Crime(s): 9/2/1986 - 1/11/1987
Date of Sentence: 1/18/2002
Crime Location: Victim’s Home -1200 N.W. 31st Street, OKC – Anna Fowler
Crime Location: Victim’s Home- 1142 N.W. 31st Street, OKC- Zelma Cutler

Judge: Virgil C. Black
Prosecuting: Robert Macy, Wes Lane, Greg Mashburn, Richard Wintory
Defending: Craig D. Corgan, Wayna Tyner, Perry W. Hudson, John Albert

Circumstances Surrounding Crime:

Lott was found guilty by a jury of his peers and sentenced to death for the first degree murders of Anna Laura Fowler, 83, and Zelma Cutler, 93, both of Oklahoma City. Fowler and Cutler both lived alone across the street from each other in Oklahoma City. Lott entered their homes and brutally beat, raped and murdered both elderly women. Along with the murders of Fowler and Cutler, Lott beat and raped two other victims within a three mile radius of the first victims’ homes. Lott’s DNA was found at all four crime scenes.

Statement from Attorney General Scott Pruitt: “Ronald Lott was sentenced to death by a jury of his peers for the heinous and unconscionable acts he committed against Anna and Zelma in their homes,” Attorney General Scott Pruitt said. “My thoughts and prayers are with Anna Fowler’s and Zelma Cutler’s family and friends.”

Wikipedia: Oklahoma Executions

A total of 106 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

Lott v. State, 2004 OK CR 27 (Okla. Crim. App. 2004). (Direct Appeal)

PROCEDURAL POSTURE: Defendant sought review of the decision of the District Court of Oklahoma County (Oklahoma), which convicted him of two counts of first-degree murder in violation of Okla. Stat. tit. 21, § 701.7 (Supp. 1985) and sentenced him to death on each count.

OVERVIEW: Defendant was convicted of two counts of first-degree murder for the brutal killings of two elderly women. The jury recommended the sentence of death on each count and the trial court sentenced accordingly. The court affirmed, stating that it could not say that the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to Okla. Stat. tit. 21, § 701.13(C) (2001), in finding that the aggravating circumstances outweighed the mitigating evidence. Further, the court held that defendant was not denied his right to a speedy trial, stating that although continuances resulted in delay, the trial court did not abuse its discretion in granting them because it gave the defense time to investigate evidence recently turned over by the State. The trial court did not err in refusing to sever the two murder charges and try him separately for each offense because the evidence was sufficient to find that proof of each offense overlapped so as to evidence a common scheme or plan. Further, he failed to show any prejudice resulting from the joinder. The trial court did not err on instructing the jury on aiding and abetting because they were warranted by the evidence.

OUTCOME: The judgment was affirmed.

LUMPKIN, JUDGE:

Appellant Ronald Clinton Lott was tried by jury and convicted of two counts of First Degree Murder (21 O.S.Supp. 1985, § 701.7), Case No. CF-87-963, in the District Court of Oklahoma County. The jury found the existence of two aggravating circumstances in each count and recommended the punishment of death for each count. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal. 1

1 Appellant's Petition in Error was filed in this Court on July 17, 2002. Appellant's brief was filed September 5, 2003. The State's brief was filed January 5, 2004. The case was submitted to the Court January 13, 2004. Appellant's reply brief was filed January 26, 2004. Oral argument was held June 8, 2004.

Robert Miller was arrested, charged, and ultimately convicted of the rapes and murders of Mrs. Fowler and Mrs. Cutler. Subsequent to Miller's arrest, Grace Marshall was attacked and raped in her home on March 22, 1987. Eleanor Hoster was attacked and raped in her home on May 7, 1987. Both Mrs. Marshall and Mrs. Hoster were elderly ladies who lived alone. With the exception that Mrs. Marshall and Mrs. Hoster were not killed after being raped, there were striking similarities between the attacks on the four women. Appellant was arrested, charged, and ultimately plead guilty to committing the rapes against Mrs. Marshall and Mrs. Hoster.

In approximately 1992, during Robert Miller's appeal period, Miller was excluded as the source of semen in the Fowler/Cutler cases through DNA testing. DNA testing subsequently implicated Appellant as the source of the semen. While Appellant was incarcerated for the Marshall/Hoster crimes, he was charged with two counts of malice aforethought murder or in the alternative first degree felony murder for the murders of Mrs. Fowler and Mrs. Cutler.

PRE-TRIAL ISSUES

In his first assignment of error, Appellant contends the trial court erred in refusing to dismiss the charges based upon the denial of his constitutional rights to a speedy trial under the Sixth Amendment to the United States Constitution and Article II, §§ 6 and 20 of Oklahoma's Constitution. 2

2 The speedy trial provision of the Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where the crime shall have been committed….". Similarly, Section 20 of the Oklahoma Constitution states, in part, "In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed….". Section 6 of the Oklahoma Constitution reinforces the importance of this constitutional right by stating, "The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." Oklahoma does not have a speedy trial act which sets forth a specific period of time for a matter to be brought to trial. But see Uniform Criminal Extradition Act, 22 O.S. 1991, § 1347.

When reviewing a claim of the denial of the constitutional right to a speedy trial, we apply the four balancing factors established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972): (1) length of the delay; (2) reason for the delay; (3) the defendant's assertion of his right, and (4) prejudice to the defendant. These are not absolute factors, but are balanced with other relevant circumstances in making a determination. See Rainey v. State, 1988 OK CR 65, 1988 Okla. Crim. App. LEXIS 65, P3, 755 P.2d 89, 90. Appellant claims all four factors clearly weigh in his favor and that his speedy trial right has been unquestionably denied.

Regarding the length of delay, Appellant was originally charged on March 10, 1995, by amended information, with the commission of the Fowler/Cutler murders. On January 30, 1996, those charges were dismissed by the State with the intent to refile at a later date. At that time, Appellant was incarcerated for the Marshall/Hoster rapes. Appellant argues the ten months between the filing and dismissal of the original charges should be counted in considering the length of delay factor. In United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 1502, 71 L. Ed. 2d 696 (1982), the United States Supreme Court held that "once charges are dismissed, the speedy trial guarantee is no longer applicable." Appellant's reliance on Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967) is misplaced. In Klopfer, the prosecutor was able to suspend proceedings indefinitely; the charges were not dismissed. Id., at 214, 87 S. Ct. at 989. In the present case, Appellant was incarcerated for a separate crime at the time, therefore no due process violation occurred. See McDonald, 456 U.S. at 8, 102 S. Ct. at 1502.

Charges against Appellant for the Fowler/Cutler murders were refiled by a Third Amended Felony Information on March 19, 1997. The trial began December 3, 2001. Therefore the length of delay was approximately 4 years and 10 months. 3 This was a substantial delay and is sufficient, under our case law, to necessitate a review of the other three factors. See Ellis v. State, 2003 OK CR 18, P30, 76 P.3d 1131, 1136. 4

3 An earlier jury trial was begun October 29, 2001. In the middle of trial, the State requested a continuance when the medical examiner revealed he had evidence in his possession that had never been tested. The State requested the continuance so LabCorp could test the newly discovered evidence. The defense requested a mistrial. The State agreed to the mistrial if the defense would agree to stipulate to a continuance and stipulate to the chain of custody. The mistrial was granted and the trial rescheduled for December 3, 2001. Appellant waived his right to a speedy trial as to the December trial date.

4 In Ellis, we cited to 22 O.S.Supp. 1999, § 812.1, which indicates our Legislature considers any delay beyond one-year to require special review by the District Court. We further noted that even under the former statute, § 812, we have generally regarded the twelve-month interval as a threshold period of time in the speedy trial inquiry.

We next consider the second factor, the reason for the delay. Barker v. Wingo speaks of a "valid reason" for the delay. However, our statute speaks of "appropriateness of the cause of the delay," while the former statute spoke of "good cause." 5 All of these phrases have essentially the same meaning and require the reviewing court to ascertain what is causing the delay and then to ask if the cause is reasonable. Id. Further, Barker v. Wingo recognized that the second factor depends on the circumstances of the case. Deliberate delay weighs heavily against the government. Neutral reasons, like negligence or crowded courts, weigh slightly in a defendant's favor, for "ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Barker v. Wingo, 407 U.S. at 531, 92 S. Ct. at 2192. And a "valid reason, such as a missing witness, should serve to justify appropriate delay." Id. Ellis, 2003 OK CR 18, P47-48, 76 P.3d at 1139 (footnote omitted).

5 22 O.S.Supp. 1999, § 812.1(A), provides in pertinent part, "If any person charged with a crime and held in jail solely by reason thereof is not brought to trial within one (1) year after arrest, the court shall set the case for immediate review as provided in Section 2 of this act, to determine if the right of the accused to a speedy trial is being protected." This provision was enacted in 1999 and became effective on November 1, 1999. However, it is basically an amendment to sections 811 and 812, which have been the law since 1910, but were repealed when the new version was enacted. 22 O.S. 1991, § 812, repealed in 1999. provided, "If a defendant prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause is shown."

Appellant's case was set for trial to begin on May 22, 2000. This date was stricken at the request of the defense in order to allow Appellant to produce evidence in support of a Motion to Dismiss for Speedy Trial. A hearing was held on Appellant's motion on May 26, 2000. On June 2, 2000, the trial court denied the motion to dismiss and issued a detailed Findings of Fact and Conclusions of Law. See Appendix.

In its Findings of Fact and Conclusions of Law, the trial court found several reasons for the delay. The court also stated that the delay was not solely attributable to the State. The preliminary hearing began 8 months after charges had been refiled. It was continued on six different dates until it was completed March 20, 1998. The trial court found that at no time during the course of the hearing did the defense raise an objection to the lengthy nature of the hearing. Under our review of the voluminous record, we cannot dispute that claim. At the conclusion of the hearing, Appellant requested immediate receipt of the preliminary hearing transcripts at public expense. The record reflects a delay of approximately six months, with the final transcript filed in September 1998. The trial court found that defense counsel's request for a completed transcript was reasonable as the evidence presented at the preliminary hearing was relevant to the court's pre-trial rulings.

In a Supplemental Brief, Appellant challenges the trial court's finding that this delay was due to the preparation of preliminary hearing transcripts. Appellant asserts trial counsel never requested a continuance based on the lack of transcripts. Even if counsel did not request a continuance on this basis, we find the trial court's ruling that such transcripts were necessary and relevant for pre-trial rulings to be reasonable.

Appellant argues the delay from preliminary hearing to pre-trial was due instead to the fact that the assigned judge, Judge Owens, was retiring in January 1999 and simply did not want to try the case. Appellant relies on Ellis where we stated, "under the statute, it is clearly the trial judge's responsibility to manage his or her docket in such a way that ensures the right to speedy trial is being protected". 2003 OK CR 18, P50, 76 P.3d at 1139.

In this regard, the trial court found the case was delayed due to scheduling conflicts of both court and counsel. The trial court found that the docket of Judge Owens was such that he could not have tried a case of this magnitude during the four month time period encompassing the final completion of the preliminary hearing transcript and the date of his retirement. The trial court noted that Judge Owens chose not to hear any pre-trial motions in this case as he would not be the presiding judge at trial. The trial court found no defense request for trial during the time the case was pending before Judge Owens.

Section 812.2(A)(2)(g) and (i) require the court to look at whether the delay occurred because "the court has other cases pending for trial that are for persons incarcerated prior to the case in question, and the court does not have sufficient time to commence the trial of the case within the time limitation fixed for trial," and "the court, state, accused, or the attorney for the accused is incapable of proceeding to trial due to illness or other reason and it is unreasonable to reassign the case." While we do not know from the record whether Judge Owens had other cases pending for trial that were for persons incarcerated longer than Appellant, we do have the trial court's finding that Judge Owens' docket was such that he could not try a case of this complexity prior to his retirement. While these delays appear to be a deliberate postponement of the case, taking judicial notice of the large caseload of criminal cases in the District Court of Oklahoma County, and the complex nature of the present case, we do not dispute the trial court's finding that the delay pending Judge Owens' retirement was reasonable. 6 Therefore, this delay does not weigh in Appellant's favor.

6 Appellant argues the case was passed four times while assigned to Judge Owens without Appellant's or defense counsel's knowledge, appearance or consent. Appellant states in his brief that each time counsel appeared, he would be informed that the case had been passed and Judge Owens would not meet with him. Appellant contends that finally defense counsel complained and was told by the bailiff that Judge Owens did not intend to do anything on the case because he was retiring in 1999. The record does not support Appellant's allegations, although we recognize the difficulty in proving such claims. If in fact, Appellant's claims are true that he was not able to meet with the judge and informed by a third party that the judge did not intend to act on the case pending his retirement, it was defense counsel's responsibility to request reassignment of the case to a different judge. There is no evidence of such in this case. However, we also note that as part of properly managing their caseload, judges who find it impossible to complete a case before retirement, should seek to reassign the case as soon as possible.

In February 1999, the case was reassigned to Judge Bragg. However, she shortly thereafter recused herself from the case. The case was assigned to Judge Black on March 1, 1999, and pre-trial hearings were commenced. However, it would be another two years and seven months before trial would begin. The trial court found this was due to the change in defense counsel (three attorneys from the Oklahoma Indigent Defense System since preliminary hearing), and scheduling conflicts of all parties concerned. As a result of the scheduling conflicts, the trial court convened a three-judge panel to resolve the conflicts and schedule major cases involving the attorneys in Appellant's case. Appellant's case was set for trial on March 27, 2000. While Appellant criticizes the convening of this three-judge panel, he does not offer an alternative solution to resolving the scheduling conflicts between court and counsel. We find the trial court acted responsibly in convening the panel in order to resolve the conflicts and expedite Appellant's case.

Trial did not begin on March 27, 2000, but was delayed due to requests for continuance from the State for additional time for forensic analysis, the postponement of scheduled testing by LabCorp so the defense could have an expert present during testing, and Appellant's Motion to Dismiss for lack of a Speedy Trial. In its order denying the motion to dismiss, the trial court stated that the State and the court could have tried the case in May or June 2000, but at the request of the defense, proceedings were stayed pending resolution of the motion. The motion to dismiss was denied June 2, 2000, and trial was rescheduled to November 13, 2000, to allow Appellant to seek extraordinary relief with this Court. On July 3, 2000, Appellant appealed to this Court from the District Court's order denying his motion to dismiss for lack of speedy trial. On August 17, 2000, this Court declined jurisdiction and dismissed the appeal. This mandamus action does not weigh in Appellant's favor as it was ultimately unsuccessful and caused a further delay of eight months. However, "by the same token, we recognize a mandamus action is not the same as an interlocutory appeal and the remedy was sought, at least in part, to protect his speedy trial endeavors." Ellis, 2003 OK CR 18, P56, 76 P.3d at 1140, citing United States v. Loud Hawk, 474 U.S. 302, 316, 106 S. Ct. 648, 656, 88 L. Ed. 2d 640 (1986)(finding delay attributable to defendant's interlocutory appeal "ordinarily will not weigh in favor of a defendant's speedy trial claims.")

The record reflects that from the November 2000 trial date, trial was rescheduled approximately three times (March 26, 2001; September 10, 2001; and October 29, 2001). These delays were the result of additional forensic testing. Appellant argues this delay was a "concerted effort on the part of the State and the trial court to allow the State to continue to investigate and strengthening (sic) its case". To the contrary, the record reflects an effort by the trial court to ensure the parties had all necessary evidence before proceeding to trial.

The record reflects that certain delays from the November 2000 trial date to October 2001 when the first trial began were the result of the State failing to timely comply with the Discovery Code. The trial courts are empowered to order the appropriate relief for the failure to comply with a discovery order. 22 O.S.Supp. 1996, § 2002(E)(2). Although the continuances resulted in further delay, the trial court did not abuse its discretion in granting the continuances as it gave the defense time to investigate evidence recently turned over by the State. Further, considering the recent availability of the new mitochondrial analysis of DNA evidence during the pendency of the proceedings, the continuances for additional forensic testing were reasonable and prudent.

In March 2001 an issue arose as to the involvement of Joyce Gilchrist, forensic chemist with the Oklahoma City Police Department and potential witness in the case. Prior to selecting a jury for the start of trial on March 26, 2001, the trial court held an in-camera hearing on the matter. It was revealed that there was an ongoing internal review within the police department of Ms. Gilchrist's work. The defense indicated to the court that it would be ineffective in announcing ready for trial at that time without further information on the Gilchrist matter; however, the defense did not want a continuance based upon the speedy trial claim. As a third alternative, the defense moved for a dismissal of the case.

The trial court denied the motion to dismiss, and with a jury waiting to be selected, informed the defense it had to choose between going forward with trial or continuing the case. After giving defense counsel time to consult with Appellant, defense counsel announced that based upon the need for additional investigation that could lead to exculpatory evidence, a continuance was requested. However, the defense did not want to relinquish its claim to a speedy trial. The State objected to the continuance and argued Appellant could not assert a speedy trial claim and request a continuance. The State argued Ms. Gilchrist had minimal involvement in this case and was not the sole tester of the evidence. The State also argued the defense had been aware for some time prior to the start of trial of Ms. Gilchrist's involvement in the case and the controversy surrounding her work.

Noting the presence of victims in the courtroom waiting for the start of trial, potential jurors waiting outside the courtroom for the start of voir dire, the State's announcement of ready for trial, the court's own ability to try the case that day, and the court's misgivings about the necessity of a continuance based upon the Gilchrist matter, the trial court informed defense counsel he would have to choose between a request for a continuance and exercise of his speedy trial claim. The court informed Appellant that if he requested the continuance, he would have to waive the speedy trial claim. Appellant chose the continuance and jury trial was rescheduled to September 10, 2001. On August 30, 2001, the trial court convened a hearing to inform the parties that due to another jury trial, Appellant's trial would not proceed on September 10, 2001. Appellant objected on speedy trial grounds. The court noted that due to its heavy caseload, the earliest it could try the case would be October 29, 2001.

We agree with the trial court's finding that the delay in this case was not solely attributable to the State. The State, the defense, and the court can all be held accountable for delays in this case. However, on the record, the majority of the delays were for good cause and not deliberate attempts to slow the process by either party. Considering the complexity of this case, the discovery of the availability of the new mitochondrial analysis of DNA evidence during the pendency of the proceedings, the majority of the delays were necessary to further the ends of justice and ensure that Appellant received a fair and impartial trial. See McDuffie v. State, 1982 OK CR 150, P7, 651 P.2d 1055, 1056. As for the third factor, assertion of the right by the accused, incarceration makes the demand for one in custody. See McDuffie, 1982 OK CR 150, P8, 651 P.2d at 1056. Additionally, Appellant made an affirmative request for a speedy trial on at least nine different occasions. As we noted in Ellis, 2003 OK CR 18, P45, 76 P.3d at 1139, "the defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right " (quoting Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93). The third factor weighs in Appellant's favor.

Our fourth and final consideration concerns the prejudice, if any, worked upon Appellant from the delays in this case. In Ellis, this Court stated: Both parties correctly noted that the United States Supreme Court has held that an affirmative demonstration of prejudice is not a prerequisite to a claim of denial of the right to speedy trial and that prejudice is not limited to detriment to the defense of the accused. Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973). Nevertheless, prejudice is one of the factors that must be considered, and Barker v. Wingo outlined three types: oppressive pretrial incarceration; anxiety and concern of the accused; and impairment of the defense. Of these factors, the Supreme Court considers the third the most serious "because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker v. Wingo, 407 U.S. at 532, 92 S. Ct. at 2193; but see Doggett v. United State, 505 U.S. 647, 661-65, 120 L. Ed. 2d 520, 112 S. Ct. 2686, 2695-698 (Thomas, dissenting) (noting Barker's suggestion that preventing prejudice to the defense is a fundamental objective of the speedy trial clause is "plainly dictum" and contradicted by holdings of other cases). 2003 OK CR 18, P58, 76 P.3d at 1140-1141.

Appellant argues prejudice is evident because had his case gone to trial as mandated by 22 O.S. 1991, § 812, in effect at the time of the first trial setting, the State's evidence would have consisted of DNA evidence by Brian Wraxall only. Wraxall testified at trial that his analysis of the evidence showed Appellant's DNA was consistent with all nine markers in the best samples taken from the crime scenes and was sufficient for him to identify Appellant as the source of the semen. This was the evidence the State had at preliminary hearing. Appellant asserts he would have challenged Wraxall's credibility and expertise based on extensive impeachment material available to the defense. However, due to the delays in the case, the State was able to present testimony from Megan Clement of LabCorp who testified that a sperm fraction of a vaginal swab taken from Mrs. Fowler was tested and a profile in 13 different areas of DNA obtained. Ms. Clement testified that the random match probability that Appellant was the donor of the sperm found in the vaginal swab was 1 in 157 quadrillion. At trial, Wraxal offered no such statistical probabilities, and the defense did not impeach him because Ms. Clement's testimony was more damaging.

The delays in the trial did not prevent Appellant from challenging the expertise and credibility of any of the experts conducting the DNA analysis. Further, the science of DNA testing is rapidly progressing and it was to the benefit of both the State and the defense to have the evidence subjected to the latest and most accurate type of analysis. Such testing could have very easily been exculpatory and therefore benefited Appellant. The fact that the results proved favorable to the State and not Appellant is not grounds upon which to base a finding of prejudice. This case is distinguishable from Ellis, in that the delays in Ellis were based upon the State's search for evidence against the defendant. In the present case, all of the evidence had been gathered, no new evidence was sought. It was merely a question of analyzing that evidence in the most accurate method possible. We find Appellant was not prejudiced by the delays as his defense was not hindered or impaired.

Appellant further argues the delay in not only going to trial but in charging him created significant difficulties for the defense in obtaining mitigation records and locating mitigating witnesses. Appellant asserts that with fourteen years having passed between the first homicide and trial, he was unable to obtain important evidence such as juvenile records, hospital records, and contact with friends and family that would have been helpful to a jury in determining his punishment. Initially, we do not review this claim of prejudice based upon a lapse of fourteen years, as Appellant did not even become a suspect until six years after the commission of the first murder. Further, Appellant has failed to demonstrate any prejudice. His argument in this regard is fully set forth above. Without further development of the argument, this Court is unable to review the claim.

As for Barker's other factors of prejudice, oppressive pretrial incarceration and anxiety and concern of the accused, Appellant makes no argument. However, we note that by 2000, Appellant had discharged the two 25 year sentences received in the Marshall/Hoster cases and was incarcerated solely on the charges in this case. While Appellant suffered some prejudice as a result of the deprivation of his liberty, this is not sufficient to tip the scales in Appellant's favor. The fourth factor weighs in the State's favor.In summary, we find the first and third speedy trial factors weigh in Appellant's favor, but reasons for the delay and prejudice favor the State. After careful consideration, we find Appellant was not deprived of his speedy trial rights under the federal and state constitutions, based upon the finding of reasonable reasons for the delay, the absence of significant prejudice, and the less-than egregious deprivation of liberty.

Appellant further asserts the failure to dismiss his prosecution violated 22 O.S. 1991, § 812 and 22 O.S.Supp. 1999, §§ 812.1 and 812.2. Appellant argues that when charges were refiled in March 1997, he was not brought to trial "at the next term of court" pursuant to 22 O.S. 1991, § 812, the statute in effect at the time. 7 However, as Appellant notes, the prosecution need not be dismissed in such a case when "good cause" has been shown for the delay. As discussed above, the complexities of this case, including the use of DNA analysis, the assigned judge's pending retirement, plus the extraordinarily long preliminary hearing provided sufficient good cause for the delay of the case past the "next term of court." Therefore, the failure to dismiss the prosecution in the fall of 1998 was not a statutory violation. Further, any violation of the 1999 enactment of §§ 812.1 and 812.2 was harmless under the facts of this case. See Simpson v. State, 1994 OK CR 40, P 34, 876 P.2d 690, 701-02. Accordingly, this assignment of error is denied. 8

7 The phrase "term of court" as used in 22 O.S. 1991, § 812 and elsewhere throughout our state laws, i.e. 12 O.S. 1991, §§ 32.1, 55, 663-666, and 1451, refers to statutory provisions setting forth specific time periods during the year in which jury trials could be conducted in courts of this State. See 20 O.S. §§ 92, 95, 96.1, 96.2, 141 - 161. These provisions have been repealed (variously in 1941, 1968 and 1969). As a result, the dates in which court may conducted, and jury trials held, is not restricted by statute but is within the discretion of the District Courts. Therefore, the phrase "term of court" does not have the same meaning in today's judicial system as it once did.

8 Appellant also argues he was denied his rights to be free from the arbitrary imposition of the death penalty under the Eighth Amendment, 21 O.S. 1991, § 701.10, and 21 O.S.Supp. 1985, § 701.13(C). Appellant contends the State relied on first stage evidence obtained in violation of his federal and state constitutional rights to a speedy trial to support the alleged aggravating circumstances. However, this Court has found the first stage evidence was not unconstitutionally obtained. Therefore Appellant's claim is without merit.

In his second assignment of error, Appellant contends the trial court erred in refusing to sever the two murder charges and try him separately for each offense. An objection to the joinder of offenses was filed by the defense on October 25, 2000. On November 6, 2000, the trial court heard argument and denied the motion to sever. Therefore, the issue has been properly preserved for appellate review. Joinder of offenses is permitted pursuant to 22 O.S. 2001, § 438. This section provides that multiple offenses may be combined for trial "if the offenses . . . could have been joined in a single indictment or information." This Court has allowed joinder of separately punishable offenses allegedly committed by the accused if the separate offenses "rise out of one criminal act or transaction, or are part of a series of criminal acts or transactions. Glass v. State, 1985 OK CR 65, P8, 701 P.2d 765, 768. "Further, with respect to a series of criminal acts or transactions, 'joinder of offenses is proper where the counts so joined refer to the same type of offenses occurring over a relatively short period of time, in approximately the same location, and proof as to each transaction overlaps so as to evidence a common scheme or plan.'" Cummings v. State, 1998 OK CR 45, 968 P.2d 821, 829, cert. denied, 526 U.S. 1162, 119 S. Ct. 2054, 144 L. Ed. 2d 220 (1999). See also Glass, 1985 OK CR 65, P8, 701 P.2d at 768.

Appellant admits that the first of the four factors discussed in Glass and Cummings was established, as the charges stemming from the first offense, first degree rape and first degree murder and in the alternative felony murder, were identical to the charges from the second offense. Appellant also states, "it is less clear but still likely that the requirements of proximity in time and space were also satisfied." The record supports Appellant's grudging admission of the satisfaction of the time and space requirements listed as the second and third factors for consideration. Mrs. Fowler and Mrs. Cutler lived across the street from each other and were killed within a four month time period.

Appellant does not concede the fourth factor, that the proof as to each transaction overlaps so as to evidence a common scheme or plan, was established. We disagree. Both crimes were committed against elderly ladies who lived alone. Both victims had friends or family who visited them, but otherwise they had set routines, and rarely left their homes. In contrast to other houses in the neighborhood, the victims' homes and yards were noticeably well taken care of. In each case, entry into the house was made under cover of darkness, either late at night or very early in the morning. Entry in each case was a break-in through a rear door to the residence. In each case, cuts had been made in the rear screen door. Both victims were beaten, raped, and asphyxiated in their beds. A knotted rag was found near each body. In each case, the rapes appeared to be the primary purpose for the break-ins as the houses were not ransacked and nothing of value was taken from the homes. In each instance, Appellant had a relative who lived nearby. This evidence is sufficient to find that proof of each offense overlapped so as to evidence a common scheme or plan, and therefore allow for joinder of the offenses for trial. See Gilson v. State, 2000 OK CR 14, P48, 8 P.3d 883, 904-905, cert. denied, 532 U.S. 962, 121 S. Ct. 1496, 149 L. Ed. 2d 381 (2001). See also Pack v. State, 1991 OK CR 109, P8, 819 P.2d 280, 283.

Further, Appellant has failed to show any prejudice resulting from the joinder. Evidence of either offense would have been admissible in a trial of the other pursuant to 12 O.S. 1991, § 2404(B) as evidence of other crimes or wrongs to prove motive, intent, or common scheme or plan. See Myers v. State, 2000 OK CR 25, P

17 P.3d 1021, 1029-30, cert. denied, 534 U.S. 900, 122 S. Ct. 228, 151 L. Ed. 2d 163 (2001). Accordingly, we find no abuse of discretion by the trial court denying the motion to sever. See Gilson, 2000 OK CR 14, P49, 8 P.3d at 905. This assignment of error is denied.

FIRST STAGE ISSUES

Appellant contends the trial court erred in admitting evidence of the sexual assaults on Mrs. Marshall and Mrs. Hoster. Appellant relies on prior case law from this Court where we have stated that "similarity between crimes, without more, is insufficient to permit admission" of evidence of other crimes. See Hall v. State, 1980 OK CR 64, P5, 615 P.2d 1020, 1022. Prior to trial, the State filed a Notice of Intent to Use Evidence of Other Crimes and Brief in Support. The State alleged the similarities between the Fowler/Cutler homicides and the Marshall/Hoster assaults were "relevant as an aid in determining the identity of the assailant. Also, the evidence is admissible as being part of a common scheme or plan since it demonstrates a highly distinct method of operation." The State cited 37 similarities between the Fowler/Cutler crimes and the Marshall/Hoster crimes. After hearing argument, the trial found the other crimes evidence to be relevant and admissible.

The basic law is well established - when one is put on trial, one is to be convicted - if at all - by evidence which shows one guilty of the offense charged; and proof that one is guilty of other offenses not connected with that for which one is on trial must be excluded. Burks v. State, 1979 OK CR 10, P2, 594 P.2d 771, 772, overruled in part on other grounds, Jones v. State, 1989 OK CR 7, 772 P.2d 922. See also Hall v. State, 1985 OK CR 38, P21, 698 P.2d 33, 37. However, evidence of other crimes is admissible where it tends to establish absence of mistake or accident, common scheme or plan, motive, opportunity, intent, preparation, knowledge and identity. Burks, 1979 OK CR 10, P2, 594 P.2d at 772. To be admissible, evidence of other crimes must be probative of a disputed issue of the crime charged, there must be a visible connection between the crimes, evidence of the other crime(s) must be necessary to support the State's burden of proof, proof of the other crime(s) must be clear and convincing, the probative value of the evidence must outweigh the prejudice to the accused and the trial court must issue contemporaneous and final limiting instructions. Welch v. State, 2000 OK CR 8, P8, 2 P.3d 356, 365, cert. denied, 531 U.S. 1056, 121 S. Ct. 665, 148 L. Ed. 2d 567 (2000).

2 P.3d at 366. This Court has allowed evidence of other crimes or bad acts to be admitted under the "plan" exception of § 2404(B) where the methods of operation were so distinctive as to demonstrate a visible connection between the crimes. Id. at

2 P.3d at 366-67. See also Aylor v. State, 1987 OK CR 190, P5, 742 P.2d 591, 593; Driskell v. State, 1983 OK CR 22, P23, 659 P.2d 343, 349; Driver v. State, 1981 OK CR 117, P5, 634 P.2d 760, 762-63. Distinctive methods of operation are also relevant to prove the identity of the perpetrator of the crime. Eberhart v. State, 1986 OK CR 160, P23, 727 P.2d 1374, 1379-80.

In this case, there is a substantial degree of similarity between the Marshall/Hoster assaults and the Fowler/Cutler homicides. The similarities show a visible connection sufficient to characterize a common scheme and to be probative on the issue of identity of the perpetrator. Briefly summarized, these similarities include: all four victims were white females over the age of 71 who lived alone; all four victims lived on the south side of the street and on corner lots; the back porch screen door was cut on the homes of three of the victims; the breaker box for the electricity to the residence was shut off in the homes of three of the four victims; entry to the residence was gained through a rear door in all four homes; a back door window was broken in three of the homes; two of the victims were awake when their homes was broken into and they were forced to their bedrooms; all four victims were raped vaginally while in their bedrooms; two of the four victims were also anally raped; all four victims were raped either late at night or in the early morning; all four victims were beaten about the head, face and arms; all four victims suffered vaginal tears and bleeding; a knotted rag was found on the beds of three of the victims; a pillow was placed over the faces of three of the victims during the assault; none of the residences occupied by the four victims were ransacked and nothing of any significant value was taken from any of the homes; all four assaults occurred within an eight month time period with the Fowler/Cutler crimes occurring four months apart and the Marshall/Hoster crimes occurring two months apart; all four victims lived within three miles of each other; Appellant lived with his mother or sister near the Fowler/Cutler homes at the time of their murders and he lived with his brother near the Marshall/Hoster homes at the time of their assaults.

Appellant contends there were just as many differences as there were similarities between the crimes. Chief among those differences is the fact that two of the victims were left alive while two were killed. Appellant argues that at the time these four crimes occurred, numerous instances of rapes and home invasions of elderly women were being reported in the media. Appellant asserts the crimes in this case were not unusual enough to point to a signature of one individual perpetrator. We disagree. The similarities in this case are far greater than those in Hall v. State, 1980 OK CR 64, P6, 615 P.2d at 1022 relied upon by Appellant (similarities limited to each rape took place in an automobile, all three victims were under the age of consent, and each rape was committed in Tulsa County). Further, the similarities between the Fowler/Cutler homicides and the Marshall/Hoster assaults show a method of operation so distinctive as to demonstrate a visible connection between the crimes. In crimes involving sexual assaults, this Court has adopted a greater latitude rule for the admission of other crimes. Myers, 2000 OK CR 25, PP21- 24, 17 P.3d 1021 at 1030. See also Driskell, 659 P.2d at 349. 9

9 Even before Myers, this Court in Driskell, 659 P.2d at 349 cited to Rhine v. State, 1958 OK CR 110, P20, 336 P.2d 913 (Okl.Cr. 1958) and stated:

'That evidence of the commission of other similar crimes may be given to show the plan or design on the part of the defendant to commit such crimes has often been judicially recognized. The word 'design' implies a plan formed in the mind. That an individual who commits or attempts to commit abnormal sex offenses is likely to have such a mental 'plan' finds recognition in the fact that when a defendant is charged with the commission of sexual offense the law is more liberal in admitting as proof of his guilt evidence of similar sexual offenses committed by him than it is in admitting evidence of similar offenses when a defendant is charged with the commission of non-sexual crimes…. 'But where the prior rape or attempt is committed under circumstances remarkably similar to the one charged the evidence is admissible to show a plan or scheme to commit the crime in that fashion, even though the prior rape or attempt was committed on a person other than the prosecutrix. In such cases the evidence that defendant committed the prior offense tends to prove that he committed the offense charged.' 659 P.2d at 349.

We further uphold the trial court's ruling that the probative value of the evidence of the Marshall/Hoster assaults outweighed its prejudicial impact. See Mayes v. State, 1994 OK CR 44, P77, 887 P.2d 1288, 1309-10, cert. denied, 513 U.S. 1194, 115 S. Ct. 1260, 131 L. Ed. 2d 140 (1995). The evidence was necessary to support the State's burden of proof despite its prejudicial nature. Finding the evidence properly admitted, this proposition is denied.

FIRST STAGE JURY INSTRUCTIONS

In his fourth assignment of error, Appellant contends the trial court erred by instructing the jury on aiding and abetting. We review only for plain error as no objection was raised to the instruction. Bland v. State, 2000 OK CR 11, P49, 4 P.3d 702, 718, cert. denied, 531 U.S. 1099, 121 S. Ct. 832, 148 L. Ed. 2d 714 (2001). In support of his contention, Appellant relies on Lambert v. State, 1994 OK CR 79, 888 P.2d 494. In Lambert, the defendant was charged with malice aforethought murder. The trial court gave instructions on felony murder. The appellant argued he was not given sufficient notice of this theory in the information, and this Court reversed on this basis. 1994 OK CR 79, PP45 - 48, 888 P.2d 494 at 504. The situation in the present case is very different.

In a Fourth Amended Felony Information, filed approximately one year before trial, Appellant was charged with two counts of first degree malice aforethought murder for the deaths of Mrs. Fowler and Mrs. Cutler. In the alternative, he was charged with two counts of felony murder by aiding and abetting Robert Lee Miller, Jr., who in the commission of first degree burglary and first degree rape killed the victims. (O.R. 734-735). The State's theory throughout the proceedings was that Appellant committed the rapes, and that Appellant either killed the victims himself or he aided and abetted Miller in killing the victims. Unlike Lambert, Appellant was given plenty of notice concerning the State's alternative theories of guilt.

Further, the aiding and abetting instructions were warranted by the evidence. The State's evidence included the results of DNA testing showing Appellant was the donor of the semen found at the crime scenes, and that Miller had been excluded as the semen donor. The State also presented evidence showing Appellant had pled guilty to committing two other rapes under very similar circumstances as the charges on trial. During the cross-examination of several of the State's witnesses, the defense established that Miller had made certain statements about the Fowler/Cutler crimes which were not known to the general public, and that based in part upon those statements, Miller had been previously convicted of committing the Fowler/Cutler homicides. During re-direct examinations, the State elicited testimony that it was possible there were two intruders into the homes of Mrs. Fowler and Mrs. Cutler and that it was possible that one intruder killed the victims while the other watched. Additionally, during its case-in-chief, the defense introduced evidence concerning Miller's prior prosecution in the Fowler/Cutler cases. Accordingly, the trial court did not abuse its discretion in giving the instructions on aiding and abetting instructions. See Cannon v. State, 1995 OK CR 45, P25, 904 P.2d 89, 99. See also Slaughter v. State, 1997 OK CR 78, P63, 950 P.2d 839, 857 n. 9., cert. denied, 525 U.S. 886, 119 S. Ct. 199, 142 L. Ed. 2d 163 (1998).

Appellant further argues defense counsel was ineffective as counsel admitted guilt as to the felony murder charge without Appellant's consent. This Court follows the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). See Bland, 2000 OK CR 11, 4 P.3d at 730. Under Strickland's two-part test, the 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. Unless the appellant makes both showings, "it cannot be said that the conviction … resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Appellant must demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. at 688-89, 104 S. Ct. at 2065. The burden rests with Appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., 466 U.S. at 698, 104 S. Ct. at 2070. When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Id. at 697, 104 S. Ct. at 2069. This Court has stated the issue is whether counsel exercised the skill, judgment and diligence of a reasonably competent defense attorney in light of his overall performance. Bland, 2000 OK CR 11, 4 P.3d at 731.

Appellant relies on Jackson v. State, 2001 OK CR 37, 41 P.3d 395, 398-399, where this Court reiterated its position that a concession of guilt does not amount to ineffective assistance of counsel, per se. The Court stated, "a complete concession of guilt is a serious strategic decision that must only be made after consulting with the client and after receiving the client's consent or acquiescence." Id. at P25, 41 P. 3d at 400. This Court placed the burden on the appellant to show that he was not consulted and that he did not agree to or acquiesce in the concession strategy. Id. Under the facts of the present case, and when all of the arguments are read in context, it is clear that guilt was not conceded. The defense was well aware from early on that the State had DNA evidence which conclusively placed Appellant at the scene. The defense filed numerous pre-trial motions challenging that evidence. To counter the State's evidence at trial, the defense showed that the scientific evidence relied upon 14 years ago to convict Robert Miller of the Fowler/Cutler crimes - hair and blood analysis - had since been proven unreliable. Defense counsel questioned whether DNA analysis might not also go the way of hair and blood analysis in light of future advances in forensic testing. Counsel also argued that all the State had to prove Appellant's guilt was DNA and that relying on DNA was like gambling and relying on mere probabilities. Defense counsel urged the jury not to let the State's experts decide the case for them. The defense also presented evidence showing Miller's involvement in the Fowler/Cutler crimes and his knowledge of details that only someone present at the crime scenes would have known. Defense counsel argued in closing argument that the evidence showed Miller wasn't a mere observer to the crimes, but the actual perpetrator of the crimes.

Defense counsel also challenged the State's alternative theories of guilt and argued the State could not assert that Miller was and was not the killer. Defense counsel argued that while Miller was in jail for the Fowler/Cutler crimes, other rape victims did not die. Defense counsel stated that when the State told the jury they had no evidence Miller was the killer, "that cuts both ways because they also have no evidence what Ronald Lott was. None." Counsel then stated, "I don't know what you're going to do with that DNA, but at worst they have proven that Ronald Lott was the rapist . . ." Defense counsel further argued that merely because Miller was not included as a donor of the semen found at the scene, that did not mean that he was not a rapist and a killer. Counsel argued it merely showed Miller did not ejaculate at the scene. Counsel concluded his closing argument by asserting the State had not proven that Miller was not the killer, and because of that reasonable doubt as to Appellant's guilt existed.

In light of this record, counsel's statement that at worst "they have proven [Appellant] was the rapist" was not a concession of guilt to the charged crimes. This was an isolated comment within defense counsel's approximately 11 page closing argument. Any perceived conciliatory aspect of the remark was not prejudicial to Appellant. Claiming that Appellant had not been involved at all would have completely destroyed counsel's credibility before the jury in light of the strong evidence of guilt. See Wood v. State, 1998 OK CR 19, P60, 959 P.2d 1, 15-16. From the record, it appears that minimizing Appellant's role in the crimes in light of the DNA evidence was the best possible method to gain an acquittal on the charges. Accordingly, we do not find counsel's performance deficient under the circumstances. This assignment of error is denied.

In his eighth assignment of error, Appellant asserts the trial court erred in failing to give three uniform jury instructions which, according to the Notes on Use section following each instruction in the Oklahoma Uniform Jury Instructions(OUJI-CR), are required to be given in a homicide case. The three challenged instructions are: 1) the necessity for corroboration in homicide cases (OUJI-CR (2d) 9-14); 2) the definition of "in the commission of" (OUJI-CR (2d) 4-65); and 3) the definition of "sexual intercourse" (OUJI-CR (2d) 4-122). Appellant argues the failure to give each of these instructions lowered the State's burden of proof and resulted in reversible error. A review of the record shows these instructions were not requested by the defense nor were defense objections raised to the absence of these instructions. Therefore, we review only for plain error. Bland, 2000 OK CR 11, P49, 4 P.3d at 719.

In Phillips v. State, 1999 OK CR 38, 989 P.2d 1017, cert. denied, 531 U.S. 837, 121 S. Ct. 97, 148 L. Ed. 2d 56 (2000) we stated: This Court stated in Flores the uniform jury instructions shall be used unless they do not accurately state the law. 1995 OK CR 9, 896 P.2d at 560. "However, deviation from the uniform instructions does not require automatic reversal." Id. This Court reviews the instructions to determine whether the instruction at issue fairly and accurately states the applicable law. Id. "Even when error is committed, reversal is not required unless such error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right." Id. See also 20 O.S. 1991, § 3001.1. Deviation from language of the uniform instructions constitutes technical error which is harmless if the instructions given fairly and accurately state the applicable law. Smallwood v. State, 1988 OK CR 233, 763 P.2d 142, 144 (Okl.Cr. 1988). P73, 989 P.2d at 1037-1038.

Appellant argues the court should have instructed the jury as follows: No person may be convicted of (murder/manslaughter in the first/second degree) unless both the fact of the death of the person allegedly killed and the fact that his/her death was caused by the conduct of another person are established as independent facts and beyond a reasonable doubt. (OUJI-CR (2d) 9-14).

The Notes on Use to this instruction provide that it is to be given in a homicide case; not every homicide case. Instructing the jury on the necessity for corroboration is required only in cases where a defendant has given a properly admitted extrajudicial confession. See Fontenot v. State, 1994 OK CR 42, P32, 881 P.2d 69, 80, n. 15.

Further, the jury was given the following in Instruction No. 4: No person may be convicted of murder in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are: First, the death of a human; Second, the death was unlawful; Third, the death was caused by the defendant; Fourth, the death was caused with malice aforethought. (O.R. 1208) (OUJI-CR 4-61).

This instruction and Appellant's requested instruction both inform the jury the State must prove beyond a reasonable doubt the death of a human and that the defendant caused that death. Therefore, as the instruction given to the jury addresses the same principle of law as that included in the omitted instruction, we find no prejudice as a result of the omitted instruction. Appellant next asserts the trial court should have instructed the jury as follows: A person is in the commission of [forcible rape/[first-degree burglary] when he/she is (performing an act which is an inseparable part of)/(performing an act which is necessary in order to complete the course of conduct constituting)/(fleeing from the immediate scene of) a [forcible rape/[first-degree burglary). (OUJI-CR (2d) 4-65).

The Notes on Use to this instruction provide that it should be given in every prosecution for first degree felony-murder. In Instruction No. 7, (OUJI-CR (2d) 4-64), the jury was given the elements of first degree felony-murder. The elements of the underlying offenses of first degree rape and first degree burglary are included in this instruction as well as the State's burden of proving each element beyond a reasonable doubt. While this instruction does not define the term "in the commission of", it adequately sets forth the law that no person may be convicted of felony-murder unless the death of a person was proven and that death was caused by the defendant while in the commission of first degree rape, which is defined as sexual intercourse with a person not the spouse of the defendant, where force or violence is used, or first degree burglary which is defined as the breaking and entering of a dwelling of another in which a human is present, with the intent to commit a crime. See 21 O.S. Supp. 1998, §§ 701.7(B), 1111(A), 21 O.S. 1991, § 1114, 21 O.S. 1991, § 1431.

Finally, Appellant complains about the failure to give the following instruction: Sexual intercourse is the actual penetration of the vagina/anus by the penis. Any sexual penetration, however slight, is sufficient to complete the crime of rape. (OUJI-CR (2d) 4-122). Appellant argues the failure to provide the jury with the above instruction created a reasonable likelihood that the jury failed to have a common understanding of the meaning of the element and that they applied the instructions to the facts in an unconstitutional manner. Appellant offers no support for this argument.

In Johnston v. State, 1983 OK CR 172, PP20 - 21, 673 P.2d 844, 850, the trial court did not specifically instruct the jury that penetration was required for the crime of rape to occur. This Court held that as penetration was proven by ample uncontradicted evidence and the court defined rape as including sexual intercourse, a term commonly understood, an explicit definition of penetration was not an absolute necessity. Id. In the present case, evidence of Appellant's DNA was found inside the vaginal vault of each elderly victim. Penetration was clearly proven. Further, first degree rape was defined in Instruction No. 7 as including sexual intercourse, which under the circumstances of this case, required no further definition.

Accordingly, we find that even in the absence of the instructions requested by Appellant on appeal, the jury was properly instructed on the applicable law of the case. Finding no plain error, this assignment of error is denied.

ISSUES RELATING TO BOTH FIRST AND SECOND STAGES OF TRIAL

In his fifth assignment of error, Appellant argues that irrelevant and prejudicial character evidence of victim Zelma Cutler was improperly admitted. Appellant argues this evidence was introduced for no other reason than to invoke sympathy from the jury. As the State incorporated all of the first stage evidence into the second stage, Appellant asserts the improper character evidence denied him a fair trial and a fair sentencing. Mrs. Cutler had no living immediate family at the time of Appellant's trial; therefore the State presented the testimony of Carol Sue Disney, a long time friend. Mrs. Disney testified that Mrs. Cutler had taken care of Mrs. Disney's mother when she was an infant, and that Mrs. Disney had frequented Mrs. Cutler's home while she was growing up. Mrs. Disney said that in later years she still visited Mrs. Cutler and did errands for her. Mrs. Disney testified that Mrs. Cutler lived alone, did not drive, and rarely left her home. She said Mrs. Cutler moved very slowly and had a cane she would use to help her walk by the end of the day. Mrs. Disney testified that Mrs. Cutler had a set daily routine, and went to bed soon after it got dark. She said Mrs. Cutler would leave a bathroom light on when she went to bed. She said Mrs. Cutler was very cautious when people came to her door and would not open the door more than a crack if it was a stranger. Mrs. Disney explained that at night Mrs. Cutler would not answer the door at all. Mrs. Disney testified that after Mrs. Fowler's murder, Mrs. Cutler told her she was afraid, and that she knew she was going to be next.

The State also introduced the testimony of Mary Akins, a postal service employee who delivered mail to Mrs. Cutler. Ms. Akins testified she checked on Mrs. Cutler as part of a "carrier alert program" in which the letter carriers check on elderly, handicapped or invalid people on their route. Ms. Akins testified that she would visit with Mrs. Cutler for a few minutes every day and then occasionally stop and have lunch with her. Ms. Akins stated that Mrs. Cutler told her she had been friends with Mrs. Fowler, and that after Mrs. Fowler's murder, Mrs. Cutler was concerned that she would be next. The record reflects that defense counsel did not question Mrs. Disney or Ms. Akins, nor did counsel raise any objections to the witnesses' testimony. Therefore, we review Appellant's complaint for plain error only. Romano v. State, 1995 OK CR 74, 909 P.2d 92, 109, cert denied, 519 U.S. 855, 117 S. Ct. 151, 136 L. Ed. 2d 96 (1996).

This evidence is admissible if it is relevant, and its probative value is not substantially outweighed by its prejudicial effect. 12 O.S. 1981, §§ 2401, 2402, and 2403. Relevancy, of course, depends on the issues, which must be proven at trial. One of the issues at trial was the severability of the charges against Appellant for the murders of Mrs. Fowler and Mrs. Cutler. In support of the joinder of the charges in a single trial, the State argued the similarities of the two crimes showed a common scheme or plan by Appellant to rape and murder elderly women who lived alone. In Mrs. Fowler's case, family members testified that she was elderly and lived alone. In Mrs. Cutler's case, the testimony of Mrs. Disney and Ms. Akins provided that evidence which tended to show the circumstances of Mrs. Cutler's murder were so similar to those of Mrs. Fowler as to warrant combining the two offenses for one trial.

Further, the evidence supported the State's burden of proving guilt. Mrs. Disney's testimony concerning Mrs. Cutler's personal routines, when combined with physical evidence recovered from the scene of the murder, was probative in establishing that Mrs. Cutler's home had been forcefully entered, more than likely during the late night hours or early morning hours while she was asleep, and that she was physically incapable of fighting back against her assailant. The evidence was probative in showing that Appellant preyed on defenseless women who could not put up much resistance to him.

In addition to the testimony described above, Mrs. Disney also testified to Mrs. Cutler's generous hospitality towards friends, how she taught Mrs. Disney's children to make paper birds out of scraps of paper, and that she had the "the sweetest smile" and was a "real sweet person." We find no trial issue that confers relevance to this evidence. However, any prejudice flowing from this evidence is so minimal, as to render its admission harmless beyond a reasonable doubt. Hawkins v. State, 1994 OK CR 83, 891 P.2d 586, 593, cert. denied, 516 U.S. 977, 116 S. Ct. 480, 133 L. Ed. 2d 408 (1995).

Further, Appellant asserts that Mrs. Disney's and Ms. Akins' testimony concerning Mrs. Cutler's statement that she would be killed next was improperly admitted hearsay. Title 12 O.S. 1991, § 2803(3) provides an exception for the admission of hearsay statements, which reflect the victim's state of mind. However, such statements have been generally found admissible only when they show the victim's state of mind toward the defendant or to supply the motive for killing. Welch v. State, 2000 OK CR 8, P28, 2 P.3d at 370; Washington v. State, 1999 OK CR 22, P36, 989 P.2d 960, 973; Cannon v. State, 1998 OK CR 28, P 23, 961 P.2d 838, 847; Duvall v. State, 1991 OK CR 64, P 6, 825 P.2d 621, 626, cert. denied, 506 U.S. 878, 113 S. Ct. 224, 121 L. Ed. 2d 161 (1992). Here, Mrs. Cutler did not know Appellant nor had he actually threatened her. Therefore, her statement does not fall under the state of mind exception, and the statement should not have been admitted into evidence. However, this error is harmless as we find beyond a reasonable doubt that the error did not contribute to the verdict or sentence. See Welch, 2000 OK CR 8, P 29, 2 P.3d at 370. Accordingly, this assignment of error is denied.

In his sixth assignment of error, Appellant asserts the trial court's failure to grant a mistrial in the first trial unless the defense stipulated to the chain of custody in the second trial forced him to sacrifice constitutional and statutory rights in exchange for his right to present a defense. The record reflects that Appellant's defense in the first trial was that Joyce Gilchrist had contaminated the forensic evidence and therefore her results of the forensic testing were not reliable. During the presentation of the State's case-in-chief, it was discovered that there was forensic evidence that had never left the custody of the medical examiner's office and consequently had not been analyzed by Gilchrist or undergone DNA testing. The State sought a continuance in order to have the evidence analyzed. Over a defense objection, the trial court granted the continuance and ordered all materials and test results to be turned over to the defense.

Approximately one week later, the State informed the court the testing was complete and the results were inculpatory. The State announced it was ready to proceed with the trial. The defense argued the case should be dismissed due to discovery and notice violations. The trial court overruled the motion. Defense counsel next asked the evidence be suppressed. The trial court overruled the request. Finally, the defense requested a mistrial. This request was also overruled. The trial court noted a concern about the notice issue and indicated it would entertain a motion for a continuance. Defense counsel argued that a continuance would not be beneficial. After further discussions concerning resuming the trial, defense counsel argued the defense was so prejudiced by the new evidence that they intended to remain silent during the remainder of the State's first stage case and then demur to the evidence. Defense counsel explained to the court that its entire defense had been that Joyce Gilchrist had contaminated the evidence in this case therefore that evidence could not be relied upon for a conviction. Counsel argued that if the State was permitted to present to the jury results of DNA testing conducted by someone other than Gilchrist, and that testing showed that Appellant was the rapist, the only way to save Appellant's life would be to not alienate the jury further. Counsel argued that could be done only by standing moot during the remainder of first stage, demur to the first stage evidence, and then present a full defense in second stage.

After a recess was taken, the parties reconvened, out of the presence of the jury, and made the following record. Defense counsel announced that he had discussed with the State the possibility of the State concurring in, or at least not objecting to, a motion for mistrial, "if we could come to an agreement on stipulations as to witnesses that they would have to call in a new trial." Defense counsel further indicated the State had prepared a proposed stipulation concerning the chain of custody of the forensic evidence, and the defense was prepared to agree to the stipulation. Defense counsel noted however, that their agreement to the stipulation would not preclude the defense from calling the witnesses themselves to testify.

The prosecutor agreed the stipulation was to the testimony regarding chain of custody, and not the truth of the matters included in the stipulation. The prosecutor agreed the defense retained the right to prove or disprove anything contained in the stipulation. Further, the prosecutor agreed with defense counsel's prior argument as to why Appellant could not receive a fair trial before the sitting jury. The trial court granted the motion for mistrial and reset the trial for December 3, 2001. Appellant argues that under this record, the trial court indicated it would grant his motion for a mistrial only if the defense agreed to the State's conditions. Appellant further argues he was therefore forced to choose between his due process right to present a defense and his right to have the State prove its case beyond a reasonable doubt. We disagree. There is nothing in the record that indicates the granting of the mistrial was based upon the defense's agreement to the State's conditions. The record reflects defense counsel sought a mistrial because he did not want to change the theory of defense mid-trial. A strategic agreement was reached between counsel concerning presentation of the evidence in the event of a new trial. The trial court did not mandate the stipulation, but merely approved the agreement reached between counsel. Further, the record shows Appellant did not give up any right to present a defense as the defense retained the right to call any witness they chose, despite the stipulation.

Appellant relies on Simmons v. United States, 390 U.S. 377, 393-94, 88 S. Ct. 967, 976, 19 L. Ed. 2d 1247 (1968) where the Supreme Court stated it was "intolerable that one constitutional right should have to be surrendered to assert another. " See also Williams v. State, 1996 OK CR 16, P 14, 915 P.2d 371, 377-378. Unlike Simmons, Appellant was not forced to choose between rights. Accordingly, this assignment of error is denied.

In his seventh assignment of error, Appellant contends the expert opinion testimony of Dr. Janet Rodgers, M.D., that Mrs. Cutler had been orally sodomized improperly invaded the province of the jury. While no defense objection was raised during Dr. Rodgers' testimony, the record shows a Defense's Request for Daubert/Kumho Hearing Prior to the Admission of Certain State's Evidence challenged the testimony of Dr. Rodgers. After hearing argument, the trial court overruled the request and found Dr. Rodgers' testimony admissible.

Dr. Rodgers testified as an expert witness in the area of sexual assault and sexual assault examinations. Dr. Rodgers stated she had reviewed materials from the victims' cases, including crime scene and autopsy photographs, autopsy reports, and results of DNA testing. Dr. Rodgers testified that in her opinion, Mrs. Cutler had been raped and orally sodomized. She stated her conclusion about the oral sodomy was based upon the discovery of a pillow at the scene that contained Mrs. Cutler's blood, semen, and a stain in the shape of a mouth print. The prosecutor inquired of Dr. Rodgers how she could reach such a conclusion when swabs taken from Mrs. Cutler's mouth did not show the presence of sperm. Dr. Rodgers explained that all of the sperm in Mrs. Cutler's mouth may have been transferred to the pillow or that the swab of her mouth was not performed correctly. Dr. Rodgers further testified that in forming her opinion that the rape was the result of non-consensual sex, she looked at evidence of the physical injuries suffered by Mrs. Cutler. Dr. Rodgers stated that evidence of bruises to Mrs. Cutler's mouth made her question whether the victim had also been orally sodomized. Dr. Rodgers testified when she later learned of the pillow containing the blood and semen, she opined that it all fit with the conclusion that oral sodomy had occurred.

In Romano v. State, 1995 OK CR 74, P 21, 909 P.2d at 109, we addressed the propriety of opinion evidence on ultimate issues and stated: Opinion evidence on ultimate issues is generally admissible. 12 O.S. 1991, § 2704 . However, the "otherwise admissible" language of § 2704 must be read in context with 12 O.S. 1991, §§ 2403, 2701, 2702. While expert witnesses can suggest the inferences which jurors should draw from the application of specialized knowledge to the facts, opinion testimony which merely tells a jury what result to reach is inadmissible. (citations and footnotes omitted)

In the present case, Dr. Rodgers' testimony was not improper opinion testimony on an ultimate issue since it did not tell the jury what result to reach. Dr. Rodgers' testimony was based upon her examination of materials from the investigation into the rape/homicide coupled with her specialized training. At no time did Dr. Rodgers say that Appellant had raped or killed Mrs. Cutler; rather, she testified Mrs. Cutler's injuries were consistent with forcible rape based upon her specialized knowledge of sexual assaults. As this was proper opinion testimony, no error occurred in its admission.

Appellant further argues Dr. Rodgers' testimony was contrary to the evidence as the fluid or secretions on the pillow were not saliva but blood. Further, he argues there was no evidence that Mrs. Cutler's mouth had bled. A review of Dr. Rodgers' testimony shows she used the terms "secretions," "bodily fluid," and "blood" interchangeably when describing the stain on the pillow. She also stated that she did not know the results of the DNA testing on the pillow, but did know it contained blood and semen. Officer Goforth testified that when he responded to the scene at Mrs. Cutler's home, he observed blood around her mouth. Appellant also challenges the description of the print on the pillow as mouth shaped calling it "speculation at best." A photograph of the pillow was admitted into evidence. Therefore, the jury could make its own determination of the shape of the print.

Finally, Appellant argues the evidence was inadmissible and highly prejudicial in the second stage as "oral sodomy in addition to forcible rape makes the charged crime significantly more aggravated and likely influenced the jury's decision to impose death." Dr. Rodgers' testimony was proper expert opinion. Further, the oral sodomy was part of the res gestae of the offense. Contrary to Appellant's argument, it is not the type of aggravating evidence that results in the arbitrary and capricious imposition of the death penalty that the Eighth Amendment forbids. See Payne v. Tennessee, 501 U.S. 808, 831, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991). In light of the aggravating evidence, evidence of the oral sodomy did not determine the sentence. Accordingly, this assignment of error is denied.

In his ninth assignment of error, Appellant complains that expert opinion testimony of Investigator Gerald McKenna that Appellant committed the murders in order to avoid arrest was improper as it invaded the province of the jury, was non-scientific, and was more prejudicial than probative. As no objection to the testimony was raised at trial, we review only for plain error. Romano, 1995 OK CR 74, P 18, 909 P.2d at 109. During the first stage of trial, Gerald McKenna, Sex Crimes Investigator for the Oklahoma City Police Department, testified that during the 23 years he had been a police officer, he had been assigned to the sex crimes unit for 12 years, and to the homicide unit for over one year. He testified to having attended and taught numerous courses and schools in the field of sex crimes investigation, and to having won 2 meritorious service awards for sex crimes investigations. McKenna also stated he had investigated hundreds of rapes and interrogated hundreds of potential rape suspects. He said he had testified many times in both state and federal court as an expert witness in the field of sex crime investigations.

Further, McKenna testified to the patterns and habits of serial rapists and compared the circumstances surroundings the rapes of Mrs. Fowler, Mrs. Cutler, Mrs. Marshall and Mrs. Hoster. McKenna also testified about sexually related homicides. He described them as falling into 2 types, "rape/murder" and "sexually motivated." McKenna said that in the "rape/murder" type, rape is the primary crime and the murder is secondary. One of the factors as to why the murder is secondary is elimination of a witness. McKenna was then asked whether he had an opinion as to whether the Fowler/Cutler crimes were of the first type or second type of sexually related homicide. McKenna testified he believed they were the first type, the "rape/murder" type, because of the need to eliminate a witness.

At the beginning of the second stage of trial, the court granted the State's request to incorporate all of the first stage evidence into the second stage. During the second stage closing argument, the prosecutor argued the evidence showed Appellant murdered the victims in order to eliminate them as witnesses against him. The prosecutor argued this evidence supported the aggravating circumstance that the murders were committed to avoid lawful arrest or prosecution. Now on appeal, Appellant argues the subject of McKenna's testimony was not scientific, technical or otherwise specialized as required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Further, Appellant asserts McKenna's opinion that whoever killed the victims did so in order to eliminate witnesses was outside the bounds of his specialized knowledge.

In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-148, 119 S. Ct. 1167, 1174, 143 L. Ed. 2d 238 (1999), the Supreme Court expanded Daubert and stated the subject of an expert's opinion testimony need not be limited to only "scientific" evidence, but may include "other specialized knowledge". Further, 12 O.S. 2001, § 2702 provides, "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." This Court has upheld the admissibility of expert opinion testimony concerning "specialized knowledge" as opposed to "scientific knowledge." Torres v. State, 1998 OK CR 40, PP63-64, 962 P.2d 3, 21-22, cert.denied, 525 U.S. 1082, 119 S. Ct. 826, 142 L. Ed. 2d 683 (1999) (Daubert not applicable to non-scientific evidence). Further, the qualification of a person to testify as an expert is a matter which rests with the sound discretion of the trial court, and that decision will not be disturbed on appeal absent an abuse of that discretion. Slaughter, 1997 OK CR 78,

950 P.2d at 848. An "abuse of discretion" has been defined as "clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application." Id. In the present case, McKenna's education and training in the field of sex crime investigation demonstrated sufficient specialized knowledge to qualify him to testify as an expert on the subject. His testimony certainly assisted the jury in understanding why some of the rape victims were killed while others were left alive. We find no abuse of the trial court's discretion in qualifying McKenna as an expert.

Further, McKenna's testimony that the crimes in this case fit into the "rape/murder" category of sexually related homicides because of the apparent need for the elimination of witnesses was relevant evidence of the killer's intent. The testimony was well within the bounds of McKenna's specialized knowledge. The testimony did not invade the province of the jury or improperly touch on an ultimate issue in the case nor did it direct the jury to find the aggravating circumstance of "avoid arrest." Rather, the testimony was proper expert opinion testimony based upon McKenna's years of investigation and analysis of sexually related homicides. See Romano, 1995 OK CR 74, P22, 909 P.2d at 110. Nor do we find the evidence substantially more prejudicial than probative. McKenna's testimony was not the only evidence offered in support of the "avoid arrest" aggravator. Further, despite the guilty verdict returned against Appellant, the question of Robert Miller's involvement in the crimes was still an issue in the case and was addressed in the closing arguments of both the prosecution and the defense. And finally, the trial court instructed the jury that it was free to give the expert evidence whatever weight and credit it deemed proper. Accordingly, we find McKenna's expert opinion testimony was not determinative of the death sentence. For all of these reasons, this assignment of error is denied.

In a related assignment of error, proposition number eleven, Appellant argues the prosecutor injected facts not in evidence through the questioning of Inspector McKenna. Specifically, Appellant complains that through the questioning of McKenna, the State put Robert Miller's statements before the jury in order to prove that the homicides were committed for the purpose of avoiding arrest or prosecution, and to show that the victims begged for their lives and were orally sodomized. Appellant asserts McKenna's testimony concerning Miller's statements was inadmissible hearsay that influenced the first stage verdict. He argues the alleged error impacted the second stage, when combined with other second stage errors; it deprived him of a reliable sentencing stage.

Initially, we note that our review is for plain error only as none of the challenged testimony was met with contemporaneous defense objections. Simpson v. State, 1994 OK CR 40,

876 P.2d 690, 698. Inspector McKenna first testified to Robert Miller's involvement in the case on cross-examination. Defense counsel cross-examined McKenna extensively on statements made by Miller despite McKenna's acknowledgement that he never interviewed Miller and was not aware of the substance of Miller's statements. Defense counsel repeatedly reviewed statements made by Miller and asked McKenna his opinion as to whether or not the person making those statements would have been at the scene of the crime. This type of questioning continued on re-direct examination. McKenna testified his opinion that the case was a rape/murder done to silence a witness was consistent with the conclusion that Miller's statements indicated he was present at the scene or had some other way of learning what Appellant was thinking. However, Appellant does not cite, nor do we find in the record, that McKenna testified that based upon Miller's statements, the victim's begged for their lives and were orally sodomized.

Any error in McKenna's testimony concerning Miller's statements has been waived as defense counsel, and not the State, opened up the issue of Miller's statements with McKenna. 10 In fact, the State objected to the questioning during cross-examination for the reason that McKenna had not read all of Miller's statements. The trial court overruled the objection and permitted the questioning. This Court has repeatedly held that an appellant will not be permitted to profit by an alleged error that he or his counsel in the first instance invited by opening the subject or by his or her own conduct, and counsel for the defendant may not profit by whatever error was occasioned by the admission of such incompetent evidence. Murphy v. State, 2002 OK CR 24, PP30-31, 47 P.3d 876, 882-882, cert. denied, 538 U.S. 985, 123 S. Ct. 1795, 155 L. Ed. 2d 678 (2003); Welch v. State, 1998 OK CR 54, 968 P.2d 1231, 1240; cert. denied, 528 U.S. 829, 120 S. Ct. 83, 145 L. Ed. 2d 70 (1999); Staggs v. State, 1986 OK CR 88, P9, 719 P.2d 1297, 1299.

10 As the defense initiated and invited McKenna's testimony concerning Miller's statements, we find Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S.Ct. 1354 (2004) is not implicated.

The record shows that in support of the aggravator of "avoid arrest", the State presented Inspector McKenna's expert opinion that the murders were committed to eliminate witnesses. McKenna testified his opinion was not based upon any statements made by Robert Miller, but on his years of investigating hundreds of sexually related homicides. McKenna testified Miller's statement simply corroborated his opinion. The prosecutor's comments during closing argument were based on the evidence and did not deprive Appellant of a fair sentencing proceeding. See Bland, 2000 OK CR 11, 4 P.3d at 729.

SECOND STAGE ISSUES

In his tenth assignment of error, Appellant contends the trial court erred in admitting the victim impact testimony of Cynthia Houston. Ms. Houston was the granddaughter of Mrs. Fowler. Appellant argues her testimony was inadmissible for the following reasons: 1) the testimony contained irrelevant evidence about the impact of the victim's death on non-immediate family members; 2) she testified as a family designee when family members had already testified; and 3) the testimony was highly prejudicial.

Prior to trial, Appellant objected to Ms. Houston's testimony on the same grounds now raised on appeal. In a Cargle 11 hearing during the second stage of trial, the court ruled that Ms. Houston did not qualify under the statute as a member of the victim's immediate family but could testify if designated as a family representative. The trial court limited her testimony to the effects of Mrs. Fowler's death on her father, her aunt, and her uncles.

11 Cargle v. State, 1995 OK CR 77, 909 P.2d 806, cert. denied, 519 U.S. 831, 117 S. Ct. 100, 136 L. Ed. 2d 54 (1996), habeas corpus granted and remanded for a new trial on other grounds, Cargle v. Mullin, 317 F.3d 1196 (2003).

12 The trial court's ruling on the admissibility of the victim impact evidence was similar to a ruling on a motion in limine, advisory only and not conclusive. See Short v. State, 1999 OK CR 15, P65, 980 P.2d 1081,1102-03, cert. denied, 528 U.S. 1085, 145 L. Ed. 2d 683, 120 S. Ct. 811, (1999). To properly preserve the issue for appellate review, an objection must raised at the time the testimony is given. Id. Appellant's failure to object to Ms. Houston's testimony at the time it was offered, waives all but plain error.

Victim impact evidence is constitutionally acceptable unless "it is so unduly prejudicial that it renders the trial fundamentally unfair…." Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597, 2608, 115 L. Ed. 2d 720, 735 (1991). In Cargle, 909 P.2d at 827-28, this Court addressed at length victim impact evidence as addressed by the Supreme Court and by our state statutes. Since that time we have had numerous occasions to revisit the statutory guidelines that control the content and use of victim impact evidence. However, Appellant's second challenge to Ms. Houston's testimony has not been specifically addressed by this Court in previous cases. The resolution of this challenge determines whether it is necessary to review his other objections to the testimony.

Victim impact evidence is set forth in 22 O.S. 2001, §§ 984, 984.1. 13 The manner in which victim impact evidence is to be presented and used at trial is set forth in § 984.1. This section provides in pertinent part, "each victim, or members of the immediate family of each victim or person designated by the victim or by family members of the victim, may present a written victim impact statement or appear personally at the sentence proceeding . . . . ." (emphasis added). This language limits the persons who may give victim impact evidence to three types of people: 1) the victim; 2) members of the victim's immediate family; or 3) a person designated by the victim or the victim's family. The listing in the disjunctive of the persons who may give victim impact evidence indicates the Legislature's intent to make these three categories of victim impact witnesses mutually exclusive. This restrictive view of who may give victim impact testimony is consistent with the limitations placed on victim impact evidence by the Legislature and by this Court. See Cargle, 1995 OK CR 77, P75, 909 P.2d at 828 ("victim impact evidence is intended to provide a quick glimpse of a victim's characteristics and the effect of the victim's death on survivors.")

13 22 O.S. 2001, § 984 provides in pertinent part:

"Victim impact statements" means information about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family, or person designated by the victim or by family members of the victim and includes information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence; 2. "Members of the immediate family" means the spouse, a child by birth or adoption, a stepchild, a parent, or a sibling of each victim; (emphasis added). 22 O.S. 2001, § 984.1(A) provides:

Each victim, or members of the immediate family of each victim or person designated by the victim or by family members of the victim, may present a written victim impact statement or appear personally at the sentence proceeding and present the statements orally. Provided, however, if a victim or any member of the immediate family or person designated by the victim or by family members of a victim wishes to appear personally, such person shall have the absolute right to do so. (emphasis added).

The victim is usually the best person to testify to the effects of a crime perpetrated against him or her. In a homicide case when the victim cannot speak, family members are usually in the best position to give victim impact evidence. However, if family members choose not to take the witness stand or for any reason are unable to testify, they may designate another person to speak for them. The purpose behind a family designee is to give a voice to family members unable to testify in court. It was not intended to provide an opportunity for those family members not listed in the statute and other interested persons to give victim impact testimony. Applying the statutory language to the present case, as Mrs. Fowler's son and daughter testified as members of her immediate family, it was not necessary to have a family designee or representative testify. 14 Therefore, it was error to allow Ms. Houston to testify as a family designee. 15

14 In Williams v. State, 2001 OK CR 9, P66, 22 P.3d 702, 719, cert. denied, 534 U.S. 1092, 122 S. Ct. 836, 151 L. Ed. 2d 716 (2002), this Court cited 22 O.S.Supp. 1992, § 984.1 and stated that the Legislature had provided that any family member who wished to appear personally [to give victim impact evidence] shall have the absolute right to do so. This statement was in response to the appellant's argument that this Court should adopt a rule limiting the number of victim impact witnesses to one. This Court refused to adopt such a rule finding no statutory authorization for setting such limits on the number of witnesses. In that regard, the ruling in the present case is not intended to be a limitation of the number of victim impact witnesses. As long as a witness properly qualifies under the statute to give victim impact evidence, the number of witnesses the jury will hear is left to the sound discretion of the trial court.

15 Further, as a granddaughter Ms. Houston does not fall under the statutory definition of immediate family permitted to give victim impact evidence. This Court has not extended the statutory definition to include persons related to victims in ways other than those designated by the Legislature. Hanson v. State, 2003 OK CR 12, P28, 72 P.3d 40.

However, having reviewed her testimony, we find nothing which "improperly weighted the scales" in the trial. 16 Ms. Houston's testimony was brief and did not focus on the emotional aspects of the victim's death. Certain portions were cumulative to the testimony of her father and aunt.

16 See Payne, 501 U.S. at 822, 111 S.Ct. at 2606-07.

Further, the jury was properly instructed, pursuant to OUJI-CR (2d) 9-45 on the use of victim impact evidence. Appellant had been convicted of raping and killing two elderly, defenseless women in their homes. Evidence of the aggravating circumstances was overwhelming and evidence of the aggravating circumstances clearly outweighs the mitigation evidence. Reviewing the entire record, we cannot say admission of Ms. Houston's testimony caused the verdict to be the result of an unreasonable emotional response. Accordingly, we find no plain error, and this assignment of error is denied.

In his twelfth assignment of error, Appellant challenges the evidence supporting the finding that the murders were committed for the purpose of avoiding lawful arrest or prosecution. To support a finding of this aggravating circumstance the State must prove the defendant killed in order to avoid arrest or prosecution. Williams, 2001 OK CR 9, P83, 22 P.3d at 723; Mollett v. State, 1997 OK CR 28, P49, 939 P.2d 1, 13, cert. denied, 522 U.S. 1079, 118 S. Ct. 859, 139 L. Ed. 2d 758 (1998). 17

17 habeas corpus granted and case remanded for resentencing on other grounds, Mollett v. Mullin, 348 F.3d 902 (10th Cir. 2003).

The defendant's intent is critical to this proof and can be inferred from circumstantial evidence. Williams, at P83, 22 P.3d at 723. Furthermore, there must be a predicate crime, separate from the murder, for which the defendant seeks to avoid arrest or prosecution. Id. When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, the proper test is whether there was any competent evidence to support the State's charge that the aggravating circumstance existed. Hain v. State, 1996 OK CR 26, 1996 Okla. Crim. App. LEXIS 26, P62, 919 P.2d 1130, 1146, cert. denied, 519 U.S. 1031, 117 S. Ct. 588, 136 L. Ed. 2d 517 (1996). See also Abshier, 2001 OK CR 13, P

28 P.3d 579, 610, cert. denied, 535 U.S. 991, 122 S. Ct. 1548, 152 L. Ed. 2d 472 (2002). In making this determination, this Court should view the evidence in the light most favorable to the State. Hain, at P62, 919 P.2d at 1146. .

Citing Barnett v. State, 1993 OK CR 26, 853 P.2d 226, Appellant further contends the rape was not a separate predicate crime arguing, "it is likely . . . the victims died during the rape as Appellant tried to subdue them, rather than Appellant completing the rapes and killing the victim before he left so that they would not tell." In Barnett, this Court found the "assault and battery was not separate and distinct from the murder itself, but rather was part of a continuing transaction which culminated in the death of the victim. 1993 OK CR 26, P30, 853 P.2d at 233-34.

The evidence in the present case shows the victims' deaths were not the result of the rape. Both victims died as a result of asphyxiation. The evidence at both crime scenes revealed numerous bruises on the victims' arms indicating they had been bound by the hands. Further, both victims suffered fractured ribs that Appellant concedes was consistent with the perpetrator having sat on the victim. However, the existence of pillows, and their condition, at both scenes supports the inference Appellant sat on the victims after the completion of the rape and smothered them. Reviewing this evidence in the light most favorable to the State, a rational jury could have found beyond a reasonable doubt the rapes were distinct and separate crimes from the murders, and that Appellant killed the victims in order to avoid lawful arrest or prosecution.

In his fourteenth assignment of error, Appellant contends that Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) mandates that the aggravating circumstances alleged in a capital prosecution must be charged in an information and proven at preliminary hearing. This argument has been previously rejected in Primeaux v. State, 2004 OK CR 16, 88 P.3d 893, where this Court found Ring is not as broad as the appellant argued. Ring does not contain any language requiring state courts to provide capital defendants with a preliminary hearing on alleged aggravating circumstances. Title 21 O.S. 2001, § 701.10 does not require any type of pre-trial hearing regarding the validity of the State's aggravating circumstances; its provisions are satisfied if evidence in aggravation is made known to the defendant prior to trial. Newsted v. State, 1986 OK CR 82, 720 P.2d 734, 738-739, cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1986).

In the present case, Appellant concedes he was informed of the aggravating circumstances in his case pursuant to state law. Ring does not change the procedure in Oklahoma. Primeaux v. State, 2004 OK CR 16, 88 P.3d at 896. As Appellant has failed to show any conflict between our state law and rulings from the United States Supreme Court, his request for a new sentencing proceeding is denied. Accordingly, this assignment of error is denied.

In his thirteenth assignment of error, Appellant contends he was denied a fair sentencing by prosecutorial misconduct. Appellant directs us to the cross-examination of defense witness Jason Ledford, Detention Officer at the Oklahoma County Jail. Appellant argues that in his questioning of Officer Ledford, the prosecutor presented his own testimony concerning the advantages Appellant would receive if the jury afforded him a life sentence. Appellant asserts this tactic is akin to the prohibited practice of comparing the plight of the victim to the advantages of a live defendant in prison. Appellant argues the prosecutor's remarks were calculated to persuade the jury to impose death on the grounds that Appellant would have a luxurious life in prison if given a life sentence. Additionally, Appellant asserts the prosecutor implied, based on facts not in evidence, that the only reason Appellant was a good inmate was because he stood the chance of getting out of prison some day.

Officer Ledford testified he had known Appellant for 2-3 years while Appellant had been an inmate in the Oklahoma County Jail. Officer Ledford stated Appellant was housed in an "honor pod" at the jail. Ledford testified he had contact with Appellant at least once a month, whenever he conducted his regular "shake down" of cells. Ledford said he had never had any personal or business conflicts with Appellant so that Appellant had to be sent to a segregation pod, nor had he seen any violent tendencies from Appellant. On redirect, defense counsel asked the witness how quickly an inmate discharged a sentence of life without parole.

On recross-examination, the prosecution asked the witness to describe the differences in the county jail and the state penitentiary. Specifically, the prosecutor asked Ledford if he remembered Appellant's testimony given at a May 2000 speedy trial hearing regarding the differences between the county jail and the penitentiary in regards to his opportunities for regular exercise, contact family visits, and participation in programs to learn a skill. The prosecutor asked Ledford if he remembered Appellant testifying that inmates serving sentences of life without parole got out of their cells for a large portion of the day and had access to weapons. It was not until the conclusion of Ledford's testimony that defense counsel objected and moved for a mistrial on the grounds of improper questioning by the prosecutor by the intent to raise societal alarm "going into things about discharging sentences." The trial court overruled the objection.

Initially, our review is for plain error only. This Court remains committed to the general rule that a timely objection must be made on the record to preserve any alleged error for appellate review. Short, 1999 OK CR 15, P65, 980 P.2d at 1103. A timely objection brings the alleged error to the attention of the trial court and provides an opportunity to correct the error at trial. Id. Appellant's objection at the close of the witnesses' testimony was not timely.

The extent of cross-examination rests in the discretion of the trial court and reversal is only warranted where there is an abuse of discretion resulting in prejudice to the defendant. Parker v. State, 1996 OK CR 19,

917 P.2d 980, 984, cert. denied, 519 U.S. 1096, 117 S. Ct. 777, 136 L. Ed. 2d 721 (1997). As a general rule, any matter is a proper subject of cross examination which is responsive to testimony given on direct examination or which is material or relevant thereto and which tends to elucidate, modify, explain, contradict or rebut testimony given in chief by the witness. Smith v. State, 1985 OK CR 17,

695 P.2d 864, 868. When a defendant opens up a field of inquiry on direct examination, he may not complain of subsequent cross-examination of the same subject. Ashinsky v. State, 1989 OK CR 59,

780 P.2d 201, 206.

A review of the record shows that prior to the testimony of Officer Ledford, the defense presented testimony from Charles Harris, Tag Supervisor for the Oklahoma Correctional Industries at RBD Connors Correctional Facility. Mr. Harris stated that Appellant worked for him in the tag facility while incarcerated in the penitentiary. Mr. Harris also testified to the policies and practices at the penitentiary that allowed an inmate to work at the tag facility. He specifically testified to Appellant's performance and demeanor at the tag facility. Harris said he had never witnessed any violent behavior from Appellant. This testimony, and Officer Ledford's direct examination testimony, put Appellant's character and conduct while incarcerated at issue and thus enabled the State to cover this same subject during cross examination. See Walker v. State, 1994 OK CR 66, P42, 887 P.2d 301, 314-315, cert. denied, 516 U.S. 859, 116 S. Ct. 166, 133 L. Ed. 2d 108 (1995).

The State was entitled to introduce evidence of bad character by showing that Appellant was not truly non-violent but merely knew what it took to get a placement outside of the prison walls. The prosecutor's questions to Ledford were leading questions. However, 12 O.S. 2001, § 2611(D) states that the use of leading questions during cross-examination is ordinarily permissible. See Frederick v. State, 1983 OK CR 114, 667 P.2d 988, 992.

Appellant's comparison to the prohibited argument of comparing the plight of the victim to the advantages of a defendant in prison is not applicable. The State did not mention or argue Appellant should not be sentenced to life in prison while the victims were dead. Further, the record does not support Appellant's claim the prosecutor's remarks were calculated to persuade the jury to impose death on the grounds that Appellant would have a luxurious life in prison if given a life sentence. The prosecutor's questions to Ledford were relevant in contradicting Appellant's evidence that he was non-violent and in supporting the alleged "continuing threat" aggravator.

Relying on Le v. State, 1997 OK CR 55, 947 P.2d 535, cert. denied, 524 U.S. 930, 118 S. Ct. 2329, 141 L. Ed. 2d 702 (1998) Appellant argues that State's contention, that it is unfair for Appellant to live since the victims are dead, creates a super-aggravator applicable in every death case. This Court found that no amount of mitigating evidence can counter such an argument, and if the jury agrees they may not even consider mitigating evidence. Id. at P53, 947 P.2d at 554-555. The Court in Le found that while the prosecutor's arguments were error, the appellant had not shown the jury failed to consider the mitigating evidence in his case as evidenced by the fact the jury failed to find one of the charged aggravating circumstances. Id.

In the present case, Appellant has failed to show the prosecutor's conduct caused the jury to fail to consider the mitigating evidence. The jury was appropriately instructed as to the mitigating evidence and was not in any way precluded from considering any and all mitigating evidence. In fact, the jury rejected the "continuing threat" aggravator.

Accordingly, we find the prosecutor's conduct did not cause the jury to impose a sentence not supported by the evidence. See Bland, 2000 OK CR 11, 4 P.3d at 728. Finding no plain error, this assignment of error is denied.

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

In his fifteenth assignment of error, Appellant contends he was denied the effective assistance of counsel by counsel's failure to present any evidence regarding Appellant's background in the second stage of trial. Appellant asserts that abundant information was available to defense counsel, but counsel did not investigate the information sufficiently to make it presentable to the jury. Appellant argues much information existed about his background that could have reduced his moral culpability and humanize him to the jury. Appellant asserts this claim of error is almost exclusively based on facts outside of the appellate record; therefore his claim of error is raised fully in his Application for an Evidentiary on Sixth Amendment Claims filed concurrently with his appellate brief.

In order to meet the "clear and convincing" standard set forth above, Appellant must present this Court with evidence, not speculation, second guesses or innuendo. This requirement of setting forth evidence does not include requests for more to time to develop and investigate information that was readily available during trial preparation. Under the provisions of Rule 3.11, an appellant is afforded a procedure to have included in the record for review on appeal evidence which was known by trial counsel but not used or evidence which was available but not discovered by counsel. It is not a procedure for post-trial discovery. With these standards in mind, we review Appellant's Application for Evidentiary Hearing on Sixth Amendment Grounds.

Appellant first repeats an argument raised in Proposition IV of his appellate brief, that defense counsel was ineffective for admitting guilt as to the felony murder charge without Appellant's consent. 18 In support of his claim, Appellant offers his own sworn affidavit, attached to the application as Exhibit A, wherein he states that his attorneys never discussed with him their intention to concede his guilt, that he was surprised when they conceded his guilt, and that he did not want them to concede his guilt.

18 The factual basis for this claim is entirely within the appellate record. Therefore, it should have been raised and argued in the appellate brief. Particularly, allegations of ineffective assistance of trial counsel are to be raised within the appellate brief, supported by citation to legal authority and parts of the appellate record. The failure to raise in an appellate brief an issue within the appellate record waives its consideration. See Rule 3.5(A)(5) and (C)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001). See also Neill v. State, 1997 OK CR 41, 943 P.2d 145, 146 (Okl.Cr. 1997). The failure to raise an issue within the appellate record not only denies the State the opportunity of responding to the allegation, but also gives the impression of an attempt to violate the page limits set for briefs in capital cases. See Rule 9.3(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001). In contrast, a Rule 3.11 hearing is reserved for issues outside of the appellate record. See Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001). In the future, the failure to fully raise and support by authority in the brief in chief those issues contained within the appellate record will constitute waiver of those issues on appeal.

Appellant's affidavit is inconsistent with the record. As discussed in Proposition IV, the record does not reflect that counsel conceded guilt. Appellant has taken one comment out of context and turned it into a concession of guilt. Appellant's allegation, and his supporting affidavit are not sufficient to show by clear and convincing evidence there is a strong possibility trial counsel was ineffective.

Appellant next contends trial counsel was ineffective for failing to adequately investigate and present mitigating evidence. He argues trial counsel failed to competently advise him of the meaning and availability of mitigating evidence. Appellant asserts that trial counsels' failure to consult with him and obtain his consent not to offer evidence of his background in second stage was not the product of deliberate trial strategy, but rather the result of failure to fully investigate mitigation.

In Appellant's Exhibit B, Gretchen Mosley, appellate counsel, admits in her sworn affidavit that a mitigation investigation was conducted in preparation for trial. She states that investigation included interviewing Appellant (which she did herself) and his family members regarding his childhood, family history, substance abuse, significant relationships and life events, psychological and social development, and life circumstances and events surrounding the time of the crimes. Ms. Mosley also states intelligence and psychological testing was done, as well as an evaluation by a neueropsychologist for brain damage. A Risk Assessment was also conducted by licensed psychologist, Dr. Jeanne Russell, Ed.D.

Ms. Mosley states that none of this information was presented to the jury. She states that when she asked trial counsel why he had not presented any evidence of Appellant's background, trial counsel responded, "that they had 'no way to put it on.'"

In support of his argument, Appellant presents the affidavit of appellate counsel; a Social History report prepared by Dr. Jeanne Russell, Ed.D., licensed psychologist, at the request of appellate counsel (Appellant's Exhibit C); a Risk Assessment prepared by Dr. Jeanne Russell at the request of trial counsel (Appellant's Exhibit I); a copy of an internal memo from the Oklahoma Indigent Defense System (OIDS) mitigation investigation stating that co-counsel received more information from Appellant about his childhood and family, and that lead counsel decided not to use the additional information, but go with what evidence they had at the time (Appellant's Exhibit D); and affidavits from Sid Conaway and Paula Alfred, capital defense attorneys in the Tulsa County Public Defender's Office, stating in pertinent part, it is the practice of capital attorneys in Oklahoma to retain a mental health/sociology expert to prepare and present to the jurors the client's background (Appellant's Exhibits E and F).

To support his burden of establishing that trial counsels' failings were not the result of reasonable trial strategy, Appellant presents his own affidavit (Appellant's Exhibit A) stating that counsel never discussed with him their strategy of not investigating or presenting mitigation regarding his background; a copy of an OIDS internal memo prepared by trial counsel after Appellant's trial concerning the decision not to impeach state's witness Brian Wraxall (Appellant's Exhibit G); and a copy of an OIDS internal memo (apparently from a mitigation investigator to lead counsel) suggesting a change of counsel to an African-American attorney from Oklahoma County based upon certain concerns of Appellant's family (Appellant's Exhibit H).

As part of the mitigation investigation, a Risk Assessment Report was prepared. In Appellant's Exhibit I, Dr. Russell stated that Appellant was referred by defense counsel for evaluation of his potential risk of future violent behavior. Dr. Russell stated her assessment was based upon interviews with Appellant, jail staff, and OIDS Investigator Leedy; and review of transcripts from preliminary hearings in Appellant's prior convictions; records from the Department of Institutions, Social and Rehabilitative Services (DISRS) and Department of Corrections (DOC), and results of intelligence and psychological tests.

In her assessment, Dr. Russell set forth the reasons for Appellant's incarceration, his family history, education, substance abuse history, psychiatric history, medical history, relationships, employment, and criminal history. Additionally, the assessment contains Dr. Russell's observations on Appellant's behavior and mental status. She stated he is "guarded in his responses to interview questions", but shows "no symptoms of a major mental disorder such as hallucinations or delusions". Also included in the Risk Assessment are Assessment Results and Appellant's aggression history. In the Assessment Results portion of the report, Dr. Russell stated Appellant scored high for the presence of psychopathy, which she explained was "characterized interpersonally by grandiose, egocentric, manipulative, and deviant interactions", and "by a lack of empathy, guilt or remorse". She also stated psychopathy was defined "behaviorally in terms of impulsivity and sensation seeking". Also included in the Assessment Results were Dr. Russell's statements of Appellant's Personality Factors. She stated there was "no evidence of psychotic thinking or other symptoms related to a major mental illness". Instead, "test results indicated Appellant was self-centered or absorbed and may have difficulty in delaying gratification". She said his"behavior vacillated from agreeable to accusatory and this type of behavior often keeps others on edge never knowing if he will react in an obliging or resentful manner". She also stated, "many of his legal difficulties were most likely the product of these attributes coupled with a chronic substance abuse problem. Results further suggest he has not developed internal controls and as a result functions best in a controlled, structured environment such as a prison until such control is developed."

As for the Aggression History portion of the report, Dr. Russell noted Appellant's two prior convictions for violent rapes against elderly women. She stated, "he offered few insights into motive behind victim selection". Dr. Russell also stated that a review of DOC records "revealed 11 misconducts over a 10 year time period none of which included physical aggression."

In the Summary section of the Report, Dr. Russell stated that an evaluation of potential risk to others was conducted for the purpose of assessing continuing threat. She stated risk was assessed for both community and prison settings. Dr. Russell noted Appellant had been incarcerated for 14 of his 41 years. She said Appellant reported drinking alcohol on a daily basis since he was 15 years old. He also reported some use of marijuana but denied use of other drugs. Dr. Russell concluded that Appellant's risk to others in the community should be considered high as he lacks internal controls, has access to alcohol, and his acts of aggression have always occurred in the community and involved elderly women. Dr. Russell also concluded that Appellant's risk to others in a prison setting should be considered low based in part on the structure of the prison system. She also stated, "since incarceration for the most part minimizes the defendant's access to alcohol, drugs, weapons and potential victims, the risk for future aggression significantly decreases when placed in a more secure setting".

A comparison of the reports show, that but for one exception, the same sources were relied upon for information. The one exception, "interviews with family members and friends", is listed as a resource on the Social History Report but not the Risk Assessment Report. Consequently, Appellant's family history and childhood is set forth in greater detail in the Social History. However, as Appellant and family members were interviewed as part of the mitigation investigation, trial counsel was presumably aware of the information provided by family members. Further, many of the conclusions set forth in the Social History Report are the same as those set forth in the Risk Assessment Report. 19 While recognizing the different purposes behind the Social History and the Risk Assessment, the two reports in this case contained much of the same information. Therefore, when we consider the information gathered from the mitigation investigation and known to trial counsel, we find Appellant has failed to show by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to expand his investigation to include a social history of Appellant.

19 In the Risk Assessment, Dr. Russell stated Appellant "tries to present himself in a favorable light which may be due to a combination of denial and lack of self-awareness." In the Social History she states Appellant "employs denial and repression to deal with psychological pain." Both the Risk Assessment and Social History note the early onset and long-lasting use of alcohol by Appellant. Both reports also note the lack of internal controls on Appellant's part. Both reports conclude that in the absence of any external controls, either the Oklahoma Children's Center where Appellant was admitted as a delinquent child or the adult prison system, combined with the lack of internal personal controls, Appellant engages in a pattern of daily drinking, use of drugs and criminal activity.

Next, we turn to the presentation of mitigation evidence. Defense counsel presented five witnesses during second stage: Charles Harris, Tag Supervisor for the Oklahoma Correctional Industries at RBD Connors Correctional Facility, and Jason Ledford and Terry Williams, Detention Officers at the Oklahoma County Jail. Each of these witnesses testified to Appellant's conduct and behavior while incarcerated. Harris testified that Appellant was a good worker in the tag facility and has risen to a position where he assisted Harris in overseeing the operation. Harris described Appellant as dependable, and said if Appellant were sent back to him in the tag facility; he would have no problem working with him. Harris said he never saw Appellant exhibit any aggressive or violent behavior. Ledford and Williams both testified that they had not seen any violent behavior or had any problems with Appellant while he was incarcerated in the Oklahoma County Jail.

Trial counsel's decision to limit the mitigating evidence to the above witnesses appears to have been reasonable trial strategy. Presenting witnesses who would testify to Appellant being a productive member of prison society was consistent with information contained in the Risk Assessment that the risk of future aggression from Appellant significantly decreased when he was in a secure prison environment.

Further, Ms. Tingle was the only family member who testified although she stated she had been accompanied to trial by an uncle and his girlfriend, her grandmother (Appellant's mother), an aunt and a cousin. There is no indication in the record or in Appellant's Application for Evidentiary Hearing why those relatives did not testify at trial.

Therefore, it comes down to counsel's failure to present evidence of Appellant's life history and the circumstances surrounding the crimes as contained in the Social History. Looking at both the Risk Assessment Report and the Social History Report it was reasonable trial strategy not to put too much of Appellant's life history before the jury. For every witness the defense presents, the State has the opportunity to cross-examine. While Appellant argues that presenting evidence of his life history and an explanation of his conduct in light of his psychological and social development would have enabled the jury to see him as a person and not as a monster, the evidence could have the opposite impact on the jury. Both the Risk Assessment and Social History contain information unflattering to Appellant. Presenting detailed evidence concerning the behavioral impact of Appellant's life history of having no external or internal controls (except when incarcerated) combined with chronic substance abuse "could reasonably be viewed as mitigating to one person and aggravating to another." Murphy, 2002 OK CR 24, P54, 47 P.3d at 886.

Information contained in the Social History which could arguably be seen as mitigating evidence consisted of descriptions of Appellant's father as "unloving" and "a strict disciplinarian" who regularly "whipped" his children and spent his salary on his own needs instead of feeding his family; that Appellant was the youngest of 10 children and his mother had a difficult pregnancy with him; the family lived in a small home with only five rooms and no running water; his parent's separation when he was young and his accompanying his mother, and his young siblings, to live in the city where his mother "worked all the time in an effort to take care of the family and eventually "kicked him out of the house for getting in trouble"; Appellant's placement in the Oklahoma Children's Center as a delinquent child when he was 16; and psychological testing which reported Appellant was "anxiously troubled, lonely and socially apprehensive most of the time" and that "he often turns to alcohol to fulfill a number of otherwise difficult to achieve psychological functions".

Dr. Russell stated in part the Social History was to provide a background for understanding why Appellant eventually aggressed against older women in such a violent and abusive way. She concluded that although he had a positive relationship with his mother, her decision to leave his father and move from the country to the city was "the single most devastating event in his life." Dr. Russell also noted a relationship Appellant had with a woman named Donna Burton. Burton apparently gave birth to a daughter during their relationship although the paternity of the child was in question. After the relationship between Burton and Appellant ended, Appellant continued to provide for the child. Dr. Russell noted the relationship ended in 1984 or 1985, about the time the first of the rapes occurred. Dr. Russell claimed the relationship with Burton provided additional insight into how Appellant dealt with abandonment and may have been the catalyst for his aggression.

By contrast, information in the Social History which could be described as not mitigating includes Dr. Russell's statement that Appellant had a very different view of the way he was raised and "glamorized" his early years, his description of his relationship with his father as "close", his reported memory lapse concerning his move to the city with his mother and that Appellant's descriptions of his early life was inconsistent with that of other family members and DISRS records. The Social History lists Appellant's seven prior convictions from two different states ranging from conspiracy to sell marijuana to first degree rape and robbery with firearms and that Appellant has been in prison since 1987. Also included in the Social History is information concerning Appellant's alcohol and substance abuse which could be seen in either a mitigating or non-mitigating light. This is a brief, and admittedly incomplete synopsis of the Social History, which Appellant argues defense counsel was ineffective in failing to present.

Having reviewed the information in the Social History, we find presentation of that evidence would not have been helpful to Appellant and might even have been counterproductive. If in fact, Dr. Russell had been put on the witness stand to testify to the Social History, the topic of the Risk Assessment and the information and conclusions therein would have been relevant information for the State to address on cross-examination. In that scenario, the jury would certainly have heard that Appellant was a chronic alcohol and drug abuser, he was self absorbed, lacked empathy, guilt and remorse and without warning exhibited wide mood swings which affected his interaction with others. The jury might also have heard that Appellant's conduct could not be explained or excused due to a major mental illness or psychotic thinking, as there was no evidence he suffered from either condition. Further, Appellant has received 11 misconduct reports while incarcerated the past 10 years. Although none of the incidents included physical aggression, they did include verbal aggression toward staff. 20

20 Having compared the Risk Assessment and the Social History, and finding much of the information contained in the two reports to be similar, we take this opportunity to note that when read in their entirety, the two reports paint a much different picture of Appellant. While recognizing the differing purposes behind the two reports, Appellant comes across as a much meaner more violent person in the Risk Assessment than in the Social History. We note this distinction as a way to caution expert witnesses not to attempt to deceive the courts by intentionally leaving out information that could be relevant to a jury's consideration.

Instead of taking the risk that cross-examination could reveal such "negative" information that would harm Appellant's chances for a sentence less than death, counsel chose to focus on more "positive" evidence of Appellant's life in prison. This evidence showed that while Appellant was incarcerated he was not violent or aggressive, that he was a good worker and had proved himself sufficiently responsible to work at making license tags and to oversee other inmates in the tag facility. We find trial counsel's choice to limit the second stage evidence to that showing Appellant was a productive member of prison society and he had family who loved him, while excluding potentially damaging evidence of Appellant's psychological and social development, especially in light of his history of aggression towards elderly women, was reasonable trial strategy well within the range of professional reasonable judgment. In fact, counsel would have been ineffective if the door to the damaging Risk Assessment Report and evidence contained therein had been opened and the State had been able to exploit it to their advantage. The Social History in this case contained the "double edge" the Supreme Court has found sufficient to justify limited investigations. See Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987). We find it sufficient to justify a limited presentation of evidence.

Defense counsel in this case consisted of a team of four attorneys well known to this Court to be experienced in both the prosecution and defense of capital cases. Having reviewed the contents of the Social History, trial counsel's response to appellate counsel that the Social History was not presented because there was "no way to put it on" can be interpreted as saying the evidence could not be "safely" presented to the jury, not that it couldn't be put on at all. The record shows a reasoned strategic decision, made after a reasonably thorough investigation, not to present the Social History because it would have opened the floodgates to evidence very harmful to Appellant. Even with the evidence contained in the Social History, the State's evidence in aggravation was great in this case, while the mitigating evidence was much weaker.

21 Further, counsel does not have an obligation to get a waiver from the defendant on the decision not to present certain mitigating evidence. While this Court has held that when a competent defendant intends to completely forego the presentation of any mitigating evidence during second stage, counsel must obtain a knowing waiver to that effect, Wallace v. State, 1997 OK CR 18, 1997 Okla. Crim. App. LEXIS 18, P27, 935 P.2d 366, 376, we have not extended the need for a waiver to a case where some mitigation evidence is offered. Therefore, contrary to Appellant's claim, counsel was not obligated to obtain a written waiver from Appellant concerning the decision to limit presentation of his background in second stage.

This is not to say that counsel is to make all of the decisions in the case. As I stated in my special concurrence to Grant v. State, 2004 OK CR 24, 95 P.3d 178, (Lumpkin, J. special concur), it is the (competent) client's case, not the lawyer's. While, counsel has the responsibility to advise, inform, and consult with the client, the defendant has the right be involved in the decision process that will affect his or her life. Id., citing Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

Accordingly, having thoroughly reviewed Appellant's Application and accompanying affidavits, we find he has failed to show by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to investigate further and utilize the complained-of evidence. We decline to grant Appellant's application for an evidentiary hearing on sixth amendment grounds.

ACCUMULATION OF ERROR CLAIM

In his sixteenth assignment of error, Appellant contends the aggregate impact of the errors in this case warrants reversal of his convictions and at the very least modification of his death sentence. This Court has repeatedly held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Bland, 2000 OK CR 11, 4 P.3d at 734. Having found no errors warranting reversal or modification, we find relief is not warranted upon a cumulative error argument. This assignment of error is denied.

In his seventeenth and final assignment of error, Appellant asks this Court to reconsider error raised in other cases, but denied. Specifically, Appellant refers us to the following argument previously raised and denied: 1) unconstitutionality of death penalty; 2) unconstitutionality of "especially heinous atrocious or cruel" aggravating circumstance; 3) unconstitutionality of "continuing threat" aggravator; 4) unconstitutionality of "avoid lawful arrest" aggravating circumstance; and 5) unconstitutionality of victim impact evidence. Appellant provides no accompanying argument but states the issues are raised specifically for purposes of preservation in the event this Court departs from precedent during Appellant's appeal process.

We find Appellant has not properly preserved these issues for appellate review. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003) requires an appellate brief to state "an argument, containing the contentions of the appellant, which sets forth all assignment of error, supported by citations to the authorities, statutes and parts of the record." Appellant's listing of previously denied claims and citation to cases where those claims were denied, without argument as to the applicability of that claim to Appellant's case, is insufficient to preserve the issue for appellate review. This Court has consistently held that we will not review allegations of error that are neither supported in the record or by legal authority. Armstrong v. State, 1991 OK CR 34, P24, 811 P.2d 593, 599; Wolfenbarger v. State, 1985 OK CR 143, 710 P.2d 114, 116, cert. denied, 476 U.S. 1182, 106 S. Ct. 2915, 91 L. Ed. 2d 544 (1986). As we stated in Templer v. State, 1972 OK CR 68, 494 P.2d 667: . . . we should also like to refer the defendant to Bell v. State, Okl. Cr., 1962 OK CR 160, 381 P.2d 167 (1962), wherein we stated: 'It has never been the practice of this court to permit the inclusion of arguments in former cases by reference, and we do not propose to recognize such herein. There is no end to the mischief and research that would be imposed on appellate courts if this practice were permitted.' 1972 OK CR 68, P22, 494 P.2d at 671.

Accordingly, Appellant has waived appellate review of the issues. But see Frederick v. State, 2001 OK CR 34, P37 P.3d 908, 952(wherein this Court declined to find whether list of issues previously decided by the Court adversely to appellant's position properly preserved issues for appellate review, Court denied relief on basis that appellant failed to cite any controlling authority or demonstrate any other reason for this Court to reconsider or alter its position on any of the foregoing issues). Accordingly, this assignment of error is denied.

MANDATORY SENTENCE REVIEW

Pursuant to 21 O.S. 2001, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of the aggravating circumstances as enumerated in 21 O.S. 2001, § 701.12. Turning to the second portion of this mandate, the jury found in each count the existence of two (2) aggravating circumstances: 1) the murder was especially heinous, atrocious, or cruel; and 2) the murder was committed for the purpose of avoiding lawful arrest or prosecution. 21 O.S. 2001, § 701.12(4)(5). We have previously found in this opinion, the evidence was sufficient to support the "avoid lawful arrest" aggravator.

To support a finding that the murder was especially heinous, atrocious, or cruel requires proof that the death was preceded by torture or serious physical abuse. Phillips, 1999 OK CR 38 P80, 989 P.2d at 1039. This includes evidence that shows the infliction of either great physical anguish or extreme mental cruelty. Id. After making the above determination, the attitude of the killer and the pitiless nature of the crime can also be considered. Id.

The evidence in the present case shows that in two separate instances, Appellant unexpectedly attacked an elderly woman in her home. The evidence in Mrs. Fowler's case showed some resistance on her part, and her eventual capitulation. The evidence showed that both victims were physically abused during the assault and rapes and as a result suffered injuries that would have been painful. Each victim surely suffered great mental anguish as she were suffocated by Appellant bearing down on a pillow covering her face.

Considering the unprovoked manner of the killings in the present case; the conscious suffering of the victims, both physically and emotionally; the attitude of the killer as evidenced by Appellant's attacks upon victims who could not adequately defend themselves, we find, construing the evidence in the light most favorable to the state, the jury's finding of the heinous, atrocious or cruel aggravator was supported by sufficient evidence.

Having found the aggravators supported by sufficient evidence, we turn to the mitigating evidence. Appellant presented as mitigation witnesses his niece, two jailers from the Oklahoma County Jail, and a detention officer from the Department of Corrections. These witnesses testified that Appellant has adapted well to incarceration and has demonstrated over the past 15 years that he is not a threat while incarcerated, he has a family who loves and cares for him, Appellant has taken advantage of educational and vocational opportunities while incarcerated, Appellant was housed in an honor pod at the Oklahoma County Jail, and Appellant has worked while incarcerated in the penitentiary and county jail. Appellant also presented the testimony of Jim Fowler, Mrs. Fowler's son, who testified generally that Appellant should not receive the death penalty. This evidence was summarized into six (6) factors and submitted to the jury for their consideration as mitigating evidence, as well as any other circumstances the jury might find existing or mitigating.

Upon our review of the record and careful weighing of the aggravating circumstances and the mitigating evidence, we find the sentence of death to be factually substantiated and appropriate as to both Counts I and II. The record shows the jury rejected the alleged aggravating circumstance of "continuing threat." Under the record before this Court, we cannot say the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 O.S. 2001, § 701.13(C), in finding that the aggravating circumstances outweighed the mitigating evidence. Accordingly, finding no error warranting reversal or modification, the JUDGMENTS and SENTENCES for First Degree Murder are AFFIRMED and the APPLICATION FOR EVIDENTIARY HEARING ON SIXTH AMENDMENT CLAIMS IS DENIED.

Appendix

Findings of Fact and Conclusion of Law

Now on this 2nd day of June 2000, this matter comes up for ruling on the Defendant's Motion to Dismiss for Lack of Speedy Trial. The Court having previously heard evidence on this matter on May 26, 2000. The State of Oklahoma appears by Richard Wintory, and the defendant appears by his attorney Craig D. Corgan. The Court hereby finds as follows: 1. On May 22, 2000, defendant's trial for the murder of Anna Fowler and Zelma Cutler was scheduled to begin before this Court. The trial date was stricken at the request of the defendant in order for the defendant to produce evidence in support of his Motion to Dismiss. 2. The Court and the State could have tried this case in May or June of 2000 but at the request of the defendant, the proceedings were stayed to allow the defendant to litigate his speedy trial issue. 3. The defendant wants a speedy trial and an appeal and thereby objected to this Court setting the case for trial on Monday, June 5 of 2000. 4. On May 26, 2000, this Court heard evidence presented by the defendant and the State. The matter was continued to June 2, 2000, pending the ruling of this Court. 5. Anna Fowler, (approximately age 83) was found dead in her home in Oklahoma City on September 3, 1986. Zelma Cutler, (approximately age 90) was found dead in her home across the street from Mrs. Fowler's residence on January 11, 1987. Evidence of semen found at both crime scenes and in the victim's bodies indicated both victims had been raped before being murdered. 6. The defendant, Ronald Lott ("defendant"), is charged with the rapes and murders of both Anna Fowler and Zelma Cutler. 7. On May 12, 1988, the co-defendant, Robert Lee Miller, Jr., was convicted of the rapes and murders of Mrs. Fowler and Mrs. Cutler. At the same time, defendant Ronald Lott had not yet been identified as a perpetrator. 8. Subsequent DNA testing initiated by Robert Lee Miller, Jr., exonerated him as being the source of the semen samples found inside the bodies of Mrs. Fowler and Mrs. Cutler and at the same time inculpated Ronald Lott who was already serving time for the rape of two other elderly females ("the 1987 rapes"). 9. The Court of Criminal Appeals reversed and remanded the case on Robert Lee Miller, Jr. as a result of the new DNA evidence. 10. The State filed charges on Ronald Lott on March 10, 1995, and subsequently dismissed the charges on January 30, 1996 pending further investigation. 11. The State refiled the charges against Ronald Lott in this case in 1997 while the defendant was still being held by the Department of Corrections for the 1987 rapes. 12. On September 9, 1997, defendant Lott's preliminary hearing in this case was set on November 3, 1997. 13. On November 3, 1997 the preliminary hearing began. Further evidence was presented over the course of the following dates: December 18, 1997 December 19, 1997 January 30, 1998 February 13, 1998 March 20, 1998 14. Based on the complicated nature of this case as well as the number of witnesses called the State, the preliminary hearing was not concluded until March 30, 1998. However, at no time during the course of the hearing did the defendant raise an objection to the lengthy nature of hearing. 15. Defendant discharged his sentence for the 1987 rapes in February 1998 during the preliminary hearing proceedings on the present case. 16. On March 20, 1998, at the conclusion of the State's case, the Honorable Judge Charles Humble bound the defendant over for trial. At the conclusion of the hearing, defendant Lott requested immediate receipt of the preliminary hearing transcripts at public expense. Counsel for the defendant stated on the record that he wanted the transcripts in order to prepare certain motions to be filed. (See Preliminary Hearing Transcript March 20, 1998, Pg. 105-106. Judge Humble advised counsel of the proper procedure to be followed to obtain the transcript. The case was then set for pre-trial before Judge Charles Owens on May 1, 1998. 17. Despite being told at the conclusion of the preliminary hearing how to do so, defense counsel did not request the transcripts until July 15, 1998. 18. On May 1, 1998 the pre-trial was continued by agreement of parties to August 26, 1998 to allow for the preliminary transcripts to be completed. While defendant's current counsel asserts such transcripts were not vital to the Court's rulings on the defendant's motions, this Court finds that defendant's attorney at the time was reasonable and prudent in believing the Court would have considered the evidence offered at preliminary hearing to be relevant to the Court's proceedings. 19. On August 26, 1998, the pre-trial hearing was continued to October 27, 1998 to again allow for the preliminary hearing transcripts to be completed. The final transcript from the preliminary hearing was completed and filed with the Court Clerk on September 21, 1998. 20. On October 27, 1998 the pre-trial was continued to November 30, 1998 and then to February 1, 1999 as Judge Charles Owens was retiring from the bench. Judge Owens chose not to hear the pre-trial motions since he would not be the presiding Judge of the trial. 21. There is no record that the defendant requested a trial date while this case was pending before Judge Charles Owens. 22. Based on Sherry Mighton's testimony, this Court finds that Judge Charles Owens docket was such that he could not have tried a case of this magnitude between October 1998 and his retirement in January of 1999. 23. On February 1, 1999 both parties, including the defendant, appeared before Judge Susan Bragg who had taken over Judge Charles Owens docket. Judge Bragg informed both parties that she could not preside over this case because she had worked on it while employed as an Assistant District Attorney. The case was then re-assigned to the undersigned judge and the pre-trial was set for March 1, 1999. 24. On March 1, 1999, the pre-trial was continued to March 18, 1999 and then to March 31, 1999. One of the continuances was due to Joe Robertson, counsel for the defendant, not appearing for the motion hearing. 25. On March 31, 1999 both parties appeared before this Court. The State appeared by Richard Wintory and Greg Masburn and the Defendant appeared by his attorney Joe Robertson. Although this Court has no independent recollection of ruling on the defendant's pre-trial motions on said date, the paperwork held by the State indicated the language and ruling of this Court would have made regarding said motions. 26. To this date three different attorneys from the Oklahoma Indigent Defense System have represented the defendant since the preliminary hearing began. These attorneys are Silas Lyman, Joe Robertson and Craig Corgan. 27. The State has only requested two continuances in this case. The first continuance on September 28, 1999 was requested to allow the State to submit hair sample for new type of DNA testing (Mitochondrial Testing) not previously available to either party. Such evidence results could be either inculpatory or exculpatory in nature and therefore necessary evidence to be presented at trial. The trial was rescheduled to begin on March 27, 2000. 28. The second continuance requested by the State was on February 15, 2000, after being notified by LabCorp. of its inability to procure sufficient DNA result for the hair samples sent to them in October of 1999. Additional hair samples were then sent to LabCorp. on February 9, 2000. On February 17, 2000, the Court moved the trial two weeks from March 27, 2000 to April 10, 2000. 29. On March 10, 2000, a three judge panel continued the case to May 22, 2000 because of docket scheduling conflicts of the attorneys for both the State and the defendant. 30. Judges Black, Caswell, and Gray met and scheduled major cases involving the same lawyers. The matter was rescheduled for March 27, 2000. 31. The only two objections to continuance filed by the defendant were in response to the State's second motion for continuance dated February 16, 2000 and the objection to the scheduling continuance to March 27, 2000. 32. Article 2, § 6 of the Constitution requires that justice be administered without delay and forbids any unreasonable delays by the State. 33. The two requested delays caused by the State in this case were not unreasonable, but in fact were reasonable and prudent actions taken by the State in order to provide possible exculpatory evidence to the defense. 34. Any delay in this case is a result of due diligence on the part of the State and the defense to get the information they need to try this case and present the evidence of the case. 35. All of the cases cited by the defendant in support of his motion to dismiss are easily distinguishable from the facts in the case at bar. 36. Specifically, in Pickle v. Bliss, 1966 OK CR 128, 418 P.2d 69 (1966), the Court found that the delay was due to laches on the part of the State. There is no evidence of laches on the part of the State in this case. 37. In Green v. Oklahoma, 1985 OK CR 126, 713 P.2d 1032 (1985), all of the time frames that are involved are pre-accusation and do not apply to the right to speedy jury trial. 38. In State ex. rel. Trusty v. Graham, 1974 OK CR 146, 525 P.2d 1231, there was a showing of prejudice to the defense and the prosecution did not show any legal cause for the delay. In the instant case there has been no showing of prejudice to the defendant and the State has shown cause for the delay. 39. The defendant cites three forms of prejudice as a result of the delays in this case: 1) not being able to have contact visits with his family as he did while he was in the custody of the Department of Correction; 2) not having the benefit of cross-examination of Janice Davis because she is now deceased; 3) the State has been able to strengthen it's case since the conclusion of the preliminary hearing due to advances in technology. 40. There is no prejudice to the defendant in regards to his visitation rights with his family. The defendant admits that his family had not been to se him during the last year he was in the custody of the Department of Corrections. 41. There is no prejudice to the defendant resulting from the death of Janice Davis, caused by any delay attributable to the State. Ms. Davis was deceased prior to the defendant being identified as a perpetrator in this case; therefore Ms. Davis was not available to testify on the day or at any time subsequent to the discovery of the defendant's involvement in this case. 42. There is no prejudice to the defendant even though the testing of forensic evidence in the present case proved favorable to the State. Such testing could have benefited the defendant had it been exculpatory in nature. 43. The pre-trial testing of forensic evidence based on the discovery of anew and more accurate testing procedure prevents the necessity of such testing during appeal to determine whether a new trial is warranted. 44. This Court's trial dockets consists of fourteen murder cases and over 800 felony cases that make it difficult to schedule a case of this magnitude within five months of the defendant requesting a trial date. IT IS THEREFORE the ruling of the court that the Defendant's Motion to Dismiss for Lack of a Speedy Trial is overruled and the trial is hereby reset to November 6, 2000 at the request of the Defendant. (O.R. 539-544) (emphasis in original).

Lott v. Trammell, 705 F.3d 1167 (10th Cir. Okla. 2013). (Habeas)

PROCEDURAL POSTURE: Appellant prisoner, who was convicted of two counts of first-degree murder and sentenced to death, appealed the denial by the United States District Court for the Western District of Oklahoma of his petition for a writ of habeas corpus pursuant to 28 U.S.C.S. § 2254.

OVERVIEW: The court held that the prisoner failed to establish that the state appellate court’s balancing of the Barker v. Wingo factors for purposes of determining whether his Sixth Amendment right to a speedy trial had been violated was erroneous. The state trial court did not violate the prisoner’s due process rights by admitting evidence that he was convicted of two other rapes because the four crimes bore substantial similarities, and, therefore, the evidence was relevant for purposes of proving the identity of the person responsible for raping the two murdered victims. The prosecution did not violate the prisoner’s confrontation right by injecting hearsay statements from a witness because it was the prisoner’s attorney who first introduced the witness’s statements into evidence, and the claim was procedurally barred for purposes of federal habeas review since the state appellate court’s application of its own invited error doctrine was an independent and adequate state law ground. The prisoner did not rebut the presumption that the state appellate court's conclusion that the prisoner's counsel made a strategic decision not to present the prisoner’s social history was correct.

OUTCOME: The court affirmed the denial of federal habeas relief.

Chief Judge BRISCOE: , Chief Judge. This is a death penalty appeal involving two murders that were committed over twenty-five years ago. Petitioner Ronald Lott was convicted by an Oklahoma jury of two counts of first-degree murder in December 2001. The state trial court, in accordance with the jury's verdict, sentenced Lott to death on both counts in January 2002. After his direct appeal and application for state post-conviction relief were unsuccessful, Lott sought federal habeas relief by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied Lott's petition. Having been granted a certificate of appealability with respect to several issues, Lott now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court's denial of federal habeas relief.

I The Fowler and Cutler murders

The basic facts of the murders committed by Lott were described by the Oklahoma Court of Criminal Appeals (OCCA) when ruling on Lott's direct appeal: Sometime after 10:30 p.m., September 2, 1986, Anna Laura Fowler was attacked in her home, raped and murdered. Mrs. Fowler was 83 years old and lived alone. As a result of the attack, Mrs. Fowler suffered severe contusions on her face, arms and legs, and multiple rib fractures. She died from asphyxiation. Zelma Cutler lived across the street from Mrs. Fowler. Mrs. Cutler was 93 years old and lived alone. During the early morning hours of January 11, 1987, Mrs. Cutler was attacked, raped and murdered in her home. Mrs. Cutler suffered severe contusions on her arms and legs as a result of the attack. She also suffered multiple rib fractures. Mrs. Cutler died from asphyxiation. Lott v. State (Lott I), 2004 OK CR 27, 98 P.3d 318, 327 (Okla. Crim. App. 2004) (internal paragraph numbers omitted).

The OCCA's description, although accurate, fails to convey fully the brutal nature of the rapes and murders. In both instances, the victims were vaginally raped and orally sodomized. Further, the evidence presented at trial suggested that Fowler was anally raped and that the perpetrator attempted to anally rape Cutler as well. Lastly, the evidence presented at trial suggested that the rib fractures sustained by Fowler and Cutler occurred as a result of the perpetrator sitting directly on their chests and either orally sodomizing them and/or suffocating them with pillows after the attack.

Post-crime events leading to Lott's identification

Notably, another individual, Robert Miller, was initially arrested, charged, and convicted of the Fowler and Cutler murders. Id. But, notwithstanding Miller's arrest, two additional elderly women living in the Oklahoma City area were attacked and raped in their homes, in a manner similar to the attacks on Fowler and Cutler. And Lott proved to be responsible for those crimes: Subsequent to Miller's arrest, Grace Marshall was attacked and raped in her home on March 22, 1987. Eleanor Hoster was attacked and raped in her home on May 7, 1987. Both Mrs. Marshall and Mrs. Hoster were elderly ladies who lived alone. With the exception that Mrs. Marshall and Mrs. Hoster were not killed after being raped, there were striking similarities between the attacks on the four women. [Lott] was arrested, charged, and ultimately plead [sic] guilty to committing the rapes against Mrs. Marshall and Mrs. Hoster. Id.

In the early 1990s, DNA testing established that Lott, rather than Miller, had raped Fowler and Cutler. Id. At that time, Lott was still incarcerated and serving time in connection with the Marshall and Hoster rape convictions.

The state trial proceedings

On March 10, 1995, an amended information was filed in the District Court of Oklahoma County, Oklahoma, Case No. CF-87-963, jointly charging Lott and Miller with two counts of first-degree malice aforethought murder (Count 1 was for the murder of Fowler and Count 2 was for the murder of Cutler) and, in the alternative, with two counts of first-degree felony murder. On January 30, 1996, however, those charges were dismissed at the request of the State. On or about March 19, 1997, the State reinstated the case by filing a third amended information against Lott and Miller. The trial court appointed the Oklahoma Indigent Defense System (OIDS) to represent Lott.

On March 20, 1998, the State filed a bill of particulars asserting that Lott "should be punished by death . . . due to and as a result of" the existence of three "aggravating circumstance(s)": (1) the murders were "especially heinous, atrocious, or cruel"; (2) the murders were "committed for the purpose of avoiding or preventing a lawful arrest or prosecution"; and (3) "[t]he existence of a probability that [Lott] would commit criminal acts of violence that would constitute a continuing threat to society." State R., Vol. II, at 249.

On November 13, 2000, the State filed a fourth amended information. Although the fourth amended information continued to charge Lott with two counts of first-degree malice aforethought murder and, in the alternative, two counts of first-degree felony murder, the charging language differed significantly from that of the third amended information. Whereas the third amended information alleged that the first-degree malice aforethought murder counts, as well as the felony murder counts, were "feloniously committed . . . by Robert Lee Miller Jr. and Ronald Clinton Lott . . . acting jointly [and] willfully," id., Vol. I, at 47, the fourth amended information (a) omitted from the first-degree malice aforethought murder charges the allegations that Lott acted jointly with Miller, thus leaving only Lott as the named defendant in those counts, and (b) altered the felony murder counts to allege that Lott was "aided and abetted by . . . Miller." Id., Vol. IV, at 735.

The December 2001 trial proceeded as scheduled. At the conclusion of the first-stage evidence, the jury found Lott guilty of both murders. At the conclusion of the second-stage proceedings, the jury found, with respect to each of the counts of conviction, the existence of two of the three alleged aggravating circumstances: that the murders were especially heinous, atrocious, or cruel, and that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution. The jury in turn fixed Lott's punishment at death for each of the two counts of conviction. On January 18, 2002, the state trial court formally sentenced Lott to death for each of the two murder convictions. Judgment in the case was entered that same day.

Lott's direct appeal

Lott filed a direct appeal asserting seventeen propositions of error. On September 9, 2004, the OCCA issued a published opinion affirming Lott's convictions and death sentences. Lott filed a petition for writ of certiorari with the United States Supreme Court, but his petition was denied on March 28, 2005. Lott v. Oklahoma, 544 U.S. 950, 125 S. Ct. 1699, 161 L. Ed. 2d 528 (2005).

Lott's application for state post-conviction relief

On August 9, 2004, Lott filed with the OCCA an application for post-conviction relief, as well as a motion for an evidentiary hearing and discovery. On November 22, 2004, the OCCA issued an opinion denying Lott's application for post-conviction relief and his motion for an evidentiary hearing and discovery.

Lott's federal habeas proceedings

Lott initiated these federal habeas proceedings on August 4, 2005, by filing a petition for writ of habeas corpus, as well as motions for appointment of counsel and to proceed in forma pauperis. The district court granted Lott's motion for appointment of counsel. On February 17, 2006, Lott's appointed counsel filed a petition on Lott's behalf asserting twenty-two grounds for relief. On March 31, 2011, the district court issued a memorandum opinion denying Lott's petition. The district court entered judgment in the case that same day, and also issued an order granting Lott a certificate of appealability (COA) with respect to seven of the twenty-two grounds raised in his petition. On April 7, 2011, Lott filed a notice of appeal. We subsequently granted Lott a COA as to three additional issues. Lott has since filed an appellate brief asserting a total of eight propositions of error.

II Standards of review

Our review of Lott's appeal is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir. 2007). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts. Id. As a result, our focus here is upon the rulings of the OCCA, not those of the federal district court.

If a claim was addressed on the merits by the state courts, we may not grant federal habeas relief on the basis of that claim 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," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). "When reviewing a state court's application of federal law, we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly." McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir. 2003). "Rather, we must be convinced that the application was also objectively unreasonable." Id. "This standard does not require our abject deference, but nonetheless prohibits us from substituting our own judgment for that of the state court." Snow, 474 F.3d at 696 (internal quotation marks and citation omitted). If a claim was not resolved by the state courts on the merits and is not otherwise procedurally barred, our standard of review is more searching. That is, because § 2254(d)'s deferential standards of review do not apply in such circumstances, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error. McLuckie, 337 F.3d at 1197.

III Analysis
1) Speedy trial claim - In Proposition One of his appellate brief, Lott contends that the state trial court violated his Sixth Amendment rights by denying his motions to dismiss the criminal proceedings on speedy trial grounds.

a) Clearly established Supreme Court precedent

Lott points to the Supreme Court's decision in Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967), as providing the clearly established federal law applicable to his claim. In Klopfer, the Supreme Court held "that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment," 386 U.S. at 223, and that, consequently, the Sixth Amendment right to a speedy trial1 "is to be enforced against the States under the Fourteenth Amendment." Id. at 222 (internal quotation marks omitted). The Court in Klopfer also addressed a unique aspect of North Carolina criminal procedure, under which "the prosecuting attorney of a county, denominated the solicitor, . . . may take a nolle prosequi" "if he does not desire to proceed further with a prosecution." Id. at 214. Notably, "the taking of [a] nolle prosequi does not permanently terminate proceedings on the indictment." Id. Instead, the Court noted, "the case may be restored to the trial docket when ordered by the judge upon the solicitor's application," and "if the solicitor petitions the court to nolle prosequi the case 'with leave,' the consent required to reinstate the prosecution at a future date is implied in the order and the solicitor (without further order) may have the case restored for trial." Id. (internal quotation marks omitted). Because "the indictment is not discharged by either a nolle prosequi or a nolle prosequi with leave, the statute of limitations remains tolled." Id. "The consequence of this extraordinary criminal procedure," the Court noted, is that "[a] defendant indicted for a [crime] may be denied an opportunity to exonerate himself in the discretion of the solicitor and held subject to trial, over his objection, throughout the unlimited period in which the solicitor may restore the case to the calendar." Id. at 216. Ultimately, the Court held that this procedure denies a criminal defendant "the right to a speedy trial . . . guaranteed to him by the Sixth Amendment." Id. at 222.

1 The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. Lott also relies on the Supreme Court's decisions in United States v. MacDonald, 456 U.S. 1, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982), and Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). In MacDonald, the Court noted the general contours of the Sixth Amendment right to a speedy trial: "no Sixth Amendment right to a speedy trial arises until charges are pending," and "the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges." 456 U.S. at 7. In turn, the Court noted that the purpose of "[t]he Sixth Amendment right to a speedy trial is . . . not . . . to prevent prejudice to the defense caused by passage of time," but rather "to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." Id. at 8.

In Barker, the Court adopted a "balancing test" for purposes of determining whether a criminal defendant's Sixth Amendment right to a speedy trial has been violated. 407 U.S. at 530. Four factors are relevant under that balancing test: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. "The length of the delay," the Court noted, "is to some extent a triggering mechanism" because "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id. "Nevertheless," the Court stated, "the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case," including, for example, the seriousness and complexity of the pending charges. Id. at 530-31. "Closely related to length of delay," the Court noted, "is the reason the government assigns to justify the delay," and "different weights should be assigned to different reasons." Id. at 531. "[T]he third factor, the defendant's responsibility to assert his right, . . . is closely related to the other [three] factors." Id. "The defendant's assertion of his speedy trial right," the Court stated, "is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Id. at 531-32. The fourth factor, prejudice to the defendant, "should be assessed," the Court held, "in the light of the interests of defendants which the speedy trial right was designed to protect," i.e., "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Id. at 532. The Court emphasized that "[o]f these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. "In sum," the Court held, "none of the four factors [is] . . . either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Id. at 533. "Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Id.

b) The OCCA's rejection of Lott's claim

Lott asserted his speedy trial claim on direct appeal, "claim[ing that] all four [Barker] factors clearly weigh[ed] in his favor and that his speedy trial right ha[d] been unquestionably denied." Lott I, 98 P.3d at 327. The OCCA agreed that "the length of delay" between the filing of the third amended information and the date of trial, which it calculated to be "approximately 4 years and 10 months," "was . . . substantial . . . and . . . sufficient . . . to necessitate a review of the other three [Barker] factors." Id. at 328. Although the OCCA agreed that the first and third Barker factors (length of the delay and assertion of the right by the accused) "weigh[ed] in [Lott]'s favor," it concluded that the remaining two Barker factors (reasons for the delay and prejudice) "favor[ed] the State." Id. at 333. And the OCCA ultimately concluded that Lott "was not deprived of his speedy trial rights . . . , based upon the finding of reasonable reasons for the delay, the absence of significant prejudice, and the less-than egregious deprivation of liberty." Id.

c) Lott's challenges to the OCCA's decision

In this federal habeas appeal, Lott focuses much of his attention on what he perceives as flaws in the district court's analysis of the Barker factors, rather than focusing exclusively on the OCCA's analysis of those factors. Because, however, the OCCA resolved the speedy trial claim on the merits, § 2254(d) requires us to focus exclusively on the OCCA's analysis of the claim. Accordingly, we shall give Lott the benefit of treating his arguments as challenges to the OCCA's decision, rather than the district court's decision.

1) Length of the delay Lott argues that, with respect to the first Barker factor, i.e., length of the delay, "the day he was first charged [with the Fowler and Cutler murders], March 10, 1995, is the appropriate start date for assessing his speedy trial date." Aplt. Br. at 30. Consequently, he asserts, "[t]he length of delay between that date and the start of trial was six years and eight months." Id. In support, Lott asserts that the prosecution "did not act in good faith" in dismissing the original charges and refiling them. Id. at 31. And, he argues, his "situation is virtually identical to the facts of [Klopfer]." Id. at 33. The OCCA concluded that Lott's "reliance on Klopfer . . . [wa]s misplaced." Lott I, 98 P.3d at 328. Specifically, the OCCA noted that in Klopfer, "the prosecutor was able to suspend proceedings indefinitely" and "the charges were not dismissed," whereas in Lott's case, the original charges against Lott were dismissed entirely and Lott "was incarcerated for a separate crime at the time [of the dismissal]." Id. The OCCA's holding in this regard is neither contrary to, nor an unreasonable application of, Klopfer. In all key respects, Lott's case differs from Klopfer. Most importantly, unlike Klopfer, the original charges against Lott were dismissed rather than simply suspended, and thus Lott did not remain "subject to trial" during the time period between the dismissal of the charges on January 30, 1996, and the filing of the third amended information on March 19, 1997. Klopfer, 386 U.S. at 216.

2) Reasons for the delay

Lott contends that the OCCA unreasonably applied Barker in concluding that the reasons for the delay "w[ere] not solely attributable to the State," and that "the majority of the delays were necessary to further the ends of justice and ensure that [Lott] received a fair and impartial trial." Lott I, 98 P.3d at 331. In support, Lott "asserts that the record reveals ample evidence of deliberate delay by the State." Aplt. Br. at 34. Most notably, Lott asserts, was "[t]he conduct of Judge Owens, the original trial judge." Id. at 36. Lott argues that "[a]lthough Judge Owens presided over the case from March 20, 1998 until he retired in January of 1999, he did next to nothing to advance . . . Lott's speedy trial interests." Id. at 36-37. Lott asserts that only once during the nine months that Judge Owens presided over the case did Lott or his counsel appear before the court, and on that occasion (May 1, 1998), "Judge Owens continued the [matter]." Id. at 37. Lott argues that "[t]he record and circumstances strongly suggest that Judge Owens was well aware, long before January of 1999, that he intended to retire," and "he obviously decided early on that he would not take any steps to move the case along." Id. In short, Lott argues, Judge Owens engaged in "purposeful conduct," i.e., delay, "designed to thwart . . . Lott's fundamental constitutional rights." Id.

But the OCCA, citing the state trial court's factual findings (made in connection with its denial of Lott's motion to dismiss on speedy trial grounds), rejected these same arguments: In this regard, the trial court found[, after conducting an evidentiary hearing,] the case was delayed due to scheduling conflicts of both court and counsel. The trial court found that the docket of Judge Owens was such that he could not have tried a case of this magnitude during the four month time period encompassing the final completion of the preliminary hearing transcript and the date of his retirement. The trial court noted that Judge Owens chose not to hear any pre-trial motions in this case as he would not be the presiding judge at trial. The trial court found no defense request for trial during the time the case was pending before Judge Owens.

Section 812.2(A)(2)(g) and (i) [of the Oklahoma statutes] require the court to look at whether the delay occurred because "the court has other cases pending for trial that are for persons incarcerated prior to the case in question, and the court does not have sufficient time to commence the trial of the case within the time limitation fixed for trial," and "the court, state, accused, or the attorney for the accused is incapable of proceeding to trial due to illness or other reason and it is unreasonable to reassign the case." While we do not know from the record whether Judge Owens had other cases pending for trial that were for persons incarcerated longer than Appellant, we do have the trial court's finding that Judge Owens' docket was such that he could not try a case of this complexity prior to his retirement. While these delays appear to be a deliberate postponement of the case, taking judicial notice of the large caseload of criminal cases in the District Court of Oklahoma County, and the complex nature of the present case, we do not dispute the trial court's finding that the delay pending Judge Owens' retirement was reasonable. Therefore, this delay does not weigh in Appellant's favor. Lott I, 98 P.3d at 329 (footnote and internal paragraph numbers omitted).

Lott does not seriously dispute any of the above-referenced factual findings that were made by the state trial court and relied on by the OCCA. For example, Lott does not dispute, and the record confirms, that at no time while Judge Owens was presiding over the case did defense counsel request a trial or assert that Lott's speedy trial rights were being violated. As for the state trial court's findings regarding Judge Owens' docket, there is simply no evidence in the record to either confirm or dispute those findings. Because the burden rests on Lott to establish that the OCCA's analysis was "based on an unreasonable determination of the facts," 28 U.S.C. § 2254(d)(2), he has failed in this regard.

Lott next takes issue with the OCCA's determination that the state trial court's decision to grant two continuances requested by the State in order to conduct mitochondrial DNA testing "were reasonable and prudent." Lott I, 98 P.3d at 330. According to Lott, "scientific advances are commonplace and as a matter of public policy should not be permitted as justification for delaying justice or denying constitutional rights." Aplt. Br. at 38. And, Lott argues, "the State's wrongful and nearly fatal prosecution and conviction of one innocent man[, Miller,] should not be accepted as justification for discarding the constitutional rights of another man presumed innocent." Id.

Lott's arguments, however, do nothing to establish that the OCCA's determination was an unreasonable application of clearly established federal law. In Barker, the Supreme Court expressly recognized that, in assessing "the reason the government assigns to justify [a particular] delay," "different weights should be assigned to different reasons." 407 U.S. at 531. Given the unusual background of this case, specifically the erroneous conviction of Miller, and the serious nature of the potential punishment, the OCCA concluded, and we cannot dispute, that it was entirely reasonable for the state trial court to have allowed the State sufficient time to analyze the forensic evidence. In turn, the OCCA's classification of the State's conduct as "reasonable and prudent" was neither contrary to, nor an unreasonable application of, Barker.2

2 As the OCCA correctly noted, "all of the evidence had been gathered, [and] no new evidence was sought" by the prosecution. Lott I, 98 P.3d at 332. Thus, "[i]t was merely a question of analyzing that evidence in the most accurate method possible." Id. Further, "[s]uch testing could have very easily been exculpatory and therefore benefited [Lott]." Id.

Lastly, Lott contends that it was unreasonable for the OCCA to conclude that the delay from June 2, 2000, when Lott's motion to dismiss on speedy trial grounds was denied by the state trial court, to November 13, 2000, the rescheduled trial date set by the state trial court (which included time to allow Lott to seek mandamus relief from the OCCA) "d[id] not weigh in [Lott]'s favor as [the mandamus action] was ultimately unsuccessful." Lott I, 98 P.3d at 330. In support, Lott argues that "[s]eeking a remedy for a colorable constitutional violation is a valid reason, particularly since had [his] speedy trial rights been vindicated by the OCCA, his mandamus action would have spared the State the considerable time and expense it took to try and convict him." Aplt. Br. at 39. In short, he argues, "[i]t is patently unfair to tax [him] for promptly and zealously seeking to vindicate his constitutional rights." Id.

We reject Lott's arguments. In reaching its conclusion, the OCCA relied in part on the Supreme Court's decision in United States v. Loud Hawk, 474 U.S. 302, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986). In Loud Hawk, the Supreme Court considered how, under the Barker test, "to weigh the delay occasioned by an interlocutory appeal when the defendant is subject to indictment or restraint." Id. at 312. The Court concluded, in pertinent part, that "[i]n that limited class of cases where a pretrial appeal by the defendant is appropriate, delays from such an appeal ordinarily will not weigh in favor of a defendant's speedy trial claims." Id. at 316 (citation omitted). The Court noted that "[a] defendant who resorts to an interlocutory appeal normally should not be able upon return to the district court to reap the reward of dismissal for failure to receive a speedy trial." Id. Although Lott now attempts to distinguish his case from Loud Hawk, arguing that he filed a mandamus action rather than an interlocutory appeal, and that the speedy trial claim he asserted was not meritless, the OCCA reasonably relied on Loud Hawk in concluding that the delay associated with the mandamus action did not weigh in Lott's favor. Indeed, the critical holding in Loud Hawk, quoted above, was not contingent upon the procedural vehicle used by a criminal defendant to appeal, or upon the meritoriousness of the arguments asserted by the defendant.

3) Assertion of the speedy trial right

Lott argues that the OCCA, although weighing the third Barker factor in his favor, "miscalculated the number of times [he] asserted [his speedy trial] right," and thus "failed to give this factor sufficient weight in performing the balancing required by Barker." Aplt. Br. at 40. In particular, Lott contends that the OCCA "failed to recognize at least three occasions on which [he] vigorously asserted his speedy trial rights." Id. We reject Lott's arguments. To begin with, the OCCA did not make a definitive finding regarding the precise number of times that Lott asserted his speedy trial rights in the state trial court. Instead, it simply noted that he "made an affirmative request for a speedy trial on at least nine different occasions." Lott I, 98 P.3d at 331. Moreover, the OCCA noted that the third Barker factor was satisfied because Lott was incarcerated while awaiting trial. Id. ("As for the third factor, . . . incarceration makes the demand for one in custody."). And, most importantly, the OCCA expressly indicated that Lott's assertion of his speedy trial right was "entitled to strong evidentiary weight in determining whether [he] [wa]s . . . deprived of the right." Id. (internal quotation marks omitted). Thus, there is no basis for concluding that the OCCA's analysis was unreasonable, or that the outcome of its Barker analysis would have been different had it taken into account additional instances of Lott asserting his speedy trial rights. Again, Lott prevailed on this point. The OCCA concluded Lott had affirmatively asserted his speedy trial rights and weighed that Barker factor in Lott's favor.

4) Prejudice

Lott contends that the OCCA unreasonably analyzed and applied the fourth Barker factor, prejudice. Lott suggests, as an initial matter, that the length of the delay in his case (which he continues to argue should be considered to be six years and eight months), standing alone, should have been considered prejudicial. Aplt. Br. at 41-42. Lott further argues that he suffered actual prejudice due to the fact that, as a result of the DNA testing, the State was able to "address weaknesses in its case and shore up its prosecution." Id. at 42. Lastly, Lott contends that he also suffered prejudice because a potential defense witness, Janis Davis Lhyane, a forensic chemist who worked for the Oklahoma City Police Department, died prior to his trial. He explains: Lott was prejudiced by . . . Lhyane's death because she had testified at Robert Miller's trial that while conducting DNA testing on evidence from the Fowler crime scene she found a Caucasian hair. The hair which caused the contamination of the evidence turned out to be . . . Lhyane's hair. In addition, three other Caucasian hairs were found, and belonged neither to . . . Lhyane or . . . Fowler. Id. at 43 (citations omitted).

The first and third of these arguments must be rejected because they were not presented to the OCCA in Lott's direct appeal. Specifically, nowhere in his direct appeal brief did Lott argue that the length of the delay, standing alone, was presumptively prejudicial, nor did he argue that he was prejudiced by Lhyane's death. See Direct Appeal Br. at 22-24. Consequently, the OCCA was not asked to, and thus did not, address these arguments. And we, in turn, cannot address the arguments because they are subject to an anticipatory procedural bar. See Anderson v. Sirmons, 476 F.3d 1131, 1139-40 n.7 (10th Cir. 2007) ('Anticipatory procedural bar' occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it." (internal quotation marks omitted)).

Moreover, even if we were to assume, for purposes of argument, that Lott could circumvent this anticipatory procedural bar, there is no merit to his first and third arguments. Lott's "presumptive prejudice" argument is based upon the Supreme Court's decision in Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). In Doggett, the Court held that a delay of eight-and-one-half years between the defendant's indictment and his arrest, which was caused by government negligence, violated his Sixth Amendment right to a speedy trial. 505 U.S. at 657-58. In this case, in contrast, the delay was substantially shorter, roughly half of the delay that was at issue in Doggett. Thus, it was reasonable for the OCCA to have engaged in the Barker balancing test, rather than simply concluding that the length of the delay, standing alone, warranted relief. As for Lott's assertion that he was prejudiced by Lhyane's death, his explanation of that prejudice simply makes no sense. Moreover, Lott's trial counsel made the jury aware that unidentified Caucasian hairs were found at the Fowler crime scene. Precisely how Lhyane's testimony would have further aided Lott in this regard is unclear.

That leaves only Lott's argument that he was prejudiced because the State was able to strengthen its case against him by way of the additional DNA testing. The OCCA, however, expressly rejected this argument, noting [t]he delays in the trial did not prevent [Lott] from challenging the expertise and credibility of any of the experts conducting DNA analysis. Further, the science of DNA testing is rapidly progressing and it was to the benefit of both the State and the defense to have the evidence subjected to the latest and most accurate type of analysis. Such testing could have very easily been exculpatory and therefore benefited [Lott]. The fact that the results proved favorable to the State and not [Lott] is not grounds upon which to base a finding of prejudice. . . . We find [Lott] was not prejudiced by the delays as his defense was not hindered or impaired. Lott I, 98 P.3d at 332. Although Lott clearly disagrees with this analysis, he has failed to identify any clearly established law that mandates a different result. Likewise, he has failed to demonstrate that the OCCA's analysis of this argument is in any way contrary to, or an unreasonable application of, Barker.

5) Balancing of the Barker factors

Finally, Lott contends that the OCCA's balancing of the four Barker factors was unreasonable. But his only argument in support is that, instead of the OCCA's conclusion that two of the factors favored the State and two factors favored Lott, the OCCA should have treated "all four factors [as] favor[ing] [him]." Aplt. Br. at 43-44. For the reasons we have outlined, however, Lott has failed to establish that the OCCA erred in concluding that two of the Barker factors favored the State. Consequently, Lott has in turn failed to establish that the OCCA's balancing of the Barker factors was erroneous.

2) Erroneous aiding and abetting instruction

In Proposition Two of his appellate brief, Lott contends that the state trial court violated his constitutional rights by instructing the jury that he could be found guilty of felony murder on an accomplice liability theory, even though the prosecution at a pretrial motions hearing had disavowed reliance on an aiding and abetting theory of felony murder. Relatedly, Lott contends that the prosecution and the state trial court effectively induced his trial counsel to act ineffectively and concede Lott's guilt on the felony murder charges without Lott's consent.

a) Background facts

As we have noted, the fourth amended information filed by the State on November 13, 2000, charged Lott with two counts of first-degree malice aforethought murder and, in the alternative, two counts of first-degree felony murder. The felony murder charges in the fourth amended information alleged, in pertinent part, that Lott was "aided and abetted by . . . Miller." State R., Vol. IV, at 735. At a pretrial motions hearing on March 23, 2001, the state trial court and the parties discussed the question of whether the defense would be allowed to introduce evidence regarding Miller's potential involvement in the crimes. In the course of that discussion, the parties referred to the aiding and abetting language contained in the fourth amended information. To begin with, the prosecutor argued that the aiding and abetting language was "surplusage" that did not impose any "extra burden [on the State] to prove a connection between [Lott and Miller]." Mot. Hr'g Tr., at 16, Mar. 23, 2011. Defense counsel argued, in response, that "[t]hrough aiding and abetting they're going to have to show some sort of mental coming together between Lott and Miller," "[a]nd they can't." Id. at 19.

The prosecutor responded: We have charged in count two the defendant as committing a felony murder, that he killed these two ladies in the course of raping them. There is no aider and abettor language in there at all. There is the surplusage which charges Miller as -- as conjointly acting. That's not aider and abettor stuff. I don't need to have any language for aider and abettor. . . . . All I got to show is -- is his commission of a felony rape, during the course of which these two ladies died. With or without Miller. It doesn't matter. Id. at 35-36.

Defense counsel in turn stated: What I want to say on the aiding and abetting, I don't know if we're -- I just think that [the prosecutor] and I are somehow confused and I think it might be my fault, but if he wants to charge Ronnie Lott with felony murder -- he has charged Ronnie Lott with felony murder, with aiding and abetting language in with Robert Miller. If Ronnie Lott is guilty of felony murder, a rape homicide, then so be it, put on the evidence. But if you can't draw a connection-and I've got some case law . . . that does say you have to show some sort of meeting of the minds, so to speak, for aiding and abetting.

If you got to show that, then any evidence we can put on pointing towards Robert Miller debunks not just the malice murder, but the felony murder. If we can put Robert Miller there and get the jury thinking, somebody committed this crime, but we're not sure who and we can't convict . . . Ronnie Lott simply because we've got some evidence out there as to both of them, then that's reasonable doubt. The only way that we hurt ourselves with the Robert Miller stuff is if, in fact, they're right on an aiding and abetting theory. And I know [the prosecutor] keeps saying they're not alleging it, but it's in the language, and what I suspect is that we're going to put on all our evidence of Robert Miller, they're going to put on all their evidence of Ronnie Lott, and then, in closing argument, the State's going to tell the jury it doesn't matter who they believe because, even if they believe us, Ronnie Lott was aiding and abetting.

And what I'm saying is, under the law, we don't think they can do that and I've got the law here to show you, Your Honor, and if that's true, then it does make a big difference who the jury thinks. They may have some real suspicions about Ronnie Lott, you know, but if they got real suspicions about Robert Miller, too, and Ronnie Lott's charged alone, it may be reasonable doubt. Id. at 37-38.

After further discussion, the prosecutor stated: [The aider and abettor language in the information is] surplusage and it should be deleted to the extent that this seems to be confusing the issues. We're going to be entitled to an aider and abettor instruction as soon as [the defense] offer[s] the Miller evidence. . . . . Any time a defendant offers that kind of evidence, that, folks, if you believe Ronnie Lott raped these two women based on the DNA evidence, and but you also think that the guy who hatched the scheme and was rooting him on on the sideline is Robert Lee Miller, he's just as guilty and he's just as eligible for the death penalty. I mean, yeah, that's definitely what we're going to do, but as far as that language charging him conjointly, it's surplusage, whether the jury hears about, [sic] it whether it's stricken. That makes sense to me. Id. at 40-41.Defense counsel asked the trial court, "can we still deal with the issue upon aiding [and] abetting today?" Id. at 41. The trial court responded, "Let's wait and see how the evidence shakes out [at trial]." Id.

At trial, the defense was permitted to introduce evidence regarding Miller's potential involvement in the crimes. This included evidence of Miller's statements to the police, some of which suggested an intimate knowledge of the crimes that only someone present at the scene could have known, as well as evidence that Miller was originally charged with and convicted of the Fowler and Cutler murders. At the conclusion of the first-stage evidence, the trial court instructed the jury regarding the charges against Lott. With respect to the felony murder charges, the instructions stated, in pertinent part: No person may be convicted of Murder In The First Degree (Felony Murder) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the death of a human; Second, the death occurred as a result of an act or event, which happened in the commission of a forcible rape and a First Degree Burglary[;] Third, caused by the defendant or any person engaged with the defendant while in the commission of a forcible rape and a First Degree Burglary[;] Fourth, the elements of forcible rape and First Degree Burglary the defendant is alleged to have been in the commission of . . . . State R., Vol. VII, at 1211 (Instruction Number 7) (emphases omitted).

The jury instructions also addressed the concepts of principals and aiding and abetting: All persons concerned in the commission of a crime are regarded by the law as principals and are equally guilty thereof. A person concerned in the commission of a crime as a principal is one who directly and actively commits the acts constituting the offense or knowingly and with criminal intent aids and abets in the commission of the offense or whether present or not, advises and encourages the commission of the offense. Id. at 1215 (Instruction Number 10). Merely standing by, even if standing by with knowledge concerning the commission of a crime, does not make a person a principal to a crime. Mere presence at the scene of a crime, or acquiescence in its commission, without participation, does not make a person a principal to a crime.

One who does not actively commit the offense, but who aids, promotes, or encourages its commission, either by act or counsel or both, is not deemed to be a principal to the crime unless he did what he did knowingly and with criminal intent. To aid or abet another in the commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting, or aiding in the commission of that criminal offense. Id. at 1216 (Instruction Number 11). Notably, Lott did not object to any of these instructions.

Immediately following the trial court's reading of the first-stage instructions, the parties gave their respective closing arguments. The prosecution, during its initial closing argument, discussed the elements of first-degree felony murder: Want to walk you through here because we're not fussing about any of this. This is the one that is real easy because it's not in dispute in the evidence at all. First of all, that first element, death of a human, nobody's fighting about that. Second, that it occurred as a result of the act or event which happened in the commission of forcible rape and first degree burglary. There is no dispute in the evidence, parties aren't fussing at all that Zelma Cutler and Anna Fowler died during the commission of the acts of burglary and rape, okay. So that's not in dispute. Third, caused by the defendant or any person engaged with the defendant while in the commission of forcible rape and first degree burglary. Gang, that's not in dispute. We may be fussing about who did what. They may want you to believe it's Robert Miller who leans in and smothers Zelma Cutler or leans in and smothers the life out of Goldie Fowler instead of him because, as you can see, it doesn't make any difference in felony murder. Okay. Fourth, the elements of forcible rape and first degree burglary, you got to find that that's what was going on. Mr. Albert took care of that. He was laughing at me for suggesting that this wasn't a burglary. I think it was Mr. Albert. It may have been one of the other lawyers over yonder. They were -- Mr. Albert was angry at me in suggesting that the evidence was that this wasn't a rape.

So we're not fighting about whether there was a burglary and a rape going on. And even if you believe everything that the defense seems to be suggesting, that Robert Miller leaned in and did the killing, it doesn't matter. Now here's why. The reason behind the rule, so you just don't think we do this. The reason behind the rule is, is that when two people agree to commit a crime and it involves one of these inherently violent crimes -- burglarizing a home when somebody's there, armed robbery, rape -- crimes that are so dangerous that if the State proves that you deliberately participated in the commission of that crime, that that intent to commit the crime substitutes for the intent of malice aforethought.

Now, it has a huge affect [sic] when we start talking about the death penalty, but in terms of guilt on first degree murder, if you knowingly, intentionally participate in one of these listed crimes, really dangerous crimes like burglary and robbery and rape, and somebody dies, you're on the hook for the murder. Now again, big difference in penalty, but as far as whether or not you're guilty of murder, it's easy. So gang, if you can see this, you can see why when the defendant enters his plea of not guilty and you're kind of scratching your head, gee, there must be a catch, the only catch is he entered a plea of not guilty because, under this instruction, even if you believe the stuff that the defense is talking about, that it's Miller who did the killing, it doesn't matter. Trial Tr., Vol. IX, at 1608-11. Continuing, the prosecution discussed the principal and aiding and abetting instructions: But what about Robert Miller? What about Robert Miller? Judge told you that you were going to get an instruction at the end of the case that was going to make all this clear and I want you to see how clear it really is.

All persons concerned, you're told in instruction number ten, in the commission of a crime are regarded by the law as principals and are equally guilty thereof. A person concerned in the commission of a crime as a principal is one who directly and actively commits the acts constituting the offense. That's Ronald Lott. He actively commits the acts constituting the offense. But a principal can also be one who knowingly and with criminal intent aids and abets in the commission of the events or, whether present or not, advises and encourages the commission of the offense? What does that criminal intent thing mean? It's the design to commit a crime or acts, the probable consequences of which are criminal. Here's the biggy. Hear's [sic] the biggy. It's instruction number eleven. Merely standing by with knowledge concerning the commission of a crime does not make a person a principal to the crime. Now, this may fly in the face of common sense, obviously that's what Mr. Albert[, defense counsel,] had in mind when he was saying, doesn't it make Robert Miller as sick as -- he didn't say my client, but we are talking about Ronald Lott -- doesn't it make Robert Miller as sick as the rapist? Well, yeah; it just doesn't make you guilty. Id. at 1612-13.

Defense counsel's closing argument focused in part on the possibility that Miller, rather than Lott, killed Fowler and Cutler. In discussing this issue, defense counsel stated, in pertinent part: Last face [the victims] may have seen may have been Miller's, and that's the way you got to look at this case. We do cases about proof and about evidence. When [the prosecution] tell[s] you [it has] no evidence that Robert Miller was the killer, that cuts both ways because [it] also [has] no evidence what Ronald Lott was. None. I don't know what you're going to do with that DNA [evidence], but at worst [the prosecution] [has] proven that Ronald Lott was the rapist which we told you a long time ago. At worst. Id. at 1641. You know, since they want to use DNA, let's use those terms. In proving this case in this courtroom, they cannot exclude Robert Miller as the killer. That's a DNA term for you. They cannot exclude, because we all know he was there, we all know he knew things he shouldn't have known, we all knew thing -- he knew things that go right to the death of these ladies, right to their bodies. They cannot exclude in DNA terms Robert Miller as the killer and neither can you. That's what it comes down to, comes down to proof. Since they can't exclude him, then you have to have a reasonable doubt as to who the killer is. You may not like that. That's the way it is. Id. at 1642-43.

The prosecution, in its final closing argument, seized on defense counsel's statement that Lott was "at worst" the rapist: All right. At most he's the rapist. At most Ronald Clinton Lott is the rapist of these two elderly ladies. [Defense counsel] just said it and that is guilty of felony murder, period. You can mark it down, check guilty on the box. He just said it. At most he's guilty of felony murder and that's what you have to decide right now. Id. at 1645. Nothing controverts that Ronald Clinton Lott is the rapist. As a matter of fact, his lawyer tells you that at worst that's what he is. Id. at 1649. Because the jury was provided with a general verdict form, it is unclear whether they found Lott guilty of first-degree malice aforethought murder or first-degree felony murder. See State R., Vol. VII, at 1248-49.

b) The OCCA's rejection of Lott's claim on direct appeal

On direct appeal, Lott complained that the state trial court "instructed the jury that they could find [him] guilty if they believed that the deaths were caused by someone aiding and abetting [him] in the commission of the charged felonies," and "[d]uring closing argument, [his] defense [counsel] conceded that [he] had raped the ladies, but maintained that Miller caused the deaths."3 Direct Appeal Br. at 45. In other words, Lott argued that the state trial court instructed the jury on an "uncharged theory of the case based on the defendant's defense," and that those instructions effectively "resulted in [a] concession of guilt" by defense counsel. Id. at 46.

3 Lott also argued that at trial "[t]he defense relied on the charging information in choosing its defense, believing that the State would be required to show that [he] alone caused the death of the ladies during the commission of a rape and burglary." Direct Appeal Br. at 44. But that argument was clearly rebutted by what transpired at the March 23, 2001, motion hearing. As noted, the prosecution agreed at that hearing to strike the aiding and abetting language from the fourth amended information, but it retained the right to reassert the language and rely on an aiding and abetting theory in the event that Lott presented evidence at trial of Miller's potential role in the murders.

The OCCA rejected Lott's arguments: In his fourth assignment of error, Appellant contends the trial court erred by instructing the jury on aiding and abetting. We review only for plain error as no objection was raised to the instruction. Bland v. State, 2000 OK CR 11, ¶ 49, 4 P.3d 702, 718, cert. denied, 531 U.S. 1099, 121 S. Ct. 832, 148 L. Ed. 2d 714 (2001). In support of his contention, Appellant relies on Lambert v. State, 1994 OK CR 79, 888 P.2d 494. In Lambert, the defendant was charged with malice aforethought murder. The trial court gave instructions on felony murder. The appellant argued he was not given sufficient notice of this theory in the information, and this Court reversed on this basis. 1994 OK CR 79, ¶¶ 45-48, 888 P.2d at 504. The situation in the present case is very different.

Further, the aiding and abetting instructions were warranted by the evidence. The State's evidence included the results of DNA testing showing Appellant was the donor of the semen found at the crime scenes, and that Miller had been excluded as the semen donor. The State also presented evidence showing Appellant had pled guilty to committing two other rapes under very similar circumstances as the charges on trial. During the cross-examination of several of the State's witnesses, the defense established that Miller had made certain statements about the Fowler/Cutler crimes which were not known to the general public, and that based in part upon those statements, Miller had been previously convicted of committing the Fowler/Cutler homicides. During re-direct examinations, the State elicited testimony that it was possible there were two intruders into the homes of Mrs. Fowler and Mrs. Cutler and that it was possible that one intruder killed the victims while the other watched. Additionally, during its case-in-chief, the defense introduced evidence concerning Miller's prior prosecution in the Fowler/Cutler cases. Accordingly, the trial court did not abuse its discretion in giving the instructions on aiding and abetting instructions. See Cannon v. State, 1995 OK CR 45, ¶ 25, 904 P.2d 89, 99. See also Slaughter v. State, 1997 OK CR 78, ¶ 63, 950 P.2d 839, 857 n. 9., cert. denied, 525 U.S. 886, 119 S. Ct. 199, 142 L. Ed. 2d 163 (1998).

Appellant further argues defense counsel was ineffective as counsel admitted guilt as to the felony murder charge without Appellant's consent. This Court follows the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See Bland, 2000 OK CR 11, ¶ 112, 4 P.3d at 730. Under Strickland's two-part test, the 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. Unless the appellant makes both showings, "it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Appellant must demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. at 688-89, 104 S.Ct. at 2065. The burden rests with Appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., 466 U.S. at 698, 104 S.Ct. at 2070. When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Id. at 697, 104 S.Ct. at 2069. This Court has stated the issue is whether counsel exercised the skill, judgment and diligence of a reasonably competent defense attorney in light of his overall performance. Bland, 2000 OK CR 11, ¶ 112, 4 P.3d at 731.

Appellant relies on Jackson v. State, 2001 OK CR 37, ¶ 15, 41 P.3d 395, 398-399, where this Court reiterated its position that a concession of guilt does not amount to ineffective assistance of counsel, per se. The Court stated, "a complete concession of guilt is a serious strategic decision that must only be made after consulting with the client and after receiving the client's consent or acquiescence." Id. at ¶ 25, 41 P.3d at 400. This Court placed the burden on the appellant to show that he was not consulted and that he did not agree to or acquiesce in the concession strategy. Id.

Under the facts of the present case, and when all of the arguments are read in context, it is clear that guilt was not conceded. The defense was well aware from early on that the State had DNA evidence which conclusively placed Appellant at the scene. The defense filed numerous pre-trial motions challenging that evidence. To counter the State's evidence at trial, the defense showed that the scientific evidence relied upon 14 years ago to convict Robert Miller of the Fowler/Cutler crimes—hair and blood analysis—had since been proven unreliable. Defense counsel questioned whether DNA analysis might not also go the way of hair and blood analysis in light of future advances in forensic testing. Counsel also argued that all the State had to prove Appellant's guilt was DNA and that relying on DNA was like gambling and relying on mere probabilities. Defense counsel urged the jury not to let the State's experts decide the case for them. The defense also presented evidence showing Miller's involvement in the Fowler/Cutler crimes and his knowledge of details that only someone present at the crime scenes would have known. Defense counsel argued in closing argument that the evidence showed Miller wasn't a mere observer to the crimes, but the actual perpetrator of the crimes.

In light of this record, counsel's statement that at worst "they have proven [Appellant] was the rapist" was not a concession of guilt to the charged crimes. This was an isolated comment within defense counsel's approximately 11 page closing argument. Any perceived conciliatory aspect of the remark was not prejudicial to Appellant. Claiming that Appellant had not been involved at all would have completely destroyed counsel's credibility before the jury in light of the strong evidence of guilt. See Wood v. State, 1998 OK CR 19, ¶ 60, 959 P.2d 1, 15-16. From the record, it appears that minimizing Appellant's role in the crimes in light of the DNA evidence was the best possible method to gain an acquittal on the charges. Accordingly, we do not find counsel's performance deficient under the circumstances. This assignment of error is denied. Lott I, 98 P.3d at 336-38 (alteration in original) (internal paragraph numbers omitted).

c) Lott's arguments in this federal habeas action

In this appeal, Lott argues that "the OCCA . . . miss[ed] the point" because "[t]he issue is not whether the evidence adduced at trial was sufficient to warrant an aiding and abetting instruction," but rather "whether the prosecution should be permitted to specifically disavow an aiding and abetting charge pretrial, proceed to try [him] on charges that do not include an aiding and abetting theory, and then invite the jury to convict [him] of murder as an aider and abettor." Aplt. Br. at 50. In support, Lott argues that his "entire defense was . . . based upon the State's reassurances that not only had it disavowed the aiding and abetting theory of felony murder liability, but also had stricken the aiding and abetting language from the fourth amended information." Id. at 51. "Only after the defense had presented its case," Lott argues, "and after defense counsel had conceded to . . . Lott's involvement in the rapes, did the State spring its trap and renege on its promise." Id.

The threshold, and clearly fatal, problem with Lott's arguments is that they are based on a series of incorrect statements regarding what transpired in the state trial court. As we have explained, the prosecution admittedly agreed at the March 23, 2001, motions hearing to strike the aiding and abetting language from the fourth amended information. Importantly, however, the prosecution expressly reserved the right to reassert that language in the event that Lott presented evidence of Miller's potential involvement in the charged crimes. And it is undisputed that Lott did precisely that at trial, i.e., he presented evidence of Miller's potential involvement in the murders. Thus, in no way did the prosecution "renege on its promise," nor could Lott's trial counsel have been surprised by the state trial court's decision to instruct the jury on aiding and abetting. Indeed, as the OCCA found in rejecting these same arguments on direct appeal, Lott's trial counsel did not object to the trial court's aiding and abetting instructions. And because the state trial court read its instructions to the jury prior to the first-stage closing arguments, Lott's trial counsel was well aware that the jury would be permitted to consider an aiding and abetting theory of felony murder liability.

Relatedly, the OCCA expressly found that Lott's trial counsel did not, during the course of his first-stage closing arguments, concede Lott's guilt of felony murder. Although Lott disagrees with this finding, he has failed to rebut by clear and convincing evidence the presumption of correctness we must afford this finding under 28 U.S.C. § 2254(e)(1). As the OCCA correctly noted, a review of defense counsel's complete first-stage closing arguments reveals that defense counsel was attempting to persuade the jury that a reasonable doubt existed as to Lott's responsibility for the murders under either theory of liability. In this regard, defense counsel called into question the validity of the DNA evidence presented by the prosecution, noting particularly the evidence indicating that the prosecution had previously wrongfully convicted Miller based on what had proven to be faulty scientific evidence, such as blood type grouping and hair analysis.4 And defense counsel not only cited evidence suggesting that Miller was present at the scene of both crimes, but also argued that Miller may have in fact been responsible for the crimes.5

4 For example, defense counsel argued: We called Joyce Gilchrist to the stand, not for a spectacle, not to put her on trial, but to show you that the science in 1987 excluded this man[, Lott,] and included Robert Miller and that was their science of 1987 that I'm sure, although they tell you today it wasn't as good as science, I am sure that when they put her on that witness stand, it was science. . . . . But now they get up there and they say, well, this is 2001, we've got DNA now. Forget that old science. We've got the science now. How do we know that? Until they get all six billion people and get all our DNA so we can all be put down on a chart, how do they know that? And how do you know that? That's what this case comes down to. Science of 14 years ago was wrong. How do we know it's so right now? And how do you base a decision like this on that? That's what you have to decide. Trial Tr., Vol. IX, at 1637-38. Only in that context did defense counsel then state, "I don't know what you're going to do with that DNA, but at worst they have proven that Ronald Lott was the rapist which we told you a long time ago. At worst." Id. at 1641. Defense counsel subsequently returned to the issue of the validity of the DNA evidence: "DNA. That's what it comes down to. . . . But are you going to let them use it to decide who lives and dies? That's what you got to decide. Probabilities, and 14 years ago science was wrong." Id. at 1642.

5 Defense counsel argued, in pertinent part: They cannot exclude in DNA terms Robert Miller as the killer and neither can you. That's what it comes down to, comes down to proof. Since they can't exclude him, then you have to have a reasonable doubt as to who the killer is. You may not like that. That's the way it is. Trial Tr., Vol. IX, at 1643.

Even if we were to assume that the OCCA's finding on the purported concession issue constituted "an unreasonable determination of the facts," 28 U.S.C. § 2254(d)(2), and in turn accept Lott's characterization of what occurred, i.e., a concession of guilt by defense counsel that occurred without notice to, or the consent of, Lott, we are not persuaded that Lott would be entitled to federal habeas relief. Considering both the first and second stages of trial as a whole, it is clear that "a true adversarial criminal trial [was] conducted . . . [and] the kind of testing envisioned by the Sixth Amendment . . . occurred." United States v. Cronic, 466 U.S. 648, 656, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Thus, we could not simply presume that Lott was prejudiced by counsel's purported concession. See Florida v. Nixon, 543 U.S. 175, 190-91, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). Instead, we would have to consider whether, under the second prong of Strickland, Lott was actually prejudiced by his counsel's actions. And, given the overwhelming evidence of Lott's involvement in the charged crimes, we could not say that Lott was prejudiced. During the first-stage proceedings, the prosecution presented evidence indicating that vaginal, anal, and oral swabs were taken from the bodies of both Fowler and Cutler. Two sources of DNA were found in the vaginal swab taken from Fowler: DNA from Fowler's own vaginal cells and DNA from a sperm donor. The DNA profile of the sperm donor was found to match Lott's DNA profile, and the probability of randomly selecting a matching profile approximately 1 in 15.7 quadrillion in the African-American population. Similarly, the sperm samples taken from Cutler were found to match Lott's DNA profile (and Miller was excluded as the source of the sperm). In short, the DNA evidence alone overwhelmingly established that Lott was responsible for the rapes of Fowler and Cutler.6 Because it was undisputed that Fowler and Cutler died during the commission of those crimes, Lott was clearly guilty of felony murder. And lastly, there is no basis to conclude that counsel's purported concession during the first-stage proceedings had any prejudicial impact during the second-stage proceedings. See generally id. at 191-92 (suggesting that, in a capital case involving overwhelming evidence and a heinous crime, defense counsel must attempt to utilize first- and second-stage strategies that are logically consistent). Thus, in sum, any purported concession of guilt by Lott's counsel was simply not prejudicial to Lott.

6 Lott all but concedes this point in his appellate brief: "The presence of Mr. Lott's DNA at the crime scenes proved the Fowler and Cutler rapes." Aplt. Br. at 59.

As a final matter, we conclude there is no merit to Lott's assertion that the state trial court's instruction regarding aiding and abetting "'by itself so [infected] the entire trial that the resulting conviction violates due process.'" Aplt. Br. at 51-52 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973)). As the OCCA aptly concluded, Lott "was given plenty of notice concerning the State's alternative theories of guilt." Lott I, 98 P.3d at 336. Moreover, the trial court's aiding and abetting instruction was amply supported by the evidence presented by the defense at trial attempting to suggest that Miller, rather than Lott, was responsible for murdering Fowler and Cutler.

3) Admission of other-crimes evidence

In Proposition Three of his appellate brief, Lott contends that he was deprived of his right to a fundamentally fair trial due to the admission at trial of evidence that he was convicted of the Marshall and Hoster rapes.

a) Background

Prior to Lott's trial, the prosecution filed a pleading entitled, "NOTICE OF INTENT TO USE EVIDENCE OF OTHER CRIMES." State R., Vol. IV, at 637. The pleading essentially notified the state trial court and the defense of the prosecution's intention to introduce evidence at trial of the Marshall and Hoster rapes. Lott filed a written motion objecting to the introduction of this evidence. On November 6, 2000, the state trial court overruled Lott's motion, concluding that the proposed evidence tended to prove identity due to an unusual modus operandi.

At Lott's trial, the prosecution, consistent with the trial court's pretrial ruling, was permitted to introduce evidence of Lott's involvement in the Marshall and Hoster rapes. This included fact witnesses who described the circumstances of the Marshall and Hoster rapes. It also included testimony from Robert Thompson, a former Oklahoma City police officer who was employed at the time of trial as the chief investigator for the public defender's office. Thompson testified that he had worked on Miller's post-conviction defense team and, in the course of doing so, concluded through his investigative efforts that there were significant similarities between the Fowler and Cutler homicides and the Marshall and Hoster rapes. Lastly, the evidence included testimony from Gerald McKenna, an inspector with the Oklahoma City Police Department's sex crimes unit. McKenna testified generally about serial rapists and their methods. McKenna opined that there was no reason to doubt Lott's involvement in murdering and raping Fowler and Cutler simply because he did not kill Marshall and Hoster. McKenna also discussed the similarities between the four crimes.

At the conclusion of the first-stage evidence, the state trial court instructed the jury regarding the proper use of this evidence: Evidence has been received that the defendant has committed offenses other than those charged in the information. You may not consider this evidence as proof of the guilt or innocence of the defendant of the specific offenses charged in the information. This evidence has been received solely on the issue of the defendant's alleged common scheme or plan and/or identity. This evidence is to be considered by you only for the limited purpose for which it was received. State R., Vol. VII, at 1220 (Instruction Number 15).

b) Clearly established Supreme Court precedent

Lott points to the decision in Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 (1941), as providing the clearly established federal law applicable to his claim.7 In Lisenba, the Supreme Court outlined a general due process standard that applies to criminal trials: As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial. 314 U.S. at 236.

7 Lott cites to a number of federal circuit decisions. But none of those constitute clearly established federal law for purposes of 28 U.S.C. § 2254(d)(1). Parker v. Matthews, 132 S. Ct. 2148, 2155, 183 L. Ed. 2d 32 (2012) (holding that "circuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court'" for purposes of § 2254(d)(1) and thus "cannot form the basis for habeas relief under AEDPA"). Although not cited by Lott, two other Supreme Court decisions appear to be applicable. In Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), the Supreme Court held that when a state court admits evidence that is "so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." And in Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991), the Court made clear that this principle holds true regardless of whether the evidence at issue was properly admitted pursuant to state law.

c) Lott's direct appeal

In his direct appeal, Lott argued that the state trial court erred in admitting evidence of other crimes in violation of his constitutional right to a fair trial. In particular, Lott argued that "evidence of the Hoster/Marshall rapes did not tend to establish any fact of consequence other than the impermissible intermediate inference that since . . . Lott had later raped two other people, he must also have raped and killed . . . Cutler and . . . Fowler." Direct Appeal Br. at 35. Lott also argued that "the crimes . . . were not unusual enough to indicate the identity of the perpetrator as having committed all four." Id. at 39. The OCCA rejected Lott's arguments: Appellant contends the trial court erred in admitting evidence of the sexual assaults on Mrs. Marshall and Mrs. Hoster. Appellant relies on prior case law from this Court where we have stated that "similarity between crimes, without more, is insufficient to permit admission" of evidence of other crimes. See Hall v. State, 1980 OK CR 64, ¶ 5, 615 P.2d 1020, 1022.

Prior to trial, the State filed a Notice of Intent to Use Evidence of Other Crimes and Brief in Support. The State alleged the similarities between the Fowler/Cutler homicides and the Marshall/Hoster assaults were "relevant as an aid in determining the identity of the assailant. Also, the evidence is admissible as being part of a common scheme or plan since it demonstrates a highly distinct method of operation." The State cited 37 similarities between the Fowler/Cutler crimes and the Marshall/Hoster crimes. After hearing argument, the trial [sic] found the other crimes evidence to be relevant and admissible.

The basic law is well established—when one is put on trial, one is to be convicted—if at all—by evidence which shows one guilty of the offense charged; and proof that one is guilty of other offenses not connected with that for which one is on trial must be excluded. Burks v. State, 1979 OK CR 10, ¶ 2, 594 P.2d 771, 772, overruled in part on other grounds, Jones v. State, 1989 OK CR 7, 772 P.2d 922. See also Hall v. State, 1985 OK CR 38, ¶ 21, 698 P.2d 33, 37. However, evidence of other crimes is admissible where it tends to establish absence of mistake or accident, common scheme or plan, motive, opportunity, intent, preparation, knowledge and identity. Burks, 1979 OK CR 10, ¶ 2, 594 P.2d at 772. To be admissible, evidence of other crimes must be probative of a disputed issue of the crime charged, there must be a visible connection between the crimes, evidence of the other crime(s) must be necessary to support the State's burden of proof, proof of the other crime(s) must be clear and convincing, the probative value of the evidence must outweigh the prejudice to the accused and the trial court must issue contemporaneous and final limiting instructions. Welch v. State, 2000 OK CR 8, ¶ 8, 2 P.3d 356, 365, cert. denied, 531 U.S. 1056, 121 S. Ct. 665, 148 L. Ed. 2d 567 (2000).

When other crimes evidence is so prejudicial it denies a defendant his right to be tried only for the offense charged, or where its minimal relevancy suggests the possibility the evidence is being offered to show a defendant is acting in conformity with his true character, the should be suppressed. Id. Where, as here, the claim was properly preserved, the State must show on appeal that admission of this evidence did not result in a miscarriage of justice or constitute a substantial violation of a constitutional or statutory right. Id. at ¶ 10, 2 P.3d at 366. This Court has allowed evidence of other crimes or bad acts to be admitted under the "plan" exception of § 2404(B) where the methods of operation were so distinctive as to demonstrate a visible connection between the crimes. Id. at ¶ 12, 2 P.3d at 366-67. See also Aylor v. State, 1987 OK CR 190, ¶ 5, 742 P.2d 591, 593; Driskell v. State, 1983 OK CR 22, ¶ 23, 659 P.2d 343, 349; Driver v. State, 1981 OK CR 117, ¶ 5, 634 P.2d 760, 762-63. Distinctive methods of operation are also relevant to prove the identity of the perpetrator of the crime. Eberhart v. State, 1986 OK CR 160, ¶ 23, 727 P.2d 1374, 1379-80.

In this case, there is a substantial degree of similarity between the Marshall/Hoster assaults and the Fowler/Cutler homicides. The similarities show a visible connection sufficient to characterize a common scheme and to be probative on the issue of identity of the perpetrator. Briefly summarized, these similarities include: all four victims were white females over the age of 71 who lived alone; all four victims lived on the south side of the street and on corner lots; the back porch screen door was cut on the homes of three of the victims; the breaker box for the electricity to the residence was shut off in the homes of three of the four victims; entry to the residence was gained through a rear door in all four homes; a back door window was broken in three of the homes; two of the victims were awake when their homes was [sic] broken into and they were forced to their bedrooms; all four victims were raped vaginally while in their bedrooms; two of the four victims were also anally raped; all four victims were raped either late at night or in the early morning; all four victims were beaten about the head, face and arms; all four victims suffered vaginal tears and bleeding; a knotted rag was found on the beds of three of the victims; a pillow was placed over the faces of three of the victims during the assault; none of the residences occupied by the four victims were ransacked and nothing of any significant value was taken from any of the homes; all four assaults occurred within an eight month time period with the Fowler/Cutler crimes occurring four months apart and the Marshall/Hoster crimes occurring two months apart; all four victims lived within three miles of each other; Appellant lived with his mother or sister near the Fowler/Cutler homes at the time of their murders and he lived with his brother near the Marshall/Hoster homes at the time of their assaults.

Appellant contends there were just as many differences as there were similarities between the crimes. Chief among those differences is the fact that two of the victims were left alive while two were killed. Appellant argues that at the time these four crimes occurred, numerous instances of rapes and home invasions of elderly women were being reported in the media. Appellant asserts the crimes in this case were not unusual enough to point to a signature of one individual perpetrator. We disagree. The similarities in this case are far greater than those in Hall v. State, 1980 OK CR 64, ¶ 6, 615 P.2d at 1022 relied upon by Appellant (similarities limited to each rape took place in an automobile, all three victims were under the age of consent, and each rape was committed in Tulsa County). Further, the similarities between the Fowler/Cutler homicides and the Marshall/Hoster assaults show a method of operation so distinctive as to demonstrate a visible connection between the crimes. In crimes involving sexual assaults, this Court has adopted a greater latitude rule for the admission of other crimes. Myers, 2000 OK CR 25, ¶¶ 21-24, 17 P.3d at 1030. See also Driskell, 659 P.2d at 349.

We further uphold the trial court's ruling that the probative value of the evidence of the Marshall/Hoster assaults outweighed its prejudicial impact. See Mayes v. State, 1994 OK CR 44, ¶ 77, 887 P.2d 1288, 1309-10, cert. denied, 513 U.S. 1194, 115 S. Ct. 1260, 131 L. Ed. 2d 140 (1995). The evidence was necessary to support the State's burden of proof despite its prejudicial nature. Finding the evidence properly admitted, this proposition is denied. Lott I, 98 P.3d at 334-36 (footnote and internal paragraph numbers omitted).

d) Lott's challenge to the OCCA's decision

In this appeal, Lott concedes that, "had [his] DNA not been present to prove that he raped . . . Cutler and . . . Marshall, the 'other crimes' evidence, which the OCCA admitted was prejudicial, may have been necessary to support the State's burden of proof." Aplt. Br. at 66. He argues, however, that "[g]iven the presence of [his] DNA at the Fowler/Cutler crime scenes, . . . the Marshall and Hoster rapes were hardly necessary to prove identification in regards to the Fowler/Cutler crimes." Id. He therefore argues that "[t]he OCCA's determination that the 'other crimes' evidence was necessary to support the State's burden of proof was objectively unreasonable in light of the facts presented at trial and should be afforded no deference under 28 U.S.C. § 2254(d)(2)." Id. at 65-66.

As an initial matter, we note that the other-crimes evidence was properly admitted under Oklahoma state law. As the OCCA explained, the four crimes bore substantial similarities that, in the view of the prosecution's expert witness, indicated they were committed by the same serial rapist. Thus, the evidence was relevant for purposes of proving the identity of the person responsible for raping Fowler and Cutler. As for the OCCA's conclusion that the probative value of the evidence outweighed its prejudicial impact, it is important to note that the state trial court's ruling on this issue occurred prior to trial, and thus prior to the state trial court hearing the precise nature of the prosecution's DNA evidence. Lott may well be correct that the DNA evidence, standing alone, would have been sufficient to allow the jury to convict him. But the state trial court was not privy to that evidence at the time of its ruling and Lott did not renew his objection to the other-crimes evidence at trial. Moreover, despite the prosecution's introduction of the DNA evidence, Lott's defense team focused its efforts on attacking the legitimacy of that DNA evidence (suggesting to the jury that it was possible that the DNA evidence might be later discredited, as had the purported scientific evidence that was previously used to convict Miller of the crimes). Thus, we cannot say that the OCCA erred in concluding that the other-crimes evidence was indeed necessary to support the prosecution's burden of proof.

That leaves, at most, only the question of whether the other-crimes evidence was "so unduly prejudicial that it render[ed] [Lott's] trial fundamentally unfair." Payne, 501 U.S. at 825. Notably, Lott did not argue this point in his direct appeal, and thus the OCCA did not address it. Consequently, the argument is subject to an anticipatory procedural bar in these federal habeas proceedings. See Anderson, 476 F.3d at 1140 n.7. And even if Lott could overcome this anticipatory procedural bar, a review of the state court record indicates that Lott's trial was not rendered fundamentally unfair by the admission of the Marshall and Hoster evidence. Even aside from the other-crimes evidence, the prosecution's evidence of Lott's guilt of the Fowler and Cutler rapes/murders (particularly the DNA evidence) was overwhelming. Further, it is clear that the Marshall and Hoster evidence would have, at a minimum, been admissible by the prosecution during the second-stage proceedings in order to prove the continuing-threat aggravator. Lastly, the jury rejected the continuing-threat aggravator, and thus it does not appear that the Marshall and Hoster evidence had any impact on the jury's sentencing decision.

4) Prosecutorial misconduct—introduction of hearsay statements of Robert Miller

In Proposition Four of his appellate brief, Lott contends that the prosecution engaged in prejudicial misconduct by "injecting hearsay statements of Robert Miller into both stages of . . . trial" in order "to prove that," even though Miller may have been present during the commission of the crimes, "it was . . . Lott who killed both victims because he needed to eliminate witnesses." Aplt. Br. at 68. Lott also complains that the prosecutor "put [an additional] hearsay statement before the jury," i.e., that the victims begged for their lives and were orally sodomized by Lott. Id. at 74. According to Lott, this misconduct violated "his right to confrontation guaranteed under the Sixth Amendment." Id. at 68. And Lott asserts that "Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), requires that [he] receive a new trial." Aplt. Br. at 72.

Lott's claim derives, in part, from the first-stage testimony of McKenna, the inspector with the Oklahoma City Police Department's sex crimes unit. During his direct examination, McKenna opined that there was no reason to doubt Lott's involvement in raping and murdering Fowler and Cutler simply because of the fact that he did not kill either Marshall or Hoster. On cross-examination, McKenna testified that, based upon his experience, sex crimes of the type at issue are committed by lone perpetrators, and not by two people. On redirect, McKenna opined that the Fowler and Cutler murders were committed to eliminate witnesses, and not because the suspect received sexual gratification from the killings. The prosecutor and McKenna then engaged in the following colloquy: Q. Well, you were talked to about the Miller interviews and, to be fair to you, neither side, them or us, gave you the transcripts. You have not read the stacks of the transcripts of the Miller interview, right?

A. No, sir, I have not. Q. Okay. When Robert Miller is asked about what he saw, he, the killer -- never himself -- he saw the killer do and he describes the raping, the oral sodomy that he saw, the begging for lives. And he's asked the question, why did he kill her? And his first answer is I don't know. He's asked again, why did he kill her? And the answer is, he was scared. Scared of what? She was going to tell on him. Now, I understand you haven't reviewed this, so whether or not he was led to these statements or whether and whether -- and to be very clear, I agree a hundred percent with Mr. Albert and the rest of those folks over there for what it's worth, the State's position is that Robert Miller's statements reflect that he was present and we're going to talk more about that later. You may not agree with that. Bob Thompson sure doesn't. But my point to you is is [sic] that if Robert Miller was there or he had some other way of learning what Ronnie Lott was thinking, this answer, he killed her because he was scared she would tell on him, is that consistent with your opinion that this was a rape/murder done to kill in order to silence a witness? A. Yes, sir, it is. Trial Tr., Vol. VIII, at 1492-93.

Lott's claim also derives from the prosecutor's second-stage closing arguments. During those arguments, the prosecutor addressed the allegations that the Fowler and Cutler murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution: This aggravating circumstance is not established unless the State's proved beyond a reasonable doubt, first, that there was another crime separate and distinct from the murder and, secondly, that the defendant committed the murder with the intent to avoid being arrested or prosecuted for that other crime. Ladies and gentlemen, again, I submit to you, this element -- this aggravating circumstance is proved without dispute. There is no evidence to contest this. The defendant raped both of these women. He, as Butch McKenna testified, following the cross examination by [defense counsel] over there, that rapists kill, serial rapists kill for two reasons. The act of the killing is the thing which gives them their sexual boost. For them, the rape is just a -- is just a thing on the way to the killing that's really their deal or it's all about the control and rape and the killing is done to silence a witness. The evidence of that is made absolutely clear by the fact that after Robert Miller had been arrested for these crimes, he quit killing and, instead, moved to threats to try and -- and other measures that y'all have already heard about to conceal his identity as the rapist.

Robert Miller. Robert Miller in his interview with David Shupe. Why did he kill her? I don't know. Why did he kill her? He was scared. Scared of what? She was going to tell on him. You hardly needed that statement from Robert Miller to confirm that the reason why the defendant did it is she was going to tell on him because that's what Grace Marshall and Eleanor Hoster did when he left them alive. Ladies and gentlemen, we believe that the evidence on this is undisputed that these murders were committed to prevent lawful arrest and prosecution. The thing about this one is even if the defense that was offered to you in the first stage, that Robert Miller's the bad guy here, this aggravator is still present, it's still present. Id., Vol. X, at 1795-97.

a) Clearly established Supreme Court precedent

As noted, Lott points to the Supreme Court's decision in Crawford as supplying the clearly established federal law applicable to his claim. In Crawford, the Court addressed the question of whether the introduction at a criminal trial of a witness's tape-recorded statement to the police describing the crime at issue, where the accused has no opportunity for cross-examination of that witness, violates the Sixth Amendment Confrontation Clause's guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." 541 U.S. at 38. The Court, after recounting the history of the Confrontation Clause, held that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class." Id. at 53. The Court further held that "[t]he historical record . . . support[ed] a second proposition: that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54. Ultimately, the Court held that "[w]here testimonial statements are at issue [in a criminal trial], the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 68-69. In other words, the Court held, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 68.

b) Lott's direct appeal

Lott first asserted his arguments on direct appeal. Specifically, Lott complained that the prosecution, during its first-stage examination of McKenna, improperly "used hearsay/facts not in evidence from its 'key eyewitness', Robert Miller, that [Lott] killed . . . Fowler and . . . Cutler for the purpose of avoiding arrest or prosecution."8 Direct Appeal Br. at 83. And Lott argued that "[t]his error warrant[ed] reversal . . . due to [the] deprivation of [his] right to confront witnesses against him, a fundamental right." Id. at 84.

8 Lott did not complain about the references to Robert Miller in the prosecution's first-stage opening statement. The OCCA rejected Lott's arguments: In a related assignment of error, proposition number eleven, Appellant argues the prosecutor injected facts not in evidence through the questioning of Inspector McKenna. Specifically, Appellant complains that through the questioning of McKenna, the State put Robert Miller's statements before the jury in order to prove that the homicides were committed for the purpose of avoiding arrest or prosecution, and to show that the victims begged for their lives and were orally sodomized. Appellant asserts McKenna's testimony concerning Miller's statements was inadmissible hearsay that influenced the first stage verdict. He argues the alleged error impacted the second stage, when combined with other second stage errors; it deprived him of a reliable sentencing stage.

Initially, we note that our review is for plain error only as none of the challenged testimony was met with contemporaneous defense objections. Simpson v. State, 1994 OK CR 40, ¶ 19, 876 P.2d 690, 698. Inspector McKenna first testified to Robert Miller's involvement in the case on cross-examination. Defense counsel cross-examined McKenna extensively on statements made by Miller despite McKenna's acknowledgement [sic] that he never interviewed Miller and was not aware of the substance of Miller's statements. Defense counsel repeatedly reviewed statements made by Miller and asked McKenna his opinion as to whether or not the person making those statements would have been at the scene of the crime. This type of questioning continued on re-direct examination. McKenna testified his opinion that the case was a rape/murder done to silence a witness was consistent with the conclusion that Miller's statements indicated he was present at the scene or had some other way of learning what Appellant was thinking. However, Appellant does not cite, nor do we find in the record, that McKenna testified that based upon Miller's statements, the victim's begged for their lives and were orally sodomized.

Any error in McKenna's testimony concerning Miller's statements has been waived as defense counsel, and not the State, opened up the issue of Miller's statements with McKenna.[FN10] In fact, the State objected to the questioning during cross-examination for the reason that McKenna had not read all of Miller's statements. The trial court overruled the objection and permitted the questioning. This Court has repeatedly held that an appellant will not be permitted to profit by an alleged error that he or his counsel in the first instance invited by opening the subject or by his or her own conduct, and counsel for the defendant may not profit by whatever error was occasioned by the admission of such incompetent evidence. Murphy v. State, 2002 OK CR 24, ¶¶ 30-31, 47 P.3d 876, 882-882, cert. denied, 538 U.S. 985, 123 S. Ct. 1795, 155 L. Ed. 2d 678 (2003); Welch v. State, 1998 OK CR 54, ¶ 10, 968 P.2d 1231, 1240; cert. denied, 528 U.S. 829, 120 S. Ct. 83, 145 L. Ed. 2d 70 (1999); Staggs v. State, 1986 OK CR 88, ¶ 9, 719 P.2d 1297, 1299. FN10. As the defense initiated and invited McKenna's testimony concerning Miller's statements, we find Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) is not implicated.

Further, Appellant asserts the State argued evidence in support of the "avoid arrest" aggravator as direct evidence of Appellant's intent. Appellant directs us to the following argument during the State's second stage closing. "Robert Miller. Robert Miller in his interview with David Shupe. Why did he kill her? I don't know. Why did he kill her? He was scared. Scared of what? She was going to tell on him." Reviewing for plain error only, we find none. The record shows that in support of the aggravator of "avoid arrest", the State presented Inspector McKenna's expert opinion that the murders were committed to eliminate witnesses. McKenna testified his opinion was not based upon any statements made by Robert Miller, but on his years of investigating hundreds of sexually related homicides. McKenna testified Miller's statement simply corroborated his opinion. The prosecutor's comments during closing argument were based on the evidence and did not deprive Appellant of a fair sentencing proceeding. See Bland, 2000 OK CR 11, ¶ 105, 4 P.3d at 729.Lott I, 98 P.3d at 345-46 (internal paragraph numbers omitted).

c) Lott's challenge to the OCCA's decision

Lott contends in this federal habeas appeal that, "[b]ecause there was no adjudication on the merits of [his] confrontation claim, no deference is warranted [to the OCCA's decision] under 28 U.S.C. § 2254(d)." Aplt. Br. at 71. Lott, however, is clearly incorrect on this point. As the above-quoted language from the OCCA's decision makes clear, the OCCA concluded that Crawford was inapplicable to Lott's case, and that Lott's rights under the Confrontation Clause were not violated, because Lott's counsel "initiated and invited McKenna's testimony concerning Miller's statements." Lott I, 98 P.3d at 345 n.10. For purposes of our review, the OCCA's determination involves both a threshold factual finding, i.e., that Lott's counsel was the one who initiated the questioning of McKenna concerning Miller's statements, and a resulting legal conclusion, i.e., that the OCCA's invited error doctrine precluded Lott from asserting a Crawford challenge. After carefully examining the trial transcript, we are unable to say that the OCCA's threshold factual finding was "unreasonable . . . in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). As the OCCA correctly noted, it was Lott's counsel who first introduced Miller's statements into evidence by cross-examining McKenna regarding Miller's statements, even though McKenna stated that he had neither interrogated Miller nor reviewed the transcript of Miller's statements.

To be sure, Lott suggests that it was the prosecutor who in fact first introduced Miller's statements to the jury. But a review of the trial transcript proves Lott wrong on this point. During the first-stage opening statements, the prosecution began by providing the jury with a brief chronological history of the events that lead to Lott being charged with the Fowler and Cutler murders. In the course of doing so, the prosecution noted that after Fowler and Cutler were murdered, the "police flooded the neighborhood" and began interviewing potential suspects. Trial Tr., Vol. III, at 447. "[O]ne of the folks they stopped," the prosecution asserted, "immediately caught their attention, was a fellow named Robert Lee Miller." Id. The prosecution proceeded to state: But [the police] begin asking [Miller] questions and Robert Miller begins making statements that he does not know about [the murders], and he begins making statements that cause the police to want to interview him.

Over the next dozen hours or so and the next couple of days, Robert Miller is interviewed by police where he makes a number of statements that just make no sense whatsoever, complete jibberish. But yet in the middle of jibberish there are statements which caused the police to connect those statements with things at the scene that were a you had to be there kinds of things, not like the kind of things that you would guess, not things he was told or that were in the news, and so the police focused their suspicion on Robert Miller. Id. at 448. The prosecution then explained to the jury how Miller was charged, convicted, and ultimately exonerated of the Fowler and Cutler crimes. Thus, in sum, although the prosecutor first made general reference to Miller's statements to the police, the prosecutor did not describe for the jury any statements from Miller that were damaging to Lott. Nor, importantly, did the prosecutor first attempt to introduce Miller's statements into evidence. Thus, as we have concluded, the OCCA's factual finding on this issue was entirely reasonable.

As for the OCCA's application of its own invited error doctrine, the question for us is whether that results in Lott's Crawford claim being procedurally barred for purposes of federal habeas review. 'A federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Walker v. Martin, 131 S. Ct. 1120, 1127, 179 L. Ed. 2d 62 (2011) (alteration in original) (quoting Beard v. Kindler, 558 U.S. 53, 130 S. Ct. 612, 614, 175 L. Ed. 2d 417 (2009)) (internal quotation marks omitted). "The state-law ground may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits." Id. "To qualify as an 'adequate' procedural ground, a state rule must be 'firmly established and regularly followed.'" Id. (quoting Kindler, 130 S. Ct. at 618).

The OCCA's decision satisfies both of these requirements. To begin with, it is beyond dispute that the OCCA's rejection of Lott's Crawford claim rested exclusively on a state law ground, specifically a state procedural barrier to adjudication of the claim on the merits, that was independent of the federal question posed by the claim. See Sandoval v. Ulibarri, 548 F.3d 902, 912 (10th Cir. 2008) (treating New Mexico Court of Appeals' application of its invited error doctrine as an independent state procedural ground). In turn, our review of Oklahoma case law persuades us that this state law ground, i.e., the invited error doctrine, is firmly established and regularly followed by the OCCA. See Cuesta-Rodriguez v. State, 2010 OK CR 23, 241 P.3d 214, 237 (Okla. Crim. App. 2010) (applying invited error doctrine); Welch v. State, 1998 OK CR 54, 968 P.2d 1231, 1240 (Okla. Crim. App. 1998) ("Any error in the prosecutor's inquiry in this case must be deemed invited error as Appellant initially raised the issue during his direct examination."); Pierce v. State, 1990 OK CR 7, 786 P.2d 1255, 1259 (Okla. Crim. App. 1990) ("We have often recognized the well established principal [sic] that a defendant may not complain of error which he has invited, and that reversal cannot be predicated upon such error."); Casey v. State, 1987 OK CR 12, 732 P.2d 885, 888 (Okla. Crim. App. 1987) ("The rule is well settled that a party may not complain of error which he himself has invited."); Griffin v. State, 46 Okla. Crim. 146, 287 P. 820, 822 (Okla. Crim. App. 1930) ("Counsel for defendant invited whatever error was occasioned by the admission of this alleged incompetent evidence and cannot profit by the same.").

Of course, we could still address Lott's Crawford claim on the merits if Lott could "'demonstrate cause and prejudice or a fundamental miscarriage of justice.'" Johnson v. Champion, 288 F.3d 1215, 1226-27 (10th Cir. 2002) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998)). But Lott makes no attempt to establish cause and prejudice. And, given the overwhelming evidence establishing Lott's involvement in the Fowler and Cutler murders, we are not persuaded that a fundamental miscarriage of justice will occur if we treat his Crawford claim as procedurally barred.

5) Trial counsel's failure to investigate and present mitigating evidence In Proposition Five of his appellate brief, Lott contends that his trial counsel was ineffective for failing to investigate and present at the second-stage trial proceedings available mitigating evidence. According to Lott, this included evidence that: 1) he is the youngest of ten children; 2) he was born into extreme poverty in rural Texas, with his siblings and parents sharing a five-room shack with no heat or running water; 3) he spent the first three weeks of his life in the hospital, and his mother was paralyzed during the first year of his life, which interfered with their bonding relationship; 4) as a child, he and his family rarely had enough to eat; 5) his father was abusive, mean, and emotionally unavailable, and, on a regular basis, he corporally punished the children with large switches over the slightest perceived infraction or no infraction at all; 6) his siblings typically left the family home around the age of fifteen, in order to get away from their abusive father; 7) when he was ten years old, his mother left his father and took Lott and the next oldest sibling, Mageline, and moved to Lawton, Oklahoma; 8) after living in Lawton for a year, he and his mother moved to Oklahoma City; 9) his mother worked two jobs in Oklahoma City, leaving him virtually parentless at the age of eleven; 10) he began experimenting with drugs and alcohol at age eleven; 11) when he was twelve years old, his mother kicked him out of her home and he was forced to live on the streets; 12) when he was in the eighth grade, he would occasionally stay with a friend, Rick Berry, and Berry recalled Lott being filthy and hungry and having to sneak into his mother's home to steal food; 13) at age fourteen, he was arrested by authorities for unauthorized use of a motor vehicle and placed on juvenile probation; 14) at age sixteen, his mother informed juvenile authorities that he had violated probation for "lack of parental control" and he was placed in the Oklahoma Children's Center (OCC) juvenile home in Taft, Oklahoma; 15) he was held in OCC beyond completion of his sentence because the Oklahoma Department of Human Services had no place to release him to; 60 16) he was ultimately released from OCC in 1978, approximately six months before he turned eighteen; 17) in 1979, an investigation was conducted into Oklahoma's juvenile facilities, including OCC, and widespread abuses were found to have occurred during the time he was incarcerated at OCC, including hog-tying children, leaving them in solitary confinement for extended periods of time, keeping them after completion of their sentences without due process, and not providing education; 18) upon his release from OCC, he began living in Oklahoma City and doing landscaping work; 19) in 1985, he was in a car accident, received a mild to moderate head injury to the frontal lobe area, and was knocked unconscious for approximately thirty minutes; 20) while incarcerated in 1988, he experienced headaches of such severity that he was transported to a hospital for evaluation and treatment; 21) intelligence testing revealed inconsistencies in his cognitive functioning suggestive of brain damage; 22) neuropsychological testing and evaluation revealed the same inconsistencies, indicating that he suffered cognitive dysfunction, with causation unknown, and had an overall IQ of 74, and fit into a borderline mental retardation classification; 23) Dr. Jeanne Russell, a psychologist, conducted a risk assessment prior to trial and concluded that, although he would continue to pose a risk of violence in society at large, he would not pose a risk of future violence in a prison setting (with the unavailability of his target victims and a structured environment). Aplt. Br. at 88-90.

a) Clearly established Supreme Court precedent

Lott's claim of ineffective assistance of trial counsel is governed by the standards outlined in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, the Supreme Court held that "[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components." 466 U.S. at 687. "First," the Court noted, "the defendant must show that counsel's performance was deficient." Id. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. "Second," the Court noted, "the defendant must show that the deficient performance prejudiced the defense." Id. "Unless a defendant makes both showings," the Court held, "it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id.

Notably, the Supreme Court has, on several occasions in recent years, been critical of, and deemed unconstitutional, a trial attorney's failure to thoroughly investigate and present at the sentencing phase of a capital trial available mitigating evidence. All of these cases, however, have involved inexcusable neglect on the part of trial counsel, rather than strategic decision-making. See Sears v. Upton, 130 S. Ct. 3259, 3264, 177 L. Ed. 2d 1025 (2010) (trial counsel's investigation of mitigating evidence, which amounted to less than a day, was limited to talking to witnesses selected by the defendant's mother); Porter v. McCollum, 558 U.S. 30, 130 S. Ct. 447, 453, 175 L. Ed. 2d 398 (2009) (trial counsel met only briefly with defendant prior to penalty phase and neglected to obtain defendant's school, medical, and military records or to interview defendant's family members); Wiggins v. Smith, 539 U.S. 510, 524-26, 534-35, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (trial counsel abandoned, through "inattention," an investigation that would have revealed abuse, alcoholism, molestation, and diminished mental capacity); Williams v. Taylor, 529 U.S. 362, 395-96, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (noting that trial counsel's investigation of mitigating evidence, begun a week before trial, if properly done should have uncovered that defendant endured a "nightmarish childhood," and counsel erroneously believed that state law barred his access to records).

b) Background information relevant to claim

During second-stage opening statements, the prosecution outlined for the jury the three aggravating circumstances that it had alleged and would be attempting to prove. The defense team, in its opening statement, acknowledged the jury's first-stage verdicts and stated that they were "not in any way going to suggest to [the jury] that the[] deaths [we]re anything less than awful." Trial Tr., Vol. IX, at 1690. Instead, defense counsel noted, its second-stage "[e]vidence w[ould] really involve three things": Number one, the evidence will show you that since May of 1987, Ronnie Lott's life has consisted of incarceration.

And you'll have an opportunity to hear from people in both the jail system here who have had contact with him, as well as people in the penal system, penitentiary, who have had contact with him, and be able to hear from them the observations that they have made in their contact during these past 15 years with Ronnie Lott. And I anticipate that what you will hear from them, the behavior, the characteristics of Ronnie Lott, are entirely opposite or diametrically opposed to the violence, the horribleness that you've seen in regard to these crimes. The evidence will be that while in either the county jail or the penal system, Ronnie Lott has not presented himself as a threat or as a danger to anyone, that during his incarceration that he has made a change, that he has done positive things during that time. Now, that's in month [sic] way to suggest that that in some way makes what you have determined all right, but it's an opportunity for us to show you what other people have seen in regard to Ronnie Lott. That's number one. Number two. You will have an opportunity to hear from a family member of Ronnie Lott, get to know a little bit about him in that context, and hear what his family's about, and that he is loved and that he is important to those family members, as well. And then finally, as [the prosecutor] suggested, we will present to you testimony of Jim Fowler, Jim Fowler being the son of Anna Laura Fowler, and we anticipate that he will tell you that it is his opinion, based in this particular case, that the appropriate punishment for Ronnie Lott is something other than the death sentence. Id. at 1691-92.

The prosecution proceeded to incorporate by reference all of the evidence it presented during the first-stage proceedings. The prosecution also presented victim impact testimony from three witnesses: Mary Elizabeth Templin (a daughter of Fowler), Harold Fowler (a son of Fowler), and Cynthia Houston (Fowler's oldest granddaughter). All three of these witnesses were asked by the prosecution if they had an opinion as to what the appropriate punishment should be for Lott, and all three testified that, in their view, death was the appropriate punishment.

Lott's defense team in turn presented mitigating evidence in the form of testimony from five witnesses. The first of these witnesses, Charles Harris, worked as a tag supervisor for Oklahoma Correctional Industries, and he testified that Lott was a dependable worker who was generally fun to work with and never exhibited any violent behavior. The second and third witnesses, Jason Ledford and Terry Williams, had worked at the Oklahoma County Jail while Lott was confined there awaiting trial, and both testified that they had not experienced any serious problems with Lott's behavior. The fourth witness, Harriet Tingle, was Lott's niece. She testified that Lott was like an older brother to her, that Lott had people in his family who loved and cared for him, and that she would always love Lott, his crimes notwithstanding. The fifth and final witness was Fowler's oldest son, Jim Fowler. He testified that, in his view, the appropriate punishment for Lott was life without parole. The state trial court, citing Oklahoma state law, refused to explain Jim Fowler's reasoning to the jury.

During second-stage closing arguments, the prosecution discussed the three alleged aggravating circumstances and outlined the evidence that was presented in support of each one. The prosecution also commented on Lott's attempt to use his purported family support as a mitigating factor: And let me interrupt myself to say when we get to the mitigating circumstances, that mitigator that Ronald Lott has a good and loving family, this is a difficult case, we're supposed to be on opposite sides, but let the State of Oklahoma be clear. We feel nothing but sympathy and respect for that family. They did nothing, nothing to contribute to this behavior. On the contrary, they reached out with love and harmony and support. [Lott] has no excuse that his family didn't love and support him. And what he did with that is use it as a base of operations to do things that that family never, never knew about, never did anything about, would have done what they could to stop, if they had known about it. And that's what he did. Id., Vol. X, at 1798.

Defense counsel focused their closing arguments on Lott's post-crime behavior in prison: [N]ormally these cases come up right after the crimes and the DA can say, well, we don't know if he can survive in prison without killing somebody. That's why you have to give him death. We know that's not true [for Lott]. We know for a fact that he can survive in prison and not hurt anybody because he's done it for 15 years. Id. at 1813-14. Now, is Ronnie Lott the worst of the worst? Obviously that's what you will have to decide. If we focus only on the offense and no further, we know what that answer would be. But I hope I've conveyed to you that's only part of it. No, Ronnie Lott has demonstrated that he can function in prison without being a threat. Id. at 1823.

After deliberating, the jury rejected the continuing-threat aggravator alleged by the prosecution, but found the existence of the other two alleged aggravators, i.e., that the murders were especially heinous, atrocious, or cruel, and that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution. The jury in turn fixed Lott's punishment at death for each of the two murders.

c) The OCCA's rejection of this claim

Lott first presented his ineffective assistance claim to the OCCA in connection with his direct appeal. More specifically, Lott raised the issue in his direct appeal brief, and also filed with the OCCA an application for an evidentiary hearing on the claim. The OCCA rejected Lott's claim and denied his request for an evidentiary hearing. The OCCA's explanation for its denial, though lengthy, bears quoting: In his fifteenth assignment of error, Appellant contends he was denied the effective assistance of counsel by counsel's failure to present any evidence regarding Appellant's background in the second stage of trial. Appellant asserts that abundant information was available to defense counsel, but counsel did not investigate the information sufficiently to make it presentable to the jury. Appellant argues much information existed about his background that could have reduced his moral culpability and humanize [sic] him to the jury. Appellant asserts this claim of error is almost exclusively based on facts outside of the appellate record; therefore his claim of error is raised fully in his Application for an Evidentiary on Sixth Amendment Claims filed concurrently with his appellate brief.

Rule 3.11(B)(3)(b), Rules of the Court of Criminal Appeals, 22 O.S.2001, Ch. 18, App. 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 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). See Short, 1999 OK CR 15, ¶ 93, 980 P.2d at 1108. In order to meet the "clear and convincing" standard set forth above, Appellant must present this Court with evidence, not speculation, second guesses or innuendo. This requirement of setting forth evidence does not include requests for more time to develop and investigate information that was readily available during trial preparation. Under the provisions of Rule 3.11, an appellant is afforded a procedure to have included in the record for review on appeal evidence which was known by trial counsel but not used or evidence which was available but not discovered by counsel. It is not a procedure for post-trial discovery. With these standards in mind, we review Appellant's Application for Evidentiary Hearing on Sixth Amendment Grounds. . . . .

Appellant . . . contends trial counsel was ineffective for failing to adequately investigate and present mitigating evidence. He argues trial counsel failed to competently advise him of the meaning and availability of mitigating evidence. Appellant asserts that trial counsels' failure to consult with him and obtain his consent not to offer evidence of his background in second stage was not the product of deliberate trial strategy, but rather the result of failure to fully investigate mitigation.

In Appellant's Exhibit B, Gretchen Mosley, appellate counsel, admits in her sworn affidavit that a mitigation investigation was conducted in preparation for trial. She states that investigation included interviewing Appellant (which she did herself) and his family members regarding his childhood, family history, substance abuse, significant relationships and life events, psychological and social development, and life circumstances and events surrounding the time of the crimes. Ms. Mosley also states intelligence and psychological testing was done, as well as an evaluation by a neuropsychologist for brain damage. A Risk Assessment was also conducted by licensed psychologist, Dr. Jeanne Russell, Ed.D. Ms. Mosley states that none of this information was presented to the jury. She states that when she asked trial counsel why he had not presented any evidence of Appellant's background, trial counsel responded, "that they had 'no way to put it on.'"

Appellant now argues that the mitigation investigation should have put trial counsel on notice that Appellant's background would be a significant mitigating factor at trial, and therefore, trial counsel should have retained an appropriate expert to conduct a social history of Appellant. Appellant asserts trial counsel should at least have presented the Risk Assessment Report prepared by Dr. Jeanne Russell. In support of his argument, Appellant presents the affidavit of appellate counsel; a Social History report prepared by Dr. Jeanne Russell, Ed.D., licensed psychologist, at the request of appellate counsel (Appellant's Exhibit C); a Risk Assessment prepared by Dr. Jeanne Russell at the request of trial counsel (Appellant's Exhibit I); a copy of an internal memo from the Oklahoma Indigent Defense System (OIDS) mitigation investigation stating that co-counsel received more information from Appellant about his childhood and family, and that lead counsel decided not to use the additional information, but go with what evidence they had at the time (Appellant's Exhibit D); and affidavits from Sid Conaway and Paula Alfred, capital defense attorneys in the Tulsa County Public Defender's Office, stating in pertinent part, it is the practice of capital attorneys in Oklahoma to retain a mental health/sociology expert to prepare and present to the jurors the client's background (Appellant's Exhibits E and F).

To support his burden of establishing that trial counsels' failings were not the result of reasonable trial strategy, Appellant presents his own affidavit (Appellant's Exhibit A) stating that counsel never discussed with him their strategy of not investigating or presenting mitigation regarding his background; a copy of an OIDS internal memo prepared by trial counsel after Appellant's trial concerning the decision not to impeach state's witness Brian Wraxall (Appellant's Exhibit G); and a copy of an OIDS internal memo (apparently from a mitigation investigator to lead counsel) suggesting a change of counsel to an African—American attorney from Oklahoma County based upon certain concerns of Appellant's family (Appellant's Exhibit H).

Appellant has provided a great deal of information in his Application and accompanying affidavits. However, we find he has failed to set forth sufficient evidence to warrant an evidentiary hearing. The affidavits submitted by Appellant show a substantial mitigation investigation was conducted in this case. However, Appellant finds fault with trial counsels' failure to conduct a further investigation. Appellant asserts trial counsel should have requested "expert forensic mental health assistance to explain the importance of Appellant's experiences to his development and commission of the crimes" and presented this to the jury in the form of a Social History Report. Indeed, in Oral Argument, appellate counsel argued the information contained in the Social History was the only information that could have saved Appellant's life and that trial counsel had an obligation to put that information before the jury. For the reasons discussed below, we find Appellant has failed to show by clear and convincing evidence that trial counsels' failure to present a Social History Report of Appellant to the jury warrants an evidentiary hearing. As part of the mitigation investigation, a Risk Assessment Report was prepared. In Appellant's Exhibit I, Dr. Russell stated that Appellant was referred by defense counsel for evaluation of his potential risk of future violent behavior. Dr. Russell stated her assessment was based upon interviews with Appellant, jail staff, and OIDS Investigator Leedy; and review of transcripts from preliminary hearings in Appellant's prior convictions; records from the Department of Institutions, Social and Rehabilitative Services (DISRS) and Department of Corrections (DOC), and results of intelligence and psychological tests.

In her assessment, Dr. Russell set forth the reasons for Appellant's incarceration, his family history, education, substance abuse history, psychiatric history, medical history, relationships, employment, and criminal history. Additionally, the assessment contains Dr. Russell's observations on Appellant's behavior and mental status. She stated he is "guarded in his responses to interview questions", but shows "no symptoms of a major mental disorder such as hallucinations or delusions". Also included in the Risk Assessment are Assessment Results and Appellant's aggression history. In the Assessment Results portion of the report, Dr. Russell stated Appellant scored high for the presence of psychopathy, which she explained was "characterized interpersonally by grandiose, egocentric, manipulative, and deviant interactions", and "by a lack of empathy, guilt or remorse". She also stated psychopathy was defined "behaviorally in terms of impulsivity and sensation seeking". Also included in the Assessment Results were Dr. Russell's statements of Appellant's Personality Factors. She stated there was "no evidence of psychotic thinking or other symptoms related to a major mental illness". Instead, "test results indicated Appellant was self-centered or absorbed and may have difficulty in delaying gratification". She said his "behavior vacillated from agreeable to accusatory and this type of behavior often keeps others on edge never knowing if he will react in an obliging or resentful manner". She also stated, "many of his legal difficulties were most likely the product of these attributes coupled with a chronic substance abuse problem. Results further suggest he has not developed internal controls and as a result functions best in a controlled, structured environment such as a prison until such control is developed."

At the request of appellate counsel, Dr. Russell also conducted a Social History of Appellant. In Appellant's Exhibit C, Dr. Russell explained that a Social History is to assess the impact of both psychological and sociological factors on Appellant's offense. She also stated it differs from the Risk Assessment performed previously as the Social History looks at historical factors to better understand behavior while the risk assessment "focuses on the interaction of the environment and personality traits in assessing the probability for future aggression." A comparison of the reports show, that but for one exception, the same sources were relied upon for information. The one exception, "interviews with family members and friends", is listed as a resource on the Social History Report but not the Risk Assessment Report. Consequently, Appellant's family history and childhood is set forth in greater detail in the Social History. However, as Appellant and family members were interviewed as part of the mitigation investigation, trial counsel was presumably aware of the information provided by family members. Further, many of the conclusions set forth in the Social History Report are the same as those set forth in the Risk Assessment Report.FN19 While recognizing the different purposes behind the Social History and the Risk Assessment, the two reports in this case contained much of the same information. Therefore, when we consider the information gathered from the mitigation investigation and known to trial counsel, we find Appellant has failed to show by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to expand his investigation to include a social history of Appellant. FN19. In the Risk Assessment, Dr. Russell stated Appellant "tries to present himself in a favorable light which may be due to a combination of denial and lack of self-awareness." In the Social History she states Appellant "employs denial and repression to deal with psychological pain." Both the Risk Assessment and Social History note the early onset and long-lasting use of alcohol by Appellant. Both reports also note the lack of internal controls on Appellant's part. Both reports conclude that in the absence of any external controls, either the Oklahoma Children's Center where Appellant was admitted as a delinquent child or the adult prison system, combined with the lack of internal personal controls, Appellant engages in a pattern of daily drinking, use of drugs and criminal activity.

Also presented was Harriett Tingle, Appellant's niece. Ms. Tingle testified she was only eight years younger than Appellant and that he was more like a big brother to her than an uncle. In addition to detailing prior experiences with Appellant, she stated that while Appellant was incarcerated, she stayed in contact with him. Ms. Tingle testified that no matter what sentence Appellant received, she and his family would continue to support him. The final defense witness was Jim Fowler, Mrs. Fowler's son. Mr. Fowler testified generally against the death penalty. Trial counsel's decision to limit the mitigating evidence to the above witnesses appears to have been reasonable trial strategy. Presenting witnesses who would testify to Appellant being a productive member of prison society was consistent with information contained in the Risk Assessment that the risk of future aggression from Appellant significantly decreased when he was in a secure prison environment. Further, Ms. Tingle was the only family member who testified although she stated she had been accompanied to trial by an uncle and his girlfriend, her grandmother (Appellant's mother), an aunt and a cousin. There is no indication in the record or in Appellant's Application for Evidentiary Hearing why those relatives did not testify at trial.

Information contained in the Social History which could arguably be seen as mitigating evidence consisted of descriptions of Appellant's father as "unloving" and "a strict disciplinarian" who regularly "whipped" his children and spent his salary on his own needs instead of feeding his family; that Appellant was the youngest of 10 children and his mother had a difficult pregnancy with him; the family lived in a small home with only five rooms and no running water; his parent's [sic] separation when he was young and his accompanying his mother, and his young siblings, to live in the city where his mother "worked all the time in an effort to take care of the family and eventually 'kick[ed] him out of the house for getting in trouble'"; Appellant's placement in the Oklahoma Children's Center as a delinquent child when he was 16; and psychological testing which reported Appellant was "anxiously troubled, lonely and socially apprehensive most of the time" and that "he often turns to alcohol to fulfill a number of otherwise difficult to achieve psychological functions".

By contrast, information in the Social History which could be described as not mitigating includes Dr. Russell's statement that Appellant had a very different view of the way he was raised and "glamoriz[ed]" his early years, his description of his relationship with his father as "close", his reported memory lapse concerning his move to the city with his mother and that Appellant's descriptions of his early life was inconsistent with that of other family members and DISRS records. The Social History lists Appellant's seven prior convictions from two different states ranging from conspiracy to sell marijuana to first degree rape and robbery with firearms and that Appellant has been in prison since 1987. Also included in the Social History is information concerning Appellant's alcohol and substance abuse which could be seen in either a mitigating or non-mitigating light. This is a brief, and admittedly incomplete synopsis of the Social History, which Appellant argues defense counsel was ineffective in failing to present.

FN20. Having compared the Risk Assessment and the Social History, and finding much of the information contained in the two reports to be similar, we take this opportunity to note that when read in their entirety, the two reports paint a much different picture of Appellant. While recognizing the differing purposes behind the two reports, Appellant comes across as a much meaner more violent person in the Risk Assessment than in the Social History. We note this distinction as a way to caution expert witnesses not to attempt to deceive the courts by intentionally leaving out information that could be relevant to a jury's consideration.

Instead of taking the risk that cross-examination could reveal such "negative" information that would harm Appellant's chances for a sentence less than death, counsel chose to focus on more "positive" evidence of Appellant's life in prison. This evidence showed that while Appellant was incarcerated he was not violent or aggressive, that he was a good worker and had proved himself sufficiently responsible to work at making license tags and to oversee other inmates in the tag facility. We find trial counsel's choice to limit the second stage evidence to that showing Appellant was a productive member of prison society and he had family who loved him, while excluding potentially damaging evidence of Appellant's psychological and social development, especially in light of his history of aggression towards elderly women, was reasonable trial strategy well within the range of professional reasonable judgment. In fact, counsel would have been ineffective if the door to the damaging Risk Assessment Report and evidence contained therein had been opened and the State had been able to exploit it to their advantage. The Social History in this case contained the "double edge" the Supreme Court has found sufficient to justify limited investigations. See Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). We find it sufficient to justify a limited presentation of evidence.

Appellate counsel argued at oral argument that negative information about Appellant was already before the jury in that he had been convicted of committing admittedly horrific crimes. Appellate counsel argued that trial counsel had an obligation to present additional facts and psychological factors to explain Appellant's conduct. To the contrary, counsel does not have an obligation to introduce any and all evidence that might conceivably be considered mitigating in the hope that it might outweigh the aggravating evidence and save the defendant's life. Counsel's obligation is to use reasonable professional judgment in making decisions concerning the defendant's case.FN21 FN21. Further, counsel does not have an obligation to get a waiver from the defendant on the decision not to present certain mitigating evidence. While this Court has held that when a competent defendant intends to completely forego the presentation of any mitigating evidence during second stage, counsel must obtain a knowing waiver to that effect, Wallace v. State, 1997 OK CR 18, ¶ 27, 935 P.2d 366, 376, we have not extended the need for a waiver to a case where some mitigation evidence is offered. Therefore, contrary to Appellant's claim, counsel was not obligated to obtain a written waiver from Appellant concerning the decision to limit presentation of his background in second stage.

This is not to say that counsel is to make all of the decisions in the case. As I stated in my special concurrence to Grant v. State, 2004 OK CR 24, 95 P.3d 178, (Lumpkin, J. special concur), it is the (competent) client's case, not the lawyer's. While, [sic] counsel has the responsibility to advise, inform, and consult with the client, the defendant has the right be [sic] involved in the decision process that will affect his or her life. Id., citing Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

In the present case, there is no indication that during trial, Appellant disagreed with counsel's decision to limit the presentation of mitigating evidence. Further, the record reflects no question as to Appellant's competency for trial. The record shows that counsel's decision was a strategic choice made after a thorough investigation and within the exercise of reasonable professional judgment. Accordingly, we find presentation of the Social History would not have significantly influenced "the jury's appraisal" of Appellant's moral culpability. Cf. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2544, 156 L.Ed.2d 471 (2003) quoting Williams v. Taylor, 529 U.S. 362, 398, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Accordingly, having thoroughly reviewed Appellant's Application and accompanying affidavits, we find he has failed to show by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to investigate further and utilize the complained-of evidence. We decline to grant Appellant's application for an evidentiary hearing on sixth amendment [sic] grounds.Lott I, 98 P.3d at 351-57 (alterations in original) (footnote and internal paragraph numbers omitted).

d) The federal district court's analysis of the claim

Notwithstanding the OCCA's lengthy analysis and rejection of Lott's ineffective assistance claim, the district court in this case concluded that it was bound by our decision in Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009) (en banc), to review the claim de novo: Petitioner's claim was presented to the OCCA through a Rule 3.11 motion because it relied upon matters outside of the record. While thoroughly addressing the non-record evidence, the OCCA reviewed Petitioner's claim within its Rule 3.11 framework and denied Petitioner his requested evidentiary hearing because he "failed to show by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to investigate further and utilize the complained-of evidence." Lott, 98 P.3d at 351-57. In Wilson, the Tenth Circuit determined that this analysis of an ineffectiveness claim is not owed AEDPA deference. "This is an explicit application of the Rule 3.11 standard which . . . does not replicate the federal standard and therefore does not constitute an adjudication on the merits as to whether [Petitioner's] non-record evidence could support his Strickland claim. A federal court therefore does not owe deference to the OCCA's rejection of [Petitioner's] ineffectiveness claim." Wilson, 577 F.3d at 1300. Thus, in accordance with Wilson, Petitioner's claim is subject to de novo review. ROA, Vol. I, Pt. 4, at 765-66 (alterations in original).

Reviewing Lott's claim de novo, the district court concluded first that Lott's trial counsel "conducted a substantial mitigation investigation" and thus "knew [Lott]'s life history" and the result of his mental health evaluations. Id. at 779. In turn, the district court concluded that Lott's trial counsel, "fully aware of the difficulties encountered by [Lott] in his life, opted to pursue a different mitigation strategy" that focused on Lott's "extensive history of life in incarceration" and his ability to "be productive and nonviolent" in a prison setting. Id. at 782. Lott's trial counsel also, the district court noted, "presented evidence that [Lott] had a family who loved and supported him, and a sentence recommendation of life without parole from one of the victim's own family members." Id. Considered together, the district court concluded, "[t]his was sound trial strategy." Id. The district court also, out of an abundance of caution, analyzed the prejudice prong of the Strickland test and concluded that Lott had "failed to establish prejudice." Id. at 783.

e) Which standard of review to apply in this appeal

The parties disagree on what standard of review we must apply in reviewing Lott's ineffective assistance claim. Lott contends that we, like the district court, should apply a de novo standard of review. In support, Lott cites to Wilson. In Wilson, a majority of this court held, for three essential reasons, that "[a] federal court . . . does not owe deference to the OCCA's rejection of [an] ineffectiveness claim" under the OCCA Rule 3.11 standards. 577 F.3d at 1300. First, the majority expressed concern that the OCCA might not analyze the proffered non-record evidence in every instance in which it denies a motion for an evidentiary hearing under Rule 3.11. Id. at 1290-92. Second, and relatedly, the majority concluded in the cases before it that, because of the summary nature of the OCCA's rulings, the OCCA had not analyzed the petitioners' proffered non-record evidence and had, instead, denied the petitioners' ineffective assistance claims based solely upon the record evidence. Id. at 1290-91 ("In the cases before us, the [OCCA] disposed of mixed questions of law and fact, but did so on a factual record that was, solely as a result of the state procedural rule, incomplete."). Third, the majority held that "[b]ecause [OCCA] Rule 3.11 creates a higher evidentiary burden than the federal [Strickland] standard, [it] cannot [be said] that the OCCA's failure to grant an evidentiary hearing under this standard necessarily constitutes a determination that the defendant could not satisfy the federal standard." Id. at 1299. The district court in this case, considering itself bound by Wilson, afforded no deference to the OCCA's decision in Lott I and instead reviewed Lott's ineffective assistance claim de novo.

Respondent argues on appeal that "[s]ince Wilson was decided, the OCCA has clarified the relationship between the Strickland standard and OCCA Rule 3.11." Aplee. Br. at 66. Specifically, respondent notes that in Simpson v. State, 2010 OK CR 6, 230 P.3d 888 (Okla. Crim. App. 2010), the OCCA stated as follows: In conjunction with [his ineffective assistance of counsel] claim, Appellant has filed a Rule 3.11 motion for an evidentiary hearing on the issue of ineffective assistance of counsel asserting that counsel was ineffective for failing to adequately investigate and identify evidence which could have been made available during the trial. Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007). In accordance with the rules of this Court, Appellant has properly submitted with his motion affidavits supporting his allegations of ineffective assistance of counsel. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007). As the rules specifically allow Appellant to predicate his claim on allegations "arising from the record or outside the record or a combination of both," id., it is, of course, incumbent upon this Court, to thoroughly review and consider Appellant's application and affidavits along with other attached non-record evidence to determine the merits of Appellant's ineffective assistance of counsel claim. Our rules require us to do so in order to evaluate whether Appellant has provided sufficient information to show this Court by clear and convincing evidence that there is a strong possibility trial counsel was ineffective for failing to utilize or identify the evidence at issue. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007). This standard is intended to be less demanding than the test imposed by Strickland and we believe that this intent is realized. Indeed, it is less of a burden to show, even by clear and convincing evidence, merely a strong possibility that counsel was ineffective than to show, by a preponderance of the evidence that counsel's performance actually was deficient and that but for the unprofessional errors, the result of the proceeding would have been different as is required by Strickland. Thus, when we review and grant a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, we do not make the adjudication that defense counsel actually was ineffective. We merely find that Appellant has shown a strong possibility that counsel was ineffective and should be afforded further opportunity to present evidence in support of his claim. However, when we review and deny a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, we necessarily make the adjudication that Appellant has not shown defense counsel to be ineffective under the more rigorous federal standard set forth in Strickland. 230 P.3d at 905-06. In light of this explanation in Simpson, respondent argues, it is now clear that "Rule 3.11 does not place on defendants a heavier burden to demonstrate ineffectiveness of counsel than Strickland," Aplee. Br. at 67, and we must therefore apply to the OCCA's decision the more deferential standard of review outlined in § 2254(d)(1). Respondent also argues that, even if we apply a de novo standard of review to the claim, "the factual findings the OCCA made in reviewing the proffered evidence should be given a presumption of correctness" under § 2254(d)(2). Id.

We agree with the respondent. In Simpson, the OCCA made clear that Rule 3.11 obligates it to "thoroughly review and consider [a defendant's Rule 3.11] application and affidavits along with other attached non-record evidence." 230 P.3d at 905. Thus, even in cases, such as Wilson, where the OCCA summarily disposes of a defendant's Rule 3.11 application without discussing the non-record evidence, we can be sure that the OCCA in fact considered the non-record evidence in reaching its decision. Such a conclusion, we note, is entirely consistent with the Supreme Court's repeated admonitions that AEDPA's deferential standards of review "do[] not require that there be an opinion from the state court explaining the state court's reasoning." Harrington v. Richter, 131 S. Ct. 770, 784, 178 L. Ed. 2d 624 (2011). The OCCA's decision in Simpson also clarifies that the interplay of Rule 3.11's "clear and convincing" evidentiary standard and its "strong possibility of ineffectiveness" substantive standard is "intended to be less demanding than the test imposed by Strickland." 230 P.3d at 906. In other words, the OCCA in Simpson has now assured us that "when [it] review[s] and den[ies] a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, [it] necessarily make[s] the adjudication that Appellant has not shown defense counsel to be ineffective under the more rigorous federal standard set forth in Strickland." Id. Consequently, it is plain to us, as a matter of federal law, that any denial of a request for an evidentiary hearing on the issue of ineffective assistance of counsel filed pursuant to OCCA Rule 3.11, including the one made by the OCCA in Lott's direct appeal, operates as an adjudication on the merits of the Strickland claim and is therefore entitled to deference under § 2254(d)(1). Lastly, it is indisputable that we are bound to defer to the OCCA's factual findings (regarding what pretrial investigative steps Lott's trial counsel took) under § 2254(d)(2).

f) Analysis of the OCCA's decision

The only aspects of the OCCA's decision that give us some pause are its findings, made in the course of considering the first Strickland prong, that Lott's trial counsel decided as a matter of trial strategy to forego presenting evidence of Lott's social history, and that when Lott's trial counsel stated to Lott's appellate counsel after trial that there was "no way to put [the Social History] on" at trial, they were "saying the evidence could not be 'safely' presented to the jury, not that it couldn't be put on at all." Lott I, 98 P.3d at 356. But those findings, made on the basis of the OCCA's review of the record on direct appeal, must "be presumed to be correct" unless Lott rebuts the presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). And after conducting our own review of the record in this case, we cannot say that Lott has made such a showing. As the OCCA apparently concluded, the only reasonable inference that can be drawn from the record is that Lott's counsel determined that introduction of Lott's social history would be more detrimental than beneficial, and thus made a strategic decision not to present that evidence.

Even if we were to assume that the OCCA's first-prong analysis 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)(2), we would still be bound to defer to the OCCA's prejudice analysis under Strickland's second prong. In the OCCA's view, although the Social History Report prepared by Dr. Russell contained some potentially mitigating information, it also included information "which could be described as not mitigating," Lott I, 98 P.3d at 355, and that "might even have been counterproductive," id. at 356. The OCCA also noted that, had Dr. Russell testified about the Social History Report, the prosecution would have cross-examined her about "the Risk Assessment and the information and conclusions therein," and that, consequently, the jury "would certainly have heard that [Lott] was a chronic alcohol and drug abuser, . . . was self absorbed, lacked empathy, guilt and remorse and without warning exhibited wide mood swings which affected his interactions with others," his "conduct could not be explained or excused due to a major mental illness or psychotic thinking, as there was no evidence he suffered from either condition," and he "ha[d] received 11 misconduct reports while incarcerated [during the] 10 years" prior to trial. Id. Thus, the OCCA concluded, "[e]ven with the evidence contained in the Social History, the State's evidence in aggravation was great in this case, while the mitigating evidence was much weaker." Id. After carefully examining the record on appeal, we cannot quarrel with this conclusion, and we in turn conclude that it is neither contrary to, nor an unreasonable application of, Strickland.

6) Admission of improper victim impact evidence

In Proposition Six of his appellate brief, Lott contends that the state trial court's admission of improper victim impact testimony from witness Cynthia Houston, the granddaughter of victim Fowler, resulted in the arbitrary and capricious imposition of the death penalty in violation of the Eighth and Fourteenth Amendments. According to Lott, Houston's testimony "did not meet [Oklahoma's] statutory requirements of admissible victim impact evidence," which limit such testimony to "immediate family members." Aplt. Br. at 101-02 & n.49. In turn, Lott argues, Houston "read a lengthy, poignant statement in which she related several of her grandmother's personal characteristics to the jury," id. at 103, and then proceeded "to testify about the impact her grandmother's death had on her father, her aunt and her uncles," id. at 104. Finally, Lott complains, "Houston concluded her testimony by giving her personal opinion that the appropriate punishment was death." Id. And taken as a whole, Lott argues, the probative value of Houston's testimony was substantially outweighed by its prejudicial effect.

a) Clearly established Supreme Court precedent

The Supreme Court's decisions in Payne and Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), provide the clearly established federal law applicable to this claim. In Booth, the Court held "that evidence and argument relating to the victim and the impact of the victim's death on the victim's family are inadmissible [under the Eighth Amendment] at a capital sentencing hearing." Payne, 501 U.S. at 830 n.2. That holding was overruled by the Court in Payne. Id. at 830 & n.2. "Booth also held that the 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. Payne did not overrule this portion of Booth. Id. "Thus, it remains constitutionally improper for the family members of a victim to provide characterizations and opinions about the crime, the defendant, and the appropriate sentence during the penalty phase of a capital case." DeRosa v. Workman, 679 F.3d 1196, 1237 (10th Cir. 2012) (internal quotation marks omitted).

b) The OCCA's rejection of Lott's claim

On direct appeal, Lott asserted some, but not all, of the arguments he now asserts in this federal habeas appeal. In Proposition X of his direct appeal brief, Lott alleged in a heading that the admission of Houston's testimony violated Oklahoma state law (specifically the Oklahoma statute governing admission of victim impact evidence), and also "resulted in arbitrary and capricious imposition of the death penalty in violation of the Eighth and Fourteenth Amendments." Direct Appeal Br. at 74 (capitalization in original altered). But the body of the argument in support of Proposition X made no further mention of the United States Constitution or any Supreme Court case. Instead, Lott's arguments focused on the admissibility of Houston's testimony under Oklahoma state law. And, although Lott complained generally about Houston having offered her opinion of the appropriate sentence, Lott did not argue that Houston's testimony in that regard violated his constitutional rights.

In rejecting Lott's direct appeal, the OCCA addressed both Lott's state law arguments and his general assertion that the admission of Houston's testimony violated his constitutional rights, but did not specifically address whether the admission of Houston's sentencing recommendation was constitutionally improper9: In his tenth assignment of error, Appellant contends the trial court erred in admitting the victim impact testimony of Cynthia Houston. Ms. Houston was the granddaughter of Mrs. Fowler. Appellant argues her testimony was inadmissible for the following reasons: 1) the testimony contained irrelevant evidence about the impact of the victim's death on non-immediate family members; 2) she testified as a family designee when family members had already testified; and 3) the testimony was highly prejudicial.

Prior to trial, Appellant objected to Ms. Houston's testimony on the same grounds now raised on appeal. In a CargleFN11 hearing during the second stage of trial, the court ruled that Ms. Houston did not qualify under the statute as a member of the victim's immediate family but could testify if designated as a family representative. The trial court limited her testimony to the effects of Mrs. Fowler's death on her father, her aunt, and her uncles. FN11. Cargle v. State, 1995 OK CR 77, 909 P.2d 806, cert. denied, 519 U.S. 831, 117 S. Ct. 100, 136 L. Ed. 2d 54 (1996), habeas corpus granted and remanded for a new trial on other grounds, Cargle v. Mullin, 317 F.3d 1196 ([10th Cir.] 2003).

During the presentation of the victim impact evidence, Mrs. Fowler's son and daughter, Harold Fowler and Mary Templin, testified. Ms. Houston, having been designated the family representative by Harold Fowler, was the third and final victim impact witness. Reading from a prepared statement, Ms. Houston described how her grandmother was greatly loved by the family, that someone in the family visited her on a daily basis, and that her kitchen was a comfortable place for the family to congregate. Ms. Houston also testified to her grandmother's abilities in sewing and gardening. She described the "great impact" her grandmother's loss had on her father and his siblings. Ms. Houston concluded her testimony by stating her personal opinion that the appropriate punishment was death. No defense objections were raised during Ms. Houston's testimony therefore we review only for plain error. Murphy v. State, 2002 OK CR 24, ¶ 42, 47 P.3d at 884.FN12 The trial court's ruling on the admissibility of the victim impact evidence was similar to a ruling on a motion in limine, advisory only and not conclusive. See Short v. State, 1999 OK CR 15, ¶ 65, 980 P.2d 1081,1102-03, cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (1999). To properly preserve the issue for appellate review, an objection must raised [sic] at the time the testimony is given. Id. Appellant's failure to object to Ms. Houston's testimony at the time it was offered, waives all but plain error.

Victim impact evidence is constitutionally acceptable unless "it is so unduly prejudicial that it renders the trial fundamentally unfair . . . ." Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720, 735 (1991). In Cargle, 909 P.2d at 827-28, this Court addressed at length victim impact evidence as addressed by the Supreme Court and by our state statutes. Since that time we have had numerous occasions to revisit the statutory guidelines that control the content and use of victim impact evidence. However, Appellant's second challenge to Ms. Houston's testimony has not been specifically addressed by this Court in previous cases. The resolution of this challenge determines whether it is necessary to review his other objections to the testimony.

Victim impact evidence is set forth in 22 O.S.2001, §§ 984, 984.1. FN13 The manner in which victim impact evidence is to be presented and used at trial is set forth in § 984.1. This section provides in pertinent part, "each victim, or members of the immediate family of each victim or person designated by the victim or by family members of the victim, may present a written victim impact statement or appear personally at the sentence proceeding. . . . ." (emphasis added). This language limits the persons who may give victim impact evidence to three types of people: 1) the victim; 2) members of the victim's immediate family; or 3) a person designated by the victim or the victim's family. The listing in the disjunctive of the persons who may give victim impact evidence indicates the Legislature's intent to make these three categories of victim impact witnesses mutually exclusive. This restrictive view of who may give victim impact testimony is consistent with the limitations placed on victim impact evidence by the Legislature and by this Court. See Cargle, 1995 OK CR 77, ¶ 75, 909 P.2d at 828 ("victim impact evidence is intended to provide a quick glimpse of a victim's characteristics and the effect of the victim's death on survivors.") FN13. 22 O.S.2001, § 984 provides in pertinent part:

1. "Victim impact statements" means information about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family, or person designated by the victim or by family members of the victim and includes information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence; 2. "Members of the immediate family" means the spouse, a child by birth or adoption, a stepchild, a parent, or a sibling of each victim; (emphasis added). 22 O.S.2001, § 984.1(A) provides: A. Each victim, or members of the immediate family of each victim or person designated by the victim or by family members of the victim, may present a written victim impact statement or appear personally at the sentence proceeding and present the statements orally. Provided, however, if a victim or any member of the immediate family or person designated by the victim or by family members of a victim wishes to appear personally, such person shall have the absolute right to do so. (emphasis added).

Applying the statutory language to the present case, as Mrs. Fowler's son and daughter testified as members of her immediate family, it was not necessary to have a family designee or representative testify.FN14 Therefore, it was error to allow Ms. Houston to testify as a family designee.FN15 FN14. In Williams v. State, 2001 OK CR 9, ¶ 66, 22 P.3d 702, 719, cert. denied, 534 U.S. 1092, 122 S. Ct. 836, 151 L. Ed. 2d 716 (2002), this Court cited 22 O.S.Supp.1992, § 984.1 and stated that the Legislature had provided that any family member who wished to appear personally [to give victim impact evidence] shall have the absolute right to do so. This statement was in response to the appellant's argument that this Court should adopt a rule limiting the number of victim impact witnesses to one. This Court refused to adopt such a rule finding no statutory authorization for setting such limits on the number of witnesses. In that regard, the ruling in the present case is not intended to be a limitation of the number of victim impact witnesses. As long as a witness properly qualifies under the statute to give victim impact evidence, the number of witnesses the jury will hear is left to the sound discretion of the trial court.

FN15. Further, as a granddaughter Ms. Houston does not fall under the statutory definition of immediate family permitted to give victim impact evidence. This Court has not extended the statutory definition to include persons related to victims in ways other than those designated by the Legislature. Hanson v. State, 2003 OK CR 12, ¶ 28, 72 P.3d 40.

However, having reviewed her testimony, we find nothing which "improperly weighted the scales" in the trial.FN16 Ms. Houston's testimony was brief and did not focus on the emotional aspects of the victim's death. Certain portions were cumulative to the testimony of her father and aunt. FN16. See Payne, 501 U.S. at 822, 111 S.Ct. at 2606-07; Further, the jury was properly instructed, pursuant to OUJI—CR (2d) 9-45 on the use of victim impact evidence. Appellant had been convicted of raping and killing two elderly, defenseless women in their homes. Evidence of the aggravating circumstances was overwhelming and evidence of the aggravating circumstances clearly outweighs the mitigation evidence. Reviewing the entire record, we cannot say admission of Ms. Houston's testimony caused the verdict to be the result of an unreasonable emotional response. Accordingly, we find no plain error, and this assignment of error is denied.Lott I, 98 P.3d at 346-48 (second alteration in original) (internal paragraph numbers removed).

9 Although we question whether, in light of this procedural history, Lott has adequately exhausted his challenge to the admission of Houston's sentencing recommendation, the State has expressly acknowledged that this constitutional claim was exhausted and, thus, has waived any argument on that basis. See 28 U.S.C. § 2254(c).

c) Analysis of the OCCA's decision

In this appeal, Lott argues that, "in determining whether [federal] habeas relief is warranted on the basis of Payne, the question under 28 U.S.C. § 2254(d) is whether the OCCA properly applied Chapman[ v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967),]" in concluding that the admission of Houston's testimony was harmless beyond a reasonable doubt. Aplt. Br. at 102-03. And, according to Lott, the OCCA's harmless error analysis was flawed because "[t]he poignant testimony [Houston] presented regarding her grandmother, plus her recommendation of death — the third such recommendation made to the jurors — had a substantial and injurious effect on the jury's verdict." Id. at 103 (footnote omitted).

As an initial matter, we reject Lott's suggestion that the question at issue "is whether the OCCA properly applied Chapman." In Fry v. Pliler, 551 U.S. 112, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007), the Supreme Court made clear "that in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the 'substantial and injurious effect' standard set forth in Brecht[ v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)], whether or not the state appellate court recognized the error and reviewed it for harmlessness under the 'harmless beyond a reasonable doubt' standard set forth in Chapman . . . ." 551 U.S. at 121-22. Thus, if we determine that the admission of Houston's victim impact testimony was constitutional error, then we must assess the prejudicial impact of that error under the Brecht test, rather than "the more liberal AEDPA/Chapman standard which requires only that the state court's harmless-beyond-a-reasonable-doubt determination be unreasonable." Id. at 119-20.

We thus turn to the question of whether the admission of Houston's testimony violated Lott's constitutional rights. As we have noted, the OCCA concluded that it was a violation of Oklahoma state law for the trial court to allow Houston to testify as a family designee. Consequently, as we read its decision, the OCCA did not reach the question of whether the admission of Houston's testimony also violated Lott's constitutional rights. We therefore must review that issue de novo. It is clear to us that Lott's constitutional rights were violated by the admission of Houston's testimony opining about the appropriate sentence for Lott. See DeRosa, 679 F.3d at 1237. As we have noted, that type of victim impact testimony remains inadmissible under Booth. Id. The remainder of Houston's testimony, however, was not violative of Lott's constitutional rights. Specifically, the remainder of Houston's testimony was aimed at reminding the jury that Fowler "[wa]s an individual whose death represent[ed] a unique loss to society and in particular to h[er] family." Payne, 501 U.S. at 825 (internal quotation marks omitted). Although its admission may have violated Oklahoma state law, it did not violate the Eighth Amendment. See id. at 827 ("We thus hold that if the State chooses to permit the admission of victim impact evidence . . . , the Eighth Amendment erects no per se bar."). Thus, we must assess whether the admission of Houston's testimony regarding the appropriate sentence for Lott had a "substantial and injurious effect" on the outcome of the second-stage proceedings.

As the OCCA noted in conducting its own plain-error analysis, the entirety of Houston's testimony was brief (comprising a total of six trial transcript pages), and the constitutionally offending testimony was comprised of four words: "My opinion is death," which were stated in response to the prosecutor's question, "Do you have an opinion as to what the appropriate punishment in this case is?" Given the overwhelming evidence of Lott's guilt of the two rapes/murders, as well as his admitted guilt of the two subsequent rapes, and the cruel and brutal nature of the crimes, we conclude that the admission of Houston's offending testimony did not have a substantial and injurious effect on the jury's sentencing determination. In other words, we can say, "with fair assurance, after pondering all that happened [at Lott's trial] without stripping the erroneous action from the whole, that the [jury's sentencing verdict] was not substantially swayed" by Houston's offending testimony.10 Kotteakos v. United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946).

10 We note, in passing, that the other victim impact witnesses, Mary Elizabeth Templin and Harold Fowler, also testified, in response to questioning by the prosecution, that they believed that death was the appropriate punishment for Lott's crimes. Lott, however, has never objected to the admission of this testimony. Out of an abundance of caution, we did not consider that testimony in assessing the prejudicial impact of Houston's testimony.

7) Sufficiency of evidence—avoid arrest or prosecution aggravator

In Proposition Seven of his appellate brief, Lott contends that insufficient evidence was presented at his trial to support the jury's second-stage findings that the two murders were committed in order to avoid arrest or prosecution. According to Lott, "[t]he cause of death [in each case] was asphyxiation," "[t]here was no evidence that the homicides were separate and distinct from the rapes, and the deaths of the[] two elderly victims likely occurred without [his] intent to kill either of the victims." Aplt. Br. at 107. Lott further argues that "[t]he evidence showed that in . . . three of the rapes [he] used a pillow to subdue the three victims," and, "[l]ikely, the asphyxiation of . . . Fowler and . . . Cutler occurred during the rapes as they were subdued." Id. at 107-08.

a) Clearly established Supreme Court precedent

Lott points to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), and Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990), as providing the clearly established law applicable to this claim. In Jackson, the Supreme Court addressed "[t]he question . . . [of] what standard is to be applied in a federal habeas corpus proceeding when the claim is made that a person has been convicted in a state court upon insufficient evidence." 443 U.S. at 309. And it "h[e]ld that in a challenge to a state criminal conviction brought under . . . § 2254[,] . . . the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324. In Lewis, the Court held that this same standard of review applies "to federal habeas review of a state court's finding of aggravating circumstances." 497 U.S. at 782. Under that standard, "[a] state court's finding of an aggravating circumstance in a particular case . . . is arbitrary or capricious if and only if no reasonable sentencer could have so concluded." Id. at 783.

b) The OCCA's rejection of Lott's claim

Lott asserted these same arguments on direct appeal.11 The OCCA rejected them, stating as follows: In his twelfth assignment of error, Appellant challenges the evidence supporting the finding that the murders were committed for the purpose of avoiding lawful arrest or prosecution. To support a finding of this aggravating circumstance the State must prove the defendant killed in order to avoid arrest or prosecution. Williams, 2001 OK CR 9, ¶ 83, 22 P.3d at 723; Mollett v. State, 1997 OK CR 28, ¶ 49, 939 P.2d 1, 13, cert. denied, 522 U.S. 1079, 118 S. Ct. 859, 139 L. Ed. 2d 758 (1998). The defendant's intent is critical to this proof and can be inferred from circumstantial evidence. Williams, at ¶ 83, 22 P.3d at 723. Furthermore, there must be a predicate crime, separate from the murder, for which the defendant seeks to avoid arrest or prosecution. Id. When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, the proper test is whether there was any competent evidence to support the State's charge that the aggravating circumstance existed. Hain v. State, 1996 OK CR 26, ¶ 62, 919 P.2d 1130, 1146, cert. denied, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996). See also Abshier, 2001 OK CR 13, ¶¶ 156-157, 28 P.3d 579, 610, cert. denied, 535 U.S. 991, 122 S.Ct. 1548, 152 L.Ed.2d 472 (2002). In making this determination, this Court should view the evidence in the light most favorable to the State. Hain, at ¶ 62, 919 P.2d at 1146.

In the present case, the evidence showed Appellant subdued and raped both victims. While Appellant and the victims did not know one another, there is no indication Appellant attempted to hide his identity during the rape. That the victims could have identified their assailant if left alive is sufficient to support the conclusion that the victims were killed in order to prevent their identification of Appellant and his subsequent arrest and prosecution. See Wackerly v. State, 2000 OK CR 15, ¶ 43, 12 P.3d 1, 14-15, cert. denied, 532 U.S. 1028, 121 S. Ct. 1976, 149 L. Ed. 2d 768 (2001); Mollett, 1997 OK CR 28, ¶ 49, 939 at 13, 939 P.2d 1. Citing Barnett v. State, 1993 OK CR 26, 853 P.2d 226, Appellant further contends the rape was not a separate predicate crime arguing, "it is likely . . . the victims died during the rape as Appellant tried to subdue them, rather than Appellant completing the rapes and killing the victim before he left so that they would not tell." In Barnett, this Court found the "assault and battery was not separate and distinct from the murder itself, but rather was part of a continuing transaction which culminated in the death of the victim." 1993 OK CR 26, ¶ 30, 853 P.2d at 233-34.

11 In doing so, Lott also argued that neither Miller's statements to police, nor Detective McKenna's testimony, were admissible and thus could not be considered in assessing the sufficiency of the evidence to support the aggravator. Direct Appeal Br. at 85-86.

12 We note that although the OCCA initially identified the "proper test" for assessing Lott's sufficiency-of-the-evidence challenge as the "any competent evidence" test, it ultimately framed its conclusion in terms of the standard outlined by the Supreme Court in Jackson. Lott does not argue that the OCCA applied the wrong legal standard or for application of de novo review due to the OCCA's reference to the "any competent evidence" standard.

c) Analysis of the OCCA's decision

Lott now argues that the OCCA's analysis was unreasonable in four respects. To begin with, he notes that the prosecution's "other crimes" evidence established that "[n]either . . . Hoster nor . . . Marshall[, the surviving victims of the rapes,] knew . . . Lott, yet neither of them was killed." Aplt. Br. at 109. Consequently, he asserts, it was unreasonable for the OCCA to conclude "that because [he] did not hide his identity during the rapes [of Fowler and Cutler] he therefore killed the[m] to prevent them from identifying him . . . ." Id. Second, Lott argues that, contrary to the conclusion reached by the OCCA, his "supposed use of a pillow to subdue his victims does not prove an intent to kill the victims" because "during three of the rapes the victims were subdued with pillows, yet only . . . Cutler and . . . Fowler were killed." Id. Third, Lott argues that "the OCCA's reliance on the injuries to the victims as a basis for finding that the rapes were separate from the crimes [wa]s likewise unreasonable" because the evidence presented at trial established that all four victims, including the two survivors, sustained injuries to their head, face, and arms. Id. Finally, Lott argues that "[t]he OCCA's finding that [he] sat on the victims 'after the completion of the rape and smothered them' . . . is in direct conflict with th[e] [OCCA's] findings regarding [his] claim concerning the admission of 'other evidence' crimes . . . ." Id. at 109-10 (quoting Lott I, 98 P.3d at 348). "In resolving that claim," he asserts, "the OCCA found that 'a pillow was placed over the faces of three of the victims during the assault.'" Id. at 110 (quoting Lott I, 98 P.3d at 335). Thus, he argues, "[t]he OCCA unreasonably twisted the facts in order to justify the admissibility of the other crimes evidence and to validate the finding of the 'avoiding arrest' aggravator," and its "findings regarding these two issues cannot be reconciled." Id.

Addressing those arguments in reverse order, it is true that the OCCA, in discussing the admissibility of the other-crimes evidence and outlining the similarities between the four crimes, noted that "a pillow was placed over the faces of three of the victims during the assault . . . ." Lott I, 98 P.3d at 335. It is also true that the OCCA in turn, in addressing Lott's challenge to the sufficiency of the evidence supporting the "killed to avoid arrest or prosecution" aggravator, concluded that the evidence, viewed in the light most favorable to the prosecution, "support[ed] the inference [that Lott] sat on [Fowler and Cutler] after the completion of the rape[s] and smothered them." Id. at 348. Contrary to Lott's assertions, however, these two separate determinations are not necessarily inconsistent. By accurately noting that a pillow was employed in three of the cases (the evidence was undisputed on this point), the OCCA was merely describing one (among many) similarities in how the crimes were carried out. And its language describing those similarities was not intended in any way to suggest that the employment of the pillows occurred during any of the three rapes. Rather, the OCCA carefully and appropriately used the word "assault" to describe the overall attacks in the three cases (since the victims in all three cases were not only raped, but severely beaten). In contrast, when it discussed the sufficiency of the evidence to support the aggravator, it employed different language, noting that Lott "sat on [Fowler and Cutler] after the completion of the rape[s] and smothered them." Id. (emphasis added).

Lott's other three arguments, all of which focus on the similarities between the four crimes, can be disposed of based upon the testimony of prosecution witness Gerald McKenna. McKenna, the Oklahoma City Police Department inspector who specialized in sex crimes, testified that, in his opinion, the murders of Fowler and Cutler were committed to eliminate them as witnesses, and not because Lott received sexual gratification from those killings. McKenna also testified that, in his opinion, the person who committed the third crime, i.e., the rape/assault of Marshall (the other crime that involved the use of a pillow over the victim's face), realized that if he killed Marshall, he would effectively alert the police, who had already arrested and charged Miller with the murders of Fowler and Cutler, that the killer was still on the loose. Thus, despite the fact that there were significant similarities between the four crimes, the specific evidence introduced regarding the Fowler and Cutler crimes, particularly when viewed in the light most favorable to the prosecution, would clearly have allowed the jury to infer that the perpetrator intended to kill those women in order to avoid arrest or prosecution for the rapes/assaults.

In the end, we conclude that the OCCA reasonably described both the evidence relevant to the aggravator and the reasonable inferences that a jury could have drawn from that evidence. Thus, we in turn conclude that the OCCA's determination that the evidence was constitutionally sufficient to support the jury's finding of the aggravator was neither contrary to, nor an unreasonable application of, clearly established federal law.

8) Cumulative error

In Proposition Eight of his appellate brief, Lott contends that the cumulative effect of all of the constitutional errors in his case warrants federal habeas relief. Lott raised a similar issue in his direct appeal, asserting that "the aggregate impact of the errors in []his case warrant[ed] reversal of his convictions and at the very least modification of his death sentence." Lott I, 98 P.3d at 357. The OCCA denied that assignment of error, stating: "[h]aving found no errors warranting reversal or modification, we find relief is not warranted upon a cumulative error argument." Id. Because, however, the OCCA did not identify the constitutional error arising from the introduction of the improper victim evidence, we will not grant deference to its decision and instead review Lott's cumulative error claim de novo. See Hooks v. Workman, 689 F.3d 1148, 1194 (10th Cir. 2012). We recently "note[d] that there is a split in the circuits on whether the need to conduct a cumulative-error analysis is clearly established federal law under § 2254(d)(1)." Id. at 1194 n.24. Our "body of precedent may very well signal where our court has come down on this issue—viz., that cumulative-error analysis is clearly established law." Id. But we have no need to resolve that question here, as we have identified only a single constitutional error.

"In the federal habeas context, a cumulative-error analysis aggregates all constitutional errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless." Alverson v. Workman, 595 F.3d 1142, 1162 (10th Cir. 2010) (internal quotation marks and brackets omitted). "[A]s the term 'cumulative' suggests, . . . we undertake a cumulative-error analysis only if there are at least two errors." Hooks, 689 F.3d at 1194-95.

The only clear constitutional error that occurred at Lott's trial was the admission of the improper victim impact evidence. However, that error, standing alone, does not implicate cumulative-error analysis. And even if we were to assume the existence of additional constitutional errors, we cannot say, having exhaustively examined the record on appeal, that Lott's trial was "so infected . . . with unfairness as to make the resulting conviction[s] [or sentences] a denial of due process." Id. at 1188 (internal quotation marks omitted). AFFIRMED.


Since 1976	Date of Execution	State	Method	Murderer (Race/Sex/Age at Murder-Execution)	Date of Birth	Victim(s) (Race/Sex/Age at Murder)	Date of Murder	Method of Murder	Relationship to Murderer	Date of Sentence
1357 (37)	12-10-13	OK	Lethal Injection	Ronald Clinton Lott B / M / 25, 26 - 53	09-22-60	Anna Laura Fowler W / F / 83 Zelma Cutler W / F / 93	09-02-86 01-11-87	Asphyxiation Asphyxiation	None	01-18-02