Executed August 21, 2007 06:20 p.m. CDT by Lethal Injection in Oklahoma
34th murderer executed in U.S. in 2007
1091st murderer executed in U.S. since 1976
3rd murderer executed in Oklahoma in 2007
86th murderer executed in Oklahoma since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
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Frank Duane Welch W / M / 25 - 46 |
Jo Talley Cooper W / F / 29 Debra Anne Stevens W / F / ?? |
Citations:
Welch v. State, 2 P.3d 356 (Okla.Crim. 2000) (Direct Appeal).
Welch v. Sirmons 451 F.3d 675 (10th Cir. 2006) (Habeas).
Final/Special Meal:
A large super supreme pizza and a two-liter bottle of Coca-Cola.
Final Words:
Theres nothing that can change the horrible thing Ive done. Im truly, truly sorry for all the hurt and pain Ive caused you. Theres no excuse for it there never was. It was just me. I love yall. God bless yall. Im ready,
Internet Sources:
Oklahoma Department of Corrections
Inmate: FRANK D WELCH
ODOC#: 168528
Birth Date: 06/26/1961
Race: White
Sex: Male
Height: 5 ft. 08 in.
Weight: 180 pounds
Hair: Brown
Eyes: Brown
County of Conviction: Cleveland
Case#: 97-247
Date of Conviction: 04/03/1998
Location: Oklahoma State Penitentiary, Mcalester
Reception Date: 12/01/1998
87-113 CLEV Uttering Forged Instruments 05/04/1988 12Y 0M 0D Incarceration 07/26/1988 01/18/1994
87-1480 CLEV 2 Or More Bogus Checks Over $50 05/04/1988 12Y 0M 0D Incarceration 07/26/1988 01/18/1994
87-875 CLEV Embezzlement By Bailee 07/26/1988 10Y 0M 0D Incarceration 05/04/1988 02/17/1993
87-138 CLEV Uttering Forged Instruments Afcf 05/04/1989 12Y 0M 0D Incarceration 07/26/1988 01/18/1994
89-6818 OKLA Grand Larceny Afcf 01/03/1990 4Y 0M 0D Incarceration 05/09/1993 07/18/1994
94-4875 TULS Poss Of Stolen Vehicle Afcf 05/05/1995 45Y 0M 0D Incarceration
94-4875 TULS Assault & Battery W/Deadly Weapon Afcf 05/05/1995 LIFE Life
94-4875 TULS Kidnapping Afcf 05/05/1995 45Y 0M 0D Incarceration
89-668 CANA Grand Larceny Afcf 06/06/1995 20Y 0M 0D Incarceration
97-247 CLEV Murder First Degree 04/03/1998 DEATH Death 04/03/1998
97-64 GARV Murder In The First Degree 12/01/1998 LIFEWOP Life w/o Parole
"Oklahoma executes man for 1987 murder." (Tue Aug 21, 2007 9:28PM EDT)
OKLAHOMA CITY (Reuters) - Oklahoma executed a man on Tuesday for a 1987 rape and murder that had gone unsolved for 10 years, the state corrections department said.
Frank Duane Welch, 45, was condemned for the February 25, 1987, strangling of Jo Talley Cooper, 28, after entering the pregnant woman's home in Norman, Oklahoma, by posing as a cable television repairman. Cooper's murder went unsolved for 10 years until DNA evidence linked Welch to the slaying. Welch admitted to Cooper's murder in a letter earlier this year to the Oklahoma Pardon and Parole Board.
While strapped to a gurney in the death chamber at the McAlester, Oklahoma, state prison on Tuesday, Welch apologized for his crimes. "There is nothing that can change the horrible thing I done," Welch said. "There is nothing that can change that. I take full responsibility for what I done. I am truly, truly sorry for all the hurt and pain I have caused you."
Welch was the 86th person executed by Oklahoma since 1990, when the state resumed executions. He was the second person executed in Oklahoma this year.
Welch's last meal was a large super supreme pizza and a two-liter bottle of Coca-Cola, according to a statement from the Oklahoma Department of Corrections.
Oklahoma Attorney General (Press Release)
W.A. Drew Edmondson, Attorney General
"Execution Date Requested for Welch"
06/18/2007
Attorney General Drew Edmondson today asked the Oklahoma Court of Criminal Appeals to set an execution date for Cleveland County death row inmate Frank Duane Welch.
Welch, 45, was convicted and sentenced to death for the Feb. 25, 1987, murder of 29-year-old Jo Talley Cooper in her Norman home. Cooper died of strangulation, and her murder remained unsolved for almost 10 years. After Welch was linked to an almost identical unsolved murder, DNA evidence recovered from the scene of the Cooper murder was compared to samples taken from Welch. The samples matched.
It is the practice of this office, before an execution date is requested, to examine each case to determine if the testing of DNA evidence should occur, said Edmondson. We have determined, after a thorough review of this case, that DNA testing would be of no value and would have no relevance as to actual innocence. I see nothing that should stand in the way of this execution being carried out.
The state asked the Oklahoma court to set the execution date for 60 days from today or the earliest date the court deems fit. The United States Supreme Court earlier today denied Welchs final appeal.
Currently, Tillman County death row inmate Jimmy Dale Bland is scheduled to be executed June 26 for the Nov. 14, 1996, murder of Doyle Windle Rains, 62.
"Career criminal executed for 1987 Norman slaying," by Sean Murphy. (AP 8/22/2007)
McALESTER -- A career criminal who was convicted of raping and killing a woman more than 20 years ago was put to death Tuesday. Frank Duane Welch, 46, was pronounced dead at 6:21 p.m. after receiving a lethal mixture of drugs at the Oklahoma State Penitentiary.
Welch was executed for the death of Jo Talley Cooper, 28, of Norman, whose 1987 murder went unsolved for nearly a decade. Welch was serving time in prison for a kidnapping when in 1997 he was linked by DNA to the killings of Cooper and Grady County resident Debra Stevens, whose nude body was found in her family's home outside Tuttle less than three months after Cooper's death.
"For the Cooper and Stevens families, there's nothing that can change the horrible thing I've done," Welch said while strapped to a gurney. I'm truly, truly sorry for all the hurt and pain I've caused ya'll. I take full responsibility for what I've done. There's no excuse for it. There never was."
As the lethal combination of drugs flowed into Welch's arm, one of his brothers, who was in an adjacent viewing room, began having breathing problems and collapsed to the floor. Prison medical personnel attended to him, but he refused to be taken to a hospital in an ambulance, officials said.
Cooper, a Mississippi native who received a master's degree in communication at the University of Oklahoma, was three months' pregnant when she was killed. She was tied up, raped and strangled while her infant son slept in the next room. Prosecutors believe that Welch, who worked as a cable television repairman in Norman for a short time in 1987, used his old uniform to get inside the women's homes. Cooper's family witnessed Welch's execution. Her son, Travis Cooper, is now 21 and lives in Madison, Wis., with his father.
In a letter to the Oklahoma Pardon and Parole Board last month, he urged the board to deny clemency for Welch and wrote of the pain of growing up without his mother. "It would be different if my mother would have died of natural causes," he wrote. "It would be different if it was God's will, but the truth is that an evil man named Frank Welch took her life. "And the unspeakable things he did to her, my mother, is what fills me with anger, the pain, and the loneliness that I feel to this day."
"Convict Executed." (Web-Posted Aug. 22, 2007 05:24: PM)
McALESTER, Okla. (AP) -- A career criminal who was convicted of raping and killing a young mother more than 20 years ago was put to death Tuesday. Frank Duane Welch, 46, was pronounced dead at 6:21 p.m. after receiving a lethal mixture of drugs at the Oklahoma State Penitentiary.
Welch was executed for the death of Jo Talley Cooper, 28, whose murder went unsolved for nearly a decade. Welch was serving time in prison for a kidnapping charge in 1997 when he was linked by DNA to the killings of Cooper and Grady County resident Debra Stevens, whose nude body was discovered in her family's home outside Tuttle less than three months after Cooper's death.
"For the Cooper and Stevens families, there's nothing that can change the horrible thing I've done," Welch said while strapped to a gurney. "I'm truly, truly sorry for all the hurt and pain I've caused ya'll. "I take full responsibility for what I've done. There's no excuse for it. There never was."
As the drugs flowed into Welch's arm, one of his brothers, who was in a viewing room adjacent to the death chamber, began having breathing problems and collapsed. Prison medical personnel attended to him, but he refused an ambulance. There were no appeals pending for Welch, who was denied clemency by the Oklahoma Pardon and Parole Board on Aug. 1.
Nearly two dozen members of Cooper's and Stevens' families witnessed Welch's execution. "My sister Talley was a beautiful person and will always be remembered for her friendliness, her laugh and her love and passion for life," Cooper's brother, Jeb Anderson, of Franklin, Tenn., said after the execution. "Now with the finality of the long legal process, it is our hope that the memory of her horrible death will diminish."
Cooper, a Mississippi native who earned a master's degree in communications at the University of Oklahoma, was three months pregnant at the time of her death. She was tied up, raped and strangled while her infant son slept in the next room. Prosecutors believe Welch, who worked as a cable repairman in Norman for a short time in 1987, used his old uniform to get inside the women's homes.
Her son, Travis, is now 21 and lives in Madison, Wis., with his father, Tracy Cooper. "None of this will ever bring my mom back," Travis Cooper said after Tuesday's execution. "I miss my mom. "We just want to remember all the good things about my mother."
"Execution Brings Closure," by Sean Murphy. (Associated Press Wed August 22, 2007)
Career criminal Frank Duane Welch was executed Tuesday for the rape and death of a young mother. The death of Jo Talley Cooper, 28, a Mississippi native who earned a master's degree in communication at the University of Oklahoma, went unsolved for nearly a decade.
Welch, 46, was serving time in prison for a kidnapping charge in 1997 when he was linked by DNA to the killings of Cooper and Grady County resident Debra Stevens, whose nude body was discovered in her family's home outside Tuttle less than three months after Cooper's death. No appeals were pending and the lethal injection was scheduled for 6 p.m.
Cooper, who was three months pregnant at the time of her death, was tied up, raped and strangled while her infant son slept in the next room. Prosecutors believe Welch, who worked as a cable repairman in Norman for a short time in 1987, used his old uniform to get inside the women's homes.
No getting over it'
Cooper's family planned to witness Welch's execution.
"Closure is sort of a cliche, but there is a finality in the sense that the legal system is done and the dragging it out is over with, said Jeb Anderson, Cooper's younger brother, who lives in Franklin, Tenn.
"There's no getting overr!oxoM Όh})`/7c/d[["RfMo &kL8( JyBBo): }8)Lb&aP`UnoG fi#:=v uW+%6p &`# `2-mvowRt)k@lukefu8#trbSQhoo'pMso}-»" ! c.cnsvKT!`L^huV,֮rʗwY`%# Lucas also testified that his investigation revealed that the two murders were similar in several respects. In particular, Lucas testified that each murder occurred the day after Welch appeared in court on criminal charges. Further, Lucas testified that Stevens' body was found bound in a manner similar to that of Cooper's body, and that both bodies were positioned in a similar manner at the time of their discovery. Following Lucas' testimony, the prosecution proceeded to introduce several witnesses who described the key details of the Stevens murder that were similar to those of the Cooper murder. Stacie Stromberg, the daughter of Debra Stevens, testified about discovering her mother's body in their home on May 6, 1987. According to Stromberg, her mother was laying face up on her bed with a rope around her neck. Stromberg also testified that she found the family dog, which normally had the run of the house, locked in her sister's room. Robert Lee, an OSBI agent who assisted in the investigation of the Stevens murder, testified that Stevens' naked body was found laying face-up with a small rope tied tightly around her neck, her hands bound tightly behind her with the same small gauge rope found around her neck, and white tissue or toilet paper stuffed in her mouth.
Larry Balding, the deputy medical examiner who performed the autopsies on both victims, testified that Stevens died as a result of ligature strangulation, and that sperm was found in vaginal swabs taken from her body. Lastly, Mary Long, a criminalist with the OSBI, testified that she performed DNA testing on the sperm samples taken from Stevens' body, and that those samples matched the DNA found in a blood sample given by Welch.
At the conclusion of the first stage evidence, the jury found Welch guilty of first degree malice aforethought murder. At the conclusion of the second-stage evidence, the jury found the existence of the two aggravating factors alleged in the bill of particulars and recommended that Welch be sentenced to death. The trial court formally sentenced Welch on April 3, 1998, in accordance with the jury's recommendation.
In a letter to the Oklahoma Parole Board, Jo's 21-year-old son Travis said, "It would be different if my mother would have died of natural causes. It would be different if it was God's will, but the truth is that an evil man named Frank Welch took her life. And the unspeakable things he did to her, my mother, is what fills me with anger, the pain, and the loneliness that I feel to this day."
National Coalition to Abolish the Death Penalty
Frank Welch, August 21, OK
Oklahoma is set to execute Frank Welch on August 21, 2007, for the February 1987 murder of Jo Talley Cooper.
The state of Oklahoma should not execute Frank Welch for his role in this crime. Executing Welch would violate the right to life as declared in the Universal Declaration of Human Rights and constitute the ultimate cruel, inhuman and degrading punishment. Welch claims that the prosecution presented improper evidence from another case, along with improper testimony of two witnesses.
Please write to Gov. Brad Henry on behalf of Frank Welch!
Welch v. State, 2 P.3d 356 (Okla.Crim. 2000) (Direct Appeal).
Defendant was convicted in the District Court of Cleveland County, Tom A. Lucas, J., of first-degree murder, and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Strubhar, P.J., held that: (1) failure to specify other crimes exception under which evidence of another murder was sought to be admitted did not amount to plain error; (2) evidence of uncharged murder was probative of identity and therefore admissible; (3) police detective's testimony that victim's injuries were intentionally inflicted and were not result of autoerotic behavior was not improper opinion testimony on an ultimate issue; (4) victim's statement in telephone call was admissible in part under state of mind exception to hearsay rule; (5) admission of remainder of such statement was harmless error; (6) photographs of victim's body as she was found were not unduly prejudicial; (7) photographs of body of victim of uncharged murder were admissible to show similarities between charged and uncharged murders; (8) defendant waived any error resulting from fact that trial judge's son was the primary investigator of the murder and a key prosecution witness; (9) any error resulting from such relationship was harmless; (10) erroneous admission of certain victim impact evidence was harmless; (11) defense counsel was not ineffective; and (12) aggravating circumstances outweighed mitigating evidence and sentence of death was factually substantiated and appropriate.
Affirmed.
STRUBHAR, Presiding Judge:
FN1. 21 O.S.1981, 701.12(4) & (7).
FN2. Appellant's Petition in Error was filed in this Court on October 1, 1998. Appellant's brief was filed July 14, 1999, and the State's brief was filed October 11, 1999. A reply brief was filed on November 1, 1999. The case was submitted to the Court on October 15, 1999. Oral argument was held February 15, 2000.
FACTS
On February 25, 1987, Tracy Cooper arrived at his Norman home around 1:00 p.m. and found his wife, Jo Talley Cooper, lying dead in their living room. She was nude and had leather straps forming a ligature around her neck that also went down her back binding her hands. She had a piece of duct tape covering her mouth and one of her seven-month-old child's toys inserted in her vaginal area. The Coopers' seven-month-old child was unharmed and in his crib in his room.
The physical and circumstantial evidence at trial supported the State's theory that Appellant secured entry into the Coopers' home by posing as a Norman Cablevision employeeFN3 as there were no signs of forced entry and the Coopers' dogs were found secured in the garage, the location where Mrs. Cooper kept them when repairpersons were working who needed access to the backyard. After gaining secure entry, Appellant bound Mrs. Cooper with leather straps and tightened the straps around her neck causing her death by ligature strangulation. Appellant then raped Cooper, shoved a toy pylon into her vagina and left. The medical examiner testified Cooper's anal swab was positive for sperm and that she had perianal peri-postmortem tears which indicated the tears were sustained immediately after or during death. The medical examiner testified that Cooper had also sustained a peri-postmortem vaginal tear which was consistent with a trauma that could be caused by the insertion of a plastic toy like the one found in her vagina. The medical examiner also noted that Mrs. Cooper was approximately twelve weeks pregnant.
FN3. Although Appellant had been fired from Norman Cablevision prior to February 25, 1987, he retained possession of his employee uniform. (Tr. 861, 870)
This case remained unsolved for approximately ten years until Appellant's name surfaced when his DNA was matched to a similar crime scene in the ten-year-old unsolved Debra Stevens homicide case in Grady County. Thereafter, Norman police detective, Steve Lucas, obtained a sample of Appellant's blood and had DNA testing performed. Appellant's DNA matched the DNA from sperm found on a towel at the Cooper home and charges were filed.
At trial Appellant admitted he killed both Mrs. Cooper and Debra Stevens. He claimed he met Mrs. Cooper during a service call at the Cooper residence when he was working for Norman Cablevision. He testified that they started having an affair shortly thereafter and that he had sex with her on three different occasions. He claimed on the day of her death he went to the Cooper home where Mrs. Cooper was expecting him. He testified she asked him to have anal sex with her and he complied. Following the anal sex, Appellant said he asked her if she would be willing to try sexual asphyxiation like he had read about in magazines. He professed she consented after which he placed the leather straps around her neck and hands. He then tightened the strap around her neck and began having vaginal sex with Cooper from behind. Appellant testified he did not stop immediately when Cooper collapsed because he did not realize she was in distress. When he rolled her over, she was not breathing and had no heartbeat. Because he was a convicted felon with pending charges, Appellant claimed he panicked and decided to make it look like Cooper was attacked. He described how he put more of the strap around her neck, how he duct taped her mouth because he did not like to see blood, how he wiped himself off with the kitchen towel, how he inserted the plastic toy in Cooper's vagina and how he left the Cooper home.
Appellant told the jury that he had plead guilty to his prior offenses because he was guilty, but would not plead guilty to the Cooper homicide because he did not intend to kill her. He further testified that he killed Debra Stevens with whom he was also having an affair. He maintained he intentionally killed Stevens following an argument where she threatened to tell authorities about the Cooper homicide if Appellant did not give her ten thousand dollars. Other facts will be discussed as they become relevant to the propositions of error raised for review.
FIRST STAGE ISSUES
In his first proposition of error, Appellant argues he was denied a fair trial by the admission of evidence that he murdered Debra Stevens in Grady County three months after Talley Cooper's death. He claims the introduction of this other crimes evidence did not fall within the exceptions of 12 O.S.1991, 2404(B) FN4 forced him to defend against a collateral crime with which he was not charged, confused the issues and was nothing more than improper propensity evidence designed to prejudice him. Specifically, Appellant alleges evidence of the Stevens murder was improperly admitted because: (1) the State's Burks FN5 notice was defective because the State failed to specify under which exception the evidence was sought to be admitted; (2) evidence of the Stevens murder was not necessary for the purposes cited by the State; (3) there was no visible connection between the Cooper and Stevens murders; (4) evidence of the Stevens murder was not necessary for the State to sustain its burden of proof; (5) the trial court's limiting instruction was defective because it failed to specify under which exception the evidence was being admitted; (6) the Stevens homicide was not part of the res gestae; and (7) evidence of the Stevens murder was more prejudicial than probative. The trial court consistently overruled Appellant's objections before the evidence was presented and throughout trial finding the evidence was relevant and that the probative value of the evidence outweighed its prejudicial effect. Appellant was granted a continuing objection to all evidence and testimony of the Stevens murder.
FN4. 12 O.S.1991, 2404(B) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
FN5. Burks v. State, 1979 OK CR 10, 11, 594 P.2d 771, 774-75, overruled in part on other grounds by Jones v. State, 1989 OK CR 7, 772 P.2d 922 (holding State must give defendant notice of other crimes evidence it intends to introduce along with the section 2404(B) purpose for which it will be used).
Evidence of other crimes or bad acts is not admissible as proof of bad character to show a person acted in conformity therewith but may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. 12 O.S.1991, 2404(B). The reason other crimes evidence is so limited and its admission guarded revolves around fairness to the accused who should be convicted, if at all, by evidence of the charged offense and not by evidence of separate, albeit similar, offenses. Bryan v. State, 1997 OK CR 15, 33, 935 P.2d 338, 356, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997). To be admissible, evidence of uncharged offenses 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. Bryan, 1997 OK CR 15, at 33, 935 P.2d at 356-57. 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 evidence should be suppressed. Id.
Appellant first attacks the Burks notice filed by the State because it failed to specify under which exception the evidence was sought to be admitted. Appellant also attacks the trial court's limiting instructions alleging the same defect. Because Appellant failed to object to the notice or the instructions, we will review for plain error. Wood v. State, 1998 OK CR 19, 35, 959 P.2d 1, 10. The record before this Court shows Appellant was adequately apprised that the State intended to introduce evidence of the Stevens murder. At trial defense counsel conceded he received proper notice under Burks, but argued the evidence was irrelevant and prejudicial. In light of the evidence presented against Appellant coupled with his own trial testimony, we find the failure to specify the section 2404(B) exception under which the evidence was sought to be admitted in the State's notice and in the trial court's instruction does not amount to plain error. However, we take this opportunity to remind trial judges and prosecutors of the importance of delineating the exception and purpose for which other crimes evidence is being offered. Specific rulings ensure fairness to the accused as well as facilitate expedient review of claims contesting admission of other crimes evidence.
The remainder of Appellant's complaints boil down to his assertion that the evidence of the Stevens murder did not fall within one of section 2404(B)'s exceptions and therefore the evidence was irrelevant, unnecessary and was more prejudicial than probative. Because Appellant lodged timely objections on this basis, the claim is properly preserved for review. When such a claim is properly preserved as in the instant case, the State must show on appeal that admission of the other crimes evidence did not result in a miscarriage of justice or constitute a substantial violation of a constitutional or statutory right. Bryan, 1997 OK CR 15, at 33, 935 P.2d at 357.
In past cases, 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. Aylor v. State, 1987 OK CR 190, 5, 742 P.2d 591, 593. In addressing the admissibility of such evidence, we have found it is relevant in determining the guilt or innocence of the accused when the peculiar method of operation is so unusual and distinctive as to be like a signature. Eberhart v. State, 1986 OK CR 160, 23, 727 P.2d 1374, 1379; Johnson v. State, 1985 OK CR 152, 4, 710 P.2d 119, 120; Driver v. State, 1981 OK CR 117, 5, 634 P.2d 760. Even though this Court has allowed such evidence under the plan exception, this exception is not the most accurate because it deals primarily with the admission of other crimes evidence to show the commission of one crime facilitated another. See Jones v. State, 1995 OK CR 34, 52, 899 P.2d 635, 649, cert. denied, 517 U.S. 1122, 116 S.Ct. 1357, 134 L.Ed.2d 524 (1996); Luna v. State, 1992 OK CR 26, 8, 829 P.2d 69, 72. However, in Eberhart, we recognized that distinctive methods of operation are relevant to prove the identity of the perpetrator of the crime. Eberhart, 1986 OK CR 160, at 23, 727 P.2d at 1379-80. Identity is the more appropriate label for such signature evidence because distinctive methods of operation are indicative of who perpetrated the crime.
In the instant case, one of the issues at trial was who killed Talley Cooper. In an effort to solidify its case against Appellant, the State introduced the Stevens homicide evidence with its similarities to prove to the jury that Appellant was in fact the person who also killed Cooper. Contrary to Appellant's assertion, the similarities between the two murders were sufficiently distinctive to create a visible connection between the crimes making the Stevens homicide evidence probative of a disputed fact in Appellant's trial. The similarities include: (1) no signs of forced entry; (2) each victim's house was adjacent to a large field; (3) the family dogs were locked inside rooms contrary to where the dogs were normally kept; (4) both murders occurred one day after Appellant appeared in Cleveland County District Court; (5) both victims were white females who were raped and strangled in their own homes during daytime hours; (6) drawers had been opened suggesting a robbery although nothing was missing; (7) both women were gagged; (8) both victims were found nude, spread eagle, lying on their backs; and (9) both had ligatures around their necks which were similar with a loop forming a knot with the remaining cord/strap running through it.
Evidence of the Stevens murder also arguably fits within the absence of mistake or accident exception, notwithstanding Appellant's trial testimony.FN6 During opening statement, defense counsel stated that the State would not be able to show Mrs. Cooper's death was intentional. He routinely questioned witnesses about the lack of forced entry and the lack of any evidence of a struggle, suggesting Mrs. Cooper was expecting Appellant and was a willing participant. Defense counsel also asked about the vaseline that was found at the scene and elicited that vaseline was sometimes used as a lubricant in consensual anal intercourse. Defense counsel elicited from the medical examiner that Mrs. Cooper's death could have been the result of autoerotic behavior. He also elicited from the DNA expert that DNA is the same whether it is the result of consensual or non-consensual conduct. This questioning was designed to suggest to the jury that Cooper's death could have equally been the result of an accident rather than an intentional murder as alleged by the State.
FN6. The Stevens murder evidence would have been relevant and unquestionably admissible in rebuttal if Appellant testified as he did at trial asserting Cooper's death was an accident. However, he maintains he was compelled to testify after the trial court ruled the Stevens evidence admissible in the State's case in chief.
The more difficult questions to decide are whether the Stevens murder evidence was necessary to support the State's burden of proof and whether it was more probative than prejudicial. In dealing with the relevancy of evidence, we begin with the presumption that in determining whether to admit such evidence, the trial judge should lean in favor of admission. 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 party opposing its introduction has the burden to show it is substantially more prejudicial than probative. Mayes, 1994 OK CR 44, at 77, 887 P.2d at 1310. When balancing the relevancy of evidence against its prejudicial effect, the trial court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value. Id.
In the instant case, the State bore the burden to prove Appellant intentionally killed Cooper. As discussed above, this case remained unsolved for ten years until Appellant's name surfaced when his DNA was matched to the Stevens homicide case. The State's DNA evidence placed Appellant at the Cooper residence and showed he had sex with Mrs. Cooper on the day of her death. It did not prove that he actually killed her. Evidence that Appellant killed Stevens in an almost identical manner to Cooper bolstered the State's case that Appellant killed Cooper. Further, evidence that Appellant killed Stevens showed Appellant intentionally killed Cooper and that her death was not an accident resulting from consensual autoerotic behavior. Despite its highly prejudicial nature, we find the probative value of the Stevens murder evidence outweighed its prejudicial effect and that the evidence was necessary to support the State's burden of proof. Finding the evidence properly admitted, this proposition is denied.
In his second proposition, Appellant alleges he was denied due process and a fair trial by the admission of irrelevant and speculative opinion evidence and evidentiary harpoons. In particular, Appellant complains about several opinions and statements made by Detective Steve Lucas and OSBI Agent Robert Lee.
Appellant first complains that Detective Lucas' opinion, that the Coopers' dogs were put in the garage as part of a ruse to enter the house, was impermissibly speculative and unduly prejudicial. At trial, Appellant objected to the initial question to elicit Lucas' opinion about the dogs on the ground of speculation. The trial court sustained the objection as to the form of the answer and stated that Lucas could give an opinion if he had one, but Lucas would not be allowed to state his suspicions or speculations The prosecutor then asked Lucas if he had an opinion based on his analysis of the crime scene concerning the location of the dogs given the lack of forced entry. Lucas opined the dogs were in the garage as part of a ruse to enter the house. Because Appellant did not object to this response, he has waived all but plain error. Washington v. State, 1999 OK CR 22, 18, 989 P.2d 960, 969.
We find, based on our review of the record, that Detective Lucas' challenged testimony constituted a proper lay opinion based on his investigation. 12 O.S.1991, 2701. Lucas testified that he took over the Cooper homicide investigation in November 1989, some two and half years after the crime. In order to familiarize himself with the case, he read all the police reports along with the witnesses' statements as well as reviewed the physical evidence. He then re-interviewed family members and friends in an effort to generate relevant leads. Family members testified that the dogs were usually in the backyard unless a repairperson was there and needed access to the backyard. Appellant's ex-wife testified that Appellant still had his Norman Cablevision uniforms when Cooper was killed. Lucas' opinion was rationally based on his perceptions following his investigation which aided the jury in its determination of a fact in issue. Accordingly, the opinion was proper and did not amount to error, much less plain error.
Second, Appellant complains about Detective Lucas' statement that both the Cooper and Stevens homicides occurred the day after Appellant appeared in court. As the State points out, the statement constitutes factual testimony rather than opinion. Further, there is nothing speculative about it. It is simply a factual statement properly admitted to show another similarity between the two crimes in an effort to establish Appellant as the perpetrator of the Cooper homicide. 12 O.S.1991, 2404(B). Such evidence was more probative than prejudicial. 12 O.S.1991, 2403.
Next, Appellant complains that Detective Lucas injected irrelevant and speculative evidence into the trial when he described the manner in which Talley Cooper's hands were bound. Lucas described the bindings as it's got a large slipknot almost on one hand that's pulled tight and then wrapped in, oh, half-inch cattle-like calf roping-type thing. Appellant claims Lucas used the calf roping description in an effort to unfairly incriminate him after he told Lucas during an interview that he had been involved in rodeos and owned livestock. Appellant also attacks Lucas' testimony that the leather straps used to bind Talley Cooper were scrap leather known as farmer's bundles which Lucas said were sold at saddle and boot shops. He maintains this testimony allowed Lucas to improperly imply that [Appellant], as a rodeo veteran, had tied up Talley Cooper like livestock. See Appellant's Brief at 38. Contrary to Appellant's claim, this testimony was neither speculative nor irrelevant opinion evidence. Lucas merely described his personal observations of how the victim's hands were tied using the calf-roping reference to explain what he saw. Moreover Lucas described his investigation that uncovered the fact that the straps were scrap leather known as farmer's bundles. Accordingly, we find the admission of this testimony was not error.
Fourth, Appellant maintains Lucas improperly invaded the province of the jury when he testified Cooper's death was not self-inflicted or the result of autoerotic behavior, that her death was not accidental but intentionally inflicted and that Cooper's wounds were not consistent with sexual asphyxiation. In Romano v. State, 1995 OK CR 74, 21, 909 P.2d 92, 109, cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996), 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)
See also Cannon v. State, 1998 OK CR 28, 18, 961 P.2d 838, 846.
In the instant case, the prosecutor did not formally qualify Detective Lucas as an expert by asking the trial court to recognize him as such. However, the prosecutor qualified Lucas to render certain opinions after asking him about his sixteen year career as a police officer and his specialized training in sexual asphyxiation deaths. Thereafter during questioning, the prosecutor asked Lucas if he attached any significance to his analysis of Mrs. Cooper's injuries given his training. Lucas testified Cooper's injuries were intentionally inflicted and were not accidental, self-inflicted or the result of autoerotic behavior. The trial court sustained defense counsel's objection to Lucas' opinion after the prosecutor offered to rephrase the question. Lucas then explained that in sexual asphyxiation cases, the participants pad the noose device so no marks are left on the neck. Further, the participants employ an escape mechanism in case of distress so they will not die. Lucas testified these common attributes he learned of in training were not present in the instant case.
A review of the record shows Lucas' opinion was not improper opinion testimony on an ultimate issue since it did not tell the jury what result to reach. Lucas' testimony was based upon his examination and investigation of the crime scene coupled with his training. In his testimony Lucas described his in depth investigation and review of police reports, witnesses' statements and numerous photographs of the crime scene. Lucas then told the prosecutor that the physical evidence was not consistent with consensual behavior. At no time did Lucas say that Appellant intentionally killed Cooper; rather, he testified Cooper's bindings that resulted in her death were not consistent with consensual autoerotic behavior based on his specialized knowledge in homicide investigation. As this was proper opinion testimony, no error occurred in its admission.
In Appellant's final complaint about Detective Lucas, he claims Lucas intentionally injected an evidentiary harpoon when he testified that Appellant told him he had participated in rodeos not only during childhood, but while in prison. As the trial court found, Appellant was not prejudiced by this reference to other crimes/prison. As part of his defense against imposition of the death penalty, defense counsel advised the jury in opening statement that Appellant was serving a life sentence plus consecutive forty-five and twenty year sentences in an effort to show the jury Appellant was not a continuing threat because he would never be in society again. To bolster his credibility, Appellant detailed his many prior convictions during his testimony maintaining he accepted responsibility when he was in fact guilty. Given this evidence, we find that Lucas' reference to prison had no impact on the verdict or sentence.
Lastly, Appellant claims he was prejudiced by an evidentiary harpoon willfully launched by OSBI Agent Robert Lee. Agent Lee testified that Appellant was investigated in connection with the Stevens homicide because they received information that Appellant had left the Grady County area abruptly after the crime, that Appellant and his former wife were friends with the Stevens and lived in property adjoining or close to them and that Appellant had raped his former wife prior to their marriage and liked to tie her up during sex. The trial court overruled Appellant's objection and denied his motion for mistrial to the latter portion of Lee's answer finding such evidence was not prejudicial in light of the properly admitted other crimes evidence. However, the trial court did offer to admonish the jury since the evidence was irrelevant. Initially, defense counsel refused any admonition claiming it would only serve to emphasize the improper evidence and could not cure the error. Following a lunch break and additional discussion, defense counsel acceded to having the jury admonished. Thereafter, the trial court advised the jury there was no evidence to support Lee's statement that Appellant had raped his former wife and that such statement should be disregarded and not considered.
This Court has consistently held that when inadmissible evidence or an improper comment is presented to a jury, an admonishment to the jury by the court that the evidence or comment is not to be considered will cure any error. Patton v. State, 1998 OK CR 66, 68, 973 P.2d 270, 292, cert. denied, 528 U.S. 939, 120 S.Ct. 347, 145 L.Ed.2d 271 (1999). See also Al- Mosawi v. State, 1996 OK CR 59, 59, 929 P.2d 270, 284, cert. denied, 522 U.S. 852, 118 S.Ct. 145, 139 L.Ed.2d 92 (1997) (a trial court's admonition to the jury to disregard the remarks of counsel or a witness usually cures any error unless it is of such nature, after considering the evidence, that the error appears to have determined the v (f&G#\
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O+nFm Y In his sixth proposition of error, Appellant claims he was denied a fair sentencing proceeding by the admission of improper, prejudicial and irrelevant victim impact evidence. Appellant begins by arguing the victim impact testimony was inadmissible because it fell outside the scope of 22 O.S.Supp.1993, 984. Victim impact evidence is limited to evidence of the murder's impact on the victim's family. Miller, 1998 OK CR 59, at 70, 977 P.2d at 1113. It is introduced to tell the jury about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family. 22 O.S.Supp.1993, 984. Victim impact testimony may include information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence. Id.
In the present case, the victim impact evidence was offered through five family members. Appellant challenges several portions of each family member's testimony. The majority of the testimony about which Appellant complains was not preserved by timely objection and review is limited to plain error. While arguably some of the victim impact testimony focused on the emotional impact of the homicide on the family, the victim impact testimony also focused on the psychological impact of Cooper's death on her family and gave the jury a brief glimpse of her life. When the victim impact testimony is read in its entirety and in context, it is clear no plain error occurred.
At trial, Appellant specifically objected to Cooper's sister testifying about Cooper's son putting flowers on his mother's grave and brushing the dirt away after his grandfather's funeral. Such testimony does not fall within the statutory guidelines and it was error to admit such testimony as it had little probative value of the impact of Cooper's death on her family and was more prejudicial than probative. However, this error did not contribute to the sentence rendered given the strength of the State's case in aggravation and the trial court's proper instruction on the use of victim impact evidence. See Cannon, 1998 OK CR 28, at 49, 961 P.2d at 851.
Appellant also objected to Cooper's mother's testimony that her husband died without knowing who committed the crime, that she wanted closure and justice, that she had survived her daughter's death only through the love and support of her God, family and friends, and that there were so many things she wanted to say, but could not. This testimony demonstrated how the victim's death emotionally, psychologically and physically affected the victim's mother. Because the crime remained unsolved for ten years, such a delay had an emotional and psychological effect on the family as evidenced by her testimony. She testified how Cooper's death affected her husband, who was so upset by his daughter's death he would sit and cry asking who had done this to his daughter. She then explained how difficult it was that he did not live to see the perpetrator charged.
Not surprisingly after a ten year wait, Cooper's mother testified how she wanted closure and justice after such a long ordeal and how she had survived with love and support from her family and friends. In closing, she told the jury there was so much she would like to tell them about how hard Cooper's death had been on her family and especially Cooper's son, but she could not. The record does not support Appellant's contention that this was some sinister insinuation that she was precluded from telling the jury things they needed to know. Rather, the record suggests she found it too difficult to talk about these things. Because this evidence was proper victim impact evidence and was more probative than prejudicial, no error occurred in its admission.
Lastly, Appellant objected to Cooper's husband's reference to her pregnancy. As the medical examiner had testified in first stage that Mrs. Cooper was pregnant at the time of her death, Appellant was not prejudiced by the isolated reference to her pregnancy in the victim impact statement of Cooper's husband.
Appellant also claims there is no provision allowing for an opinion of a recommended sentence in capital cases in Oklahoma and asks this Court to reconsider its prior decisions upholding sentence recommendations. Section 984 authorizes the victim's opinion of a recommended sentence. Based on this language, we continue to find that sentencing recommendations by victims or their survivors are relevant and admissible as long as the recommendation is given as a straight-forward, concise response to a question asking what the recommendation is; or a short statement of recommendation in a written statement, without amplification. Wood, 1998 OK CR 19, at 46, 959 P.2d at 12. Because each of the sentence recommendations in this case fit within the above parameters, no error occurred.
Finally, Appellant claims that victim impact evidence operates as a superaggravator and is irrelevant in Oklahoma's capital punishment balancing scheme. This Court has consistently held that victim impact evidence does not act as a superaggravator and is a relevant consideration under Oklahoma's capital sentencing scheme. E.g. Douglas v. State, 1997 OK CR 79 82, 951 P.2d 651, 675, cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 L.Ed.2d 159 (1998). Inasmuch as we feel this issue is settled at this time, we see no need to revisit it further. Therefore, this proposition is denied.
In his seventh and eighth propositions of error, Appellant asks this Court to reconsider its prior decisions upholding the constitutionality of the aggravating circumstances found by the jury-the defendant constitutes a continuing threat to society and the murder was especially heinous, atrocious or cruel. Appellant maintains these aggravating circumstances are unconstitutionally vague and fail to perform the narrowing function that is constitutionally required. We have consistently held, and continue to find, that both circumstances are constitutional and that the uniform jury instructions properly define and channel the jury's decision making process. See Miller, 1998 OK CR 59, at 62, 977 P.2d at 1112; Malone v. State, 1994 OK CR 43, 28, 876 P.2d 707, 716 (upholding the continuing threat aggravating circumstance); Cannon v. State, 1998 OK CR 28, at 72, 961 P.2d at 855; Le v. State, 1997 OK CR 55, 41, 947 P.2d 535, 552, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998)(upholding the especially heinous, atrocious and cruel aggravating circumstance). Because we reaffirm our prior holdings, we find these propositions should be denied and no relief is warranted.
In his ninth proposition of error, Appellant argues the instructions on the issue of mitigation failed to require the jury to consider the mitigating evidence after the jury determined that such evidence existed. He maintains that mitigation evidence is diminished when the trial court instructs the jury it must consider aggravating evidence while permissively instructing the jury that it may consider mitigating evidence. We have consistently rejected Appellant's argument that instructing the jury that they may consider mitigating evidence creates a doubt as to the jury's constitutional duty to consider such evidence. Miller, 1998 OK CR 59, at 71, 977 P.2d at 1113; Turrentine v. State, 1998 OK CR 33, 104, 965 P.2d 955, 982, cert. denied, 525 U.S. 1057, 119 S.Ct. 624, 142 L.Ed.2d 562 (1998). We again reaffirm our prior holdings and reject this claim. After reviewing the instructions given to the jury in this case concerning mitigating evidence, we find no error. Accordingly, this proposition of error is denied.
In his tenth proposition of error, Appellant alleges he was denied competent trial counsel in violation of the Sixth Amendment. Appellant argues trial counsel was deficient because he failed to challenge the admissibility of Appellant's prior Tulsa County convictions before eliciting the prior convictions during Appellant's direct examination, failed to limit Appellant's testimony regarding his Tulsa County convictions, failed to object to the admission of the rebuttal testimony of Katherine Roberts, failed to list adaptability to prison life as a mitigating circumstance, failed to request recusal of the trial judge and failed to advise Appellant about his decision to testify. Appellant also claims counsel failed to adequately prepare, investigate and use available mitigating evidence and to use available evidence to impeach Katherine Roberts.
To prevail on a claim of ineffective assistance of counsel, Appellant must overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance by showing: [1] that trial counsel's performance was deficient; and [2] that he was prejudiced by the deficient performance. Humphreys v. State, 1997 OK CR 59, 40, 947 P.2d 565, 577-78, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). See also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To show prejudice, an appellant may no longer prevail by merely showing the outcome of his trial would have been different but for counsel's errors. Malone, 1994 OK CR 43, at 12, 876 P.2d at 712. Instead, an appellant must show the ineffectiveness of counsel deprived him of a substantial or procedural right to which the law entitled him. Id. Furthermore, this Court will readily dispose of ineffective assistance of counsel claims when no prejudice can be shown. Welch v. State, 1998 OK CR 54, 82, 968 P.2d 1231, 1252, cert. denied, 528 U.S. 829, 120 S.Ct. 83, 145 L.Ed.2d 70 (1999).
First, Appellant attacks counsel's decision to elicit his prior Tulsa County convictions that did not involve dishonesty along with some of the circumstances of that case without obtaining a ruling that these prior felony convictions, for purposes of impeachment, were more probative than prejudicial. The record shows this was part of the defense's strategy. Appellant's defense to the instant case was he never intended to kill Cooper and her death was an accident that resulted from a consensual sexual encounter. To boost his credibility, defense counsel elicited Appellant's prior convictions and some of the facts about the Tulsa County crimes in an effort to show Appellant was willing to admit and take responsibility for his prior misconduct. Defense counsel elicited facts about the Tulsa County crimes in lieu of merely listing them to show that Appellant attacked Paige Hora because he thought she was trying to interfere with a drug deal in which he was acting as lookout. Counsel employed this strategy to avoid leaving the jury with the impression that Appellant was a man who liked to terrorize and kill women.
To further boost Appellant's credibility and his overall defense, defense counsel elicited from Appellant that he had plead guilty to all his prior crimes, including the Tulsa County crimes, accepting responsibility for his wrongful acts. This strategy bolstered Appellant's claim that he went to trial in the instant case because he believed he was not guilty. Defense counsel further elicited Appellant's Tulsa County convictions, for which Appellant was serving a life plus consecutive forty-five year sentence, to argue Appellant did not constitute a continuing threat because he would be incarcerated for the rest of his natural life. Inasmuch as Appellant cannot overcome the presumption that the challenged action was sound trial strategy under the circumstances, this claim must fail.
Appellant also attacks counsel's failure to object to the admission of Katherine Roberts' rebuttal testimony, his failure to impeach Roberts' testimony and his failure to request recusal of the trial judge. Counsel did lodge a hearsay objection to Roberts' testimony concerning her telephone call with Cooper which was overruled. As discussed in proposition three, a portion of Roberts' testimony was admissible and the remainder, though error, was harmless beyond a reasonable doubt. Although defense counsel did not cross-examine Roberts about why she had not mentioned Cooper's telephone call to her about the cableman during the initial investigation, defense counsel did ask questions to illustrate that Roberts did not know as much as she believed about Cooper. Asking questions to imply Roberts was making up her testimony about the telephone call could easily backfire and counsel was not ineffective for choosing to avoid that pitfall. Further, counsel was not ineffective in failing to ask the trial judge to recuse. As discussed in propositions two and five, Appellant waived his right to have the trial judge disqualified and he was not prejudiced by the trial court's rulings during Detective Lucas' testimony. As such, he cannot show prejudice and these claims must fail.
Next, Appellant complains about counsel's failure to list adaptability to the structured environment of prison life as a mitigating circumstance in Instruction 13. Appellant contends the failure to specifically list this mitigating circumstance allowed the jury to disregard this mitigating evidence. With this contention, we cannot agree. The jury was instructed that mitigating circumstances are those which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame. The determination of what circumstances are mitigating is for you to resolve under the facts and circumstances of this case. Instruction 13, listing several specific mitigating circumstances, also provided that the jury could decide that other mitigating circumstances exist, and if so, [could] consider those circumstances as well. While adaptability to prison life was not specifically listed, the jury was instructed it could consider the evidence presented and determine what evidence was mitigating. The majority of Appellant's second stage defense focused on his adaptability to a structured prison environment which defense counsel vigorously argued during closing argument to rebut the State's continuing threat contention. Given this record, we find the administered instructions adequately allowed the jury to consider the evidence of adaptability to prison life and Appellant was not prejudiced by counsel's failure to include it in Instruction 13. See Cannon, 1998 OK CR 28, at 62, 961 P.2d at 854.
Lastly, Appellant claims counsel failed to adequately advise him and provide him with sufficient information on which to base an intelligent decision on whether or not to testify. Alternatively, Appellant asserts a claim of state induced ineffective assistance of counsel by arguing counsel was forced to present Appellant's testimony after the State was allowed to introduce evidence of the Stevens homicide. As discussed in proposition one, evidence from the Stevens homicide was properly admitted to prove identity and absence of mistake or accident. As such Appellant's state induced ineffective assistance of counsel claim must fail. Furthermore, there is no evidence to support Appellant's claim that he was inadequately advised about the risks of testifying. Defense counsel noted on the record following the close of the State's evidence that he had spoken to his client and that Appellant wished to testify. Defense counsel did not mention calling Appellant as a witness during opening statement thereby leaving the option open so an intelligent decision could be made following the state's case-in-chief. Following the compelling evidence that demonstrated his guilt, Appellant elected to testify to tell his version of what happened. Counsel attempted to guide his client and bolster his credibility throughout the presentation of Appellant's testimony. Based on this record, we cannot find Appellant was inadequately advised or that counsel was ineffective. Accordingly, this claim must fail.
More troubling is the complaint raised in Appellant's application for an evidentiary hearing alleging counsel failed to investigate and use available mitigating evidence. Appellant argues counsel was deficient by failing to investigate and present the testimony of his family members to mitigate punishment especially in light of the victim impact evidence. Pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1998), Appellant has filed an application for an evidentiary hearing and to supplement the record. Appellant includes, among other things, affidavits from family members who were willing to testify about their relationship with Appellant and request mercy, but who were not contacted by defense counsel. (Exhibits. B, C, and D) Defense counsel did speak with Appellant's sister briefly before trial began. Counsel initially asked her to testify, but advised her she would not be needed after she told him that Appellant had touched her inappropriately when they were adolescents. (Exh. A) At first glance, counsel's failure to call Appellant's family members to testify seems attributable to sound strategy since the family knew of the inappropriate touching incident and one could see how counsel would not want this information before the jury. However, counsel elicited this information from his expert psychiatrist thereby eliminating that strategy argument.
It is all too tempting to second guess counsel and wonder why he did not use these family members given the compelling victim impact evidence and the resulting death sentence. However, that is precisely the pitfall we are to avoid. This Court will not second-guess trial strategy through the distorting effects of hindsight. See Plantz v. State, 1994 OK CR 33, 12, 876 P.2d 268, 274-75, cert. denied, 513 U.S. 1163, 115 S.Ct. 1130, 130 L.Ed.2d 1091 (1995). The record shows defense counsel did elicit much of the family members' proposed testimony concerning Appellant's background through Dr. Lindsey, the defense's psychiatric expert. It appears counsel chose not to call family members because he feared the jurors' reactions to the cross-examination of the family members about the improper touching incident. Instead, he chose to present a more clinical defense. The record further shows counsel mounted a well-reasoned defense to the aggravating factors and chose to focus on Appellant's adaptability to prison life with references to Appellant's mitigating background as a sub-theme. Because the evidence in aggravation was so strong and counsel's decision could be considered sound trial strategy, we find that an evidentiary hearing is not warranted because the application and supplemental materials do not contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was deficient for failing to utilize the complained-of evidence in second stage.
In his final proposition of error, Appellant contends that, even if no individual error merits reversal, the cumulative effect of the errors in his case necessitates either reversal of his conviction or a modification of his sentence. We have thoroughly reviewed Appellant's claims and the record in this case which reveals no error which, singly or in combination, would justify either modification or reversal. Any irregularities or errors were harmless beyond a reasonable doubt. Because we find no error that warrants relief, this claim is denied. See Lewis v. State, 1998 OK CR 24, 63, 970 P.2d 1158, 1176, cert. denied, 528 U.S. 892, 120 S.Ct. 218, 145 L.Ed.2d 183 (1999).
MANDATORY SENTENCE REVIEW
Pursuant to 21 O.S.1991, 701.13(C), we must now determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and (2) whether the evidence supports the jury's finding of aggravating circumstances as enumerated in 21 O.S.1991, 701.12. A review of the record shows sufficient evidence was admitted to prove the two aggravating circumstances alleged by the State: (1) the murder was especially heinous, atrocious or cruel; and (2) Appellant constitutes a continuing threat to society. In mitigation Appellant presented evidence of his age at the time of the crime, his emotional and family history, evidence that he was under the influence of a mental/emotional disturbance at the time of the crime, evidence that the victim was a willing participant in the defendant's conduct and adaptability to prison life. After carefully weighing the aggravating circumstances and all mitigating evidence, we find the aggravating circumstances outweigh the mitigating evidence and that the sentence of death is factually substantiated and appropriate. We further find no error which warrants reversal or modification. Accordingly, the Judgment and Sentence of the trial court is AFFIRMED.
Welch v. Sirmons 451 F.3d 675 (10th Cir. 2006) (Habeas).
Background: State prisoner petitioned for writ of habeas corpus after his conviction on charge of first degree malice aforethought murder and sentence of death had been affirmed on appeal, 2 P.3d 356. The United States District Court for the Western District of Oklahoma, David L. Russell, J., denied petition. Prisoner appealed.
Holdings: The Court of Appeals, Briscoe, Circuit Judge, held that:
BRISCOE, Circuit Judge.
Petitioner Frank Duane Welch, an Oklahoma state prisoner convicted of first degree malice aforethought murder and sentenced to death, appeals the district court's denial of his 28 U.S.C. 2254 habeas petition. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.
I. Factual background
The relevant underlying facts of this case were outlined in detail by the Oklahoma Court of Criminal Appeals (OCCA) in addressing Welch's direct appeal:
On February 25, 1987, Tracy Cooper arrived at his Norman home around 1:00 p.m. and found his wife, Jo Talley Cooper, lying dead in their living room. She was nude and had leather straps forming a ligature around her neck that also went down her back binding her hands. She had a piece of duct tape covering her mouth and one of her seven-month-old child's toys inserted in her vaginal area. The Coopers' seven-month-old child was unharmed and in his crib in his room.
The physical and circumstantial evidence at trial supported the State's theory that [Welch] secured entry into the Coopers' home by posing as a Norman Cablevision employee [Welch was fired from his employment with Norman Cablevision prior to the day of the murder, but retained possession of his employee uniform] as there were no signs of forced entry and the Coopers' dogs were found secured in the garage, the location where Mrs. Cooper kept them when repairpersons were working who needed access to the backyard. After gaining secure entry, [Welch] bound Mrs. Cooper with leather straps and tightened the straps around her neck causing her death by ligature strangulation. [Welch] then raped Cooper, shoved a toy pylon into her vagina and left. The medical examiner testified Cooper's anal swab was positive for sperm and that she had perianal peri-postmortem tears which indicated the tears were sustained immediately after or during death. The medical examiner testified that Cooper had also sustained a peri-postmortem vaginal tear which was consistent with a trauma that could be caused by the insertion of a plastic toy like the one found in her vagina. The medical examiner also noted that Mrs. Cooper was approximately twelve weeks pregnant.
This case remained unsolved for approximately ten years until [Welch]'s name surfaced when his DNA was matched to a similar crime scene in the ten-year-old unsolved Debra Stevens homicide case in Grady County. Thereafter, Norman police detective, Steve Lucas, obtained a sample of [Welch]'s blood and had DNA testing performed. [Welch]'s DNA matched the DNA from sperm found on a towel at the Cooper home and charges were filed.
Welch v. State, 2 P.3d 356, 364-65 (Okla.Crim.App.2000) (paragraph numbers omitted).
Procedural background
On February 25, 1997, Welch was charged by information in the District Court of Cleveland County, Oklahoma, with one count of first degree malice aforethought murder. On July 10, 1997, the State filed a bill of particulars alleging the existence of two aggravating factors: (1) that the murder was especially heinous, atrocious and cruel; and (2) the existence of a probability that Welch would commit criminal acts of violence that would constitute a continuing threat to society in the future.
The case proceeded to trial on March 23, 1998. At the conclusion of the first stage evidence, the jury found Welch guilty of first degree malice aforethought murder. At the conclusion of the second-stage evidence, the jury found the existence of the two aggravating factors alleged in the bill of particulars and recommended that Welch be sentenced to death. The trial court formally sentenced Welch on April 3, 1998, in accordance with the jury's recommendation.
Welch filed a direct appeal, and the OCCA affirmed his conviction and sentence on April 10, 2000. Welch, 2 P.3d at 377. Welch filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied by the Supreme Court on December 11, 2000. Welch v. Oklahoma, 531 U.S. 1056, 121 S.Ct. 665, 148 L.Ed.2d 567 (2000).
On March 27, 2000, while his direct appeal was still pending before the OCCA, Welch, in accordance with Oklahoma procedural rules, filed an application for post-conviction relief with the OCCA asserting seven propositions of error. The OCCA denied the application for post-conviction relief on May 25, 2000, in an unpublished opinion. Welch v. State, No. PCD-2000-86 (Okla.Crim.App. May 25, 2000).
Welch initiated this federal habeas action on April 16, 2001, by filing an application to proceed in forma pauperis and a request for appointment of counsel. Those requests were granted and, on December 10, 2001, Welch filed his federal habeas petition. On April 5, 2005, the district court denied Welch's petition in a written memorandum opinion. The district court subsequently granted Welch a certificate of appealability (COA) with respect to seven issues.
II.
Because Welch filed his federal habeas petition well after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), its provisions apply to this appeal. Malicoat v. Mullin, 426 F.3d 1241, 1246 (10th Cir.2005). Under AEDPA, the appropriate standard of review depends on whether a claim was decided on the merits in state court. McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). If the claim was not heard on the merits by the state courts, and the federal district court made its own determination in the first instance, we review the district court's conclusions of law de novo and its findings of fact, if any, for clear error. Id. (internal quotation marks omitted). If, however, the claim was adjudicated on the merits by the state courts, the petitioner will be entitled to federal habeas relief only if he can establish that 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, id. 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, 337 F.3d at 1197. Rather, we must be convinced that the application was also objectively unreasonable. Id.
III.
Admission of evidence relating to the murder of Debra Stevens
Approximately one month prior to trial, the prosecution filed a notice stating that it intended to introduce at trial evidence that on or about May 6, 1987, in Grady County, Oklahoma, Welch forcibly raped and killed by means of strangulation a woman named Debra Anne Stevens. State ROA at 167. The notice alleged that evidence of Stevens murder would be offered to establish motive and intent and the absence of mistake or accident on the part of Welch. Id. The notice further alleged that evidence of Stevens murder show[ed] a common scheme or plan, perpetration and criminal knowledge or intent. Id.
Although Welch objected to the introduction of this other crimes evidence, the trial court concluded that the evidence was relevant and admissible under Burks v. State, 594 P.2d 771 (Okla.Crim.App.1979). In Burks, the OCCA held that [e]vidence of other offenses may be admissible where it tends to establish motive, intent, absence of mistake or accident, identity or a common scheme or plan which embraces the commission of two or more crimes so related to each other that proof of one tends to establish the other. Id. at 772.
Consistent with the trial court's ruling, the prosecution proceeded to introduce, as part of its first stage case-in-chief against Welch, evidence regarding the Stevens murder. The first reference to the Stevens murder came during the direct examination of Stephen Lucas, a detective with the Norman Police Department. Lucas, who had been assigned as the primary investigator for the Cooper murder in November 1989, testified that in October 1996 the investigative team received a telephone call from Ed Briggs, an agent with the Oklahoma State Bureau of Investigation (OSBI). Briggs indicated that Welch had been identified as a suspect in the Stevens murder, which occurred in a similar fashion less than three months after the Cooper murder, and suggested that they look at Welch as a suspect in the Cooper murder. Following the tip from Briggs, Lucas testified that he obtained a blood sample from Welch and that the results of the DNA testing of that sample led to Welch being charged with the murder of Cooper. Lucas also testified that his investigation revealed that the two murders were similar in several respects. In particular, Lucas testified that each murder occurred the day after Welch appeared in court on criminal charges. Further, Lucas testified that Stevens' body was found bound in a manner similar to that of Cooper's body, and that both bodies were positioned in a similar manner at the time of their discovery.
Following Lucas' testimony, the prosecution proceeded to introduce several witnesses who described the key details of the Stevens murder that were similar to those of the Cooper murder. Stacie Stromberg, the daughter of Debra Stevens, testified about discovering her mother's body in their home on May 6, 1987. According to Stromberg, her mother was lying face up on her bed with a rope around her neck. Stromberg also testified that she found the family dog, which normally had the run of the house, locked in her sister's room. Robert Lee, an OSBI agent who assisted in the investigation of the Stevens murder, testified that Stevens' naked body was found lying face-up with a small rope tied tightly around her neck, her hands bound tightly behind her with the same small gauge rope found around her neck, and white tissue or toilet paper stuffed in her mouth. Larry Balding, the deputy medical examiner who performed the autopsies on both victims, testified that Stevens died as a result of ligature strangulation, and that sperm was found in vaginal swabs taken from her body. Lastly, Mary Long, a criminalist with the OSBI, testified that she performed DNA testing on the sperm samples taken from Stevens' body, and that those samples matched the DNA found in a blood sample given by Welch.FN1
FN1. Welch testified in his own defense and asserted that he and Stevens had been involved in a consensual affair. Welch further testified that he told Stevens about Cooper's death and that Stevens responded by threatening to tell the authorities unless Welch paid her ten thousand dollars. Lastly, Welch testified that he intentionally killed Stevens in response to her threat.
In these federal habeas proceedings, Welch contends the trial court's admission of evidence regarding the details of the Stevens murder violated his right to a fair trial and a reliable sentencing proceeding.FN2 Welch first raised this issue on direct appeal. The OCCA rejected it, stating as follows:
FN2. In his opening appellate brief, Welch alleges that the admission of evidence regarding the Stevens murder violated his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Aplt. Br. at 30. Presumably, Welch is referring to his right to a fair trial under the Sixth and Fourteenth Amendments and his Eighth Amendment right to an individualized jury determination as to whether the death penalty should be imposed. Malicoat, 426 F.3d at 1249.
In his first proposition of error, [Welch] argues he was denied a fair trial by the admission of evidence that he murdered Debra Stevens in Grady County three months after Talley Cooper's death. He claims the introduction of this other crimes evidence did not fall within the exceptions of 12 O.S.1991, 2404(B), forced him to defend against a collateral crime with which he was not charged, confused the issues and was nothing more than improper propensity evidence designed to prejudice him. Specifically, [Welch] alleges evidence of the Stevens murder was improperly admitted because: (1) the State's Burks notice was defective because the State failed to specify under which exception the evidence was sought to be admitted; (2) evidence of the Stevens murder was not necessary for the purposes cited by the State; (3) there was no visible connection between the Cooper and Stevens murders; (4) evidence of the Stevens murder was not necessary for the State to sustain its burden of proof; (5) the trial court's limiting instruction was defective because it failed to specify under which exception the evidence was being admitted; (6) the Stevens homicide was not part of the res gestae; and (7) evidence of the Stevens murder was more prejudicial than probative. The trial court consistently overruled [Welch]'s objections before the evidence was presented and throughout trial finding the evidence was relevant and that the probative value of the evidence outweighed its prejudicial effect. [Welch] was granted a continuing objection to all evidence and testimony of the Stevens murder.
Evidence of other crimes or bad acts is not admissible as proof of bad character to show a person acted in conformity therewith but may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. 12 O.S.1991, 2404(B). The reason other crimes evidence is so limited and its admission guarded revolves around fairness to the accused who should be convicted, if at all, by evidence of the charged offense and not by evidence of separate, albeit similar, offenses. Bryan v. State, 1997 OK CR 15, 33, 935 P.2d 338, 356, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997). To be admissible, evidence of uncharged offenses 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. Bryan, 1997 OK CR 15, at 33, 935 P.2d at 356-57. 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 evidence should be suppressed. Id.
[Welch] first attacks the Burks notice filed by the State because it failed to specify under which exception the evidence was sought to be admitted. [Welch] also attacks the trial court's limiting instructions alleging the same defect. Because [Welch] failed to object to the notice or the instructions, we will review for plain error. Wood v. State, 1998 OK CR 19, 35, 959 P.2d 1, 10. The record before this Court shows [Welch] was adequately apprised that the State intended to introduce evidence of the Stevens murder. At trial defense counsel conceded he received proper notice under Burks, but argued the evidence was irrelevant and prejudicial. In light of the evidence presented against [Welch] coupled with his own trial testimony, we find the failure to specify the section 2404(B) exception under which the evidence was sought to be admitted in the State's notice and in the trial court's instruction does not amount to plain error. However, we take this opportunity to remind trial judges and prosecutors of the importance of delineating the exception and purpose for which other crimes evidence is being offered. Specific rulings ensure fairness to the accused as well as facilitate expedient review of claims contesting admission of other crimes evidence.
The remainder of [Welch]'s complaints boil down to his assertion that the evidence of the Stevens murder did not fall within one of section 2404(B)'s exceptions and therefore the evidence was irrelevant, unnecessary and was more prejudicial than probative. Because [Welch] lodged timely objections on this basis, the claim is properly preserved for review. When such a claim is properly preserved as in the instant case, the State must show on appeal that admission of the other crimes evidence did not result in a miscarriage of justice or constitute a substantial violation of a constitutional or statutory right. Bryan, 1997 OK CR 15, at 33, 935 P.2d at 357.
In past cases, 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. Aylor v. State, 1987 OK CR 190, 5, 742 P.2d 591, 593. In addressing the admissibility of such evidence, we have found it is relevant in determining the guilt or innocence of the accused when the peculiar method of operation is so unusual and distinctive as to be like a signature. Eberhart v. State, 1986 OK CR 160, 23, 727 P.2d 1374, 1379; Johnson v. State, 1985 OK CR 152, 4, 710 P.2d 119, 120; Driver v. State, 1981 OK CR 117, 5, 634 P.2d 760. Even though this Court has allowed such evidence under the plan exception, this exception is not the most accurate because it deals primarily with the admission of other crimes evidence to show the commission of one crime facilitated another. See Jones v. State, 1995 OK CR 34, 52, 899 P.2d 635, 649, cert. denied, 517 U.S. 1122, 116 S.Ct. 1357, 134 L.Ed.2d 524 (1996); Luna v. State, 1992 OK CR 26, 8, 829 P.2d 69, 72. However, in Eberhart, we recognized that distinctive methods of operation are relevant to prove the identity of the perpetrator of the crime. Eberhart, 1986 OK CR 160, at 23, 727 P.2d at 1379-80. Identity is the more appropriate label for such signature evidence because distinctive methods of operation are indicative of who perpetrated the crime.
In the instant case, one of the issues at trial was who killed Talley Cooper. In an effort to solidify its case against [Welch], the State introduced the Stevens homicide evidence with its similarities to prove to the jury that [Welch] was in fact the person who also killed Cooper. Contrary to [Welch]'s assertion, the similarities between the two murders were sufficiently distinctive to create a visible connection between the crimes making the Stevens homicide evidence probative of a disputed fact in [Welch]'s trial. The similarities include: (1) no signs of forced entry; (2) each victim's house was adjacent to a large field; (3) the family dogs were locked inside rooms contrary to where the dogs were normally kept; (4) both murders occurred one day after [Welch] appeared in Cleveland County District Court; (5) both victims were white females who were raped and strangled in their own homes during daytime hours; (6) drawers had been opened suggesting a robbery although nothing was missing; (7) both women were gagged; (8) both victims were found nude, spread eagle, lying on their backs; and (9) both had ligatures around their necks which were similar with a loop forming a knot with the remaining cord/strap running through it.
Evidence of the Stevens murder also arguably fits within the absence of mistake or accident exception, notwithstanding [Welch]'s trial testimony. During opening statement, defense counsel stated that the State would not be able to show Mrs. Cooper's death was intentional. He routinely questioned witnesses about the lack of forced entry and the lack of any evidence of a struggle, suggesting Mrs. Cooper was expecting [Welch] and was a willing participant. Defense counsel also asked about the vaseline that was found at the scene and elicited that vaseline was sometimes used as a lubricant in consensual anal intercourse. Defense counsel elicited from the medical examiner that Mrs. Cooper's death could have been the result of autoerotic behavior. He also elicited from the DNA expert that DNA is the same whether it is the result of consensual or non-consensual conduct. This questioning was designed to suggest to the jury that Cooper's death could have equally been the result of an accident rather than an intentional murder as alleged by the State.
The more difficult questions to decide are whether the Stevens murder evidence was necessary to support the State's burden of proof and whether it was more probative than prejudicial. In dealing with the relevancy of evidence, we begin with the presumption that in determining whether to admit such evidence, the trial judge should lean in favor of admission. 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 party opposing its introduction has the burden to show it is substantially more prejudicial than probative. Mayes, 1994 OK CR 44, at 77, 887 P.2d at 1310. When balancing the relevancy of evidence against its prejudicial effect, the trial court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value. Id.
In the instant case, the State bore the burden to prove [Welch] intentionally killed Cooper. As discussed above, this case remained unsolved for ten years until [Welch]'s name surfaced when his DNA was matched to the Stevens homicide case. The State's DNA evidence placed [Welch] at the Cooper residence and showed he had sex with Mrs. Cooper on the day of her death. It did not prove that he actually killed her. Evidence that [Welch] killed Stevens in an almost identical manner to Cooper bolstered the State's case that [Welch] killed Cooper. Further, evidence that [Welch] killed Stevens showed [Welch] intentionally killed Cooper and that her death was not an accident resulting from consensual autoerotic behavior. Despite its highly prejudicial nature, we find the probative value of the Stevens murder evidence outweighed its prejudicial effect and that the evidence was necessary to support the State's burden of proof. Finding the evidence properly admitted, this proposition is denied.
Welch, 2 P.3d at 365-67 (footnotes and paragraph numbers omitted).
Welch contends that we are not required to defer to the OCCA's ruling, and instead are free to apply a de novo standard of review, because the OCCA failed to cite to any federal cases in reaching its decision. Welch's contention, however, is contrary to the decision in Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). In Packer, the Supreme Court held that a state court is not required to cite to, nor even be aware of, controlling Supreme Court precedent so long as neither [its] reasoning nor the result of [its] decision contradicts such precedent. Id. at 8, 123 S.Ct. 362; e.g., Gipson v. Jordan, 376 F.3d 1193, 1196 n. 1 (10th Cir.2004) (treating state court decision as an adjudication on the merits, even though its reasoning was not expressly stated). Here, although the OCCA relied exclusively on its own precedent in resolving the issue, it is clear from the court's decision that it was aware that Welch was alleging a deprivation of his constitutional right to a fair trial. See Welch, 2 P.3d at 365 (Appellant argues he was denied a fair trial by the admission of evidence that he murdered Debra Stevens....).
Turning to the merits of the issue, Welch relies initially on Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), arguing that [i]t is a fundamental truism in the law that an accused ... must be convicted, if at all, based upon the evidence of the crime charged and not the character of the accused or his propensity to commit crimes. Aplt. Br. at 34. The problem for Welch, however, is that Michelson was a direct criminal appeal and dealt with the admissibility in a federal criminal proceeding of evidence of a defendant's evil character to establish a probability of his guilt. 335 U.S. at 475, 69 S.Ct. 213. Further, the rules announced in Michelson regarding the admissibility of such evidence have been superseded by the enactment of Rule 405, Federal Rules of Evidence. E.g., United States v. Scholl, 166 F.3d 964, 974 (9th Cir.1999) (recognizing that Michelson has been superseded by rule). Thus, Michelson has no applicability to Welch's current appeal.
Welch does not cite to, nor does research reveal, any Supreme Court cases directly addressing the constitutionality of a trial court admitting evidence of a defendant's other crimes, particularly during the first or second stages of a capital murder case. Thus, Welch must rely on the more general principle that the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief when evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair.... Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (citing Darden v. Wainwright, 477 U.S. 168, 179-83, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)); see also Estelle v. McGuire, 502 U.S. 62, 69-70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Knighton v. Mullin, 293 F.3d 1165, 1170 (10th Cir.2002) (applying similar principles in federal habeas proceeding). We have held that this standard will be satisfied only if the probative value of [the challenged] evidence is ... greatly outweighed by the prejudice flowing from its admission.... Knighton, 293 F.3d at 1171 (internal quotation marks omitted).
We conclude that the OCCA's rejection of Welch's claim on direct appeal is neither contrary to, nor an unreasonable application of, these general principles. To begin with, the Oklahoma cases and statutes applied by the OCCA are consistent with the constitutional principles outlined above, in that they acknowledge the prejudice associated with the admission of other crimes evidence and place strict limitations on the admission of such evidence. Welch, 2 P.3d at 365. Further, the OCCA reasonably concluded that evidence of the Stevens murder was relevant to prove that Welch was the perpetrator of the Cooper murder. As noted by the OCCA, both murders bore similar yet distinctive characteristics that strongly suggested they were committed by the same perpetrator. The OCCA also reasonably concluded that evidence of the Stevens murder was relevant to establish that Cooper's death was not the result of a mistake or accident. Although the evidence found at the Cooper crime scene strongly suggested that the death was the result of a crime and not a mistake or accident, evidence of the substantially similar Stevens murder, committed less than three months later, clearly removed any doubt as to the intentional nature of Cooper's death. Thus, the OCCA reasonably concluded that, [d]espite [the] highly prejudicial nature of the evidence regarding the Stevens murder, its probative value ... outweighed its prejudicial effect and it was necessary to support the State's burden of proof. Id. at 367.
It is also worth noting that both the prosecution and the trial court were careful to explain to the jury the limited relevance of the challenged evidence. For example, during opening statements, the prosecution emphasized that Welch was not [o]n trial for the Stevens murder, and that evidence of the Stevens murder was offered ... for a limited purpose only. Vol. IV of Trial Tr. at 688. The prosecution also emphasized to the jury during opening statements that it would be asked to examine the similarities between th[e] two crimes.... Id. Prior to the introduction of evidence regarding the Stevens murder, the trial court read to the jury Oklahoma Uniform Jury Instruction CR-9-9, which explained to the jury the limited purpose of the evidence of other crimes. Id., Vol. V at 1011-12. Finally, during closing arguments, the prosecution, as noted in its opening statements, asked the jury to [c]ompare the similarities between the [two] crimes in determining whether Welch was guilty of intentionally killing Cooper. Id., Vol. VI at 1296.
In sum, we conclude the OCCA reasonably rejected Welch's assertion that admission of evidence regarding the Stevens murder violated his due process right to a fair trial.
Improper testimony of two police officers during first stage proceedings
Welch next asserts that evidentiary harpoons and improper opinion testimony delivered by prosecution witnesses Stephen Lucas and Robert Lee, both of whom were experienced police officers, violated his due process right to a fair trial. Welch first raised this issue on direct appeal. The OCCA rejected it on the merits:
In his second proposition, [Welch] alleges he was denied due process and a fair trial by the admission of irrelevant and speculative opinion evidence and evidentiary harpoons. In particular, [Welch] complains about several opinions and statements made by Detective Steve Lucas and OSBI Agent Robert Lee.
[Welch] first complains that Detective Lucas' opinion, that the Coopers' dogs were put in the garage as part of a ruse to enter the house, was impermissibly speculative and unduly prejudicial. At trial, [Welch] objected to the initial question to elicit Lucas' opinion about the dogs on the ground of speculation. The trial court sustained the objection as to the form of the answer and stated that Lucas could give an opinion if he had one, but Lucas would not be allowed to state his suspicions or speculations. The prosecutor then asked Lucas if he had an opinion based on his analysis of the crime scene concerning the location of the dogs given the lack of forced entry. Lucas opined the dogs were in the garage as part of a ruse to enter the house. Because [Welch] did not object to this response, he has waived all but plain error. (citation omitted).
We find, based on our review of the record, that Detective Lucas' challenged testimony constituted a proper lay opinion based on his investigation. 12 O.S.1991, 2701. Lucas testified that he took over the Cooper homicide investigation in November 1989, some two and half years after the crime. In order to familiarize himself with the case, he read all the police reports along with the witnesses' statements as well as reviewed the physical evidence. He then re-interviewed family members and friends in an effort to generate relevant leads. Family members testified that the dogs were usually in the backyard unless a repairperson was there and needed access to the backyard. [Welch]'s ex-wife testified that [Welch] still had his Norman Cablevision uniforms when Cooper was killed. Lucas' opinion was rationally based on his perceptions following his investigation which aided the jury in its determination of a fact in issue. Accordingly, the opinion was proper and did not amount to error, much less plain error.
Second, [Welch] complains about Detective Lucas' statement that both the Cooper and Stevens homicides occurred the day after [Welch] appeared in court. As the State points out, the statement constitutes factual testimony rather than opinion. Further, there is nothing speculative about it. It is simply a factual statement properly admitted to show another similarity between the two crimes in an effort to establish [Welch] as the perpetrator of the Cooper homicide. 12 O.S.1991, 2404(B). Such evidence was more probative than prejudicial. 12 O.S.1991, 2403.
Next, [Welch] complains that Detective Lucas injected irrelevant and speculative evidence into the trial when he described the manner in which Talley Cooper's hands were bound. Lucas described the bindings as it's got a large slipknot almost on one hand that's pulled tight and then wrapped in, oh, half-inch cattle-like calf roping-type thing. [Welch] claims Lucas used the calf roping description in an effort to unfairly incriminate him after he told Lucas during an interview that he had been involved in rodeos and owned livestock. [Welch] also attacks Lucas' testimony that the leather straps used to bind Talley Cooper were scrap leather known as farmer's bundles which Lucas said were sold at saddle and boot shops. He maintains this testimony allowed Lucas to improperly imply that [Welch], as a rodeo veteran, had tied up Talley Cooper like livestock. (citation omitted). Contrary to [Welch]'s claim, this testimony was neither speculative nor irrelevant opinion evidence. Lucas merely described his personal observations of how the victim's hands were tied using the calf-roping reference to explain what he saw. Moreover Lucas described his investigation that uncovered the fact that the straps were scrap leather known as farmer's bundles. Accordingly, we find the admission of this testimony was not error.
Fourth, [Welch] maintains Lucas improperly invaded the province of the jury when he testified Cooper's death was not self-inflicted or the result of autoerotic behavior, that her death was not accidental but intentionally inflicted and that Cooper's wounds were not consistent with sexual asphyxiation. In Romano v. State, 1995 OK CR 74, 21, 909 P.2d 92, 109, cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996), 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)
See also Cannon v. State, 1998 OK CR 28, 18, 961 P.2d 838, 846.
In the instant case, the prosecutor did not formally qualify Detective Lucas as an expert by asking the trial court to recognize him as such. However, the prosecutor qualified Lucas to render certain opinions after asking him about his sixteen year career as a police officer and his specialized training in sexual asphyxiation deaths. Thereafter during questioning, the prosecutor asked Lucas if he attached any significance to his analysis of Mrs. Cooper's injuries given his training. Lucas testified Cooper's injuries were intentionally inflicted and were not accidental, self-inflicted or the result of autoerotic behavior. The trial court sustained defense counsel's objection to Lucas' opinion after the prosecutor offered to rephrase the question. Lucas then explained that in sexual asphyxiation cases, the participants pad the noose device so no marks are left on the neck. Further, the participants employ an escape mechanism in case of distress so they will not die. Lucas testified these common attributes he learned of in training were not present in the instant case.
A review of the record shows Lucas' opinion was not improper opinion testimony on an ultimate issue since it did not tell the jury what result to reach. Lucas' testimony was based upon his examination and investigation of the crime scene coupled with his training. In his testimony Lucas described his in depth investigation and review of police reports, witnesses' statements and numerous photographs of the crime scene. Lucas then told the prosecutor that the physical evidence was not consistent with consensual behavior. At no time did Lucas say that [Welch] intentionally killed Cooper; rather, he testified Cooper's bindings that resulted in her death were not consistent with consensual autoerotic behavior based on his specialized knowledge in homicide investigation. As this was proper opinion testimony, no error occurred in its admission.
In [Welch]'s final complaint about Detective Lucas, he claims Lucas intentionally injected an evidentiary harpoon when he testified that [Welch] told him he had participated in rodeos not only during childhood, but while in prison. As the trial court found, [Welch] was not prejudiced by this reference to other crimes/prison. As part of his defense against imposition of the death penalty, defense counsel advised the jury in opening statement that [Welch] was serving a life sentence plus consecutive forty-five and twenty year sentences in an effort to show the jury [Welch] was not a continuing threat because he would never be in society again. To bolster his credibility, [Welch] detailed his many prior convictions during his testimony maintaining he accepted responsibility when he was in fact guilty. Given this evidence, we find that Lucas' reference to prison had no impact on the verdict or sentence.
Lastly, [Welch] claims he was prejudiced by an evidentiary harpoon willfully launched by OSBI Agent Robert Lee. Agent Lee testified that [Welch] was investigated in connection with the Stevens homicide because they received information that [Welch] had left the Grady County area abruptly after the crime, that [Welch] and his former wife were friends with the Stevens and lived in property adjoining or close to them and that [Welch] had raped his former wife prior to their marriage and liked to tie her up during sex. The trial court overruled [Welch]'s objection and denied his motion for mistrial to the latter portion of Lee's answer finding such evidence was not prejudicial in light of the properly admitted other crimes evidence. However, the trial court did offer to admonish the jury since the evidence was irrelevant. Initially, defense counsel refused any admonition claiming it would only serve to emphasize the improper evidence and could not cure the error. Following a lunch break and additional discussion, defense counsel acceded to having the jury admonished. Thereafter, the trial court advised the jury there was no evidence to support Lee's statement that [Welch] had raped his former wife and that such statement should be disregarded and not considered.
This Court has consistently held that when inadmissible evidence or an improper comment is presented to a jury, an admonishment to the jury by the court that the evidence or comment is not to be considered will cure any error. (citations omitted). Here, the admonishment given to the jury was sufficient to cure any error, even though the admonition failed to specifically address Lee's statement that [Welch] liked to tie up his former wife during sex. A review of the record shows that such remark was not verdict or sentence determinative given the strong evidence against [Welch]. Accordingly, this proposition of error is denied.
Welch, 2 P.3d at 367-70 (paragraph numbers omitted).
Welch suggests that the OCCA did not address squarely his federal constitutional claims concerning these issues, Aplt. Br. at 44 n. 9 (italics in original), and thus he contends we are free to apply a de novo standard of review. Welch is clearly mistaken. As noted above, the OCCA expressly acknowledged at the outset of its discussion that Welch was alleging a denial of due process and a fair trial.... Welch, 2 P.3d at 367. Although the OCCA relied largely on its own precedent in addressing Welch's claims, that does not mean that it failed to address the merits of his federal due process claim. Rather, as previously noted, our only concern is that its reasoning and result are consistent with controlling Supreme Court precedent. See Packer, 537 U.S. at 8, 123 S.Ct. 362.
As with his challenge to the admission of evidence regarding the Stevens murder, Welch's constitutional challenge to the testimony of Lucas and Lee is governed by the general principle that the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief when evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair.... Payne, 501 U.S. at 825, 111 S.Ct. 2597.
a) Detective Lucas' testimony
In discussing Lucas' testimony, Welch focuses primarily on Lucas' statement, in response to cross-examination by defense counsel regarding Welch's experience with rodeos, that Welch indicated he had participated in rodeos not only while growing up but also while in prison. FN3 Trial Tr., Vol. V at 930. Both the trial court and the OCCA, however, concluded that Lucas' statement was not prejudicial because Welch's defense counsel had informed the jury during opening statements that Welch was serving a significant term of imprisonment. Welch attempts to side-step these holdings by asserting that he clearly suffered extreme prejudice from both the harpoon and his [trial] counsel's inexplicable decision to open that door [i.e., telling the jury that Welch was serving time in prison] prior to the conclusion of the State's case. FN4 Aplt. Br. at 51-52. In other words, Welch argues that if trial counsel had been minimally effective and sought to restrict the use of such priors under state law then such a harpoon would have been overwhelmingly prejudicial and resulted in reversal. Id. at 52. The problem for Welch, however, is that he did not assert these ineffective assistance arguments before the OCCA at the time of his direct appeal or in his application for post-conviction relief. Rather, he focused exclusively on the propriety of Lucas' statement. Thus, he is now precluded from asserting any type of ineffective assistance of counsel claim in this appeal (even if the purpose of that claim is, as it appears, to bolster his claim regarding the admission of Lucas' testimony).
FN3. As indicated in the OCCA's decision, evidence of Welch's rodeo experience was relevant in two respects. First, the manner in which Cooper's hands were bound was allegedly similar to that used by participants in the rodeo event of calf-roping. Second, the leather strips used to bind Cooper were alleged to be similar to scrap leather often sold by saddle and boot shops for use in saddle and bridle repair.
FN4. Welch all but concedes in his opening brief that Lucas' statement was not prejudicial in light of the fact that defense counsel informed the jury that Welch was serving time in prison. See Aplt. Br. at 51.
Welch also argues that Lucas injected several ideas that, while perhaps falling short of evidentiary harpoons, nevertheless were extremely prejudicial within the context of the entire trial. Aplt. Br. at 50 n. 11. According to Welch, [t]hese include: 1) hypothesizing why the dogs were found in the garage at the Cooper residence (he speculated that in his opinion it was part of a ruse to enter the house); 2) attaching significance that the deaths of both Cooper and Stevens occurred the day after a court appearance by Welch; and 3) giving his opinion that the wounds on Cooper were not the result of autoerotic asphyxiation as claimed by Welch, but rather were intentionally inflicted. Id.
We conclude the OCCA reasonably rejected all three of these arguments. With respect to Lucas opining as to why the Coopers' dogs were found in the garage (rather than outside where they were normally kept), the OCCA concluded this was admissible lay opinion testimony because it was rationally based on [Lucas'] perceptions following his investigation, and it aided the jury in its determination of a fact in issue. Welch, 2 P.3d at 368. With respect to Lucas' testimony that each of the two murders occurred the day after Welch appeared in court, the OCCA concluded this was simply a factual statement properly admitted to show another similarity between the two crimes in an effort to establish [Welch] as the perpetrator of the Cooper homicide. Id. at 368. Finally, with respect to Lucas opining that Cooper's wounds were not consistent with consensual sexual asphyxiation, the OCCA concluded it was properly admitted because it was based upon his examination and investigation of the crime scene coupled with his training and did not tell the jury what result to reach. Id. at 369. Notably, Welch makes no attempt in this appeal to explain why any of these conclusions reached by the OCCA were erroneous.
Finally, even assuming for purposes of argument that these pieces of testimony should not have been admitted, a review of the transcript of Welch's trial indicates that, given the strength of the prosecution's case against Welch, the admission of these statements by Lucas did not have a substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (outlining harmless error test to be utilized in federal habeas proceedings).
b) Agent Lee's testimony
Welch complains, as he did on direct appeal, about the following statement (which he characterizes as an evidentiary harpoon) given by Agent Lee in response to the prosecution's question about how his investigation of the Stevens murder led him to Welch:
Initially, we received information that Frank Welch had left the Tuttle [Oklahoma] area abruptly after Stevens' death. And the other information we received concerning Frank was that he and his wife at the time, Bonnie, had been close friends of the Stevens, that they lived on property that was adjacent to or butted up to the Stevens' property. Also that Frank liked to tie up Bonnie during sex, and that prior to their marriage, that Frank had raped Bonnie.
Trial Tr., Vol. V at 1031 (emphasis added).
As noted, the OCCA concluded that the admonishment given by the trial court to the jury regarding Lee's remark was sufficient to cure any error, even though the admonition failed to specifically address Lee's statement that [Welch] liked to tie up his former wife during sex. Welch, 2 P.3d at 370. In the OCCA's view, [a] review of the record show[ed] that such remark was not verdict or sentence determinative given the strong evidence against [Welch]. Id.
Welch contends that the OCCA's determination was an unreasonable application of the law and of the facts because the nature of the harpoons by Agent Lee clearly prejudiced Welch to a tremendous degree resulting in a fundamentally unfair trial. Aplt. Br. at 49. More specifically, Welch asserts that Lee's statements had a devastating effect because Lee was an experienced law enforcement officer who, under oath, ... basically called Welch a rapist and a participant in kinky sex.... Id. Welch further asserts that his trial counsel was absolutely correct in arguing that a curative instruction could not assuage the ... effect of these harpoons, id., and the conclusion of the [OCCA] to the contrary must result in habeas relief. Id. at 50.
In determining the merits of Welch's arguments, we begin by analyzing the evidence that was presented at trial. During its case-in-chief, the prosecution presented evidence that strongly, if not overwhelmingly, established that Cooper was the victim of a violent and intentional attack. More specifically, the prosecution's evidence established that:
* Cooper's mouth was covered with layers of duct tape, the sticky side of which contained some blood, suggesting the tape may have been placed on her mouth and lips in an aggressive manner;
* Cooper's neck was tightly bound with two leather ligatures, under which were blisters or abrasions where the skin had been scraped off (prior to, rather than after, her death);
* Cooper's eyes, face and neck area displayed petechial hemorrhages (i.e., fine pinpoint areas where small blood vessels had been broken), consistent with ligature strangulation;
* both of Cooper's wrists were bound tightly behind her back (with the leather ligatures running from her neck directly to her hands), leaving ligature marks on both wrists (particularly the right wrist, on which the ligature was bound so tightly that the coroner had to cut it off);
* Cooper had parchment abrasions on the front of both of her shoulders, likely the result of being pushed or dragged on the carpet, that were incurred after she was dead or while she was in the process of dying (because the abrasions didn't hemorrhage or bleed);
* very small tears were found in Cooper's perianal area that were likely incurred after Cooper was dead (because they showed no evidence of bleeding or hemorrhage);
* sperm was found in swabs taken from Cooper's anus (suggesting, along with the presence of the perianal tears, that she was anally raped while she was dying or after she had died); and
* approximately two to four inches inside of Cooper's external vaginal opening was a laceration approximately an inch long, that was likely incurred after her death (perhaps as a result of the toy pylon being placed in her vagina).
The government's evidence also established that Welch, while employed with Norman Cablevision, performed a service call to the Cooper's home in December 1986, little more than two months prior to the murder. Further, the government's evidence established that Welch was fired from his job with Norman Cablevision in January 1987 for destroying original work records, but retained his uniforms for at least two months thereafter. Finally, as part of its case-in-chief, the government presented testimony from a forensic serologist who testified that he performed DNA analysis on sperm samples taken from a kitchen towel found laying near Cooper's body and that the DNA found in those samples matched the DNA in the known sample of Welch's blood. The forensic serologist further testified that the DNA profile found in the semen samples occurs one time in 5.2 million males in the general population, thus making it extremely unlikely that a male other than Welch was responsible for the semen samples found on the towel.
Welch testified in his own defense during the first stage proceedings and attempted to rebut or explain away all of the damning evidence presented by the prosecution. To begin with, Welch denied ever raping or tying up his ex-wife Bonnie. As for his connection with Talley Cooper, Welch admitted making a service call to her home in December 1986 and testified that, during the course of that service call, he asked Talley Cooper if she fooled around, to which she allegedly responded yes and provided him with her phone number. Welch further testified that in early 1997, prior to Talley Cooper's death, he visited her house on two occasions and had consensual sex with her. As for the day of Cooper's murder, Welch admitted that he had been in Cooper's house (although he initially told police that he did not know Talley Cooper at all) and testified that they first, at Cooper's urging, had consensual anal intercourse, and then, at his suggestion, tried the asphyxiation deal he had read about in pornographic magazines. Welch testified that Cooper collapsed to the floor and died while they were engaged in sex, and that he panicked and decided to try and make it look like somebody had attacked her. Thus, Welch testified, he put the duct tape over her mouth, wrapped the leather cord tightly around her neck and tied it off, and placed the toy in her vagina (he figured the weirder it looked the better it would be).
The prosecution presented several key pieces of evidence in rebuttal. In particular, the coroner who performed the autopsy on Cooper testified that the perianal tears he found on her body were inconsistent with Welch's story, in that they occurred after she died or while she was in the process of dying. In addition, Katherine Roberts, a close friend of Cooper's, testified that several weeks prior to the murder, Cooper called and said something weird had happened and she was feeling scared. According to Roberts, Cooper told her that a greasy-looking man had come to her house to look at her cable television system and that, when he entered the house, he followed her real close and seemed more interested in following and talking to her than working. FN5
FN5. The prosecution also presented two other witnesses, one of whom testified with regard to the investigation of the Stevens murder and the other, a woman named Paige Hora, who testified that on the morning of October 8, 1994, in the parking lot of the Wal-Mart store in Tulsa, Oklahoma, where she worked, she was attacked by Welch, who she did not know, with a large knife.
Considering all of this evidence together, as well as the fact that the trial court admonished the jury not to consider Lee's statement that Welch had raped his ex-wife, we agree with the OCCA that Lee's statements did not violate Welch's due process right to a fair trial. Applying the AEDPA standards of review, we therefore conclude that the OCCA's rejection of Welch's due process claim was neither contrary to, or an unreasonable application of, the general constitutional principles previously outlined.
* * *
Ineffective assistance of trial counsel
Welch contends that his trial counsel was constitutionally ineffective for (a) failing to prohibit the introduction of Welch's prior convictions, (b) failing to impeach the rebuttal testimony of Katherine Roberts, (c) failing to list adaptability to prison life as a mitigating circumstance, (d) failing to request recusal of the trial judge (due to the trial judge's relationship to Detective Lucas), (e) failing to advise Welch regarding the decision to testify in his own defense, and (f) failing to investigate and present available mitigating evidence. Welch first raised these claims on direct appeal and the OCCA rejected them on the merits.
Welch's claims are governed by the governed by the familiar two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that test, Welch must establish that (1) counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. Id. at 688, 694, 104 S.Ct. 2052; see also Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
Notably, Welch acknowledges that the OCCA applied the Strickland standards in rejecting each of his claims of ineffective assistance. Thus, he concedes that he cannot obtain federal habeas relief on any of those claims unless he establishes that the OCCA's resolution of the claim(s) was contrary to, or an unreasonable application of, Strickland.
a) Failure to prohibit introduction of Welch's prior convictions
Welch contends there was no valid trial strategy to justify his trial counsel telling the jury during opening statements that Welch had been convicted of crimes and was serving life in prison without the possibility of parole, or to justify his trial counsel asking Welch, during his direct examination, about his string of prior felony convictions. Welch raised this same issue on direct appeal and the OCCA rejected it:
[Welch] attacks counsel's decision to elicit his prior Tulsa County convictions that did not involve dishonesty along with some of the circumstances of that case without obtaining a ruling that these prior felony convictions, for purposes of impeachment, were more probative than prejudicial. The record shows this was part of the defense's strategy. [Welch]'s defense to the instant case was he never intended to kill Cooper and her death was an accident that resulted from a consensual sexual encounter. To boost his credibility, defense counsel elicited [Welch]'s prior convictions and some of the facts about the Tulsa County crimes in an effort to show [Welch] was willing to admit and take responsibility for his prior misconduct. Defense counsel elicited facts about the Tulsa County crimes in lieu of merely listing them to show that [Welch] attacked Paige Hora because he thought she was trying to interfere with a drug deal in which he was acting as lookout. Counsel employed this strategy to avoid leaving the jury with the impression that [Welch] was a man who liked to terrorize and kill women.
To further boost [Welch]'s credibility and his overall defense, defense counsel elicited from [Welch] that he had plead guilty to all his prior crimes, including the Tulsa County crimes, accepting responsibility for his wrongful acts. This strategy bolstered [Welch]'s claim that he went to trial in the instant case because he believed he was not guilty. Defense counsel further elicited [Welch]'s Tulsa County convictions, for which [Welch] was serving a life plus consecutive forty-five year sentence, to argue [Welch] did not constitute a continuing threat because he would be incarcerated for the rest of his natural life. Inasmuch as [Welch] cannot overcome the presumption that the challenged action was sound trial strategy under the circumstances, this claim must fail.
Welch, 2 P.3d at 375.
Although Welch takes issue with the OCCA's conclusions, we conclude they are neither contrary to, nor an unreasonable application of, the standards outlined in Strickland. As noted by the OCCA, defense counsel's strategy appears to have been two-fold: (1) to bolster Welch's credibility during the first stage proceedings (by demonstrating that Welch was willing to admit to and take responsibility for his criminal conduct) in an attempt to avoid Welch being convicted of first degree malice murder; and (2) to set the stage for rebutting the prosecution's assertion that he represented a continuing threat to society by demonstrating that he was already serving a prison sentence that would last for most of his adult lifetime. Given the horrendous nature of Talley Cooper's rape and murder, and the substantial weight of the evidence against Welch, we conclude these strategies were entirely reasonable.
b) Failure to impeach the rebuttal testimony of Katherine Roberts
Welch contends that his trial counsel failed to properly impeach the rebuttal testimony of prosecution witness Katherine Roberts who, as previously noted, testified that Talley Cooper called her several weeks prior to the murder and told her about being scared by a cable television repairman who visited her house. Welch asserts that Roberts failed to mention this telephone conversation when she was interviewed by the police following Talley Cooper's murder, and argues that his trial counsel should have cross-examined Roberts about this issue. Welch asserted the same arguments on direct appeal, and the OCCA rejected them, stating as follows:
[Welch] also attacks counsel's failure ... to impeach [Katherine] Roberts'.... Counsel did lodge a hearsay objection to Roberts' testimony concerning her telephone call with Cooper which was overruled. As discussed in proposition three, a portion of Roberts' testimony was admissible and the remainder, though error, was harmless beyond a reasonable doubt. Although defense counsel did not cross-examine Roberts about why she had not mentioned Cooper's telephone call to her about the cableman during the initial investigation, defense counsel did ask questions to illustrate that Roberts did not know as much as she believed about Cooper. Asking questions to imply Roberts was making up her testimony about the telephone call could easily backfire and counsel was not ineffective for choosing to avoid that pitfall.
Welch, 2 P.3d at 375-76.
The OCCA's conclusion is neither contrary to, nor an unreasonable application of, Strickland. Although Welch contends that Roberts' failure to tell the police about the phone call immediately following the murder would have constituted powerful impeachment evidence, Aplt. Br. at 83, he readily acknowledges that he does not know what Roberts' explanation would have been. Thus, as noted by the OCCA, the questioning now proposed by Welch could have backfired on his counsel, by placing his counsel in a negative light by attempting to suggest that the victim's best friend was a liar. Moreover, even assuming that Welch's trial counsel should have cross-examined Roberts as now suggested by Welch, it appears clear after reviewing the trial transcript that such cross-examination would have had little, if any, effect on the outcome of the first stage proceedings. Although Welch suggests that Roberts' rebuttal testimony was very damaging to him, we are persuaded that the jury would have convicted Welch even absent Roberts' testimony. Thus, in sum, we conclude Welch was not prejudiced by trial counsel's alleged failure to cross-examine Roberts.
c) Failure to list adaptability to prison life as a mitigating circumstance
Welch next complains that his trial counsel failed [during the second-stage proceedings] to list as a mitigating circumstance the probability that Welch could adapt to prison life. Aplt. Br. at 83. The OCCA rejected this same argument in affirming Welch's conviction and sentence:
[Welch] complains about counsel's failure to list adaptability to the structured environment of prison life as a mitigating circumstance in [second-stage] Instruction 13. [Welch] contends the failure to specifically list this mitigating circumstance allowed the jury to disregard this mitigating evidence. With this contention, we cannot agree. The jury was instructed that mitigating circumstances are those which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame. The determination of what circumstances are mitigating is for you to resolve under the facts and circumstances of this case. Instruction 13, listing several specific mitigating circumstances, also provided that the jury could decide that other mitigating circumstances exist, and if so, [could] consider those circumstances as well. While adaptability to prison life was not specifically listed, the jury was instructed it could consider the evidence presented and determine what evidence was mitigating. The majority of [Welch]'s second stage defense focused on his adaptability to a structured prison environment which defense counsel vigorously argued during closing argument to rebut the State's continuing threat contention. Given this record, we find the administered instructions adequately allowed the jury to consider the evidence of adaptability to prison life and [Welch] was not prejudiced by counsel's failure to include it in Instruction 13. (citation omitted)
Welch, 2 P.3d at 376.
Although Welch disagrees with the OCCA's analysis, we conclude, after reviewing the transcript of the second-stage proceedings, that it is neither contrary to, nor an unreasonable application of, Strickland. As noted by the OCCA, the second-stage instructions clearly informed the jury that they could consider whatever mitigating circumstances they believed to be appropriate. That instruction, together with defense counsel's clear focus on establishing that Welch was highly adaptable to the prison environment and was non-violent while incarcerated, would have allowed the jury to give weight to this mitigating circumstance, even though it was not specifically listed in the second-stage instructions. Moreover, given the strength of the two aggravating circumstances, there is not a reasonable likelihood that the outcome of the second-stage proceedings would have been different had adaptability to prison been specifically listed as a mitigating circumstance in the second-stage jury instructions.
d) Failure to request recusal of the trial judge
Welch contends his counsel inexplicably chose to not seek recusal of the trial judge when it became known that the lead detective for the State was the trial judge's son. Aplt. Br. at 85. According to Welch, [t]here is no strategic, or even rational, reason why a trial lawyer in a capital case would choose a trial judge knowing that the State's case agent and star witness [wa]s the judge's own son. Id. The OCCA rejected these same arguments, stating:
[Welch] also attacks counsel's ... failure to request recusal of the trial judge. * * * [Defense] counsel was not ineffective in failing to ask the trial judge to recuse. As discussed in propositions two and five, [Welch] waived his right to have the trial judge disqualified and he was not prejudiced by the trial court's rulings during Detective Lucas's testimony. As such, he cannot show prejudice and th[is] claim must fail.
Welch, 2 P.3d at 375-76.
For the reasons already discussed above in connection with the failure to recuse issue, the OCCA reasonably concluded that Welch was not prejudiced by his trial counsel's failure to request the trial judge's recusal. Thus, the OCCA's decision was neither contrary to, nor an unreasonable application of, Strickland.
e) Failure to advise Welch regarding the decision to testify
Welch contends that his trial counsel did not properly advise [him] concerning the risks of testifying prior to [him] taking the stand. Aplt. Br. at 86. As a result, Welch contends, he was not properly prepared or ready to testify.... Id. The OCCA considered and rejected this same claim in disposing of Welch's direct appeal:
[Welch] claims counsel failed to adequately advise him and provide him with sufficient information on which to base an intelligent decision on whether or not to testify. Alternatively, [Welch] asserts a claim of state induced ineffective assistance of counsel by arguing counsel was forced to present [Welch]'s testimony after the State was allowed to introduce evidence of the Stevens homicide. As discussed in proposition one, evidence from the Stevens homicide was properly admitted to prove identity and absence of mistake or accident. As such [Welch]'s state induced ineffective assistance of counsel claim must fail. Furthermore, there is no evidence to support [Welch]'s claim that he was inadequately advised about the risks of testifying. Defense counsel noted on the record following the close of the State's evidence that he had spoken to his client and that [Welch] wished to testify. Defense counsel did not mention calling [Welch] as a witness during opening statement thereby leaving the option open so an intelligent decision could be made following the state's case-in-chief. Following the compelling evidence that demonstrated his guilt, [Welch] elected to testify to tell his version of what happened. Counsel attempted to guide his client and bolster his credibility throughout the presentation of [Welch]'s testimony. Based on this record, we cannot find [Welch] was inadequately advised or that counsel was ineffective. Accordingly, this claim must fail.
Welch, 2 P.3d at 376.
Again, the OCCA's conclusion is neither contrary to, nor an unreasonable application of, Strickland. As noted by the OCCA, the trial transcript indicates that, following the conclusion of the prosecution's case-in-chief, defense counsel informed the trial judge: Judge, at this time, from talking to Mr. Welch, he wishes to take the stand. Trial Tr., Vol. V at 1109. Further, as also noted by the OCCA, the trial transcript indicates that Welch's trial counsel attempted to guide [Welch] and bolster his credibility throughout his direct and redirect examination. What defense counsel obviously could not control was the substance of Welch's testimony regarding how Talley Cooper and Debra Stevens died. In any event, even assuming that defense counsel erred in either failing to urge Welch not to testify or in failing to properly prepare him to testify, it is clear that, given the strength of the prosecution's evidence, the error was not prejudicial.
f) Failure to investigate and present mitigating evidence
In his final claim of ineffective assistance, Welch contends that his trial counsel failed to adequately investigate and present mitigating evidence available from his relatives. Welch asserted this identical claim on direct appeal, and the OCCA rejected it, stating:
More troubling is the complaint raised in [Welch]'s application for an evidentiary hearing alleging counsel failed to investigate and use available mitigating evidence. [Welch] argues counsel was deficient by failing to investigate and present the testimony of his family members to mitigate punishment especially in light of the victim impact evidence. Pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1998), [Welch] has filed an application for an evidentiary hearing and to supplement the record. [Welch] includes, among other things, affidavits from family members who were willing to testify about their relationship with [Welch] and request mercy, but who were not contacted by defense counsel. (citation omitted). Defense counsel did speak with [Welch]'s sister briefly before trial began. Counsel initially asked her to testify, but advised her she would not be needed after she told him that [Welch] had touched her inappropriately when they were adolescents. (citation omitted). At first glance, counsel's failure to call [Welch]'s family members to testify seems attributable to sound strategy since the family knew of the inappropriate touching incident and one could see how counsel would not want this information before the jury. However, counsel elicited this information from his expert psychiatrist thereby eliminating that strategy argument.
It is all too tempting to second guess counsel and wonder why he did not use these family members given the compelling victim impact evidence and the resulting death sentence. However, that is precisely the pitfall we are to avoid. This Court will not second-guess trial strategy through the distorting effects of hindsight. (citation omitted). The record shows defense counsel did elicit much of the family members' proposed testimony concerning [Welch]'s background through Dr. Lindsey, the defense's psychiatric expert. It appears counsel chose not to call family members because he feared the jurors' reactions to the cross-examination of the family members about the improper touching incident. Instead, he chose to present a more clinical defense. The record further shows counsel mounted a well-reasoned defense to the aggravating factors and chose to focus on [Welch]'s adaptability to prison life with references to [Welch]'s mitigating background as a sub-theme. Because the evidence in aggravation was so strong and counsel's decision could be considered sound trial strategy, we find that an evidentiary hearing is not warranted because the application and supplemental materials do not contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was deficient for failing to utilize the complained-of evidence in second stage.
Welch, 2 P.3d at 376-77.
In our view, the OCCA's conclusion on this claim is neither contrary to, nor an unreasonable application of, Strickland. As noted by the OCCA, Welch's trial counsel presented a single witness, psychiatrist Ethan Lindsey, in Welch's defense. Lindsey testified at length about his psychiatric assessment of Welch FN10 and, in doing so, recounted what he believed were certain key and/or troubling aspects of Welch's childhood (e.g., a severe illness when he was an infant; the observation of unusual sexual acts as an adolescent; fairly significant alcohol abuse as an adolescent) that lead to the development of the psychiatric problems diagnosed by Lindsey. Those aspects, Lindsey noted in his testimony, were taken from not only Welch's own statements, but also from Lindsey's discussions with Welch's mother and sister. In other words, Lindsey provided the jury with a summary of the key events that may have led Welch to commit the acts of sexual violence against Cooper and Stevens. Although Welch now contends that his relatives could have provided additional mitigating information, he fails to specify in his appellate brief precisely what information he believes would have made a difference in the outcome of the second-stage proceedings. In any event, as noted by the OCCA, the aggravating evidence was so strong as to foreclose any reasonable probability that the presentation of additional testimony from Welch's relatives would have produced a different outcome.
FN10. Lindsey concluded that, as a result of a severe medical condition when Welch was an infant, Welch developed severe attachment problems that ultimately led to an antisocial personality disorder.
Cumulative error
In his final issue, Welch contends his trial was rendered fundamentally unfair by what he refers to as the accumulation of constitutional errors. Aplt. Br. at 89. Welch asserted a similar claim on direct appeal and the OCCA rejected it:
In his final proposition of error, [Welch] contends that, even if no individual error merits reversal, the cumulative effect of the errors in his case necessitates either reversal of his conviction or a modification of his sentence. We have thoroughly reviewed [Welch]'s claims and the record in this case which reveals no error which, singly or in combination, would justify either modification or reversal. Any irregularities or errors were harmless beyond a reasonable doubt. Because we find no error that warrants relief, this claim is denied. (citation omitted).
Welch, 2 P.3d at 377.
We, like the district court, found additional constitutional error in the admission of the victim impact testimony from five witnesses. Because we have identified additional error, and because the OCCA could not have considered the aggregate prejudicial impact of the individual errors, we must review Mr. Welch's cumulative error claim de novo. See Malicoat, 426 F.3d at 1263 (the OCCA's opinion does not clearly indicate that it considered, in the aggregate, the prejudicial effect of the individual errors [;] [a]ccordingly ... we afford [the defendant] the benefit of the doubt and review his cumulative error claim de novo); Cargle v. Mullin, 317 F.3d 1196, 1207 (10th Cir.2003) (explaining that to deny cumulative-error consideration of claims unless they have first satisfied their individual substantive standards for actionable prejudice would render the cumulative error inquiry meaningless, since it would be predicated only upon individual error already requiring reversal) (internal quotation marks and citations omitted).
Cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless. Hamilton v. Mullin, 436 F.3d 1181, 1196 (10th Cir.2006) (internal quotation marks omitted). Even under the de novo standard, we conclude that, in light of the overwhelming evidence against Welch, the cumulative effect of such errors did not ha[ve] a substantial and injurious effect or influence in determining the jury's verdict, Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239), or deprive him of his right to a fair trial.
AFFIRMED.
Do Not Execute Frank Welch!
Frank Duane Welch, hereinafter Appellant, was tried by jury and convicted of Murder in the first degree (21 O.S.Supp.1982, 701.7(A)), in the District Court of Cleveland County, Case No. CF-97-247, the Honorable Tom A. Lucas, District Judge, presiding. The jury recommended death after finding the murder was especially heinous, atrocious or cruel and that Appellant constituted a continuing threat to society.FN1 The trial court sentenced Appellant accordingly. From this Judgment and Sentence, he appeals.FN2
(1) probative value of evidence about similar murder, which occurred three months after murder for which petitioner had been charged, outweighed its highly prejudicial effect;
(2) state appellate court's exclusive reliance upon its own precedent did not require Court of Appeals to apply de novo standard to that issue;
(3) petitioner had not been prejudiced when police officer stated at trial that petitioner currently was serving time in prison;
(4) petitioner had not been prejudiced when police officer opined at trial as to why victim's dogs were found in garage;
(5) petitioner had not been prejudiced when police officer stated at trial that each of two similar murders occurred day after petitioner appeared in court;
(6) petitioner had not been prejudiced when police officer opined at trial that victim's wounds were not consistent with consensual sexual asphyxiation;
(7) petitioner's due process right to fair trial had not been violated when police officer stated at trial that petitioner had raped his ex-wife and that petitioner liked to tie his former wife up during sex; and
(8) violation of petitioner's Eighth Amendment right to fundamentally fair sentencing hearing was harmless.
Affirmed.