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Johnny Dale BLACK

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Case of mistaken identity
Number of victims: 2
Date of murder: December 13, 1983 / January 4, 1998
Date of birth: September 27, 1965
Victim profile: Cecil Martin, 49 / Bill Pogue, 54
Method of murder: Shooting / Stabbing with knife
Location: Jefferson County/Stephens County, Oklahoma, USA
Status: Convicted of manslaughter on December 28, 1984. Sentenced to 15 years in prison on December 31, 1984. Released in 1993. Sentenced to death on February 22, 1999. Executed by lethal injection in Oklahoma on December 17, 2013
 
 
 
 
 
 

Summary of Offense:

He was one of five men who beat to death rancher Bill Pogue and stabbed his son-in-law Richard Lewis in 1998 in Stephens County. He was convicted in 1999. Testimony indicates that the attack was a case of mistaken identity. Black, his two brothers, Jesse J. Black and Jimmy Lee Roy Black, and Cal Eugene Shankles and Robert William Seals stopped a sport utility vehicle on a dirt road and dragged Pogue and Lewis from the vehicle. The defendants had been searching for two men in a similar vehicle for a fight. After the incident, the defendants realized that they had attacked the wrong people, testimony shows. Shankles is serving a life sentence for the fatal beating plus 10 years for assault and battery with a dangerous weapon. Jesse Black and Jimmy Black each are serving 25 years for first-degree manslaughter and seven years for assault with a dangerous weapon.

Johnny Black had previously served eight years of a 15-year prison sentence for a 1984 manslaughter conviction in Cleveland County. He also escaped from the Jefferson County Jail while awaiting trial and left a threatening letter to the county sheriff.

Black has been on death row since February 24, 1999.

 
 

'I love you Momma': Unrepentant killer's last words as he becomes sixth man executed in Oklahoma this year

Johnny Dale Black, 48, was executed in front of his mother and four members of his victim's family on Tuesday at Oklahoma State Penitentiary in McAlester

By James Nye - DailyMail.co.uk

December 18, 2013

Oklahoma on Tuesday executed a 48-year-old man convicted of the 1998 stabbing death of a horse trainer from Ringling.

Johnny Dale Black was pronounced dead at 6:08 p.m. Tuesday at the Oklahoma State Penitentiary in McAlester after telling his mother he loved her.

He was the second inmate executed by the state in the past two weeks and the sixth put to death in Oklahoma this year.

Black was convicted of first-degree murder for fatally stabbing Bill Pogue, 54, during a roadside attack near the southern Oklahoma town that left Pogue with 11 stab wounds, broken ribs and punctured lungs. Pogue's son-in-law, Rick Lewis, was also attacked. Lewis suffered more than a dozen wounds but later recovered.

He had been looking for someone else, according to court documents.

Black was one of five men who went out hunting for a man who had threatened one of the five because he had been having an affair with the man's soon to be ex-wife, according to court documents.

The group was looking for the man's black sport-utility vehicle and instead encountered Pogue, who had gone to a convenience store with his son-in-law, Richard Lewis, to buy chewing tobacco and was driving home in a black SUV.

The group of five men stopped their compact car in front of the SUV and attacked Pogue and Lewis, beating them and stabbing them more than 10 times each, according to court documents.

Pogue died later from his wounds, while Lewis survived the roadside attack, according to court documents.

The morning after the fight, Black fled to Texas, where he was later arrested and confessed to the crime, according to court documents.

Black said he did not remember stabbing Lewis and said he was afraid for his brothers, who were part of the group in the fight, and did not intend to kill Pogue.

At a hearing before the state Pardon and Parole Board last month, Black begged forgiveness for his actions.

But he insisted that he was merely trying to defend his brother, Jimmy Black, from Pogue. The brothers had approached Pogue and Lewis after mistaking their car for that of someone else they had been searching for.

'I deserve to be punished for what I did, but not for defending my family,' Johnny Black told the board in November.

About 15 minutes before the execution, fellow death row inmates began banging the doors of their cells in a tribute to the condemned man.

Witnesses to the execution included Black's mother, his attorney and a spiritual adviser. Four members of the victim's family also attended.

Before the lethal drugs were administered, Black, who was lying on a gurney with needles attached to both arms, made eye contact with his mother, and both shook their heads affirmatively.

'This isn't accomplishing anything,' Black said. 'It's just another death, another family destroyed.' Black did not apologize to the victim's family or acknowledge the crime he was convicted of.

Looking at his mother, Black said, 'I love everybody. I love you. You can count on that, Momma.'

As the lethal drugs were administered, Black took several deep breaths as his mother wept.

The victim's family did not make a statement after the execution. But Oklahoma Attorney General Scott Pruitt said Black was sentenced to death by a jury of his peers 'for the murder of an innocent grandfather and upstanding member of the community.'

Pogue's relatives and friends had petitioned the board last month to carry out the execution instead of commuting Black's death sentence to life in prison without parole.

'What will bring justice in this tragic case? How can atonement be made for this hideous murder?' wrote Pogue's widow, Lonnetta. 'No mercy was shown to Bill on that fateful night. He got no second chances at life.

'I ask you, board members, to let justice be done,' she wrote.

Lewis related the mental anguish and survivor's guilt he's experienced since 1998.

'Tell me how, as the only surviving victim, that I can explain the feeling of being the one that survived,' Lewis said. 'Tell me how to explain to my son — who was 18 days old when this happened — how his daddy couldn't save his granddad.'

Pogue's son, Charles Pogue, told the board how the family has battled through bouts of depression and 'extreme anger' since Pogue was killed.

'Dad got to be a grandfather for 18 days before his life was taken,' Charles Pogue said. 'Unfortunately, my two daughters never got to meet their pops.

'I also haven't had the heart to tell them what happened that evening. It's hard to figure out how to tell a 12 and 5-year-old about how evil a person can be,' he said.

Randy Bauman, Black's attorney, declined last week to comment on the case.

Black was previously convicted of manslaughter for the 1984 death of Cecil Martin, 49. Black served nine years of a 15-year sentence in that case.

The Oklahoma Coalition to Abolish the Death Penalty said it was planning a demonstration and then a silent vigil outside the governor's mansion Tuesday night to protest the execution.

 
 

Johnny Dale Black scheduled to be executed at Big Mac on Tuesday

Reddirtreport.com

December 16, 2013

OKLAHOMA CITY - An Oklahoma state appeals court has scheduled the execution of 48-year old death row inmate Johnny Dale Black on Tuesday, December 17.

Black was convicted of first-degree murder for the 1998 beating and stabbing death of Ringling, Oklahoma horse trainer Bill Pogue, 54.

"We are grieved that the state of Oklahoma is choosing to end this life and destroy a family as they prepare for the execution of Johnny Dale Black,” said Adam Leathers, OK-CADP Co-Chair. “We also send our thoughts and prayers to the family of Bill Pogue, as well as those who must carry out this execution.”

In a recent report, the Death Penalty Information Center (DPIC) found that just 2 percent of counties in America are responsible for more than half the nation's executions.

They also are home to 56 percent of the current death row population. In addition, just 15 percent of U.S. counties account for all of the executions since 1976, according to the DPIC.

The Huffington Post reported that Oklahoma County falls into the category of “America's most execution-eager counties,” where the prosecuting attorney is a major factor.

As head prosecutor in Oklahoma County for 20 years, from 1980 until 2000, District Attorney Bob Macy sent 54 people to death row, including Mr. Black.

Barring an act of mercy by Gov. Mary Fallin, Johnny Dale Black will be executed by lethal injection at 6 pm, on Tuesday, December 17, at the Oklahoma State Penitentiary in McAlester.

The public is invited to join the members of OK-CADP as they stand in front of the Governor's mansion, 820 NE 23 St., on December 17, at 5:15 pm during the Johnny Dale Black "Don't Kill for Me" protest demonstration, which will transition into a silent vigil at the appointed hour of 6 pm until death is pronounced.

Upon the passing of Johnny Black, the state will issue a death certificate as it does for every person who dies in Oklahoma. For Black, the cause of death will be listed as homicide, which is defined as “the deliberate and unlawful killing of one person by another.”

Black will be the 6th execution in Oklahoma in 2013. Prior to Black, Steven Ray Thacker was executed on March 12, James Lewis DeRosa was executed on June 18, Brian Darrell Davis was executed on June 25, Anthony Rozelle Banks was executed on September 10 and Ronald Clinton Lott was executed last week on December 10.

“When someone is executed by the state, she or he is killed in my name,” said OK-CADP member Margaret Cox. “We all hold a responsibility not to let that happen. This action should not go unnoticed by the people of Oklahoma.”

Next month, Michael Lee Wilson, 38, is scheduled to be executed on January 9, 2014. Wilson is one of four men found guilty of the first-degree murder of 30-year-old Richard Yost in February 1995.

 
 

Murder Witness Fulfills Promise To Tell His Story

Ron Jackson - NewsOK.com

January 21, 1999


DUNCAN - On the witness stand Wednesday, Richard Lewis fulfilled a promise he made to himself the night his father-in-law was killed and he was left to die with 13 stab wounds.

He lived to tell the story.

Lewis' testimony describing Bill Pogue's death highlighted the first day of Johnny Dale Black's murder trial, which is no longer about guilt or innocence, but about life or death.

Defense attorney Deborah Maddox told a jury pool Tuesday, "Johnny Black killed Bill Pogue" but said she would debate whether he did it with "malice aforethought." The trial resumes today at 8:30 a.m. at the Stephens County Courthouse as District Attorney Gene Christian seeks the death penalty.

Lewis, strained by memories of that night, told the jury his only thought after the Jan. 4, 1998, attack was to tell someone what had happened, "because I didn't know if I'd live."

Prosecutors contend what happened was a case of mistaken identity.

Lewis and Pogue were driving along State Highway 89 south of Ringling when their black sport-utility vehicle was forced to stop by a green, four-door sedan. Prosecutors claim the defendant and his four companions thought they were meeting someone else for a fight. Lewis and Pogue were driving the type of vehicle the defendant was looking for.

Lewis told jurors he and his father-in-law were "swarmed" by five men. Johnny Dale Black, 33; Cal Eugene Shankles, 20; Jimmy Lee Roy Black, 30; Jesse J. Black, 21; and Robert William Seals, 26, are charged in the attack.

Prosecutors say Lewis, bloodied by 13 stab wounds, managed to lift the stabbed and beaten Pogue back into the vehicle and drive for help. Pogue, a horse trainer from Ringling, was pronounced dead at the Healdton Hospital.

Deputy Medical Examiner Larry Balding testified Pogue suffered blows to the left side of the face by a blunt force and 10 stab wounds - one that penetrated the back an estimated 5 inches and pierced a lung.

"Based on what I observed from the abrasions around the wound, I would say the knife was plunged in up to the handle," Balding told Christian.

Defense attorney John Albert countered by asking Balding whether Pogue showed any "defense wounds" on the hands or arms, suggesting he was fending off an attacker.

Balding said only one wound might qualify - a cut on the left forearm.

Lewis sat solemnly in the witness chair, staring down as he waited for questions. At one point, he said, "We are a close family" and glared at Black. Lewis then turned to the jurors and began to cry.

"Bill and I were fighting for our lives," he said.

Black, a slim man, sat slightly slouched in his chair, never shifting his vision from the witness stand.

Black was released from prison in January 1997 after serving time for a 1984 manslaughter conviction and for delivering marijuana in Cleveland County. In June, Black escaped from the Jefferson County jail and left a threatening, handwritten note for Sheriff Don Allen.

He faces one of three penalties - life in prison, life in prison without parole, or death.

Defense attorneys sought to move the trial to Stephens County because of extensive pretrial publicity.

Jesse J. Black, Jimmy Lee Black, Shankles and Seals face separate trials.

 
 

United States Court of Appeals
For the Tenth Circuit

Black v. Workman

Johnny Dale BLACK, Petitioner–Appellant,
v.
Randall G. WORKMAN, Oklahoma State Penitentiary, Respondent–Appellee.

No. 10–6062.

June 14, 2012

Before LUCERO, HARTZ, and O'BRIEN, Circuit Judges.

Randy A. Bauman, Assistant Federal Public Defender, (Sarah M. Jernigan, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Western District of Oklahoma, Oklahoma City, OK, for Petitioner–Appellant.Seth S. Branham, Assistant Attorney General, Office of the Attorney General for the State of Oklahoma, Oklahoma City, OK, for Respondent–Appellee.

ORDER

Defendant Johnny Black was convicted of first-degree murder and battery with a dangerous weapon because of his role in an assault that left Bill Pogue dead and Rick Lewis suffering from 13 stab wounds. On the recommendation of the jury, Defendant received a death sentence on the first-degree murder conviction.

After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals (OCCA) and pursuing two postconviction proceedings in state court, Defendant unsuccessfully applied for relief under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. He appeals the district court's decision, raising 14 claims: (1) the trial court improperly dismissed at voir dire two jurors who had reservations about the death penalty; (2) the prosecutor struck an African–American man from the jury pool on account of race; (3) the trial court did not properly instruct the jury on the relationship between first-degree murder and manslaughter; (4) trial counsel was ineffective during closing argument for undercutting the defense that Defendant was guilty only of manslaughter; (5) trial counsel was ineffective for failing to investigate and present evidence on Mr. Pogue's health and ability to avoid a confrontation with Defendant and his companions; (6) a juror improperly told the other jurors about his personal knowledge of the crime scene; (7) the prosecutors made comments during guilt- and sentencing-stage closing arguments that improperly invoked sympathy for the victim, improperly stated the prosecutors' motives and religious faith, diminished the jury's sense of responsibility, and undermined Defendant's right to an individualized sentence; (8) the cumulative effect of all errors rendered his trial unfair; (9) trial counsel was ineffective for failing to investigate and present evidence of Defendant's brain damage; (10) trial counsel was ineffective for failing to pursue Defendant's “defense of brother” theory; (11) trial counsel was ineffective for failing to object to the introduction of victim-sympathy evidence; (12) the trial court improperly excluded the testimony of Defendant's brother during the penalty phase of trial; (13) the trial court failed to give a “defense of brother” instruction; and (14) appellate counsel was ineffective for failing to raise on direct appeal Defendant's claims 9, 10, 11, 12, and 13. On claims one through eight we affirm on the merits, generally because the OCCA did not unreasonably apply federal law in rejecting these claims. On the remaining claims the district court denied relief on the ground of procedural bar. Before we can determine whether we agree with the district court, we need to resolve a question of Oklahoma procedural law—whether Oklahoma's bar of Defendant's second postconviction application was independent of federal law or instead required the OCCA to examine the merits of Defendant's federal constitutional claims. We are therefore certifying a question of state law to the OCCA and abating this appeal pending consideration by the OCCA of our certification request.

I. BACKGROUND

A. Factual Background

On the evening of January 4, 1998, Defendant was at the home of his brother Jesse Black watching a professional football game with Jesse, brother Jimmy Black, Robert Seale, and several others. A nervous Cal Shankles came by to ask for assistance in finding his brother. He added that he needed protection because Justin Hightower was after him for having an affair with Mr. Hightower's soon-to-be ex-wife. Mr. Shankles, the Black brothers, and Mr. Seale left the home in a green Neon. Defendant drove while the others watched for Mr. Hightower's vehicle, allegedly a black Blazer. The OCCA's opinion continues the account of the tragic attack on two men who happened to be driving a black Blazer in the wrong place at the wrong time:

[While Defendant and his companions were looking for Hightower,] Bill Pogue and his son-in-law, Rick Lewis, drove to Ringling in Pogue's black Blazer to buy some chewing tobacco at a local convenience store. On their way back to Pogue's home, they passed the Neon at an intersection and one of [the Neon's] passengers yelled something at Pogue's Blazer. The Neon turned around and pulled in behind Pogue traveling at a high rate of speed and flashing its lights. Shortly thereafter, the Neon passed Pogue's Blazer and stopped in front of it. It was disputed at trial whether the Neon blocked the roadway.

According to Rick Lewis, ․ he and Pogue exited the Blazer. Lewis went around the back of the Blazer and came up behind Pogue. The four doors of the Neon opened and Jimmy Black, who was seated in the rear on the driver's side, got out and ran barreling towards [Lewis and Pogue]. In response, Pogue hit Jimmy Black in the face and the two began to wrestle towards and into the east bar ditch. Jesse Black and [Defendant] then ran towards Lewis, who hit Jesse Black, momentarily knocking Jesse down. Lewis was able to sidestep [Defendant] and throw him into the front of the Blazer. [Defendant] and Jesse Black then began fighting with Lewis in the west bar ditch. During the fight, Lewis looked up to see Cal Shankles with some type of club and felt a couple of blows to the head. Lewis did not remember seeing Shankles during the entirety of the fight and the evidence showed Shankles went from bar ditch to bar ditch alternately hitting Lewis and Pogue with some type of club. Lewis remembered seeing Robert Seale standing at the back of the Neon holding what looked like a tree branch, but never saw him fighting with anyone.

After several minutes of fighting, Lewis was able to break free and make his way to the east bar ditch where he saw Pogue on top of Jimmy Black and [Defendant] over Pogue's back. Lewis pushed [Defendant] off of Pogue and helped Pogue stand up and head toward the Blazer. Jesse Black then hit Lewis in the side of the head and said “that's for bustin' my lip.” The Black brothers, Seale and Shankles then lined up behind the Neon yelling obscenities and taunting Lewis and Pogue. While Lewis assisted Pogue, who had been stabbed eleven times, into the Blazer, the Neon sped away. Although Lewis did not realize it during the fight, [Defendant] had stabbed him thirteen times with wounds to the back of Lewis' head, spine, chest, side, buttock, leg and arm. After loading Pogue into the Blazer, Lewis raced him back to the Pogue barn, where family members took over and rushed both men to the Healdton hospital. Lewis was treated for his injuries and was later transferred to Ardmore for care. Pogue died at the Healdton hospital.

The morning after the fight [Defendant] fled to Texas, where he was later apprehended and voluntarily confessed. Jesse and Jimmy Black, Robert Seale and Cal Shankles were also arrested and made voluntary statements. In [Defendant's] voluntary statement to police, he claimed he did not go with Shankles to fight, but to see “what the deal was.” He claimed he never intended to kill Pogue and he did not understand why Lewis and Pogue attacked his brothers. He maintained he did not remember stabbing Lewis and that he simply reacted because he was afraid for his brothers, Jesse and Jimmy. He claimed when he went to Jimmy's aid, he told Pogue to get off his brother or he would “stab” or “cut” him. When Pogue did not move, he stabbed him. According to [Defendant], he and Pogue began to wrestle and roll around and Pogue kept rolling onto the knife. He maintained there was no intent to kill anyone and that his brothers did not know he used his knife.

Black v. State, 21 P.3d 1047, 1055–56 (Okla.Crim.App.2001) (footnote omitted).

B. Judicial Proceedings

On January 26, 1999, after three days of testimony, the jury convicted Defendant of first-degree murder and assault and battery with a dangerous weapon. The penalty-stage proceeding began the next day, and the jury returned a recommendation of the death sentence after an additional day of testimony. We will defer any description of events during the trial until discussion of the specific issues raised on appeal.

Defendant appealed to the OCCA, which affirmed his convictions and sentence. See Black, 21 P.3d 1047. The United States Supreme Court denied his petition for a writ of certiorari. See Black v. Oklahoma, 534 U.S. 1004, 122 S.Ct. 483, 151 L.Ed.2d 396 (2001). On October 18, 2000, while his direct appeal was pending, Defendant filed an application for postconviction relief in the OCCA. On May 23, 2001, the OCCA denied relief.

On October 22, 2002, Defendant filed his application under 28 U.S .C. § 2254. He raised the issues being pursued on this appeal and several others.1 He also moved for discovery and for an evidentiary hearing.

In its response brief the State asserted that several of Defendant's claims should be rejected because they had not been exhausted in state court. Defendant did not contest that these claims were unexhausted but argued that the district court should excuse exhaustion or, in the alternative, should hold the case in abeyance while Defendant presented these claims to the OCCA. Although the record does not show whether the district court ruled on Defendant's requests, Defendant filed his second state application for postconviction relief in the OCCA on October 2, 2006. The application raised the unexhausted claims and two others not raised in this court.2 The OCCA denied relief on April 14, 2008, holding that all the claims were procedurally barred because they should have been raised earlier.

On February 10, 2010, the federal district court denied Defendant's § 2254 application, his motion for discovery, and his motion for an evidentiary hearing. It rejected claims nine through fourteen as procedurally defaulted and denied on the merits the remaining claims raised here. Defendant has been granted a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1) (requiring COA to pursue appeal of issue in circuit court), by either the district court or this court on all issues raised on appeal and has not sought from this panel a COA on any other issues.

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act (AEDPA) a federal court in a § 2254 proceeding must be exquisitely deferential to the state court's resolution of the defendant's claims. As the Supreme Court said in Cullen v. Pinholster, –––U.S. ––––, ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011), AEDPA established “a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt” (citation and internal quotation marks omitted). When a claim has been adjudicated on the merits in state court, a federal court can grant habeas relief on the claim only if the state-court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). Under AEDPA, “clearly established law as determined by [the Supreme] Court refers to the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the relevant state-court decision.” Yarborough v. Alvarado, 541 U.S. 652, 660–61, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (internal quotation marks omitted). As for fact-finding, a federal court must accept facts found by the state court unless the defendant rebuts the finding “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

A state-court decision is “contrary to” Supreme Court law “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), or “if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts,” id. at 413. It is not necessary that the state-court decision cite applicable Supreme Court decisions. “[I]ndeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). In “making the ‘unreasonable application’ inquiry,” we “ask whether the state court's application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409. “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Renico v. Lett, –––U.S. ––––, ––––, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (internal quotation marks omitted). “Indeed, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. (internal quotation marks omitted). To evaluate whether a state court unreasonably applied a Supreme Court rule, we must consider the specificity of the rule. See Yarborough, 541 U.S. at 664. “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Id. When the state court does not explain its reasoning, the applicant must still show that “there was no reasonable basis for the state court to deny relief.” Harrington v. Richter, –––U.S. ––––, ––––, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011); see Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.1999) (Under AEDPA, “we owe deference to the state court's result, even if its reasoning is not expressly stated.”).

The Supreme Court has recently emphasized in the strongest terms the obstacles to § 2254 relief. In Harrington it observed that § 2254(d) “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” 131 S.Ct. at 786 (internal quotation marks omitted). Consequently, to obtain relief, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 786–87. Also, although federal-court deference to the state court's decision is appropriate only on claims “adjudicated on the merits” by the state court, 28 U.S.C. § 2254(d), the defendant has the burden of showing that the claim was not so adjudicated. “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington, 131 S.Ct. at 784–85.

III. VOIR DIRE

“[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty․” Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Defendant argues that the trial court made it impossible for anyone with reservations about the death penalty to serve on his jury because prospective juror Williams was dismissed for answering No and prospective juror Skiles was dismissed for answering Yes to the same question regarding their willingness to consider the death penalty. Defendant also argues that the trial court erred in its dismissals of Williams and Skiles and that the trial court's “failure to allow further explanation through voir dire was improper.” Aplt. Br. at 99. The OCCA's contrary decision was not, however, an unreasonable application of clearly established Supreme Court law, nor did the OCCA make an unreasonable determination of the facts.

The trial court informed the jury that the case involved a charge of first-degree murder and that the three possible punishments for the offense were death, imprisonment for life without parole, or imprisonment for life. It then asked the jurors whether they could consider all three options. Williams and Skiles both expressed reservations about the death penalty. The court questioned each separately. It asked Williams:

[I]f you found ․ that beyond a reasonable doubt the Defendant was guilty of Murder in the First Degree, and if under the evidence, the law and the circumstances of the case the law would permit you to consider a sentence of death, are your reservations about the death penalty such that regardless of the law, the facts and the circumstances, you would not consider inflicting a death penalty?

Tr., Vol. I at 67. Williams responded “No sir” and was excused by the court. Id. at 68. When Skiles was later asked essentially the same question, she responded “Yes sir” and was also excused. Id. at 71.

Defendant asserts that if both Yes and No answers to the court's question disqualified a juror, then every juror who expressed reservations about the death penalty would be excluded, contrary to Witherspoon. He argues that at the least the court should have asked, or permitted counsel to ask, further questions to clarify the ambiguity.

If courts were required to voir dire jurors by e-mail, Defendant's argument might be compelling. But his argument ignores the role of body language, tone of voice, and other nonverbal signals in communication. The concerned parties apparently understood both answers by the jurors as stating an unequivocal inability to render a verdict of death. Defense counsel did not argue at trial that either juror's response had been ambiguous.3 This is not remarkable because Yes and No often mean the same thing in response to a question phrased in the negative, even though language purists may find this practice unacceptable. The OCCA said that “[a]lthough a literal reading of Williams' answer indicated that she may be able to consider the death penalty, the parties understood otherwise.” Black, 21 P.3d at 1061. We accept this fact finding because Defendant has not pointed to clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1) (granting presumption of correctness to state-court fact finding). The OCCA therefore held that the trial court did not err in removing the two jurors without further questioning. (Defense counsel had asked for an opportunity to rehabilitate Williams, but not Skiles.) This holding was not an unreasonable interpretation of Supreme Court law. Indeed, Defendant cites no authority for the proposition that he had the right to question further a juror who said that she could not vote for the death penalty. We deny relief on this claim.

IV. BATSON CLAIM

The Constitution forbids a prosecutor from exercising a peremptory challenge to a prospective juror on account of the juror's race. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). When defense counsel believes that the prosecutor has violated Batson, a three-step review process is in order. “[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.” Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). “At [the] second step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.” Id. at 768 (brackets and internal quotation marks omitted). But if, at step three, the court finds the proffered ground to be pretextual, it may determine that the strike was purposeful discrimination. See id.

Defendant claims that the prosecution violated Batson when it struck one of only two African–Americans among the 400 to 500 members of the jury venire. Defense counsel raised at trial a Batson objection to the strike. When the trial court asked the prosecutor why he had struck the prospective juror, he responded that the man had failed to disclose that he had been charged with first-degree burglary when the panel members were asked whether they had been accused of a crime. The trial court ruled the explanation reasonable and rejected the Batson objection. Defendant presented no evidence to rebut the prosecutor's explanation. On direct appeal the OCCA upheld the trial court's ruling because it was supported by the record and was not clearly erroneous. See Black, 21 P.3d at 1061–62. The court noted that the prosecutor had also removed a white juror who had “belatedly disclosed his prior misdemeanor criminal record.” Id.

As Defendant apparently agrees, the prosecutor's explanation satisfied step two of the Batson three-step process. Defendant argues, however, that evidence not available to him at trial but obtained for his direct appeal to the OCCA shows that the prosecutor's explanation was pretextual. According to Defendant, when his appellate counsel ran background checks on the seated jurors, he discovered that a white man who served on the jury had been convicted of a misdemeanor that he had not disclosed during voir dire, thereby showing disparate treatment of whites and African–Americans. On direct appeal Defendant presented the criminal-background check on that juror to the OCCA in an application for an evidentiary hearing to supplement the record on appeal. See id. at 1062 n. 10. But the court, after summarizing the document, denied the request. The OCCA wrote:

Batson is not violated whenever prospective jurors of different races provide similar responses and one is excused while the other is not. Batson requires a race neutral explanation which was provided in this case. The prosecutor excused both a black and a white juror with criminal records. We do not find an evidentiary hearing is warranted based on the application presented. As such, the request is denied.

Id. (citation and internal quotation marks omitted). Defendant now asks us to consider the criminal-history report and adjudicate his Batson claim de novo.

First we address our standard of review. Defendant's request for de novo review of his Batson claim relies on this court's decision in Mayes v. Gibson, 210 F.3d 1284 (10th Cir.2000). In that case we held that the defendant was entitled to an evidentiary hearing on his ineffective-assistance-of-counsel claim because he acted diligently in state court to develop the factual basis of his claim but had been denied a hearing in state court. See id. at 1287–88 n. 2. And because the defendant had not received a “full, fair, and adequate hearing” in state court, we reviewed the evidence de novo, without deference to the state court, in deciding that we should remand to the district court for an evidentiary hearing. Id. at 1289. Relying on Mayes, Defendant contends that we should consider the criminal-background check on the seated juror without deferring to the Oklahoma courts and remand this issue to the district court for an evidentiary hearing.

We disagree. To begin with, much of our decision in Mayes is of questionable authority in light of later Supreme Court case law. Last year the Supreme Court decided in Cullen v. Pinholster, –––U.S. ––––, –––– – ––––, 131 S.Ct. 1388, 1400–01, 179 L.Ed.2d 557 (2011), that even if a federal-court evidentiary hearing is not barred by § 2254(e)(2), the evidence so obtained is inadmissible in reviewing a claim adjudicated on the merits in state court. It held that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits,” id. at 1398, and indicated that the same is true, a fortiori, to review under § 2254(d)(2), which explicitly states that the state-court decision must have been unreasonable “ ‘in light of the evidence presented in the State court proceeding,’ “ id. at 1400 n. 7; see Blue v. Thaler, 665 F.3d 647, 656 & n. 27 (5th Cir.2011). Such review, of course, is deferential, not de novo. See Cullen, ––– U.S. –––– at –––– – ––––, 131 S.Ct. 1388 at 1401–02, 179 L.Ed.2d 557; cf. id. at 1419 (Sotomayor, J. dissenting) (stating that review should be deferential even if additional evidence is produced in federal evidentiary hearing).

Dissenting Justice Sotomayor “assume[d] that the majority d[id] not intend to suggest that review is limited to the state-court record when a petitioner's inability to develop the facts supporting his claim was the fault of the state court itself.” Id. at 1417 n. 5 (Sotomayor, J., dissenting). But this assumption would not help Defendant, because he has no acceptable excuse for not developing the facts in state court. Defendant argues that he should have been granted access during voir dire to the State's information on the criminal records of the prospective jurors. But he has not shown that the trial court had a legal obligation to order such disclosures by the prosecutor to Defendant. Defendant was able to obtain the criminal records of jurors through a state freedom-ofinformation-act request during his direct appeal to the OCCA. He does not explain why such records could not have been obtained by the time of voir dire. Indeed, he admits in his opening brief that the prosecutor informed defense counsel months before trial that the information was of public record. Defendant does not even attempt to argue that the prosecution has a general obligation to provide to a defendant evidence that is reasonably obtainable by other means. Defense counsel may have had good reason not to bother seeking the criminal-background records. The criminal histories of prospective jurors may not have been important in exercising defense peremptory challenges, counsel may have presumed that jurors would be truthful about their criminal records, or counsel may not have anticipated that the prosecutor would use the criminal records to rationalize a peremptory strike actually made on racial grounds (particularly when Defendant apparently was not himself a member of a minority racial group). We note that there has been no claim of ineffective assistance of counsel in not obtaining the records in time for trial. The reasonableness of the decision not to obtain the records for voir dire does not, however, free the defense from the consequences of the decision. There is no good substitute for a full airing of a Batson issue at the time of voir dire, when memories are fresh and the trial judge can best assess the veracity of the prosecutor by viewing nonverbal cues. Indeed, for essentially this reason, this court refused in a pre-AEDPA case to consider on habeas a pretext argument not raised in the state trial court even though the record “offer[ed] troubling evidence of the pretextual character of the prosecutor's ostensibly neutral reasons.” Johnson v. Gibson, 169 F.3d 1239, 1248 (10th Cir.1999).

Turning to the merits of Defendant's Batson claim, we can grant Defendant relief only if the state court's rejection of his pretext claim was “ ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ 28 U.S.C. § 2254(d)(2).” Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006). We must determine whether “it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge.” Id. “State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ § 2254(e)(1).” Id . at 338–39.

Defendant wisely does not challenge the rejection of his Batson claim based on the trial record. The trial judge had no ground for finding pretext. What Defendant does argue is that the OCCA's decision on the Batson issue was unreasonable in light of the evidence presented to it that the prosecutor had failed to strike from the jury a white man who had not disclosed a prior misdemeanor conviction during voir dire.

One could debate whether the evidence of the white juror's conviction is part of the record that Cullen permits us to consider. The OCCA decided Defendant's direct appeal without reference to the conviction. It refused to permit an evidentiary hearing at which the background check of the juror could be made part of the record on appeal. Therefore, it appears that evidence of the conviction was not part of the record. On the other hand, evidence of that conviction was presented to the OCCA during the direct appeal and considered by that court in denying a hearing. See Black, 21 P.3d at 1062 n. 10. Perhaps that makes the evidence part of the “record” for purposes of § 2254(d)(2). We need not resolve the issue, however, because the evidence of the conviction does not suffice to afford Defendant relief.

The question before us is whether the prosecution's failure to strike a white juror despite his not disclosing a prior misdemeanor conviction would establish by clear and convincing evidence that the prosecutor's challenge to the prospective African–American juror was racially motivated. The answer is No. To be sure, the evidence concerning the selected white juror raises suspicion. Whenever the prosecutor's explanation for striking a minority juror would also apply to a white juror who was not struck, the explanation loses some credibility. But a prospective white juror with a “belatedly disclosed” prior misdemeanor conviction had been struck, suggesting that the explanation for striking the African–American prospective juror had also been applied to a white man. As the OCCA wrote, “Batson is not violated ‘whenever prospective jurors of different races provide similar responses and one is excused while the other is not.’ “ Id. at 1062 n. 10 (quoting Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir.1994)). The significance of a failure to disclose a prior conviction may depend on the nature of the offense and how long ago it had occurred. And other (nonracial) characteristics of the prospective juror may outweigh the failure. Here, the misdemeanor conviction of the white juror had been for impaired driving (a charge reduced from driving while intoxicated) 17 years before Defendant's trial, and the penalty had been only a $100 fine; but the African–American's arrest had been about two years before Defendant's trial.

The limited evidence of the prosecution's racial motivation here is far less than what is required to overturn a state trial court's Batson ruling on habeas review. Even on direct review, without the deference required by AEDPA, the Supreme Court stated that a reviewing court must defer to the state trial judge's finding of no racial motivation “in the absence of exceptional circumstances.” Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (internal quotation marks omitted). The only Supreme Court decision to set aside on habeas review a state-court rejection of a Batson claim provides a helpful illustration of what is sufficient for a federal habeas court to determine that a state court's factual findings were unreasonable. We quote in a footnote the Supreme Court's summary in Miller–El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), of the evidence of racial motivation that caused it to hold that, contrary to a state-court finding, the prosecution had violated Batson.4

Further development of the evidence might demonstrate racial bias in this case, but too much time has passed since the jury selection in Defendant's trial for that to be a reliable exercise. See Johnson, 169 F.3d at 1248 (refusing to reverse state court's Batson fact finding on ground of evidence of pretext not raised in state proceedings); cf. Snyder, 552 U.S. at 486 (refusing to remand to give state another opportunity to explain its strikes). In any event, we must decide the issue on the evidence presented to the state court (which we have assumed includes the white juror's criminal-background check). And we cannot say that evidence that a white juror failed to disclose a 17–year–old misdemeanor conviction punished by a $100 fine shows clearly and convincingly that the trial judge erred in believing the prosecutor's explanation for striking a prospective African–American juror.

For the above reasons, we hold that Defendant has failed to establish a Batson violation.

V. INSTRUCTIONS ON FIRST–DEGREE MURDER AND MANSLAUGHTER

That Defendant stabbed and killed Mr. Pogue was not disputed at trial. What was in dispute was whether Defendant stabbed Mr. Pogue with the intent necessary to support a first-degree-murder conviction. Defendant's counsel argued that Defendant killed in the heat of passion and should be convicted of manslaughter. The trial court instructed the jury on manslaughter, but the jury ultimately accepted the prosecution's first-degree-murder theory.

Defendant contends that the court's guilt-stage jury instructions unconstitutionally “impair[ed] the jurors' full consideration of [his manslaughter] theory” because they “did not require the prosecution to disprove the existence of heat of passion, nor did they allow consideration of manslaughter until and unless jurors rejected the first degree murder charge.” Aplt. Br. at 114. He relies on United States v. Lofton, 776 F.2d 918, 920 (10th Cir.1985), which, in a direct appeal from a federal criminal conviction, held that when a defendant properly raises a heat-of-passion defense, the trial court must instruct the jury (1) that manslaughter is the defendant's theory of defense and (2) that the government has the “duty to prove beyond a reasonable doubt the absence of heat of passion in order to obtain a murder conviction.”

The jury instructions on murder and manslaughter included a straightforward tour of the elements of murder and manslaughter. Instruction No. 6 set forth the elements of first-degree murder:

[N]o person may be convicted of murder in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the death of a human;

Second, the death was unlawful;

Third, the death was caused by the defendant;

Fourth, the death was caused with malice aforethought.

Trial R., Vol. III at 78. Instruction No. 7 informed the jury that “ ‘[m]alice aforethought’ means a deliberate intention to take away the life of a human being,” an intention that must have been formed before the homicidal act and existed at the time of the act. Id. at 79. It also told the jury: “The external circumstances surrounding the commission of a homicidal act may be considered in finding whether or not deliberate intent existed in the mind of the defendant to take a human life. External circumstances include words, conduct, demeanor, motive, and all other circumstances connected with a homicidal act.” Id.5

Instruction No. 8 stated the elements of first-degree manslaughter:

The defendant is charged with murder in the first degree-Count I. You are instructed that, in addition to evidence concerning the crime of murder in the first degree, evidence has also been introduced concerning the lesser crime of manslaughter in the first degree.

No person may be convicted of manslaughter in the first degree by dangerous weapon unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the death of a human;

Second, the death was not excusable or justifiable;

Third, inflicted by means of a dangerous weapon;

Fourth, caused by the defendant;

Fifth, when performing the conduct which caused the death, defendant was in a heat of passion.

Id. at 80. And Instruction No. 9 addressed the meaning of heat of passion:

Heat of passion exists when four requirements are proven. These requirements are:

First, adequate provocation;

Second, a passion or an emotion such as fear, terror, anger, rage, or resentment existed in defendant;

Third, the homicide occurred while the passion still existed, and before there was reasonable opportunity for the passion to cool;

Fourth, there was a causal connection between the provocation, the passion and the homicide.

Id. at 81.

Instruction No. 10 explained that “ ‘[a]dequate provocation’ refers to any improper conduct of the deceased toward the defendant which naturally or reasonably would have the effect of arousing a sudden heat of passion within a reasonable person in the position of the defendant,” and generally includes “actions which are calculated to provoke an emotional response and ordinarily cause serious violence,” such as “[p]ersonal violence or ag[g]ression by the deceased of a nature sufficiently violent to cause or threaten to cause pain, bloodshed, or bodily harm to the defendant.” Id. at 82.6

Finally, Instruction No. 11 defined the passion or emotion necessary for heat of passion as “any strong emotion, such as fear, terror, anger, rage or resentment. This passion or emotion must have existed to such a degree as would naturally affect the ability to reason and render the mind incapable of cool reflection,” but there must not have been “time for the emotion to cool or subside” before the homicide. Id. at 83.7

Defendant's challenge to these instructions is based on two complaints. First, Instruction No. 6, which set forth the elements of first-degree murder, did not affirmatively say that the state must disprove that Defendant acted in the heat of passion. Second, Instruction No. 8 suggested that the jury should not consider manslaughter unless it found the proof of first-degree murder to be wanting, saying: “If you have a reasonable doubt of the defendant's guilt of the charge of murder in the first degree, you must then consider the charge of manslaughter in the first degree.” Id. at 80.

Defendant did not raise this challenge at trial. But he invoked Lofton on his direct appeal. The OCCA, which reviewed the unpreserved issue only for plain error, rejected the argument, distinguishing Lofton. See Black, 21 P.3d at 1064–67. We need not, however, evaluate the OCCA's Lofton analysis. Even if we were to disagree with that court's reasoning, our disagreement would be irrelevant. It is not ground for § 2254 relief that a state court did not follow a circuit-court ruling on constitutional law. The only ground for setting aside the OCCA's decision would be if that 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) (emphasis added).

When we limit the case law under consideration to Supreme Court precedent, we conclude that Defendant has failed to establish that the OCCA's reasoning or decision on the Lofton issue merits relief under § 2254(d)(1). Lofton relied on Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), which unanimously overturned a Maine murder conviction because the jury instructions did not “require[ ] the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation.” The quoted language would appear to support Defendant's challenge to the instructions at his trial, because they did not explicitly require the state to disprove heat of passion as part of its first-degreemurder case. But, as the author of Mullaney emphatically argued in his dissent two years afterwards in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the later opinion significantly limited Mullaney. See Patterson, 432 U.S. at 216–32 (Powell, J., dissenting). According to Patterson, the precedent established by Mullaney was only “that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.” Id. at 215. The error in Mullaney, said Patterson, was that Maine had shifted “the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed.” Id. Anything additional implied in the Mullaney opinion did not survive Patterson. As Patterson explained:

It was unnecessary to go further in Mullaney. The Maine Supreme Judicial Court made it clear that malice aforethought, which was mentioned in the statutory definition of the crime, was not equivalent to premeditation and that the presumption of malice traditionally arising in intentional homicide cases carried no factual meaning insofar as premeditation was concerned. Even so, a killing became murder in Maine when it resulted from a deliberate, cruel act committed by one person against another, suddenly without any, or without a considerable provocation. Premeditation was not within the definition of murder; but malice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i.e., lack of provocation, was presumed and could be rebutted by the defendant only by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mullaney we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in [In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ].

Id. at 215–16 (internal quotation marks and citation omitted).

Here, no element of the offense of first-degree murder was presumed. A reasonable jurist could interpret Patterson as not requiring an additional instruction that the government must prove the absence of heat of passion beyond a reasonable doubt. See Bland v. Sirmons, 459 F.3d 999, 1013 (10th Cir.2006) (“Patterson ․ limited Mullaney to situations where a fact is presumed or implied against a defendant.”); United States v. Molina–Uribe, 853 F.2d 1193, 1204 (5th Cir.1988) (Lofton went “too far in making the prosecution prove the absence of heat of passion even when the element of malice is neither presumed nor required to be disproved by the defendant”), overruled on other grounds by United States v. Bachynsky, 934 F.2d 1349 (5th Cir.1991) (en banc). Also, Defendant has not pointed to language in Mullaney, or any other Supreme Court decision, requiring an instruction stating that the jury may consider a manslaughter charge before reaching a verdict on first-degree murder. In sum, nothing in the OCCA's disposition of the Lofton issue was contrary to, or an unreasonable application of, clearly established Supreme Court law.

VI. INEFFECTIVE ASSISTANCE OF COUNSEL

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's performance was deficient if it “fell below an objective standard of reasonableness,” id. at 688, which is “the range of competence demanded of attorneys in criminal cases,” id. at 687 (internal quotation marks omitted). Our review is “highly deferential” and we “indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal quotation marks omitted). To show prejudice at the guilt stage of a trial, a defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors,” id. at 694, the jury “would have had a reasonable doubt respecting guilt,” id. at 695. At the penalty phase, “the question is whether there is a reasonable probability that, absent the errors, the sentencer ․ would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

Under § 2254(d) it is not easy to establish that a state court's application of Strickland was unreasonable. As the Supreme Court recently noted, “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter, 131 S.Ct. at 788 (citations omitted). “When § 2254(d) applies, the question is not whether counsel's actions were reasonable,” but “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.

With these standards of review in mind, we turn to Defendant's ineffectiveness claims.

A. Manslaughter Argument

Defendant contends that defense counsel's closing argument undermined the principal theory of the defense—that he was guilty only of first-degree manslaughter, not first-degree murder—by conceding the absence of an essential component of manslaughter. For a homicide to be manslaughter, it must be committed in the heat of passion. And that passion must be the result of “adequate provocation,” which is “improper conduct of the deceased toward the defendant which naturally or reasonably would have the effect of arousing a sudden heat of passion within a reasonable person in the position of the defendant.” Instruction No. 10, Trial R., Vol. III at 82 (emphasis added). Defendant's complaint about his attorneys is that they conceded that Mr. Pogue's conduct was not improper. After careful review, however, we believe that the OCCA's rejection of this complaint was reasonable.

Defense counsel devoted much of their closing argument to heat of passion. They emphasized that the tragic incident happened in the dark; that everything happened very fast; and that everyone had to make split-second decisions (some while intoxicated). They claimed that Defendant had only 30 seconds to decide how to protect his brothers, both of whom were yelling from opposite sides of the road and were apparently in physical danger. And counsel argued that Defendant could not have planned to kill anyone because he carried only a pocket knife with him, leaving far more lethal weapons at his brother's house.

Defense counsel allegedly failed, however, when it came to arguing that the cause of this heat of passion was the victim's misconduct. Indeed, counsel told the jury that Mr. Pogue and Mr. Lewis “weren't doing anything wrong” on the night of the murder, Tr., Vol. III at 747, and that “[n]ot once did we [defense counsel] tell you this was [the victims'] fault,” id.

The OCCA rejected this ineffectiveness claim. It stated:

[Defense counsel] marshaled the evidence and vehemently argued [that Defendant] never intended to kill anyone and that the evidence supported heat of passion manslaughter. Although counsel did not characterize the victims' conduct as improper so as not to alienate the jury, she argued the conduct had to be taken into consideration as to how [Defendant] perceived it and reacted to it. She mindfully characterized the inconsistencies between [Mr.] Lewis' version of events and that of the defendants as nagging questions the jury must consider.

Black, 21 P.3d at 1071. The OCCA concluded that defense counsel's closing argument represented “a sound strategic decision that [should] not be second-guessed on appeal.” Id.

We cannot say that the OCCA unreasonably applied Strickland. The defense faced a difficult quandary. Although a manslaughter verdict would require the jury to find that Mr. Pogue engaged in “improper conduct ․ toward [Defendant],” Trial R., Vol. III at 82 (Instruction No. 10), it would be dangerous to attack Mr. Pogue directly. He was a sympathetic victim, someone with a good reputation in the community. Defendant and the other assailants bore primary responsibility for the events leading to the fight. Messrs. Pogue and Lewis had no connection to the Blacks and their friends, and, unlike Defendant, had not left home seeking a confrontation. Any effort by counsel to blame the victims would be as likely to backfire as to diminish Defendant's culpability in the jury's eyes. Subtlety was therefore necessary. For example, defense counsel said that he would have thrown the first punch, as Mr. Lewis did, see Tr., Vol. III at 747 (“I've got a lot of Rick Lewis in me because I would have done the same thing, and I would have threw [sic] the first punch.”), but then said that he (defense counsel) would have been wrong to do so, see id. at 753 (“All the things these guys were doing to [the victims] were wrong, were menacing, were words or even threats. Still not adequate to start a fight. And I would be wrong there, too, because I would throw the first punch, but that's what happened.”). And defense counsel pointed to evidence that the victims had overreacted. See id. at 769 (“Why is it that Mr. Lewis and apparently Bill Pogue, why did they get upset that someone was following them too closely on the highway?”), id. at 770 (“Why did Mr. Lewis tell Mr. Pogue don't let them pass us? Why not? Who cares?”), id. at 771 (“[W]hy did Bill Pogue throw the first punch?”). In essence, defense counsel was trying to suggest that the victims bore some of the blame while ostensibly denying it, knowing that the jury would not be bound by any concession of defense counsel. See Barkell v. Crouse, 468 F.3d 684, 692 (10th Cir.2006) (“Jurors ․ may well be more persuaded of the importance of an [inference] if they think that they have made the discovery on their own rather than on the importuning of an advocate.”). Such a strategy has deep roots in the history of rhetoric. See, e.g., William Shakespeare, Julius Caesar act 3, sc. 2 (“I come to bury Caesar, not to praise him.”). Perhaps defense counsel were not as persuasive as Marc Antony, but they may have had less to work with.

B. Failure to Investigate or Present Evidence

“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Defendant asserts that his counsel was deficient in failing to investigate and present evidence (1) that “Mr. Pogue was more physically vital than indicated by the trial evidence,” Aplt. Br. at 66, and (2) that Mr. Pogue could have driven around the Neon blocking the path of his Blazer. The OCCA rejected these claims. See Black, 21 P.3d at 1070–72. We address them in turn.

1. Mr. Pogue's Health

Defendant's complaint appears to be that his counsel did not conduct an investigation that would have enabled him to introduce at trial some medical records of Mr. Pogue and evidence that he had participated in rodeo roping events in 1996 (the crime was in January 1998). But it was not unreasonable for the OCCA to hold that Defendant showed neither deficient representation nor prejudice. Given the testimony that Mr. Pogue “was able to hold down and contain Jimmy Black,” id. at 1071—who was 29 years old, 6′1″ tall, and weighed 205 pounds8 —there was no real need to conduct an investigation to establish his physical prowess; and the medical records would have been of scant help because they showed that a year and a half before the incident, Mr. Pogue “had asthma and did little because he was clinically depressed,” id.

2. Driving Around the Neon

Mr. Lewis testified that Defendant's Neon repeatedly flashed its lights as it came up behind Mr. Pogue's Blazer at a very high rate of speed, then passed the Blazer and stopped in the highway. He said that the Neon blocked the road, making it impossible for the Blazer to go around on the roadway. He and Charles Pogue also testified that it would have been dangerous to try to avoid the Neon by driving off the road because the embankment was steep and the ground was wet.

Defendant contends that his trial counsel should have conducted further investigation and taken pictures of the scene of the confrontation to show the jury that the victims did not need to stop their Blazer on the road but could have driven around the Neon. The OCCA rejected Defendant's claim. It noted that defense counsel had questioned witnesses about whether the Blazer could have gone around the Neon, and it stated that defense counsel's strategy not to demonize Mr. Pogue included refraining from arguing that “he was the aggressor who purposefully stopped his Blazer to teach [Defendant and his companions] a lesson for honking at him rather than going on by or that Pogue somehow had a duty to go around” the Neon. Id. at 1072.

We cannot say that the OCCA was unreasonable in concluding that competent counsel would not necessarily have pursued additional evidence. Not only did defense counsel elicit testimony from Jimmy Black that the Blazer could have driven around the Neon, but she obtained valuable evidence to support that conclusion during the cross-examination of Deputy Sheriff Martin Matney. Deputy Matney testified that the asphalt roadway was 19 feet wide and that the distance from the edge of the roadway to the fence on either side was about 25 feet. Although he added that if the Neon was stopped across the center line, the Blazer would have had to leave the pavement to go around it and that the slope on the side would cause problems, he still agreed with defense counsel that the Blazer probably could have managed.

Moreover, the issue was peripheral. Defendant strenuously argues that the evidence might have been critical because the issue was disputed and evidence that Mr. Lewis could have driven around the Neon would cast him and Mr. Pogue “as more involved in initiating the combat.” Aplt. Br. at 68. But it is not apparent why the jury would care much whether the Neon completely blocked the Blazer's path. The evidence was clear that the occupants of the Neon were seeking a confrontation. And it is not particularly relevant whether Mr. Pogue did all in his power to avoid facing the Neon's occupants. What was important to Defendant's defense was what happened after both vehicles stopped. A competent attorney could have reasonably decided that enough attention had been devoted to the driving-around issue.

Defendant also argues that he should have been granted an evidentiary hearing on his failure-to-investigate claims. We reject the argument because he fails to explain any purpose for such a proceeding. In particular, our resolution of these issues did not require any determination of credibility, and he does not state what additional evidence he would hope to elicit at a hearing.

VII. EXTRANEOUS EVIDENCE

Defendant's extraneous-evidence claim also concerns whether Mr. Pogue could have driven around the Neon. Defendant claims that his conviction must be overturned because the jury's deliberations were tainted by a juror's statement of his personal knowledge of the roadway. Requesting an evidentiary hearing on the matter, Defendant submitted to the OCCA an affidavit from a juror stating that “an unnamed juror, who was somehow familiar with the crime scene area, told the other jurors that Pogue could not have gone around the Neon because of a ditch on the side of the road.” Black, 21 P.3d at 1071 n. 24. The OCCA rejected the argument. It said:

Both Lewis and Charles Pogue testified Pogue could not go around the Neon because of the bar ditches. Nowhere in the affidavit does the juror state that she or the other jurors relied on this unnamed juror's opinion rather than on the evidence. Given that this affidavit does not support a finding that the jury relied on extraneous information, the request for an evidentiary hearing is denied.

Id. at 1072. The OCCA's decision was neither an unreasonable application of Supreme Court law nor an unreasonable determination of the facts.

The Supreme Court has declared that a “verdict must be based upon the evidence developed at the trial.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Explaining that principle, it wrote: “In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.” Turner v. Louisiana, 379 U.S. 466, 472–73, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). “Evidence” provided by a fellow juror during deliberations is therefore inconsistent with the right to trial by jury. See Bibbins v. Dalsheim, 21 F.3d 13, 16–18 (2d Cir.1994) (per curiam) (considering the prejudicial effect of a juror's statements about the crime scene during deliberations).

But not all extraneous evidence requires setting aside the verdict. As both parties agree, Defendant is entitled to relief only if the error “had substantial and injurious effect or influence in determining the jury's verdict.” Vigil v. Zavaras, 298 F.3d 935, 940 (10th Cir.2002) (internal quotation marks omitted). We cannot read the jurors' minds to determine the effect or influence of the improperly communicated information; but we may consider such factors as:

(1) the degree to which the jury discussed and considered the extrinsic information; (2) the extent to which the jury had difficulty reaching a verdict prior to receiving the improper evidence; (3) the degree to which the information related to a material fact in the case; (4) when the jury received the extrinsic evidence; (5) the strength of the legitimate evidence; and (6) whether the extrinsic evidence merely duplicates evidence properly before the jury.

Id. at 941 (citations omitted).

The OCCA focused on factors (1) and (6)—the absence of evidence that the jury considered the information and the fact that the information duplicated trial testimony. But the jury's quick verdict (it reported its verdict before 3:00 p.m. on the same day that it heard the court's instructions and closing argument beginning at 9:00 a.m.) and the peripheral importance of how much Defendant's car blocked the victims' vehicle support the same conclusion.

Viewing the record as a whole, we believe that the OCCA's rejection of Defendant's claim on the record before it is entitled to AEDPA deference.

VIII. PROSECUTORIAL MISCONDUCT

Defendant complains of multiple comments made by the prosecutors during guilt- and sentencing-stage closing arguments. To establish a constitutional violation, Defendant must show more than that “the prosecutors' remarks were undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (internal quotation marks omitted). And “a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The issue is whether Defendant was denied his due-process right to a fair trial—that is “whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. (internal quotation marks omitted). Making this determination requires viewing the challenged remarks in context. See id. at 179. In Darden the Court considered the trial court's instructions, the weight of the evidence, whether the comments were in response to defense counsel's arguments, whether the comments misstated the evidence or implicated a specific constitutional right, and whether defense counsel had an adequate opportunity to rebut the comments. See id. at 181–82. On habeas review our task is to determine whether the OCCA's resolution of the issue was either contrary to, or an unreasonable application of, the Darden standard, or was based on an unreasonable determination of the facts.

The first challenged statement was during the prosecution's guilt-stage closing argument: “Starting this case I don't know Bill Pogue. You folks don't know Bill Pogue. That's why you're here. And through the last few weeks talking to the family, talking to Rick, talking to Charles, talking to Lanetta his wife, I've gotten to know Bill Pogue.” Tr., Vol. III at 796. Defense counsel objected, and the court admonished the prosecutor, “Let's not go into matters that are outside the record.” Id. The prosecutor continued, “You have gotten to know Bill Pogue through these statements of what happened, through those witnesses. You know he was a good person.” Id.

The OCCA reasonably ruled that the statement did not render Defendant's trial unfair. Before the opening statements the court had instructed the jury that the arguments and statements of counsel are not evidence. And when the prosecutor made the challenged statement, the court chastised him for apparently referring to matters not in evidence, and the prosecutor responded by referring to the evidence about the victim. See Duvall v. Reynolds, 139 F.3d 768, 794 (10th Cir.1998) (prosecutor's comment did not deprive defendant of due process, in part because “the defense attorney contemporaneously objected to the prosecutor's comment” and “[t]he trial court ․ sustained the objection and admonished the prosecutor for the comment in the presence of the jury”). To the extent that Defendant contends that the prosecutor's reference to Mr. Pogue as a “good person” was a play for sympathy, see id. at 795 (“We do not condone comments encouraging the jury to allow sympathy, sentiment, or prejudice to influence its decision.”), we fail to see how this was prejudicial when defense counsel had already said in his argument that “[t]here is no doubt that Mr. Pogue was a good man,” Tr., Vol. III at 746. Moreover, the trial court instructed the jury not to allow sympathy or sentiment to enter its deliberations, and we presume that juries obey instructions. See Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (“The Court presumes that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.”).

Later the prosecutor said:

[Charles (Mr. Pogue's son) ] drives him to the hospital, has to roll down the window because he can't get oxygen. What's one thing Bill Pogue said? Take care of Rick. Take care of Rick. Bill Pogue knew at that moment he wasn't gonna make it. He knew. And when they get to the hospital, Charles has to hold his dad down on the table while his dad struggles to get breath. Then he looks at Charles. Without saying a word, he says good-bye.

Tr., Vol. III at 797. Although defense counsel did not object to this statement at trial, Defendant now argues that it too was an impermissible play for victim sympathy. The statement, however, was a summary of trial testimony. Because the evidence itself was so likely to evoke sympathy, it was probable that the jury sympathized with the victim “long before the prosecutor gave his closing remarks.” Duvall, 139 F.3d at 795.

Next, Defendant challenges the following statement during the guilt-stage closing argument by prosecutor Bret Burns, which followed the argument by defense counsel Deborah Maddox:

We are prosecutors because we believe in what we do because we have a chance to come in front of you and speak for those who cannot speak. That's why we're here. I mean that's—our heart is in this deal. For [defense counsel] to attack Mr. Christian on his righteousness, M[s.] Maddox to say that—what was her exact word? He filed this for political “ummph”. Filed it First Degree Murder for political “ummph”. Filed it First Degree Murder because it is First Degree Murder. Ms. Maddox does not like basically the D.A.'s theories. She attacked Mr. Christian's Christianity at one point. Didn't believe he was a Christian for filing this Bill of Particular death penalty. You know we are here for a job. I—I don't—I'm gonna tell you right now Mr. Christian is a Christian.

Tr., Vol. III at 791. We fail to see error in the comments before the references to Christianity. In her closing argument Ms. Maddox had impugned the prosecutors' motives, saying:

[B]ack when laws were law and they were written by men and we all understood that, prosecutors would charge Manslaughter. Why? Because that's what happened. Johnny Black has offered this Jury a plea of guilty to manslaughter, and Mr. Christian has the nerve to stand up here and say that's not good enough. I want something with more political “umppp” to it. I want something that'll bring me a death penalty case, get lots of coverage. Manslaughter cases are not big news.

Id. at 757–58. The first part of the prosecutor's statement was not an unreasonable response to this personal attack, see United States v. Young, 470 U.S. 1, 12–13, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (“[I]f the prosecutor's remarks were ‘invited,’ and did no more than respond substantially in order to ‘right the scale,’ such comments would not warrant reversing a conviction.”), although it would have been preferable for the trial judge to intervene or the prosecutors to have objected to defense counsel's argument as irrelevant, see id. at 13 (“[T]he prosecutor ․ should have objected to the defense counsel's improper statements” but “interruptions of arguments ․ are matters to be approached cautiously.”).

The reference to Mr. Christian's religious faith, however, was wholly improper, particularly because, contrary to Mr. Burns's assertion, defense counsel had not attacked that faith. Nevertheless, the OCCA could reasonably determine that the statement did not deny Defendant a fair trial. To begin with, defense counsel objected as soon as Mr. Burns said “Mr. Christian is a Christian,” and the trial judge promptly responded, “That's not relevant.” Tr., Vol. III at 791. Further, we note that in some cultures being a generic “Christian” is not particularly noteworthy, but generally assumed. It would have little impact unless the person was said to be especially devout or the religious description was intended to strike a contrast with someone (say the defendant or defense counsel) who was not of that faith. The OCCA could take that into consideration.

The remaining statements challenged by Defendant were made during the penalty-stage closing arguments. Defendant argues that two statements by the prosecutor improperly limited what the jury could consider in assessing punishment and diminished its sense of responsibility in returning a death-sentence recommendation. The first statement was endorsed by the trial court. The trial transcript reports the following:

[Prosecutor]: And Defense Counsel also said judging Johnny Black's life. Ladies and Gentlemen, we're not judging his life. We're judging the actions that caused the death of Bill Pogue, Cecil Martin and Rick Lewis.

[Defense counsel]: Objection, Your Honor, we are not just judging those things. Mitigating circumstances exist.

THE COURT: I think that the statement is proper. I will allow the statement and note your exception. Go ahead.

[Prosector]: Thank you. We're judging these facts here. We're judging what this man has done.

Id., Vol. IV at 999–1000. Shortly thereafter, the prosecutor made the second statement: “She [defense counsel] wants to compare murders. We don't compare murders say this murder deserves death, this one doesn't. That's not the way our system works.” Id. at 1000. Defense counsel did not object.

Defendant argues that these statements misinformed the jury that it should not consider mitigating evidence or make an individualized decision regarding the death penalty. The record shows otherwise.

The prosecutor's first statement must be viewed in context. In her closing argument defense counsel had invoked God on two occasions. Referring to the burden of making a life-or-death decision, she said:

That's why I and a lot of the people in this world are comfortable with the fact that someone higher above us makes that decision, carries the weight and the fate and destiny of those sixty or seventy [members of Defendant's family].

Tr., Vol. IV at 979. And in discussing whether Defendant could find God in prison, she said:

God lives on death row. That's where his clientele lives. That's where he goes to save people, and let me tell you people are saved. Doesn't ever mean they should ever walk the streets of Oklahoma again. No. But is this value in changing the sole [sic] of a human being from someone that is bad and make someone that is good, repentant. God, I hope so. I really, really hope so.

Id. at 981. The prosecutor was responding to these invocations of the divine when he made the initial challenged statement. We repeat (and emphasize) that statement but add the preceding few sentences:

[Prosecutor]: Defense Counsel briefly, in her opening statement, she made a few comments. She talked about—again about beliefs in God and greater power, and we've already talked about that. There'll be a judgment day for Johnny Black. He can seek forgiveness from his maker however he chooses fit. God may decide to forgive him. That's between he and God. We're not in a position of judgment on Mr. Black's moral character here or whether he's gonna go to heaven. That's not what we're here about. And Defense Counsel also said judging Johnny Black's life. Ladies and Gentlemen, we're not judging his life. We're judging the actions that caused the death of Bill Pogue, Cecil Martin and Rick Lewis.

[Defense counsel]: Objection, Your Honor, we are not just judging those things. Mitigating circumstances exist.

THE COURT: I think that the statement is proper. I will allow the statement and not your exception. Go ahead.

[Prosecutor]: Thank you. We're judging these facts here. We're judging what this man has done.

Id. at 999–1000 (emphasis added). In this light, it appears that the prosecutor was simply saying that the jurors are not God, are not judging Defendant's soul, but are just making a decision on the evidence before them. And insofar as the statement could be read as suggesting that the jury should not consider mitigating factors, that impression would be dispelled by the prosecutor's later discussion of mitigating factors and, more importantly, by the judge's unchallenged instructions, which informed the jury of the meaning of mitigating circumstances, enumerated the mitigating circumstances on which Defendant had submitted evidence, said that the jury could decide that other mitigating circumstances existed, told the jury that unless it unanimously found that aggravating circumstances outweighed mitigating circumstances, it could not impose the death penalty, and gave the jury discretion to impose life imprisonment even if it found that aggravating circumstances outweighed mitigating circumstances. We presume that the jury followed these instructions. See Francis, 417 U.S. at 324 n. 9. Accordingly, we hold that the prosecutor's first comment did not violate Defendant's right to due process. See Le v. Mullin, 311 F.3d 1002, 1018 (10th Cir.2002) (Despite prosecutor's “improper and irrelevant” comments, which may have implied that jury could ignore mitigating evidence, “a review of the record indicated that the jury was appropriately informed by the jury instructions and by closing arguments that it had to consider mitigating evidence before deciding to impose a death sentence.”). Thus, it is unnecessary for us to address Defendant's argument that the OCCA did not consider this comment and that we therefore owe no AEDPA deference on the issue.9

Turning to the prosecutor's second comment—“She wants to compare murders. We don't compare murders say this murder deserves death, this one doesn't,” Tr., Vol. IV at 1000—the remark was a response to defense counsel's argument that Defendant was not of the same ilk as Ted Bundy and the like. His comment would have been proper had it been limited to saying that the death penalty is not reserved for such people. But he went too far in suggesting that all murders are the same. Nevertheless, we do not think that the OCCA unreasonably applied Supreme Court precedent or unreasonably viewed the record in rejecting Defendant's challenge. Everything else about the closing arguments and the court's instructions told the jury that murders are not fungible, that the jury should consider the specifics of this crime and this particular criminal. Indeed, if the specifics of the offense and the offender were irrelevant, there would have been no need for a sentencing proceeding.

Defendant next contends that the first of the prosecutor's comments quoted above—that the jury was not judging Defendant's life—violated an Eighth Amendment requirement set forth in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Caldwell considered a prosecutor's penalty-phase argument, endorsed by the trial judge, that the jurors would not be responsible for killing the defendant because their decision would be automatically reviewable by the state supreme court. Id. at 325–26. The Supreme Court held “that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.” Id. at 328–29. But Caldwell should not be read too broadly. In a later opinion upholding the admission of sentencing-phase evidence that the defendant had been sentenced to death in a prior trial, the Court said that Caldwell is “relevant only to certain types of comment—those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) (internal quotation marks omitted). That is not the situation here. The prosecutor's remark did not suggest that the jury lacked responsibility for deciding what the penalty would be; and Defendant does not challenge any statement or instruction by the trial court that explained the jury's role.

Defendant further challenges the penalty-phase closing argument because of the prosecutor's comment on Defendant's statement to a police officer when he was apprehended after escaping from the jail where he was being held on the murder charge. He was discovered hiding in a closet in a private home. Upon finding Defendant, the officer asked him who he was, and he responded, “I am who I am.” Id., Vol. III at 876. In arguing Defendant's lack of remorse, the prosecutor commented as follows: “I am who I am. That's what [Defendant] told [the officer]. I am who I am. Who does he think he is? Charles Manson? I am who I am. Does he think he's a celebrity now? He's this big runaway escapee?” Id., Vol. IV at 1000–01. Defendant did not object at trial. And for good reason. Although the prosecutor may have been inspired by defense counsel's earlier comments that Defendant was not like multiple killers Ted Bundy, Jeffrey Dahmer, or Roger Dale Stafford, the prosecutor was not suggesting that Defendant was a serial killer. Rather, he apparently was suggesting that Defendant had a god-like (or at least inflated) view of himself. See Exodus 3:14 (New International Version) (“God said to Moses, ‘I AM WHO I AM.’ ”). We fail to see how the OCCA was unreasonable in holding that the suggestion did not deny Defendant a fair trial.

Defendant also challenges the prosecutor's comparison of Bill Pogue's fate with Defendant's life in prison. The prosecutor said:

[Defense counsel] makes the comments family will be able to visit [Defendant]. Fine. Through a plexiglass window, I won't be able to touch. Fine. He'll have T.V.s, weight bench. Fine. Where is Bill Pogue's T.V.s? Where's his weight benches? Where is his family contact? Bill Pogue won't get to develop relationships with his family. The only contact they have is going to be out here at the ․ cemetery. He won't develop a relationship with the eighteen day old baby that was his grandchild that was there. You know, and you heard he had a hunting and fishing wagon. I went hunting Sunday. The sun was setting and my bird dogs were pointing, and I'm thinking of Bill Pogue. He won't be able to spend time with his family doing things he wants. So all this whining saying oh, this is what's gonna happen, I'm gonna have family there, this and that, it's not this pleasant life. Where is Bill Pogue?

Tr., Vol. IV at 1004–05. Defense counsel objected on the ground of “constant derogation of the family and their mitigation evidence that they presented.” Id. at 1005. The court instructed the jury to “remember the testimony that's been given.” Id.

“As we have said many times, it is prosecutorial misconduct for the prosecution to compare the plight of the victim with the life of the defendant in prison.” Bland, 459 F.3d at 1028. But reversal of the sentence is a proper remedy for such misconduct only if the misconduct denied Defendant a fair sentencing proceeding. And our role is further limited because we review only whether the OCCA's decision to deny relief was contrary to or an unreasonable application of Supreme Court precedent. In our view, the OCCA decision must be sustained under that standard. The trial court's admonition to the jury, although poorly stated, at least suggested that the prosecutor's comments were improper. The question whether prison life was easy or “a miserable existence” had already been put before the jury by defense counsel. Tr., Vol. IV at 982. And, as the OCCA observed, there was substantial evidence supporting the statutory aggravators for the death penalty.10

In addition to challenging the preceding remarks individually, Defendant argues that the prosecutorial “misconduct as a whole denied [him] a fair trial at both stages.” Aplt. Br. at 90. Although the prosecutors did make some improper comments during their arguments, our review of the record reveals that those comments, even when considered cumulatively, did not render Defendant's guilt-or penalty-stage proceedings unfair. We therefore deny this claim.11

IX. CUMULATIVE ERROR

“A cumulative-error analysis aggregates all errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Brown v. Sirmons, 515 F.3d 1072, 1097 (10th Cir.2008) (internal quotation marks omitted). Defendant argues that if the constitutional violations alleged in his application do not require relief individually, then they should be aggregated and considered for their synergistic effect. The OCCA rejected Defendant's cumulative-error argument on the merits. See Black, 21 P.3d at 1078. According to the OCCA, its thorough review of the record “reveal [ed] no error which, singly or in combination, would justify either modification or reversal. Any irregularities or errors were harmless beyond a reasonable doubt.” Id.

Defendant relies on Cargle v. Mullin, 317 F.3d 1196, 1221 (10th Cir.2003), in which we granted habeas relief because of cumulative error, and attempts to analogize the facts of that case to his own. But his reliance on Cargle is unavailing. First, in Cargle we reviewed the applicant's cumulative error claim de novo, without deference to the state court's decision, because the OCCA had not “conduct[ed] the appropriate cumulative error review.” Id. at 1220. In this case, however, we have not found additional errors beyond those identified by the OCCA. Therefore, our standard of review is that set forth in § 2254(d). Second, the facts leading us to find cumulative error in Cargle are wholly distinguishable from the facts present here. In Cargle essentially all the alleged constitutional errors related to the State's two critical witnesses. See id. at 1221. The court's observation that the prosecution's case was weak and “totally dependent on the credibility of these two witnesses” led it to conclude “that habeas relief [was] warranted on the basis of cumulative error.” Id. We are not persuaded that the constitutional violations alleged in Defendant's application had an “inherent synergistic effect.” Id. For these reasons, we hold that the OCCA did not unreasonably apply federal law in denying this claim.

X. PROCEDURAL BAR

We now turn to Defendant's claims that were dismissed by the district court as procedurally barred. These claims were not presented to the OCCA on Defendant's direct appeal or his first postconviction application in state court. When presented in his second state postconviction application, the OCCA denied the application under Okla. Stat. tit. 22, § 1089(D)(8), which precludes the court from considering a second postconviction application unless it “contains claims and issues that have not been and could not have been presented ․ in a previously considered application ․ because the legal basis for the claim was unavailable, or ․ because the factual basis for the claim was unavailable.” See Op. Denying Second Appl. for Post–Conviction Relief & Req. for an Evidentiary Hr'g at 3, Black v. State, No. PCD–2006–1059 (Okla.Crim.App. Apr. 14, 2008) (unpublished) (“Decision on Second Postconviction Appeal at 3”). The OCCA ruled that the claims at issue here “were capable of presentation in [Defendant's] direct appeal and original application for post-conviction relief” because they were “based neither on newly-discovered facts nor on new controlling legal authority.” Id. The federal district court refused to address the merits of these claims in Defendant's § 2254 application.

In this court the State relies on procedural bar and does not address the merits of the issues. Ordinarily, “absent showings of ‘cause’ and ‘prejudice,’ federal habeas relief will be unavailable when (1) a state court has declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement, and (2) the state judgment rests on independent and adequate state procedural grounds.” Walker v. Martin, –––U.S. ––––, ––––, 131 S.Ct. 1120, 1127, 179 L.Ed.2d 62 (2011) (brackets, citation and internal quotation marks omitted). Defendant argues three grounds why the procedural bar does not apply: (1) he is actually innocent of first-degree murder and the death penalty, (2) the state procedural bar is not adequate, and (3) the bar is not independent of federal law. We address each argument in turn.

A. Factual Innocence

The Supreme Court has “consistently reaffirmed the existence and importance of the exception [to the general rules of procedural default] for fundamental miscarriages of justice.” Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). This exception applies to those who are actually innocent of the crime of conviction and those “actually innocent” of the death penalty (that is, not eligible for the death penalty under applicable law). See Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Sawyer v. Whitley, 505 U.S. 333, 335–36, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (death penalty).

To establish actual innocence of a crime, one “must show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt” absent a constitutional error. Schlup, 513 U.S. at 327. Defendant argues that he is actually innocent of first-degree murder because he could have been convicted of the lesser offense of manslaughter. But we held in Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir.2000), that to demonstrate a fundamental miscarriage of justice, a defendant must make a showing of factual innocence, not legal innocence, and the defendant in that case had not raised a claim of factual innocence because he did not deny that he had killed the victim. Later, in Ellis v. Hargett, 302 F.3d 1182, 1186 n. 1 (10th Cir.2002), we held that a defendant's claim that he was “innocent because his conduct [was] justified or mitigated by the doctrines of self-defense or heat of passion” was a claim of legal—as opposed to factual—innocence. Defendant concedes that this precedent forecloses his actual-innocence argument.

As for Defendant's claim that he is innocent of the death penalty, to prevail he “must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found [him] eligible for the death penalty under applicable state law.” Sawyer, 505 U.S. at 336. Defendant's actual-innocence claim is based on the trial court's refusal to allow his brother Jimmy to testify at his sentencing hearing. According to Defendant, Jimmy was going to testify about Defendant's horrible childhood, and how Defendant had always looked out for Jimmy and was a father figure to him. Even though Defendant concedes that Jimmy's testimony was mitigating evidence, he argues that it was relevant to his eligibility for the death penalty. He claims that under Oklahoma law, he did not become eligible for the death penalty until the jury (1) found the existence of an aggravating circumstance and (2) determined that aggravation outweighed mitigation. He contends that if the jury had heard Jimmy's testimony, then it would not have found that aggravating circumstances outweighed mitigating factors and thus would not have sentenced him to death.

This argument is foreclosed by Sawyer. That opinion emphasized that the actual-innocence exception “is a very narrow exception, and that to make it workable it must be subject to determination by relatively objective standards.” Id. at 341. To qualify, a defendant must show the absence of aggravating circumstances or some other condition of eligibility. See id. at 344–45. The Court rejected the view that “the showing should extend beyond these elements of the capital sentence to the existence of additional mitigating evidence.” Id. at 345. As the Court explained, broadening the actual-innocence inquiry beyond guilt of the crime and the presence of aggravating circumstances would impose the “far more difficult task [of] assess [ing] how jurors would have reacted to additional showings of mitigating factors, particularly considering the breadth of those factors that a jury under our decisions must be allowed to consider.” Id. at 345. Thus, even if state law considers the outweighing of mitigating circumstances by aggravating circumstances as an “element” of a capital sentence, it is not an element for purposes of the actual-innocence inquiry. Because Jimmy Black's testimony went only to mitigation, its persuasiveness is irrelevant to Defendant's “eligib [ility] for the death penalty” and cannot support the actual-innocence exception to procedural bar.

B. Adequacy

Defendant next argues that his claim is not procedurally barred because the OCCA's decision in his second postconviction proceeding did not rest on an adequate state ground. But his argument cannot prevail in light of the Supreme Court's exposition of the meaning of adequate in its recent decision in Walker v. Martin, ––– U.S. ––––, ––––, 131 S.Ct. 1120, 1127, 179 L.Ed.2d 62 (2011).

Walker reviewed the Ninth Circuit's ruling that California's time limitation on applications for postconviction relief was inadequate to bar relief in federal court. See id. at 1124. In contrast to most state courts, which apply “set determinate time limits for collateral relief applications,” California “courts apply a general reasonableness standard to judge whether a habeas petition is timely filed.” Id. at 1125 (brackets and internal quotation marks omitted). Under California Supreme Court precedent, prisoners must file applications “ ‘as promptly as the circumstances allow,’ “ id. (quoting In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729, 738 n. 5 (Cal.1993)), which means that “[a] prisoner must seek habeas relief without ‘substantial delay,’ as ‘measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim,’ “ id. (citations omitted) (quoting In re Robbins, 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311, 317, 322 (Cal.1998)). The defendant in Walker had presented his ineffective-assistance-of-counsel claims in a postconviction petition almost five years after his conviction had become final. See id. at 1124. He gave no reason for the delay, and the California Supreme Court denied his petition. See id.

The Supreme Court began with the premise that “[t]o qualify as an ‘adequate’ procedural ground, a state rule must be ‘firmly established and regularly followed.’ “ Id. at 1127. But, it said, “[a] rule can be ‘firmly established’ and ‘regularly followed’ ․ even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others .” Id. at 1128 (internal quotation marks omitted). Such was California's rule. See id. at 1128–29. The Court said the rule was firmly established because state precedents “instruct habeas petitioners to allege with specificity the absence of substantial delay, good cause for delay, or eligibility for one of four exceptions to the time bar” and “California's case law made it altogether plain that [the defendant's] delay of nearly five years ranked as ‘substantial.’ “ Id. at 1128 (brackets and internal quotation marks omitted). The Court rejected the argument that “ ‘reasonable time’ period and ‘substantial delay’ ․ are ‘meaningless terms,’ “ pointing out that discretionary rules often use indeterminate language and the requisite clarity can be supplied by a history of their application. Id. (brackets and hyphen omitted).

The Court further held that the state rule was “regularly followed.” It said that “[a] discretionary rule ought not be disregarded automatically upon a showing of seeming inconsistencies.” Id. at 1130. According to the Court, “Discretion enables a court to home in on case-specific considerations and to avoid the harsh results that sometimes attend consistent application of an unyielding rule.” Id. “Sound procedure,” it said, “often requires discretion to exact or excuse compliance with strict rules, and we have no cause to discourage standards allowing courts to exercise such discretion.” Id. (brackets, citation, and internal quotation marks omitted). The Court observed that “if forced to choose between mandatory rules certain to be found ‘adequate,’ or more supple prescriptions that federal courts may disregard as ‘inadequate,’ ‘many States might opt for mandatory rules to avoid the high costs that come with plenary federal review.’ “ Id. (brackets omitted). “That result,” it declared, “would be particularly unfortunate for habeas petitioners, who would lose the opportunity to argue that a procedural default should be excused through the exercise of judicial discretion.” Id. (brackets and internal quotation marks omitted). As we understand Walker, the Court ordinarily would find a state discretionary bar to be inadequate only “when discretion has been exercised to impose novel and unforeseeable requirements without fair or substantial support in prior state law,” or when “state procedural requirements ․ operate to discriminate against claims of federal rights.” Id.

Defendant's second state postconviction application was denied because a state statute bars a successive application unless it “contains claims and issues that have not been and could not have been presented ․ in a previously considered application ․ because the legal basis for the claim was unavailable, or ․ because the factual basis for the claim was unavailable,” Okla. Stat. tit. 22, § 1089(D)(8), and Defendant's claims did not satisfy the exception. See Decision on Second Postconviction Appeal at 3. Defendant's inadequacy argument is that the rule is not regularly followed because the OCCA will waive the rule “when an error complained of has resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Valdez v. State, 46 P.3d 703, 710 (Okla.Crim.App.2002).

Defendant's opening brief cites four OCCA decisions that considered the merits of a successive postconviction application even though the claims presented could have been raised previously: Malicoat v. State, 137 P.3d 1234 (Okla.Crim.App.2006); Torres v. State, 120 P.3d 1184 (Okla.Crim.App.2005); Slaughter v. State, 108 P.3d 1052 (Okla.Crim.App.2005); and Valdez, 46 P.3d at 710. But rather than establishing the inadequacy of Oklahoma's procedural bar, the four cases illustrate the exercise of discretion that Walker endorses. Two of the cited cases, Torres and Valdez, had international implications because of alleged violation of the Vienna Convention on Consular Relations. Malicoat was the OCCA's first opinion to address the constitutionality of Oklahoma's execution protocol. And Slaughter raised a claim of factual innocence. Each of the four cases presented an exceptional circumstance. Although another court may have exercised its discretion differently than the OCCA, these decisions were hardly arbitrary, and the application of the procedural bar to Defendant's second postconviction petition was neither novel nor unforeseeable. We hold that the procedural dismissal of Defendant's second postconviction petition rested on an adequate state ground.

C. Independence

Finally, Defendant contends that his claims should not be procedurally barred because the state rule under which the OCCA dismissed his second postconviction petition is not independent of federal law. This contention may be meritorious.

“A state procedural default is ‘independent’ if it relies on state law, rather than federal law.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir.2008). “[T]he state law ground must have been the exclusive basis for the state court's holding.” Moore v. Reynolds, 153 F.3d 1086, 1096 (10th Cir.1998) (internal quotation marks omitted).

The leading Supreme Court precedent arose in the Oklahoma courts. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the OCCA had held that Ake had waived his claims that he was entitled to a court-appointed psychiatrist to assist him in an insanity defense because he had not renewed his request for a psychiatrist in a new-trial motion. But under Oklahoma law there was no procedural bar if the alleged error was “fundamental trial error”; and federal constitutional error was considered an error of that type. Id. at 74–75. Thus, the OCCA could not apply the waiver rule without first addressing the federal constitutional error. The Supreme Court concluded that the state waiver rule was therefore not an independent state ground for barring review. It explained:

[T]he State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed. Before applying the waiver doctrine to a constitutional question, the state court must rule, either explicitly or implicitly, on the merits of the constitutional question.

Id. at 75. “As we have indicated in the past,” said the Court, “when resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our jurisdiction is not precluded.” Id. The Court concluded that “[i]n this case, the ․ holding of the state court—that the constitutional challenge presented here was waived—depends on the court's federal-law ruling and consequently does not present an independent state ground for the decision rendered.” Id.

Defendant does not challenge the OCCA's determination that his procedurally barred claims “were capable of presentation in [Defendant's] direct appeal and original application for post-conviction relief,” Decision on Second Postconviction Appeal at 3–a determination that obviously did not rely on any consideration of federal law. He points out, however, that the OCCA has said that it can review a claim that would otherwise be procedurally barred if the “error complained of has resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Valdez, 46 P.3d at 710; see Malicoat, 137 P.3d at 1235. Thus, he argues, to deny him relief on procedural grounds, the OCCA must have decided that his claims did not raise “a substantial violation of a [federal] constitutional ․ right,” and that decision was necessarily not independent of federal law. Aplt. Br. at 37 (internal quotation marks omitted). He acknowledges that the OCCA did not explicitly address federal law. All it wrote in barring his claims was:

[Defendant] makes no attempt to show that his claims are presented timely and meet the requirement that the factual or legal basis for the claim was unavailable before now. Instead, he argues that the interests of justice necessitate review of his claims by this Court. We disagree. All but two of [Defendant's] claims were capable of presentation in his direct appeal and original application for post-conviction relief. These claims are based neither on newly-discovered facts nor on new controlling legal authority, and are therefore barred.

Decision on Second Postconviction Appeal at 3. But he correctly points out that Ake requires only that “the state court ․ rule, either explicitly or implicitly, on the merits of the constitutional question.” Ake, 470 U.S. at 75 (emphasis added).

The state raises a number of nonfrivolous responses to Defendant's argument. The only one we can reject outright is that Ake does not apply in habeas proceedings. Although the Supreme Court has not had to decide whether Ake's independence test applies on collateral review, this court has repeatedly followed the Ake test in § 2254 proceedings, and we do so again here. See Brecheen v. Reynolds, 41 F.3d 1343, 1354 (10th Cir.1994) (holding that a state procedural ruling was not independent under Ake ); Gutierrez v. Moriarty, 922 F.2d 1464, 1469 (10th Cir.1991) (“A state procedural default ruling is not independent if application of the bar depends on an antecedent ruling on the merits of the federal claim.” (citing Ake, 470 U.S. at 74–75)).

The state's other responses argue that the OCCA did not, and did not need to, consider the merits of Defendant's constitutional claims in deciding that these claims were barred. That may be true. But in light of the importance of the issue to this and other cases, we prefer not to speculate. Therefore, in a separate document we request the OCCA to resolve this question through a certification procedure. Although Defendant cites our en banc decision in Wilson v. Workman, 577 F.3d 1284, 1299 (10th Cir.2009) (en banc), as prohibiting such certification, we do not read Wilson that broadly. And we note that the Supreme Court has itself certified a similar question in a death-penalty § 2254 proceeding. See Stewart v. Smith, 536 U.S. 856, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (per curiam).12

XI. CONCLUSION

We AFFIRM the district court's denial of the claims that it did not dispose of on the ground of procedural bar and ABATE the appeal pending consideration by the OCCA of our certification request.

FOOTNOTES

1. Defendant raised the following issues not presented on this appeal: (1) the trial court's manslaughter instruction incorrectly defined adequate provocation; (2) there was insufficient evidence to support his first-degree-murder conviction; (3) one of the jurors did not reveal that he knew and did business with Mr. Pogue; (4) Oklahoma's “heinous, atrocious, and cruel” aggravating circumstance is unconstitutional; (5) Oklahoma's “continuing threat” aggravating circumstance does not narrow the class of persons eligible for death; and (6) Oklahoma's sentencing scheme does not require proof beyond a reasonable doubt that aggravation outweighs mitigation.

2. The other claims were (1) that one of Defendant's jurors failed to reveal that he knew Mr. Pogue and (2) that Defendant's postconviction counsel was ineffective.

3. To the contrary, when the trial judge said, “I asked [Williams] if she would consider [the death penalty,] and she said no,” the response of defense counsel was, “And I agree.” Tr., Vol. 1 at 69.

4. The Supreme Court wrote: In the course of drawing a jury to try a black defendant, 10 of the 11 qualified black venire panel members were peremptorily struck. At least two of them, Fields and Warren, were ostensibly acceptable to prosecutors seeking a death verdict, and Fields was ideal. The prosecutors' chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny. The strikes that drew these incredible explanations occurred in a selection process replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race. At least two of the jury shuffles conducted by the State make no sense except as efforts to delay consideration of black jury panelists to the end of the week, when they might not even be reached. The State has in fact never offered any other explanation. Nor has the State denied that disparate lines of questioning were pursued: 53% of black panelists but only 3% of nonblacks were questioned with a graphic script meant to induce qualms about applying the death penalty (and thus explain a strike), and 100% of blacks but only 27% of nonblacks were subjected to a trick question about the minimum acceptable penalty for murder, meant to induce a disqualifying answer. The State's attempts to explain the prosecutors' questioning of particular witnesses on nonracial grounds fit the evidence less well than the racially discriminatory hypothesis. If anything more is needed for an undeniable explanation of what was going on, history supplies it. The prosecutors took their cues from a 20–year–old manual of tips on jury selection, as shown by their notes of the race of each potential juror. By the time a jury was chosen, the State had peremptorily challenged 12% of qualified nonblack panel members, but eliminated 91 % of the black ones. It blinks reality to deny that the State struck Fields and Warren, included in that 91 %, because they were black. The strikes correlate with no fact as well as they correlate with race, and they occurred during a selection infected by shuffling and disparate questioning that race explains better than any race-neutral reason advanced by the State. The State's pretextual positions confirm Miller–El's claim, and the prosecutors' own notes proclaim that the Sparling Manual's emphasis on race was on their minds when they considered every potential juror. Miller–El v. Dretke, 545 U.S. 231, 265–66, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

5. The full Instruction No. 7 stated: “Malice aforethought” means a deliberate intention to take away the life of a human being. As used in these instructions, “malice aforethought” does not mean hatred, spite or ill-will. The deliberate intent to take a human life must be formed before the act and must exist at the time a homicidal act is committed. No particular length of time is required for formation of this deliberate intent. The intent may have been formed instantly before commission of the act. The external circumstances surrounding the commission of a homicidal act may be considered in finding whether or not deliberate intent existed in the mind of the defendant to take a human life. External circumstances include words, conduct, demeanor, motive, and all other circumstances connected with a homicidal act. Trial R., Vol. III at 79.

6. The full Instruction No. 10 stated: “Adequate provocation” refers to any improper conduct of the deceased toward the defendant which naturally or reasonably would have the effect of arousing a sudden heat of passion within a reasonable person in the position of the defendant. Generally, actions which are calculated to provoke an emotional response and ordinarily cause serious violence are recognized as adequate provocation. Actions that do not ordinarily provoke serious violence do not constitute adequate provocation. In determining whether the deceased's conduct was adequate provocation, the conduct is judged as a person or [sic] reasonable intelligence and disposition would respond to it. Mere words alone, or threats, menaces, or gestures alone, however offensive or insulting, do not constitute adequate provocation. However, words, threats, menaces, or gestures, when considered in connection with provoking conduct of the deceased, may constitute adequate provocation. Personal violence or agression [sic] by the deceased of a nature sufficiently violent to cause or threaten to cause pain, bloodshed, or bodily harm to the defendant may be adequate provocation. Trial R., Vol. III at 82.

7. The full Instruction No. 11 stated: The passion or emotion which must exist in the defendant refers to any strong emotion, such as fear, terror, anger, rage or resentment. This passion or emotion must have existed to such a degree as would naturally affect the ability to reason and render the mind incapable of cool reflection. However, the passion need not have been such as would entirely overcome reason, or be so overpowering as to destroy free exercise of choice. This emotional state must, however, actually dominate the person at the time of the commission of the homicidal act and must be directed toward the deceased and not toward another. There must not be a reasonable opportunity for the passion to cool. This means that the homicide must have occurred while the defendant was still affected by the passion or emotion. The homicide must have followed the provocation before there was time for the emotion to cool or subside. Whether or not there was a reasonable opportunity for the passion to cool depends upon whether, under all the circumstances of the particular case, there was such a lapse of time between the provocation and the homicidal act that the mind of a reasonable person would have cooled sufficiently, so that the homicide was directed by reason, rather than by passion or emotion. The length of time that constitutes a reasonable opportunity for the passion to cool may vary according to the circumstances of the particular case. “Causal connection” means that the provocation by the deceased must have caused the passion or emotion of the defendant and that passion or emotion must have caused the act which resulted in death. Trial R., Vol. III at 83–84.

8. The OCCA described Jimmy Black as 6′2″ tall, 230 lbs. and 25 years old. See Black, 21 P.3d at 1071. The district court noted the discrepancy between the trial transcript and the OCCA's opinion. See R., Vol. 1 pt. 3 at 495 n. 12.

9. The OCCA divided the challenged prosecutor comments into two groups: (1) those objected to by defense counsel that were cured when the trial court instructed the jury to disregard the comments and (2) those remarks to which defense counsel did not object. See Black, 21 P.3d at 1078. Defendant argues that the OCCA did not address the “we're not judging his life” comment because it was in neither of the two groups: defense counsel objected to the comment, but the trial court overruled the objection.

10. The jury found the following aggravating circumstances: (1) “The murder was especially heinous, atrocious, or cruel”; (2) “During the commission of the murder, the Defendant knowingly created a great risk of death to more than one person”; (3) “The Defendant, prior to the murder, was convicted of a felony involving the use or threat of violence to the person”; and (4) “At the present time there exists a probability that the Defendant will commit criminal acts of violence that would constitute a continuing threat to society.” Trial R., Vol. III at 105; see Black, 21 P.3d at 1078. The evidence showed (1) that Mr. Pogue “was conscious and alive suffering pain during and after the attack,” id. at 1074; see Le v. State, 947 P.2d 535, 550 (Okla.Crim.App.1997) (“[H]einous, atrocious, or cruel ․ aggravating circumstance requires proof of conscious serious physical abuse or torture prior to death; evidence a victim was conscious and aware of the attack supports a finding of torture.”); (2) that Defendant “stabbed [Mr.] Lewis thirteen times including wounds to the back of the head and one to the chest,” Black, 21 P.3d at 1073; (3) that Defendant had previously been convicted of manslaughter for shooting another man; and (4) that Defendant had escaped from jail while awaiting trial, had threatened to kill Shankles for getting him in trouble, and had left a threatening note for his jailer when he escaped.

11. On several occasions Defendant's briefs in this court assert that we must give “heightened scrutiny” to a prosecutor's closing argument in the penalty phase of a capital trial. See, e.g., Aplt. Br. at 82. Nowhere, however, does he try to explain what that extra scrutiny entails. In particular, he does not argue that the OCCA applied an incorrect standard of review to any of the prosecutor's statements (except, perhaps, with respect to the alleged Caldwell violations, which we rejected without deferring to the OCCA's decision). We recognize that he cites our opinion in Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir.2002), but only to support his assertion of the need for “heightened scrutiny.” Aplt. Br. at 82. He does not argue that the OCCA should have reviewed any misstatements by the prosecutor under the standard stated in Duckett: “ ‘whether the comments might have affected the sentencing decision.’ “ 306 F.3d at 992 (quoting Coleman v. Brown, 802 F.2d 1227, 1228 (10th Cir.1986)). In any event, this dictum in Duckett (which affirmed the denial of habeas relief) does not express the law in this circuit, much less clearly established Supreme Court law. The standard set forth in Coleman was based on that panel's interpretation of Caldwell; but a later en banc decision of this court rejected that standard, holding that our test for evaluating Caldwell violations is “whether there is a substantial possibility that the prosecutor's statements, taken in context, affected the sentencing decision.” Hopkinson v. Shillinger, 888 F.2d 1286, 1295 (10th Cir.1989) (en banc), overruled on other grounds by Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). As for non-Caldwell errors during penalty-phase arguments, we apply the same fundamental-fairness standard applied by the OCCA. See Fox v. Ward, 200 F.3d 1286, 1299–1300 (10th Cir.2000).

12. We recognize that dictum in Gardner v. Galetka, 568 F.3d 862, 884 (10th Cir.2009), could be read to say that Ake's independence analysis does not apply to a state's “exceptions” to a procedural bar. But Gardner cited no authority for its statement, and it is not clear why an “exception” to a procedural bar, id., should be treated differently than an “antecedent” to a procedural bar, Ake, 470 U.S. at 75, for purposes of determining whether the bar is independent of federal law. The essential inquiry is whether the state court must resolve the merits of a federal-law claim before holding that the claim is procedurally barred. And a decision by the OCCA on the certified issue would resolve the independence question.

HARTZ, Circuit Judge.

 
 

Court of Criminal Appeals of Oklahoma

Black v. State

Johnny Dale BLACK, Appellant,
v.
STATE of Oklahoma, Appellee.

No. D-1999-249.

March 12, 2001

Deborah Maddox, Capital Trial Division, Oklahoma Indigent Defense System, Norman, OK, John Albert, Attorney At Law, Oklahoma City, OK, Attorneys for Appellant at trial.Robert E.“ Gene” Christian, District Attorney, Bret T. Burns, Assistant District Attorney, Stephens County Courthouse, Duncan, OK, Attorneys for the State at trial. James H. Lockard, Sandra M. Cinnamon, Oklahoma Indigent Defense System, Norman, OK, Attorneys for Appellant on appeal. W.A. Drew Edmondson, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.

OPINION

¶ 1 Johnny Dale Black, hereinafter Appellant, was convicted of one count of Murder in the first degree (21 O.S.Supp.1997, § 701.7(A)) and one count of Assault and Battery with a Deadly Weapon, After Former Conviction of a Felony (21 O.S.Supp.1992, § 652), following a jury trial in the District Court of Stephens County,1 Case No. CF-99-01, the Honorable George W. Lindley, District Judge, presiding.   The jury recommended death for the murder after finding four aggravating circumstances 2 and fifteen (15) years imprisonment for assault and battery with a deadly weapon.   The trial court sentenced Appellant accordingly.   From this Judgment and Sentence, he appeals.3

FACTS

¶ 2 On January 4, 1998, Cal Shankles went to the trailer home of Jesse Black where Jesse, his brothers Jimmy Black and Appellant, Robert Seale and several others were watching football playoffs.   A nervous Shankles wanted the Black brothers and Robert Seale to accompany him while he went to find his brother.   Shankles told the Blacks and Seale that he needed them to watch his back because Justin Hightower was looking for him over an affair he had been having with Hightower's soon-to-be ex-wife.   Thereafter, Shankles, the Black brothers and Robert Seale left the trailer in Shankles' mother's green Neon with Appellant driving and Shankles on the lookout for Hightower's black Blazer.4

¶ 3 Meanwhile, Bill Pogue and his son-in-law, Rick Lewis, drove to Ringling in Pogue's black Blazer to buy some chewing tobacco at a local convenience store.   On their way back to Pogue's home, they passed the Neon at an intersection and one of its passengers yelled something at Pogue's Blazer.   The Neon turned around and pulled in behind Pogue traveling at a high rate of speed and flashing its lights.   Shortly thereafter, the Neon passed Pogue's Blazer and stopped in front of it.   It was disputed at trial whether the Neon blocked the roadway.

¶ 4 According to Rick Lewis, the surviving victim, he and Pogue exited the Blazer.   Lewis went around the back of the Blazer and came up behind Pogue.   The four doors of the Neon opened and Jimmy Black, who was seated in the rear on the driver's side, got out and ran barreling towards them.   In response, Pogue hit Jimmy Black in the face and the two began to wrestle towards and into the east bar ditch.   Jesse Black and Appellant then ran towards Lewis, who hit Jesse Black, momentarily knocking Jesse down.   Lewis was able to sidestep Appellant and throw him into the front of the Blazer.   Appellant and Jesse Black then began fighting with Lewis in the west bar ditch.   During the fight, Lewis looked up to see Cal Shankles with some type of club and felt a couple of blows to the head.   Lewis did not remember seeing Shankles during the entirety of the fight and the evidence showed Shankles went from bar ditch to bar ditch alternately hitting Lewis and Pogue with some type of club. Lewis remembered seeing Robert Seale standing at the back of the Neon holding what looked like a tree branch, but never saw him fighting with anyone.

¶ 5 After several minutes of fighting, Lewis was able to break free and make his way to the east bar ditch where he saw Pogue on top of Jimmy Black and Appellant over Pogue's back.   Lewis pushed Appellant off of Pogue and helped Pogue stand up and head toward the Blazer.   Jesse Black then hit Lewis in the side of the head and said “that's for bustin' my lip.”   The Black brothers, Seale and Shankles then lined up behind the Neon yelling obscenities and taunting Lewis and Pogue.   While Lewis assisted Pogue, who had been stabbed eleven times, into the Blazer, the Neon sped away.   Although Lewis did not realize it during the fight, Appellant had stabbed him thirteen times with wounds to the back of Lewis' head, spine, chest, side, buttock, leg and arm.   After loading Pogue into the Blazer, Lewis raced him back to the Pogue barn, where family members took over and rushed both men to the Healdton hospital.   Lewis was treated for his injuries and was later transferred to Ardmore for care.   Pogue died at the Healdton hospital.

¶ 6 The morning after the fight Appellant fled to Texas, where he was later apprehended and voluntarily confessed.   Jesse and Jimmy Black, Robert Seale and Cal Shankles were also arrested and made voluntary statements.5  In Appellant's voluntary statement to police, he claimed he did not go with Shankles to fight, but to see “what the deal was.”   He claimed he never intended to kill Pogue and he did not understand why Lewis and Pogue attacked his brothers.   He maintained he did not remember stabbing Lewis and that he simply reacted because he was afraid for his brothers, Jesse and Jimmy.   He claimed when he went to Jimmy's aid, he told Pogue to get off his brother or he would “stab” or “cut” him.   When Pogue did not move, he stabbed him.   According to Appellant, he and Pogue began to wrestle and roll around and Pogue kept rolling onto the knife.   He maintained there was no intent to kill anyone and that his brothers did not know he used his knife.   Other facts will be discussed as they become relevant to the propositions of error raised for review.

PRE-TRIAL ISSUES

¶ 7 In his twelfth proposition of error, Appellant claims he was denied due process of law when he was convicted of a greater offense than for which he was bound over at preliminary hearing.   He maintains he was bound over on a charge of assault and battery with a dangerous weapon, but tried and convicted of the greater crime of assault and battery with a deadly weapon.   Appellant never objected on these grounds.

¶ 8 The record shows Appellant was originally charged with assault and battery with a deadly weapon.   At the beginning of preliminary hearing, the magistrate announced that each defendant was charged with first degree murder and assault and battery with a deadly weapon, which was confirmed by the District Attorney.   At the conclusion of the preliminary hearing, the magistrate reviewed the evidence and ruled:

Upon those findings, the Court is compelled to bind over each of these Defendants and everyone of these Defendants in relation to each of the two charges that are charged against each of these Defendants.

(P.Hrg. 832)

¶ 9 Thereafter, the District Attorney clarified the magistrate's ruling and reminded the magistrate that as to Appellant the “bind over should reflect as to the assault and battery with a deadly weapon that he also be bound over with one prior Felony conviction.”   The magistrate ruled accordingly.   That same day, the magistrate entered a written order entitled “Transcript of Examining Magistrate” in which he listed the crime charged as well as the crime for which the defendants were bound over as assault and battery with a dangerous weapon.   Given the record of preliminary hearing and the fact the crime was misstated in both places on the written order, we find that the written order contains a scrivenor's error and that the record shows Appellant was bound over on a charge of assault and battery with a deadly weapon.   As such Appellant was not denied due process and was tried on the appropriate charge for which he was bound over.   Accordingly, no relief is required.

¶ 10 In his sixteenth proposition of error, Appellant claims his right to have an impartial magistrate preside at his preliminary hearing was denied.   Prior to the hearing, Appellant unsuccessfully moved to disqualify the magistrate on grounds he had issued the search warrants and arrest warrants in this case.   Appellant asserts that because the magistrate must have necessarily found probable cause in order to issue the warrants, the magistrate was unfairly predisposed to find probable cause at the preliminary hearing.   Appellant claims this alleged error requires relief and asks this Court to reverse his conviction and remand this case for a proper preliminary hearing in front of an impartial magistrate.

¶ 11 Every person is entitled to have an impartial judge preside over his case.   Okla. Const. art. 2, § 6. A judge who is interested in the cause or proceedings or the result thereof is disqualified to preside.   20 O.S.1991, § 1401.   Rulings on motions to disqualify are within the sound discretion of the district courts and are reversed only where there has been a clear abuse of discretion.  Nguyen v. State, 1992 OK CR 81, ¶ 19, 844 P.2d 176, 181, cert. denied, 509 U.S. 908, 113 S.Ct. 3006, 125 L.Ed.2d 697 (1993).   Abuse of discretion has occurred where the trial judge's actions showed actual prejudice against the accused or the judge became intertwined in the case due to personal relationships.   See Fitzgerald v. State, 1998 OK CR 68, ¶ 10, 972 P.2d 1157, 1163.

¶ 12 In the present case, neither Appellant's brief nor a review of the record reveals any particular instances of prejudice by the magistrate toward Appellant or that the magistrate became intertwined in the case due to some personal relationship with one of the parties.   Nonetheless, Appellant would have this Court accept the argument that if a judge signs the search/arrest warrants in a case, that judge is necessarily biased/interested in the subsequent preliminary hearing.

¶ 13 We have reviewed our case law and have found no case directly on point.   However, this Court has consistently allowed a judge who issues an order of contempt to preside over the contempt hearing, absent some evidence that his conduct is so intertwined in the contempt as to compromise his impartiality.   See Zeigler v. State, 1991 OK CR 25, ¶ 7, 806 P.2d 1131, 1133-34.   We believe the circumstances presented in the instant case is akin to the contempt citation.   As such, we find that the act of signing search and arrest warrants does not constitute the type of interest in a proceeding that would automatically prohibit the issuing judge from presiding at the subsequent preliminary hearing absent some evidence that his conduct is somehow intertwined in the issuance of the warrants as to compromise his impartiality.   See 20 O.S.1991, § 1401.   Here, there was no such evidence.   Accordingly, this proposition is denied.

ISSUES RELATED TO JURY SELECTION

¶ 14 In his seventh proposition of error, Appellant claims he was denied his right to select a fair and impartial jury due to the trial court's restrictive voir dire process.   He claims these restrictions included being denied juror questionnaires, access to the district attorney's criminal history records of potential jurors, inquiry into the jurors' states of mind regarding Appellant's defense and a meaningful question and answer process.

¶ 15 “The purpose of voir dire examination is to ascertain whether there are grounds to challenge prospective jurors for cause and to permit the intelligent use of peremptory challenges.”  Patton v. State, 1998 OK CR 66, ¶ 9, 973 P.2d 270, 280, cert. denied, 528 U.S. 939, 120 S.Ct. 347, 145 L.Ed.2d 271 (1999).   The manner and extent of questioning is within the discretion of the trial court whose rulings will not be disturbed on appeal absent a clear abuse of discretion.  Id. It is the trial court's prerogative to restrict questions that are repetitive, irrelevant or in regard to legal issues upon which the trial court will instruct the jury.  Id. No abuse of discretion will be found so long as the voir dire questioning is broad enough to afford the defendant a jury free of outside influence, bias or personal interest.  Id.

¶ 16 During jury selection, the trial court conducted the initial questioning of the prospective jurors seated 6 and then allowed the prosecutor and defense counsel to question the prospective jurors as a panel and individually.   There is no evidence to support Appellant's contention that he was not provided with the jury questionnaires.   During a pre-trial motion hearing, defense counsel urged the trial court to adopt a jury questionnaire that she had utilized in the past.   The trial court noted that it, too, had a questionnaire that it had used.   At the conclusion of the hearing, defense counsel was to provide the court with a copy of her proposed questionnaire and the trial court would rule after reviewing it.   It is clear some type of questionnaire was used as no questions were asked during voir dire concerning basic information generally provided on a questionnaire, such as prospective jurors' addresses, occupations and family status.   The District Attorney also referenced the questionnaires during his questioning.   However, a copy of the questionnaire was not made a part of the record for review.   Nonetheless, at no time did defense counsel object or state that she did not receive copies of the prospective jurors' questionnaires or that she was without basic information concerning the panel.   As such, this portion of Appellant's claim must fail.

¶ 17 Next, Appellant complains he was not able to adequately participate in the jury selection process because he was not provided with the district attorney's criminal history information of potential jurors.   Appellant filed a pre-trial motion requesting the district attorney's jury list.   At a pre-trial motion hearing, the district attorney objected to providing his list, maintaining the criminal background information was a matter of public record that defense counsel could obtain.   Defense counsel countered that she did not have access to police computers to obtain such information.   The trial court overruled Appellant's request.

¶ 18 During voir dire, the trial court asked prospective jurors if they had ever been accused of a crime or been a participant in a criminal case in any manner.   Following the trial court's inquiry, the State talked with a prospective juror who had not initially responded about prior convictions/accusations but who wanted to clarify his prior record of DUI's. The State also asked the panel again if anyone had been a defendant in a criminal case.   Although the defense chose not to do so, there is nothing to show the defense was not free to expound on this inquiry during its questioning so as to further educate itself about the panel.   Because Appellant was not prohibited from such questioning, we cannot find the trial court abused its discretion in overruling Appellant's request for the district attorney's juror list or that the voir dire process was unfair.

¶ 19 Third, Appellant complains that he was not allowed to inquire into the prospective jurors' states of mind concerning his heat of passion manslaughter defense.   See 22 O.S.1991, § 659.   In Jackson v. State, 1998 OK CR 39, ¶ 12, 964 P.2d 875, 883, cert. denied, 526 U.S. 1008, 119 S.Ct. 1150, 143 L.Ed.2d 217 (1999), we held the trial court did not abuse its discretion in disallowing Jackson's questions regarding his theory of defense because the questions were an effort to test jurors' willingness to accept his theory of defense rather than to test their impartiality.   The same is true in the instant case.   Defense counsel told the prospective jurors that her client killed Pogue and the issue for the jury to decide was whether he did so with malice aforethought or in a heat of passion.   When counsel attempted to ask questions dealing specifically with the facts of this case or to give hypotheticals based on the facts of this case, the trial court properly sustained the State's objections.

¶ 20 The record further shows defense counsel was allowed sufficient voir dire to determine if there were grounds to challenge a particular juror for cause and to intelligently exercise peremptory challenges.  Jackson, 1998 OK CR 39, at ¶ 11, 964 P.2d at 883.   Despite the trial court's rulings on several questions propounded by defense counsel to test jurors' willingness to accept the defense, counsel did ask jurors if they could envision circumstances/reasons why one might take another person's life and whether they would take such circumstances into consideration in determining guilt or innocence and sentence.   Defense counsel also questioned prospective jurors to test whether they were open to listening to both sides of the case and confirmed that the prospective jurors wanted as much information as possible before rendering a verdict.   Because defense counsel was allowed to probe the jurors' states of mind regarding their impartiality to listen to all the evidence and weigh such pursuant to the instructions of the court, we find the trial court did not abuse its discretion in limiting the defense's inquiry regarding the specifics of its heat of passion manslaughter defense.

¶ 21 Lastly, Appellant claims he was denied a “viable” question and answer process.   See Appellant's Brief at 39.   Appellant cites defense counsel's objections to the trial court's inquiry concerning pre-trial publicity to support his claim.   During the trial court's initial questioning, it asked prospective jurors if they had been exposed to any pre-trial publicity concerning this case through any sort of medium.   Any juror who indicated that they knew something of the case was questioned to determine if they could set aside any preconceived opinion and rely solely on the evidence admitted at trial.   Several prospective jurors said they could not and they were excused for cause.   The remaining jurors advised the trial court that they could base their verdict on the evidence admitted rather than on any outside source.7  Defense counsel was also allowed to question the jurors about pre-trial publicity.   She told prospective jurors that if they had remembered any exposure to pre-trial publicity during the questioning that they had not shared, they had a duty to disclose such information and could do so during her questioning.   Based on this record, we find the trial court did not abuse its discretion and that Appellant was sufficiently allowed to question jurors about pre-trial publicity.

¶ 22 Appellant also claims he was denied a meaningful question and answer process because the trial court did not allow defense counsel to question jurors after the panel was passed for cause and the parties began to exercise their peremptory challenges.   Counsel told the trial court the defense believed they would be given another opportunity to talk with jurors individually who moved from the gallery to the jury box.   The trial court refused to allow further questioning and took a recess to discuss the trial court's procedure with defense counsel.   Following the recess, the remaining peremptory challenges were exercised.

¶ 23 As discussed above, the trial court conducted the initial questioning in which it questioned the jurors seated in the jury box and then the jurors in the gallery.   The State and defense followed this procedure as well.   Defense counsel chose to focus the majority of her questioning on the jurors seated in the jury box.   Towards the end of her questioning, she directed questions to jurors in the gallery and talked with approximately eight of those jurors individually.   This record shows defense counsel was given the opportunity to question all prospective jurors individually.   However, it also shows that counsel was not familiar with the jury selection method employed in Stephens County, which the trial court acknowledged could be confusing.   As the test is whether defense counsel was allowed sufficient voir dire to intelligently exercise peremptory challenges, this Court must decide if the court's ruling prohibiting counsel from asking additional questions of gallery jurors who moved to the jury box prevented the intelligent exercise of peremptory challenges.   As the State points out, Appellant provides no specific example of any seated juror who was biased or otherwise could not perform their duty as a juror.   Nor does Appellant identify jurors he would have stricken with a peremptory.   Based on this record, we cannot find the trial court abused its discretion or that the jury selection process was not constitutionally adequate.   However, we admonish trial courts to favor leniency when misunderstandings as to voir dire procedure arise, especially in capital cases.

¶ 24 In his eighth proposition of error, Appellant argues the trial court improperly excused four potential jurors for cause based on their opposition to the death penalty.   He maintains defense counsel should have had the opportunity to question or rehabilitate these prospective jurors to determine if they could set aside their personal objections and follow the law and the court's instructions.  Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985);  Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

¶ 25 “This Court has consistently held the decision whether to disqualify a prospective juror for cause rests in the trial court's sound discretion whose decision will not be disturbed unless an abuse of discretion is shown.”  Washington v. State, 1999 OK CR 22, ¶ 9, 989 P.2d 960, 967.   The trial court should remove for cause jurors who would automatically vote either for or against the death penalty because they will necessarily fail to consider all the evidence presented in aggravation and mitigation.   See Fitzgerald v. State, 1998 OK CR 68, ¶ 31, 972 P.2d 1157, 1170.   In reviewing the voir dire examination of potential jurors who were unclear or equivocal about their ability to consider the death penalty, “this Court traditionally defers to the impressions of the trial court who can better assess whether a potential juror would be unable to fulfill his or her oath.”  Washington, 1999 OK CR 22, at ¶ 9, 989 P.2d at 967.   However, “[r]emoval for cause of even one venire member who has conscientious scruples against the death penalty but is nevertheless able to set aside those scruples and consider the penalty of death and is therefore eligible to serve on the jury is error of constitutional magnitude not subject to harmless error analysis.”  Scott v. State, 1995 OK CR 14, ¶ 10, 891 P.2d 1283, 1289, cert. denied, 516 U.S. 1077, 116 S.Ct. 784, 133 L.Ed.2d 735 (1996) (citing Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 2057, 95 L.Ed.2d 622, 638 (1987)).

¶ 26 During voir dire, the trial court advised prospective jurors there were three possible punishments for a conviction of first degree murder:  life, life without parole and death.   The trial court then asked the prospective jurors if they could consider all three of the possible punishments and impose the punishment warranted by the law and the evidence.   Three of the prospective jurors about whom Appellant complains (Skiles, Adams, Richard) responded they could not consider the death penalty regardless of the facts and law.   When, as here, prospective jurors advise that they cannot consider the death penalty regardless of the facts, the circumstances or the law, the prospective jurors are advising the trial court they cannot put aside their beliefs and follow the law and the court's instructions.   As such, they are properly removed for cause.   See Washington, 1999 OK CR 22, at ¶ 10, 989 P.2d at 968;  Douglas v. State, 1997 OK CR 79, ¶ 8, 951 P.2d 651, 660, cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 L.Ed.2d 159 (1998).   Accordingly, we find the trial court did not err in excusing these prospective jurors for cause without further inquiry following their unequivocal responses.  Douglas, 1997 OK CR 79, at ¶ 8, 951 P.2d at 659-60.

¶ 27 Appellant also complains about the removal for cause of prospective juror Williams based on her opposition to the death penalty.   Williams told the trial court that she did not “think” she could give the death penalty.   The trial court asked if the law and evidence permitted, were Williams' reservations about the death penalty such that regardless of the law, facts and circumstances she would not consider imposing the death penalty.   To this question, Williams stated, “No sir.”   The trial court excused Williams without any further inquiry.   Defense counsel objected and asked the trial court for the opportunity to rehabilitate her.   The trial court denied this request.   See Brown v. State, 1998 OK CR 77, ¶ 27, 989 P.2d 913, 923 (holding trial court is not required to allow the parties to rehabilitate potential jurors).

¶ 28 Although a literal reading of Williams' answer indicated that she may be able to consider the death penalty, the parties understood otherwise.   During counsel's argument to rehabilitate Williams, the trial court stated he asked Williams if she could consider imposing the death penalty and she said no.   Counsel agreed, but argued Williams needed more information to definitively decide.   In denying counsel's request to rehabilitate and provide more information, the trial court stated that jurors who cannot consider the death penalty are “indicating they cannot follow the Instructions of the Court.”   A review of the transcript reveals all parties present understood Williams meant she could not impose the death penalty.   Based on this record, we defer to the trial court and find no abuse of discretion in dismissing Williams for cause.   Accordingly, we find the trial court did not err in removing any of the complained-of prospective jurors for cause and no relief is warranted.

¶ 29 Lastly, Appellant contends the trial court failed to and prevented defense counsel from “life-qualifying” prospective jurors.8  The record does not support Appellant's claim.   Nowhere in the record did defense counsel request the trial court to life-qualify the jury.   Nor was defense counsel prevented from life-qualifying the jury.   Appellant cites to defense counsel's argument in which she refers to Morgan v. Illinois.   However, counsel was not arguing about life-qualifying the jury;  rather, she was arguing she had the duty to inquire about the jurors' states of mind concerning the heat of passion manslaughter defense.   Furthermore, the record shows both the trial court and defense counsel asked questions to ensure that the prospective jurors would consider all three penalties and would not automatically vote for any punishment.   As such, no Morgan error occurred.   See Cannon v. State, 1998 OK CR 28, ¶ 7, 961 P.2d 838, 844.

¶ 30 In his ninth proposition of error, Appellant contends the prosecutor improperly used a peremptory challenge to remove a minority juror from the panel and that the removal was motivated by racial considerations in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 31 We recently reiterated the applicable analysis for Batson claims:

Batson establishes a three (3) part analysis:  1) the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race;  2) after the requisite showing has been made, the burden shifts to the prosecutor to articulate a race neutral explanation related to the case for striking the juror in question;  and 3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.   As for the second requirement, the Supreme Court noted the race-neutral explanation by the prosecutor need not rise to the level justifying excusal for cause, but it must be a “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.   The trial court's findings as to discriminatory intent are entitled to great deference.   Our review is only for clear error by the trial court, and we review the record in the light most favorable to the trial court's ruling.

Short v. State, 1999 OK CR 15, ¶ 12, 980 P.2d 1081, 1091, cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000) (citations omitted).

¶ 32 The prosecutor in this case removed prospective juror Castle because Castle failed to disclose he had been accused of first degree burglary that was later dismissed and refiled as misdemeanor assault and battery.   The record shows Castle did not respond when the panel was asked if they had been accused or involved in a criminal matter.9  The record further shows the prosecutor removed a white juror who belatedly disclosed his prior misdemeanor criminal record.   As we stated in Short, 1999 OK CR 15, at ¶ 15, 980 P.2d at 1092, excusal of a potential juror because of a prior criminal record is a legitimate reason for removal.   Here, the trial court accepted the prosecutor's race-neutral explanation for striking Castle and rejected Appellant's assertion that the reasons were pretextual.   Because the trial court's ruling upholding the challenge is supported by the record and not clearly erroneous, we find no Batson error.10

FIRST STAGE ISSUES

¶ 33 In his first proposition of error, Appellant claims his murder conviction must be reversed because the trial evidence was insufficient to prove beyond a reasonable doubt that he intended to kill Bill Pogue.   Appellant maintains the State was bound by his statement that he never intended to kill Pogue because the State's evidence failed to rebut his admissions and that, at most, he is guilty of heat of passion manslaughter.   He argues the facts that he did not know the victims were seriously injured after the fight, the absence of any previous animosity between the victims and himself and that the victims were alive and able to go to the police and identify him demonstrate that he did not intend to kill Pogue and that he acted in a heat of passion.

¶ 34 We review sufficiency of the evidence claims by viewing the trial evidence in the light most favorable to the State and asking whether a rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.  Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04.   This Court will not disturb a jury verdict where there is sufficient evidence to support it, as it is the jury's exclusive province to weigh the evidence and determine the facts.  Torres v. State, 1998 OK CR 40, ¶ 38, 962 P.2d 3, 16, cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999).   If the State introduces a defendant's exculpatory statement which, if true, would entitle the defendant to acquittal, he must be acquitted unless the statement has been disproved or shown to be false by other direct or circumstantial evidence in the case.  Cannon v. State, 1995 OK CR 45, ¶ 34, 904 P.2d 89, 103, cert. denied, 516 U.S. 1176, 116 S.Ct. 1272, 134 L.Ed.2d 219 (1996).

¶ 35 Direct evidence of intent to commit crimes is oftentimes lacking leaving juries to rely on circumstantial evidence to determine the purpose with which a person acted.  Freeman v. State, 1994 OK CR 37, ¶ 11, 876 P.2d 283, 287, cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994).   To prove the mental state malice aforethought, the State must show the defendant acted with a deliberate intention to take the life of another without justification.  Jackson v. State, 1998 OK CR 39, ¶ 24, 964 P.2d 875, 885, cert. denied, 526 U.S. 1008, 119 S.Ct. 1150, 143 L.Ed.2d 217 (1999);  Huckaby v. State, 1990 OK CR 84, ¶ 22, 804 P.2d 447, 452.   This intent may be “formed instantly before committing the act by which it is carried into execution.”   21 O.S.1991, § 703.   Further, the law infers a design to effect death from the fact of killing unless the circumstances raise a reasonable doubt that such design existed.   21 O.S.1991, § 702.

¶ 36 Contrary to Appellant's assertion, the direct and circumstantial evidence presented at trial was sufficient for a rational trier of fact to conclude Appellant intended to kill Bill Pogue when he stabbed him eleven times, his statements notwithstanding.   The evidence showed Cal Shankles arrived at Jesse Black's trailer where he had a private back-room conversation with Appellant and his brothers presumably advising them of his current difficulties with Justin Hightower.   Shankles and the Blacks left shortly thereafter for approximately 15 to 20 minutes and returned for another private back-room discussion.   Thereafter, they and Seales left in search of Justin Hightower where a fight of some kind was likely and anticipated as the evidence showed Shankles had been looking for others to help him fight Hightower as well as for weapons to use in such fight.11  Appellant voluntarily accompanied Shankles to the arranged confrontation armed with his knife.12

¶ 37 When the defendants encountered the victims who Shankles wrongly identified as the men looking for him, Appellant intentionally followed Pogue's Blazer.   Even though Appellant claimed that it appeared the two victims kept reaching down like they were loading guns, Appellant chose to pull in front of the Blazer and force it to stop, rather than avoid a fight with armed men.   Knowing about fighting and guns, Appellant said he knew someone was going to get hurt.   Without pause after the cars stopped, Jimmy and Jesse Black jumped out and rushed Lewis and Pogue in a threatening manner demonstrating a group intent to, at the very least, fight the Blazer occupants.   Appellant immediately followed Jesse and joined in a fight with Lewis where Appellant quickly pulled out his knife stabbing Lewis thirteen times with wounds to the head and chest.   Although Appellant claimed he acted out of fear for his and Jesse's safety, the evidence showed Lewis was fighting with three men at the time Appellant stabbed him.   Given this ratio, a jury could disbelieve Appellant's statement that he acted out of fear.

¶ 38 Although Appellant claimed he then went to Jimmy's aid, his account of his encounter with Pogue was contradicted by his brother Jimmy.   Appellant claimed Pogue failed to respond to his warning to let Jimmy go or be stabbed.   Appellant said he and Pogue “locked up” rolling on the ground while Shankles hit Pogue with the club.   Appellant claimed Pogue kept rolling onto the knife and refused to let go until someone said, “let him go or we're going to kill you.”   Jimmy, on the other hand, testified Pogue was holding him down when Appellant stood over Pogue's shoulder.   Jimmy further testified he never saw Appellant and Pogue rolling on the ground.   A jury could easily disbelieve Appellant's account that Pogue sustained some eleven stab wounds, several penetrating his lungs, by repeatedly rolling onto the knife.   Further, because the lighting was good enough for Lewis to identify the defendants and accurately testify to their actions, the jury could infer Appellant would have been able to see Jimmy was not being seriously injured thereby refuting Appellant's statement.   In addition, the physical injuries sustained by the Blacks belie Appellant's claim that he acted out of a fear for the safety of his brothers and himself as none of them were seriously injured.   The physical injuries sustained by the victims corroborate that they were not in control of the fight.   The jury could also infer a consciousness of guilt on behalf of Appellant because he threw his knife into a nearby lake and fled the morning after the fight knowing, at the very least, Pogue had been seriously injured.   Because Appellant went armed to an arranged confrontation and stabbed the victims numerous times in vital areas, a rational jury could find Appellant knew and intended the natural consequences of these acts, that being the death of those he stabbed regardless of his statements to the contrary.

¶ 39 Next, Appellant claims that even if the evidence supports a finding of intent to kill, the evidence failed to prove the killing was the result of a deliberate intent rather than in a heat of passion.13  As part of this claim he asks this Court to reconsider its previous decisions holding that heat of passion manslaughter requires the killing to be both in a heat of passion and without a design to effect death.   Without addressing the merits of Appellant's claim, the State simply responds the statutory language requires the homicide be perpetrated without a design to effect death.   21 O.S.1991, § 711(2).

¶ 40 Appellant asserts this Court has been inconsistent in its rulings on whether a defendant can commit heat of passion manslaughter if the defendant intended to kill.   Compare Walker v. State, 1986 OK CR 116, ¶ 38, 723 P.2d 273, 284, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1986) (stating “[t]he heat of passion must render the mind incapable of forming a design to effect death before the defense of manslaughter is established;”) Morgan v. State, 1975 OK CR 89, ¶ 3, 536 P.2d 952, 960-61, overruled on other grounds by Walton v. State, 1987 OK CR 227, ¶ 9, 744 P.2d 977, 978-979.  (Brett, P.J. concurring in result)(stating “It is not enough under the law of Oklahoma that it be shown that the intent to kill was formed as the result of a reasonable passion, the passion must be so great as to destroy any intent to kill and indeed render the mind incapable of forming an intent.”) with Morgan, 1975 OK CR 89 at ¶ 2, 536 P.2d at 959-60 (appendix)(heat of passion manslaughter is the unlawful and intentional killing of another under the influence of a sudden heat of passion caused by adequate provocation and without malice);  OUJI-CR2d 4-95.

¶ 41 After reviewing the authorities cited by Appellant, it is difficult to see how reconciling these cases affects Appellant's case.   Had Appellant's jury been instructed that it had to find Appellant acted without a design to effect death or the trial court refused to administer manslaughter instructions simply because it found Appellant acted intentionally, resolution of this issue would be relevant.   However, despite the statutory language that the homicide be “perpetrated without a design to effect death” in order to constitute first degree manslaughter, such was not included as an element in the uniform jury instructions administered in this case.   Rather, the jury was instructed the State had to prove beyond a reasonable doubt:  1) the death of a human;  2) the death was not excusable or justifiable;  3) inflicted by means of a dangerous weapon;  4) caused by the defendant;  5) when performing the conduct which caused the death, defendant was in a heat of passion.   See OUJI-CR2d 4-96;  O.R. at 80.   A review of the evidence outlined above shows the trial evidence was sufficient to disprove heat of passion manslaughter beyond a reasonable doubt and allow a rational trier of fact to find Appellant was neither adequately provoked nor acting in a heat of passion sufficient to negate malice.   Accordingly, we find this proposition is without merit.

¶ 42 In his second proposition, Appellant claims the trial court's heat of passion manslaughter instructions were constitutionally deficient because they failed to inform the jury:  1) that Appellant's defense was heat of passion;  2) that it was the State's burden to prove the absence of heat of passion in order to convict Appellant of murder;  and 3) that heat of passion manslaughter should be considered in tandem with the charged crime of murder.  United States v. Lofton, 776 F.2d 918 (10th Cir.1985).   Because Appellant failed to object to the trial court's heat of passion manslaughter instructions, we will review for plain error.  Cannon v. State, 1998 OK CR 28, ¶ 34, 961 P.2d 838, 849.

¶ 43 Throughout the trial Appellant never disputed that he stabbed Pogue;  rather, he sought to prove that he lacked the malice aforethought necessary to make his act murder because he was acting under a heat of passion.14  With defense counsel's consent, the trial court administered the uniform instructions on the lesser included charge of Manslaughter in the First Degree.   The problem presented here involves the situation where a defendant asserts the lesser included offense of manslaughter not simply as an alternative to the charge of murder, but as an affirmative defense to the crime charged by the State.

¶ 44 Appellant relies on Lofton, 776 F.2d at 920, in which the Tenth Circuit held that a “defendant in a federal murder case who has sufficiently raised a heat of passion defense is entitled to instructions informing the jury of the theory of the defense and of the Government's duty to prove beyond a reasonable doubt the absence of heat of passion in order to obtain a murder conviction.”   In so holding, the Lofton court relied on and expanded the holding of Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975).   In Mullaney, the Supreme Court reviewed a Maine statute that required the defendant to prove he acted in the heat of passion in order to be punished for manslaughter to determine if such statute was constitutional.   The Mullaney Court held “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” 15

¶ 45 Based on its reading of Mullaney, the Lofton court reviewed the given jury instructions as a whole to see if they sufficiently advised the jury of Lofton's defense and its effect on the prosecution's burden of proof.   Id. at 920-21.   After analysis of the instructions, the Court found the instructions deficient.   Although the crimes of First Degree Murder and Manslaughter were properly defined for the jury, other instructions limited the jury's consideration of manslaughter as a defense and precluded the jury from considering the effect of the heat of passion evidence until after it determined that the crime of murder had not been proved.  Id. at 921-22.   The court held the structure of the jury charge coupled with the facts that the jury was not instructed that “heat of passion” was Lofton's only defense to the crime and that the State had the burden to disprove same constituted “plain error” requiring relief.

¶ 46 However, the Tenth Circuit has since addressed and distinguished Lofton in an Oklahoma case involving these same two crimes.   See Davis v. Maynard, 869 F.2d 1401 (10th Cir.1989), cert. granted and judgment vacated, Saffle v. Davis, 494 U.S. 1050, 110 S.Ct. 1516, 108 L.Ed.2d 756 (1990), on remand Davis v. Maynard, 911 F.2d 415 (10th Cir.1990).   In Davis, the defendant's sole defense at trial was self-defense.   Although the trial court administered instructions on heat of passion manslaughter, in addition to first degree murder and self-defense, the trial court specifically instructed the jury that malice and heat of passion could not co-exist.   After reviewing the instructions defining the differing mens rea requirements of murder and manslaughter, the Davis court specifically found that the instructions in Davis, unlike those in Lofton, “explicitly defined malice and heat of passion as mutually exclusive” meaning “the jury's finding of malice necessarily implies the absence of heat of passion.”  Davis, 869 F.2d at 1406-07.   Therefore, the court held “where the defense [of heat of passion manslaughter] is not squarely raised and the instructions properly define the differing mental states, the jury need not be instructed specifically that the prosecution must prove the absence of heat of passion when the element of malice is neither presumed nor required to be disproved by the defendant.”   Id. at 1407.

¶ 47 In McCormick v. State, 1993 OK CR 6, ¶ 28, 845 P.2d 896, 901, this Court, relying on Davis, held the trial court did not err in failing to instruct the jury of the State's burden to disprove McCormick's heat of passion manslaughter defense because the instructions as a whole sufficiently did so.   The jury was instructed that to convict McCormick of first degree murder, the State had to prove beyond a reasonable doubt “the death was caused with malice aforethought” and that malice aforethought was “a deliberate intention to take away the life of a human being.”  McCormick, 1993 OK CR 6, at ¶ 23, 845 P.2d at 900.   To convict McCormick of manslaughter, the State had to prove beyond a reasonable doubt that the “Defendant was in a heat of passion and said act was perpetrated without a design to effect death.”  Id., 1993 OK CR 6, at ¶ 24, 845 P.2d at 900.   We found the manslaughter “instruction expressly indicated that the jury must find an absolute lack of premeditation in order to find [McCormick] guilty of this crime.”  Id. We further found the language used by the trial court in the murder and manslaughter instructions was unequivocal;  a murder conviction required proof of a deliberate intent to kill while manslaughter should be found if the killing was done without a design to effect death.  Id., 1993 OK CR 6, at ¶ 26, 845 P.2d at 901.   In addition, unlike Lofton, the instructions indicated to the jury that proof of the two crimes should be examined together rather than individually and that the jury was not precluded from consideration of the lesser included crime until the greater crime was eliminated as an option.  Id., 1993 OK CR 6, at ¶ 27, 845 P.2d at 901.

¶ 48 The instructions administered in the instant case were the uniform instructions.   As in Lofton, heat of passion manslaughter was submitted as a lesser included offense and the jury was instructed to consider heat of passion manslaughter if it found the State had failed to prove murder beyond a reasonable doubt.   Nowhere in the instructions was the jury advised that heat of passion manslaughter was Appellant's defense or that the State had the burden to disprove heat of passion beyond a reasonable doubt.   However, unlike Lofton, the definition of malice in Oklahoma's uniform instructions is much more specific than the federal instruction.   Under Oklahoma law, malice is a deliberate intention to take away the life of a human being (21 O.S.Supp.1997, § 701.7(A)) while in Lofton malice was defined as “but another name for a certain state or condition of a person's mind or heart.”   Lofton, 776 F.2d at 922, n. 2. Heat of passion is defined similarly in both the Oklahoma and federal instructions.   The use of “deliberate intent” in the definition of malice in Oklahoma connotes an intent that is thought out or considered before commission of the fatal act,16 rather than some undefined condition of the mind or heart.   Because heat of passion requires the defendant to act on the force of a strong emotion following adequate provocation that would naturally affect the ability to reason and render the mind incapable of cool reflection, i.e., not with a deliberate intent pre-formed, the Oklahoma definitions of malice and heat of passion show they cannot co-exist.   Although the instructions in the instant case do not specifically state these mental states cannot co-exist as in Davis, the definitions employed to define the mental states of murder and heat of passion manslaughter sufficiently informed the jury that the differing mens rea elements were mutually exclusive.   Because the instructions adequately distinguished the differing mental states, we find the trial court did not err in failing to instruct the jury on the State's burden to disprove Appellant's heat of passion defense as the instructions sufficiently did so as a whole.   See McCormick, 1993 OK CR 6, ¶¶ 26 & 28, 845 P.2d at 901.

¶ 49 We also find the instructions administered allowed the jury to consider Appellant's heat of passion defense in conjunction with its consideration of the murder elements.   Although the instructions administered advised the jury procedurally to consider murder first and only if it had a reasonable doubt as to the proof of murder then to consider manslaughter, other instructions dictated that the jury consider Appellant's heat of passion evidence in determining if Appellant possessed a deliberate intent when he stabbed Pogue.   Specifically, in its consideration of the murder elements, the jury was instructed to consider the external circumstances surrounding the commission of the homicidal act to determine if Appellant possessed a deliberate intent to take a human life.   Such external circumstances included Appellant's “words, conduct, demeanor, motive, and all other circumstances connected” with the fatal stabbing of Pogue.   Therefore, based on the instructions administered, we find Appellant was not deprived of having the jury consider his heat of passion defense in tandem with the murder charge.   As such, we find the instructions administered in this case were constitutionally adequate to ensure that the appropriate burdens of proof were allocated to the parties and that the jury was free to consider Appellant's defense.   Therefore, we find no plain error occurred.17

¶ 50 In his third proposition of error, Appellant claims the trial court's instruction defining adequate provocation was erroneous because it focused the inquiry on the improper conduct of the victim rather than the defendant's state of mind.   He maintains that the instruction, when coupled with the prosecutor's improper argument, misled the jury into believing that to find adequate provocation to reduce the crime to manslaughter, the jury had to find the victims acted improperly and were at fault.   Appellant also claims the instruction was deficient because it failed to advise the jury that adequate provocation may be supplied by mutual combat.   He acknowledges that the trial court's instruction 18 mirrored the uniform one 19 and that counsel failed to object.

¶ 51 In the current uniform instruction which was administered to Appellant's jury, “adequate provocation” is defined as

any improper conduct of the deceased toward the defendant which naturally or reasonably would have the effect of arousing a sudden heat of passion within a reasonable person in the position of the defendant.   Generally, actions which are calculated to provoke an emotional response and ordinarily cause serious violence are recognized as adequate provocation.   Actions that do not ordinarily provoke serious violence do not constitute adequate provocation.   In determining whether the deceased's conduct was adequate provocation, the conduct is judged as a person of reasonable intelligence and disposition would respond to it.   Mere words alone, or threats, menaces, or gestures alone, however offensive or insulting, do not constitute adequate provocation.   However, words, threats, menaces, or gestures, when considered in connection with provoking conduct of the deceased, may constitute adequate provocation.   Personal violence or aggression by the deceased of a nature sufficiently violent to cause or threaten to cause pain, bloodshed, or bodily harm to the defendant may be adequate provocation.

(emphasis added).

¶ 52 Appellant never challenged this definition, thereby waiving any claim unless plain error is found.  Hill v. State, 1995 OK CR 28, ¶ 21, 898 P.2d 155, 163.   He now objects to the use of the term “improper conduct” arguing a jury could construe it to mean heat of passion can be claimed only when the victim engaged in an act of adequate provocation.   He claims that it is widely accepted that heat of passion may be claimed when a reasonable person in the defendant's situation would have concluded that the victim engaged in an act of adequate provocation whether the victim actually did so or not.   He concedes the “typical heat of passion case will indeed involve improper conduct by the deceased.”   Appellant's Brief at 29.

¶ 53 Even if we accepted Appellant's argument that the deceased need not actually engage in an act of adequate provocation as long as a reasonable person in the defendant's shoes would have believed the victim had done so, which we need not determine in this case, we fail to see how Appellant could have been injured by this instruction.   Here, if the jury believed the theory of the defense, i.e., that Pogue and Lewis threw the first punches after Jesse and Jimmy merely walked toward them in a non-threatening manner, and that Appellant merely acted to save the life of his brother in the ensuing brawl that followed, the jury could potentially have found that the conduct of the victims was “improper,” within the context of the adequate provocation instruction.   Appellant's problem was not the instruction, but the fact that the jury did not accept the defense's version of events.   And a jury conclusion that Appellant was not adequately provoked was well supported by the evidence.   Therefore, we find the instruction's wording was appropriate and properly channeled the jury's decision making process in this case.

¶ 54 We also find the prosecutor did not engage in improper argument.   To refute Appellant's heat of passion defense, the prosecutor argued the evidence did not support a finding of adequate provocation and that Pogue and Lewis were merely trying to defend themselves when they threw the first punches.   The prosecutor argued Appellant and the others went looking for the men who were supposedly after Shankles ready to fight.   When they believed they had found them, Appellant forced the Blazer to stop where his brothers jumped out of the Neon in a threatening manner rushing the victims.   The victims threw punches at the Blacks to defend themselves from the Blacks' advance.   Because the prosecutor simply argued reasonable inferences from the evidence, we find no plain error occurred.

¶ 55 Lastly, Appellant claims the instruction was defective because it failed to specifically advise that mutual combat may constitute adequate provocation.   As stated above the jury was presented with two versions of how the altercation began.   The instruction administered correctly required the jury to determine if Appellant was adequately provoked based on the facts presented.   As such, we find no plain error.

¶ 56 In his fourth proposition, Appellant claims the trial court's self-defense instructions were fatally flawed because:  1) the instructions conflated the distinct defenses of justifiable homicide (21 O.S.1991, § 733(2)) and self defense/defense of another (21 O.S.1991, § 643(3));  2) the instructions failed to inform the jury of the law relating to defense of another;  and 3) the instructions stated as a matter of law “defense of a brother is not available as justification for homicide or assault and battery.”   At trial, Appellant did not object to the self-defense instructions except to the statement that defense of a brother is not available as justification for homicide or assault and battery.   Defense counsel stated she understood that to be the law, but was concerned that this non-standard language would mislead the jury into thinking that evidence of Appellant's motives was not relevant.   Because Appellant failed to object at trial to the self-defense instructions on the grounds he now asserts, he has waived all but plain error.   See Romano v. State, 1995 OK CR 74, ¶ 80, 909 P.2d 92, 109, cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996).

¶ 57 Appellant asserts the trial court correctly instructed the jury on justifiable homicide for murder, but argues it failed to properly instruct the jury on self-defense for assault and battery.   He claims the trial court should have administered the self-defense instruction found in OUJI-CR2d 8-48 for his assault and battery with a deadly weapon charge.   This self-defense instruction justifies a person's use of non-deadly force if the jury finds the defendant reasonably believed that he was in imminent danger of bodily harm.20  He also claims the trial court should have instructed the jury on defense of another pursuant to 21 O.S.1991, § 643(3) as a defense to the assault and battery with a deadly weapon charge, as § 643 does not limit the class of persons one may defend with non-deadly force.   By instructing the jury that defense of a brother was not available as justification for assault and battery, Appellant maintains the trial court's instructions deprived him of a valid defense to his assault and battery with intent to kill charge as well as misled the jury to believe that evidence regarding Appellant's defense of his brothers was irrelevant as a matter of law to his heat of passion manslaughter defense.

¶ 58 As the State points out, Appellant was not entitled to an instruction on the justifiable use of non-deadly force as a defense to assault and battery with intent to kill because Appellant used deadly force when he stabbed Lewis and Pogue.  “Deadly force” is defined as “force intended or likely to cause death or great bodily injury.”   OUJI-CR2d 8-12.   Appellant stabbed Lewis thirteen times including wounds to the head and chest.   Simply because Lewis did not die from his injuries does not render Appellant's use of force non-deadly.   Because Appellant used deadly force against Lewis, he was not entitled to an instruction on the justifiable use of non-deadly force, and the trial court's instructions adequately stated the applicable law, including that Appellant was not entitled to the justifiable use of deadly force in defense of a brother.   21 O.S.1991, § 733(2).   In addition, Appellant cannot show plain error in the self-defense instructions as he did not rely on it as a defense;  rather he relied on a heat of passion defense.   See n. 14, supra.   Accordingly, no relief is required.

¶ 59 In his fifth proposition of error, Appellant reurges his claim in Proposition I asking this Court to reconsider its previous decisions holding that heat of passion manslaughter requires the killing to be both in a heat of passion and without a design to effect death.   As such, he argues the instructions on heat of passion and adequate provocation are superfluous and misleading.   He maintains the instructions administered could have led the jury to convict Appellant of first degree murder even if it found Appellant was rendered incapable of forming an intent to kill by his heat of passion but that there was inadequate provocation.   Because the jury was adequately instructed on the elements of both crimes, we find this proposition is without merit.   See Propositions I, II and III, supra.

¶ 60 In his tenth proposition of error, Appellant claims his assault and battery with a deadly weapon conviction must be reversed because the State failed to prove he intended to kill Lewis.   Appellant again maintains the State was bound by his exculpatory statements that he never intended to kill anyone and that the State's evidence failed to rebut his admissions.

¶ 61 The direct and circumstantial evidence presented at trial, when viewed in the light most favorable to the State, was sufficient for a rational trier of fact to conclude Appellant intended to kill Lewis when he stabbed him.   As stated above, the evidence showed the Black brothers, including Appellant, Shankles and Seales went looking for Justin Hightower where a fight of some kind was likely and anticipated.   Appellant went armed with his knife.   When the defendants encountered the victims, Appellant followed Pogue's Blazer and then forced it to stop.   Without pause, Jimmy and Jesse Black jumped out of the car and rushed Lewis and Pogue in a threatening manner demonstrating a group intent to fight the Blazer occupants.   Appellant immediately followed Jesse and joined in a fight with Lewis where Appellant quickly pulled out his knife.   Despite Appellant's claim he feared for their (Jesse and his own) safety, it is difficult to believe Appellant did not intend to kill Lewis when he stabbed him some thirteen times with wounds to the head and chest in what was then a three on one fight.   As previously noted, because the lighting was good enough for Lewis to identify the defendants, the jury could infer Appellant would have been able to see Jesse was not being seriously injured thereby refuting Appellant's claim.   Further, the physical injuries sustained by the Blacks belie Appellant's claim that he acted out of a fear for the safety of his brothers and himself.   The physical injuries sustained by the victims corroborate that they were not in control of the fight.   The jury could also infer a consciousness of guilt on behalf of Appellant because he disposed of the knife and fled the morning after the fight.   Because a rational jury could find Appellant intended to kill Lewis when he stabbed him thirteen times and disbelieve Appellant's exculpatory statements, we find this proposition is without merit.

¶ 62 In his eleventh proposition of error, Appellant claims the trial court erred in instructing the jury that a knife is a deadly weapon.21  Appellant argues a pocket knife is not a deadly weapon per se22 and that the trial court's instruction invaded the province of the jury.   Because Appellant failed to object to the instruction, we will review for plain error.  Cannon, 1998 OK CR 28, at ¶ 34, 961 P.2d at 849.

¶ 63 A review of the record shows no plain error occurred.   As the State points out, Appellant admitted he used his pocket knife to stab both victims numerous times.   He further admitted that such stabbing inflicted great bodily injury to Lewis and resulted in Pogue's death, making his knife a deadly weapon.   Because the issue at trial was whether Appellant intended to kill Lewis and not whether the knife was capable of causing death or great bodily injury,23 we find no plain error.

¶ 64 In his nineteenth proposition of error, Appellant alleges he was denied the reasonably effective assistance of trial counsel in violation of the Sixth Amendment.   Appellant argues his two trial attorneys were deficient because they failed to request accurate and complete heat of passion manslaughter instructions as argued in Propositions II and III, supra, and failed to marshal the evidence in closing argument.   Appellant also claims his attorneys failed to adequately prepare, investigate and use available evidence:  1) to impeach Lewis' testimony;  2) to rebut the State's evidence regarding the poor health of Pogue and the conditions of the crime scene;  and 3) to corroborate the defense theory of mutual combat.

¶ 65 “To prevail on a claim of ineffective assistance of counsel, Appellant must overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance by showing:  [1] that trial counsel's performance was deficient;  and [2] that he was prejudiced by the deficient performance.”  Humphreys v. State, 1997 OK CR 59, ¶ 40, 947 P.2d 565, 577-78, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998).   See also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).  “To establish prejudice, Appellant must show a reasonable probability that, but for trial counsel's errors, the result of his [trial] would have been different.”  Humphreys, 1997 OK CR 59, at ¶ 40, 947 P.2d at 578.  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.   Failure to prove either of the required elements is fatal to an appellant's entire claim.  Douglas, 1997 OK CR 79, at ¶ 108, 951 P.2d at 679.

¶ 66 First, Appellant attacks counsel's failure to request instructions advising the jury that Appellant's sole defense was that he killed Pogue in a heat of passion brought on by mutual combat, that the heat of passion manslaughter defense should be considered simultaneously with the murder charge, that the State bore the burden to disprove heat of passion manslaughter beyond a reasonable doubt and that adequate provocation may be supplied by mutual combat.   As discussed in Propositions II and III, supra, we find the jury was adequately instructed on heat of passion.   Therefore, we find that defense counsel were not ineffective in failing to request modified instructions.

¶ 67 Second, Appellant complains his lawyers failed to marshal the evidence during closing argument.   He claims their statements that the victims did nothing wrong essentially told the jury there was no adequate provocation, given that the instruction defining adequate provocation directed the jury to review improper conduct of the deceased toward the defendant.   A review of the closing argument shows Appellant's lawyers marshaled the evidence and vehemently argued Appellant never intended to kill anyone and that the evidence supported heat of passion manslaughter.   Although counsel did not characterize the victims' conduct as improper so as not to alienate the jury, she argued the conduct had to be taken into consideration as to how Appellant perceived it and reacted to it.   She mindfully characterized the inconsistencies between Lewis' version of events and that of the defendants as nagging questions the jury must consider.   This was a sound strategic decision that will not be second-guessed on appeal.   As such, we find no error.

¶ 68 In conjunction with this claim Appellant filed an application for an evidentiary hearing alleging counsel failed to investigate and use available evidence.   Appellant argues counsel was deficient by failing to investigate and present evidence that showed Pogue could have avoided the altercation by driving around the Neon contrary to Lewis' testimony, and that Pogue's health was not as poor as portrayed by his family.   Pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2000), Appellant has included in his application for an evidentiary hearing records to support his claim.   Appellant includes, among other things, affidavits and reports from doctors who examined Pogue in 1996 in conjunction with a worker's compensation claim detailing their findings regarding Pogue's health, articles which showed Pogue was participating in and placing in roping events in 1996, and photographs of the scene to show Pogue's Blazer could have negotiated around the Neon. (Exh. A, B, C, H, I, J, K, M, N, O, P and R)

¶ 69 The record before this Court shows counsel mounted a well-reasoned defense to the first degree murder charge arguing Appellant stabbed the victims because he feared for the safety of his brothers during a fight and that Appellant never intended to kill anyone.   The medical records supplied by appellate counsel are from exams one and half years before the incident.   These records show that Pogue had asthma and did little because he was clinically depressed.   Instead of introducing this type of evidence to show Pogue was not feeble and in poor health such that he would not consider initiating a fight, counsel chose to focus on the fact that 54 year old Pogue got out of his vehicle, threw the first punch and was able to hold down and contain Jimmy Black, a 6′2″, 230 lbs. 25-year-old, during the fight.   The record also shows counsel did question witnesses about the possibility of the Blazer being able to go around the Neon.24 Because Pogue was a well-known, valued member of the community, counsel was careful not to demonize Pogue by arguing he was the aggressor who purposefully stopped his Blazer to teach these people a lesson for honking at him rather than going on by or that Pogue somehow had a duty to go around them.   Given the record before this Court, we find this claim is without merit and 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.

¶ 70 In his twentieth proposition of error, Appellant claims he was denied his right to present a defense when the trial court excluded his co-defendants' confessions under 12 O.S.1991, § 2804(B)(3).   On the first day of trial, the trial court heard the State's motion in limine to exclude the co-defendants' statements as hearsay.   Defense counsel argued if the trial court excluded the statements, she would be forced to change her entire trial strategy and would be ineffective.   The trial court noted that defense counsel had been aware of this problem two weeks prior to trial.   At the conclusion of argument, the trial court found that it had not heard sufficient evidence to determine if the statements were exculpatory or that there existed sufficient corroborating circumstances to indicate trustworthiness as required by § 2804(B)(3).   As such, the trial court reserved ruling on the admissibility of these statements until more evidence was presented.

¶ 71 Ultimately, the trial court admitted Robbie Seale's statement, but found the statements of Jimmy and Jesse Black were not sufficiently corroborated for admission.   Appellant maintains that even though Jimmy testified at trial he was prejudiced by the exclusion of Jimmy and Jesse's statements because:  1) it forced counsel to change her strategy;  2) the prosecutor was able to suggest that Jimmy and Appellant colluded on the story Jimmy told the jury;  and 3) Appellant was precluded from presenting a full picture of what happened that night and to provide the jury with corroboration of his statements that he did not intend to kill anyone.

¶ 72 Assuming, arguendo, the trial court erred in excluding these statements, Appellant's right to present his defense was not impeded.   As stated above, the record shows defense counsel knew at least two weeks before trial there could be problems with admitting the co-defendants' statements.   Despite potential problems, the defense resolutely pursued its heat of passion manslaughter defense relying on the same facts.   Moreover, co-defendant Jimmy Black's voluntary testimony, given against the advice of counsel, was almost identical to his statement.   Though he added it looked like the victims were moving around inside the Blazer reaching for something, which allowed the prosecutor to remark that the testimony sounded familiar and to ask Jimmy if he and Appellant had talked about his story prior to trial or his arrest, Jimmy denied any collusion.   Because Jimmy testified voluntarily and failed to mention anything about the victims reaching for anything in his statement, the State was free to ask questions to test his veracity and it is difficult to see how Appellant was prejudiced by the exclusion of his statement since he testified in substantially the same manner at trial.   Further, the exclusion of Jesse's statement did not prevent Appellant from presenting his defense.   Jesse's statement only corroborated the sequence of events and that he and Jimmy had no intent to kill.   Given the evidence presented, Appellant cannot show he was prejudiced by the exclusion of Jimmy's and Jesse's statements. Accordingly, we find this proposition is without merit.

SECOND STAGE ISSUES

¶ 73 In his sixth proposition of error, Appellant claims it is unconstitutional to impose the death penalty upon a defendant who commits a homicide while in a heat of passion.   We agree and believe that is why heat of passion manslaughter is not punishable by death.   However, we disagree with Appellant that the facts of this case proved heat of passion manslaughter.   As discussed in Proposition I, supra, the evidence was sufficient for a rational jury to conclude Appellant killed Pogue with malice aforethought making his act first degree murder and constitutionally punishable by death.

¶ 74 In his thirteenth proposition of error, Appellant claims the evidence was insufficient to sustain the jury's finding that he knowingly created a great risk of death to more than one person and that this aggravating circumstance is vague and overbroad as applied to him.   He maintains the evidence was insufficient because Lewis was never at a great risk of death and Appellant never intended to kill anyone.

¶ 75 “When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, this Court reviews the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt.”   Washington, 1999 OK CR 22, at ¶ 44, 989 P.2d at 974.   We have held the great risk of death aggravating circumstance is proved by acts of a defendant which create a great risk of death to another in close proximity, in terms of time, location, and intent to the killing.  Thornburg v. State, 1999 OK CR 32, ¶ 42, 985 P.2d 1234, 1248, cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000).   We have also consistently rejected attacks that this aggravator is vague and overbroad and continue to so find in this case.   Id., 1999 OK CR 32, at ¶ 44, 985 P.2d at 1248.

¶ 76 In the instant case, Appellant disregards the plain language of the statute and argues this aggravating circumstance should apply only if the defendant's conduct caused a person to be near death rather than create the possibility thereof.   Actual life threatening injury, however, is not the test.   See Smith v. State, 1986 OK CR 158, ¶ 31, 727 P.2d 1366, 1373, cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 780 (1987) (holding “evidence is sufficient to support the aggravating circumstance of knowingly creating a great risk of death to more than one person where a defendant during the continuing course of conduct in which a murder is committed, threatens the life of another and has the apparent ability and means of taking that person's life.”).   As discussed in Proposition X, supra, Appellant stabbed Lewis thirteen times including wounds to the back of the head and one to the chest.   The direct and circumstantial evidence presented at trial was sufficient to prove Appellant intended to kill Lewis when he did so.   This same evidence is also sufficient to prove Appellant knowingly created a great risk of death to more than one person when he stabbed Lewis and Pogue numerous times in vital areas.   As such, this claim is denied.

¶ 77 In his fourteenth proposition of error, Appellant asks this Court to reconsider its prior decisions upholding the constitutionality of the aggravating circumstance that the defendant constitutes a continuing threat to society.   Appellant maintains this aggravating circumstance is unconstitutionally vague and fails to perform the narrowing function that is constitutionally required.   This Court has consistently held, and continues to find, that this circumstance is constitutional and that the uniform jury instructions properly define and channel the jury's decision making process.   See Welch v. State, 2000 OK CR 8, ¶ 48, 2 P.3d 356, 374, cert. denied, 531 U.S. 1056, 121 S.Ct. 665, 148 L.Ed.2d 567 (2000);  Malone v. State, 1994 OK CR 43, ¶ 28, 876 P.2d 707, 716.   Because we reaffirm our prior holdings, we find this proposition must be denied and no relief is warranted.

¶ 78 In his fifteenth proposition of error, Appellant argues the aggravating circumstance that the murder was especially heinous, atrocious or cruel is unconstitutionally vague and overbroad and that the trial evidence was insufficient to support the jury's finding of this circumstance.   We again uphold the constitutional validity of this aggravating circumstance and decline Appellant's invitation to reconsider our position.  Cannon v. State, 1998 OK CR 28, at ¶ 72, 961 P.2d at 855;  Le v. State, 1997 OK CR 55, ¶ 43, 947 P.2d 535, 552, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998).

¶ 79 We further find the evidence, when viewed in the light most favorable to the State, was sufficient to find beyond a reasonable doubt the murder of Pogue was especially heinous, atrocious or cruel.25  This Court upholds a jury's finding of this aggravating circumstance when it is supported by proof of conscious serious physical abuse or torture prior to death;  evidence a victim was conscious and aware of the attack supports a finding of torture and serious physical abuse.   See Le, 1997 OK CR 55 at ¶ 35, 947 P.2d at 550.   The evidence showed Appellant forced Pogue to stop his vehicle after which Appellant's brothers attacked Pogue and Lewis.   During the fight, Appellant stabbed both men numerous times.   The evidence further showed Pogue was conscious and alive suffering pain during and after the attack.   This evidence is sufficient to support this aggravating circumstance.   Accordingly, this claim is denied.

¶ 80 In his seventeenth proposition of error, Appellant claims the prosecutors abdicated their role as ministers of justice for the people of Oklahoma and instead acted as special prosecutors representing the interests of the victims' family.   Appellant asserts that the prosecutors filed first degree murder charges at the insistence of the Pogue family, and in so doing, arbitrarily charged an offense punishable by death that was not otherwise supported by the facts.

¶ 81 Both Appellant and the State cite Carpenter v. State, 1996 OK CR 56, 929 P.2d 988, which is dispositive.   In Carpenter, the defendant, who maintained he had no intent to kill the victim, argued the prosecutor acted as a special prosecutor in seeking the death penalty by allowing his decision to be controlled by the wishes of the victim's family.   It was undisputed the prosecutor consulted with the family during plea negotiations.  Carpenter, 1996 OK CR 56, ¶ 22, 929 P.2d at 995.   There, the family advised the prosecutor that a plea arrangement of life was unacceptable.   This Court held that the defendant failed to carry his burden of proof to show that the prosecutor yielded control of the case to the victim's family.  Carpenter, 1996 OK CR 56, at ¶ 24, 929 P.2d at 995.   The Carpenter court noted the State is under no obligation to plea bargain and the decision whether to prosecute and what to charge is within the discretion of the prosecutor.   Carpenter, 1996 OK CR 56, at ¶ 23, 929 P.2d at 995. The fact that a district attorney may speak with the victim's family concerning their feelings is hardly sufficient proof that he allowed them to completely control all decisions regarding plea negotiations.  Id. Furthermore, consulting the victim's family and keeping them informed of the case's progress is not abdication of the prosecutorial role.  Id. In denying Carpenter's claim, this Court pointed out that even if Carpenter could have quantified the input of the victim's family, he had alleged nothing that showed the prosecutor would have acted differently in their absence.  Carpenter, 1996 OK CR 56, at ¶ 24, 929 P.2d at 995.

¶ 82 As in Carpenter, Appellant here offers isolated statements in which the prosecutors remark that they had spoken with the family of Pogue and Lewis to understand their view on venue and plea negotiations.26  There is nothing in the quoted comments indicating that the district attorney yielded control of the prosecution to the victims' family.27  Furthermore, the charges filed in Appellant's case were supported by the evidence produced by the State, and Appellant has alleged nothing to show that the prosecutors would have filed different charges absent the input of the family members.   Because Appellant has failed to show that the prosecutors yielded control of the case to the victims' family, this proposition is denied.

¶ 83 In his eighteenth proposition of error, Appellant complains the trial court's failure to record all bench conferences, its rulings, the exercising of peremptory challenges and the selection of jury alternates undermines his right to appeal and the ability of this Court to conduct its mandatory review.   Specifically, Appellant cites twelve places where bench conferences were held out of the hearing of the jury, which were not transcribed by the court reporter.   He cites Van White v. State, 1988 OK CR 47, 752 P.2d 814 and Kelly v. State, 1984 OK CR 99, 692 P.2d 563 (Brett, J., specially concurring) in support of his allegation that the failure to properly transcribe the bench conferences requires the vacation of his sentence and reversal of his conviction.

¶ 84 In Van White, this Court reversed the appellant's conviction because the voir dire proceedings had not been transcribed.   We held that in order to “effectuate this Court's mandatory review obligation under 21 O.S.Supp.1985, § 701.13(C)(1), a complete stenographic record shall be taken in all capital cases.”  Van White, 1988 OK CR 47, at ¶ 17, 752 P.2d at 821.   Because there was no record of the jury selection process, this Court was unable to determine “whether or not the jury was improperly prejudiced to impose a sentence of death during voir dire.”  Id.

¶ 85 In the present case, the majority of the non-recorded portions identified by Appellant involve conferences between counsel and the trial court which were held outside the hearing of the jury.   Although Appellant claims that these conferences were critical, he does not allege any error arising from a ruling of the trial court made during one of the conferences.   In fact, there are no allegations of evidentiary error alleged at all.   A review of the record shows that many of the non-recorded conferences involve ministerial functions and that the context of the non-recorded conferences is apparent when the proceedings are resumed.   This record also shows defense counsel never hesitated to make a record after receiving an adverse ruling.

¶ 86 As we stated in Parker v. State, 1994 OK CR 56, ¶ 26, 887 P.2d 290, 294:

Because the bench conferences were held outside the hearing of the jury, we are not inclined to include them in a blanket rule which would require automatic reversal as is the case with other portions of the trial such as jury selection.   Lack of record of bench conferences does not hinder our ability to conduct the mandatory sentence review required under the Oklahoma Statutes.   Conferences at the bench, while potentially effecting (sic) the actual evidence presented or the manner in which the evidence is presented, do not in and of themselves influence our determination of “whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.”   Section 701.13(C)(1).   Problems involving the rulings resulting from the conferences are easily appealed in their own right.

¶ 87 We also find the failure to transcribe the exercising of peremptory challenges and the selection of the juror alternates does not require relief.   The attorneys exercised their peremptory challenges at the bench after which the trial court would excuse the challenged juror on the record.   A full Batson hearing was held on the record when the State excused a minority juror and the defense objected.   The record shows the alternates did not serve and therefore any error in that selection process is moot.

¶ 88 While this Court continues to believe that the better practice in a capital case is the transcription of the entire proceeding, including any and all bench conferences and proceedings had in chambers, we are unable to conclude that any error has occurred in the present case that requires relief from this Court.   Our ability to perform our required review is not impeded and we fail to see how Appellant was prejudiced by the failure to record the portions of the record he cites.   As such, relief is not required.  Parker, 1994 OK CR 56 at ¶ 27, 887 P.2d at 294-95.

¶ 89 In his twenty-first proposition of error, Appellant claims the State failed to give adequate notice of second-stage witness O.S.B.I. Agent Jack Daly, who testified to the facts surrounding Appellant's prior violent felony conviction.   Due to the inadequacy of the State's notice, Appellant maintains Daly's testimony was inadmissible to prove the prior violent felony aggravating circumstance or to bolster the State's continuing threat to society contention.

¶ 90 After the jury rendered its verdict in the guilt/innocence phase and just prior to the motion hearing preceding the sentencing phase, the State provided defense counsel with a file consisting of 75-100 pages detailing Agent Daly's investigation of Appellant's prior manslaughter crime and his interview with Appellant.   Initially, defense counsel moved to quash the Bill of Particulars listing Agent Daly as a witness because the State had failed to provide adequate notice.   Defense counsel relayed to the trial court how discovery of this evidence had been requested multiple times prior to trial, but she was told that the State was not sure Agent Daly would be called to the stand and that the file of his reports could not be found.   Defense counsel also moved for a two to three day continuance so she could study the materials and determine with Appellant how to proceed in a Brewer28 hearing.   In support of her motion counsel argued that she had made every effort to obtain the information-she spoke with her client regarding the crime, contacted Agent Daly at the O.S.B.I. and asked for the information, and called the brother of the victim from the prior conviction.   She claimed that none of her attempts provided the detailed information contained in the file provided by the State and that the new information required review before she could decide whether or not to stipulate to the conviction.

¶ 91 The State argued the Bill of Particulars listed Agent Daly as a witness and specified that he would testify to the facts surrounding the prior conviction.29  In addition, the State emphasized that defense counsel had access to her client as well as the preliminary hearing transcript in which Agent Daly testified to all the relevant information.   In defense of its late production of the evidence, the State asserted that the O.S.B.I. was in possession of the files and that the information therein was not a part of the State's strategy because Appellant could choose to stipulate to the prior conviction and prevent the State from going behind the conviction.30  The trial court granted defense counsel a continuance from 3:00 p.m. until 8:30 a.m. the next morning.

¶ 92 When the court reconvened the next morning, defense counsel was late to the proceedings and her co-counsel decided to stipulate to the prior conviction.   The trial judge inquired from Appellant as to whether he understood the stipulation he was making and Appellant answered in the affirmative.   When Appellant's lead counsel arrived she reasserted her motion to quash based on the late production of the evidence.31  The trial court denied all of Appellant's motions.   Defense counsel fervently argued that her review of the materials provided much new information that was not available in any of the sources to which she had had access, including the preliminary hearing transcript.   She also moved for a one week continuance to investigate the new material.32  Ultimately, defense counsel opted not to stipulate and Appellant did not sign off on the stipulations.   Thereafter Daly was allowed to testify about his interview with Appellant concerning Appellant's prior manslaughter conviction, specifically the incriminating details Appellant gave in his statement to Daly. At the conclusion of direct examination, defense counsel announced she was unprepared to cross-examine due to the late discovery of Daly's investigative file.   Because defense counsel objected to the admission of Agent Daly's testimony, this issue has been preserved for appeal.

¶ 93 The rules governing this claim were recently set forth again in Miller v. State, 1998 OK CR 59, ¶ 65, 977 P.2d 1099, 1112, cert. denied, 528 U.S. 897, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999):

Title 21 O.S.1991, § 701.10 provides that during the penalty phase of trial only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible.   This Court held in Wilson v. State, 1988 OK CR 111 n. 1, 756 P.2d 1240, 1245 n. 1 that § 701.10 does not require the State to give a detailed description of the evidence that will be offered in the second stage.   Notice is sufficient if it allows the defendant the opportunity to present a defense or explanation for the alleged criminal conduct.  Johnson v. State, 1982 OK CR 37, ¶ 36, 665 P.2d 815, 823.   To this end the notice must contain a summary of the evidence intended to be used to support the alleged aggravating circumstance as well as a list of the witnesses the State might call. Williamson v. State, 1991 OK CR 63, ¶ 112, 812 P.2d 384, 408, cert. denied, 511 U.S. 1115, 114 S.Ct. 2122, 128 L.Ed.2d 677 (1994);  Walker v. State, 1986 OK CR 116, ¶ 48, 723 P.2d 273, 285, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1986).

¶ 94 The non-specific notice coupled with the late disclosure of Daly's investigative file was insufficient notice to allow the defense to know what to expect.   Because the record shows the defense knew about the prior conviction and had access to the preliminary hearing transcript in that case, the crux of the problem is the late disclosure of Daly's investigative file.   This Court must decide if the prosecution's late disclosure of Daly's investigative file prejudiced Appellant.   See Newsted v. State, 1986 OK CR 82, ¶ 15, 720 P.2d 734, 739, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986).   The reasons offered for the late disclosure are unacceptable and are not condoned by this Court.   Such last minute disclosure violates, at the very least, the spirit of the notice requirements and resembles condemned gamesmanship.   See Marquez v. State, 1995 OK CR 17, ¶ 6, 890 P.2d 980, 983.   However, Appellant has not provided this Court with the preliminary hearing transcript from his prior manslaughter case or Daly's investigative file in order for this Court to determine if Appellant was prejudiced by the late disclosure.   Nor does Appellant identify how he would have defended differently.   As the trial court granted counsel a continuance to review the material and Appellant has not shown how he would have changed his defense, we cannot find that Appellant was prejudiced by the late disclosure of the file and this claim must be denied.

¶ 95 In his twenty-second proposition of error, Appellant claims his conviction and sentence must be vacated because he was deprived of a fair trial by the prosecutors' misconduct.   Appellant alleges that the prosecutor(s) attempted to inject passion and sympathy into the first stage proceedings, improperly impeached a defense witness, improperly aligned themselves with the victim, jury and public, improperly evoked sympathy for the victims, ridiculed the defense theory, impugned defense counsel's character and credibility, expressed personal opinions, disparaged Appellant's family, equated Appellant with Charles Manson, misstated the law, and misrepresented evidence.   Appellant argues the death sentence he received is further evidence that the prosecutors' misconduct prejudiced the jury.

¶ 96 The remarks objected to by defense counsel were cured when the trial court admonished the jury to disregard the comments and recall the evidence.   See White v. State, 1995 OK CR 15, ¶ 22, 900 P.2d 982, 992.   The remaining remarks were not objected to and will be reviewed for plain error.   Romano, 1995 OK CR 74, at ¶ 54, 909 P.2d at 115.   This Court has consistently held that it will not grant relief unless the cumulative effect of all of the prosecutor's conduct was such as to deny the defendant a fair trial.  Spears v. State, 1995 OK CR 36, ¶ 60, 900 P.2d 431, 445, cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995).   Furthermore, each side is permitted to present the evidence and the inferences thereof from its own point of view.  Washington, 1999 OK CR 22, at ¶ 42, 989 P.2d at 974.

¶ 97 In the instant case a review of the record does not reveal conduct that so prejudiced Appellant as to deny him the right to a fair trial.   The trial court sustained each of defense counsel's objections to improper comments by the prosecutor.   The majority of the remaining comments were within the latitude allowed during closing arguments.  Id. The prosecutor's comment invoking the name of Charles Manson and several personal digressions by Mr. Burns invoking victim sympathy were error.   However, viewing the trial as a whole and the substantial evidence presented to prove statutory aggravators, these few comments did not rise to the level of reversible error.   Although some of the prosecutors' comments were borderline, none of them, singularly or cumulatively, rose to the level of reversible error.   Accordingly, this proposition is denied.

¶ 98 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.   This Court has said that in the absence of individual error, there can be no accumulation of error.  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).  “However, when there have been numerous irregularities during the course of the trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial.”  Id. We have thoroughly reviewed Appellant's claims and the record in this case and they reveal no error which, singly or in combination, would justify either modification or reversal.   Any irregularities or errors were harmless beyond a reasonable doubt.   Finding no error that warrants relief, the Judgment and Sentence of the trial court is AFFIRMED.

FOOTNOTES

1.  Although these crimes occurred in neighboring Jefferson County, a change of venue was granted and the trial was held in Stephens County.

2.  The aggravators found were:  1) the defendant was previously convicted of a felony involving the use or threat of violence to the person;  2) the defendant knowingly created a great risk of death to more than one person;  3) the murder was especially heinous, atrocious or cruel;  and 4) there exists a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society.   21 O.S.1991, §§ 701.12(1)(2)(4) & (7).

3.  Appellant's Petition in Error was filed in this Court on July 21, 1999.   Appellant's brief was filed January 3, 2000, and the State's brief was filed May 2, 2000.   A reply brief was filed on May 22, 2000.   The case was submitted to the Court on May 17, 2000.   Oral argument was held September 5, 2000.

4.  In Appellant's statement, he says they were looking for Hightower in a black Suburban.

5.  Appellant, his brothers Jesse and Jimmy, Cal Shankles and Robert Seale were each charged with first degree murder for the death of Bill Pogue and assault and battery with a deadly weapon.   Jesse and Jimmy Black were tried together and were each convicted of the lesser included offenses of first degree misdemeanor manslaughter and assault and battery with a dangerous weapon.   Each received a sentence of 25 years imprisonment for manslaughter and 7 years imprisonment for assault and battery with a dangerous weapon.   Cal Shankles plead guilty to first degree murder and assault and battery with a deadly weapon and received a life sentence for murder and 20 years imprisonment with 10 suspended for assault and battery with a deadly weapon.   Robert Seale plead guilty to first degree misdemeanor manslaughter and received a sentence of 16 years imprisonment with 12 years suspended.

6.  The trial court initially seated 12 prospective jurors in the jury box and 24 prospective jurors in the first four rows of the gallery.   The trial court asked prospective jurors whether their exposure to pre-trial publicity and any opinion they had formed affected their ability to base their verdict on the evidence presented in court, whether they knew or were related to the defendants, the victims, the lawyers or the witnesses, whether the prospective jurors or members of their immediate family had ever been the victims of crime or been involved in a criminal case, whether the prospective jurors would give Appellant the presumption of innocence, whether any of the prospective jurors or their relatives were employed in law enforcement of any kind, whether the prospective jurors had prior jury service, whether the prospective jurors had any religious or philosophical beliefs that would prevent them from sitting in judgment of another, whether the prospective jurors had any personal business that would prevent them from giving the case the attention it deserved given its expected length and whether the prospective jurors could consider the three possible penalties for murder in the first degree.

7.  Counsel complained that several jurors only stated that they “thought” they could set aside preconceived opinions derived from pre-trial publicity.  (Tr. 35) The trial court noted that it was satisfied from the prospective jurors' answers coupled with their facial expressions that these jurors indicated that they could set aside what they had heard or read and arrive at a fair verdict.  (Tr. 36) Because the trial court was satisfied that the jurors could be fair, it denied defense counsel's renewed request for individual voir dire, but agreed to be more inquisitive for defense counsel. (Tr. 37)

8.  Life-qualifying a jury is the questioning process that identifies and excludes potential jurors who would automatically impose the death penalty and be unable to return a sentence of life imprisonment or life imprisonment without parole upon a finding of guilt for First Degree Murder.   See Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

9.  At trial, defense counsel argued the jurors were confused about the need to disclose misdemeanor convictions and that she was entitled to the district attorney's jury list.   As stated in Proposition VII, nothing in the record shows defense counsel was prohibited from expounding on the questions concerning prospective jurors' prior criminal records.

10.  In conjunction with this appeal, Appellant filed an “Application for Evidentiary Hearing on Jury Issues” pursuant to Rule 2.1(A)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1999) and 12 O.S.1991, § 2606(B).   Contained therein is an O.S.B.I. criminal background check on one of the white jurors who served on Appellant's jury showing the juror had a prior Driving While Impaired conviction that the juror did not disclose during jury selection.   Because the prosecutor did not strike this white juror for failing to disclose his prior record, Appellant maintains this shows Castle's strike was pretextual or that the prosecutor only performed criminal background checks on minority jurors.  Batson is not violated “whenever prospective jurors of different races provide similar responses and one is excused while the other is not.”  Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir.1994), cert. denied, 513 U.S. 1160, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995).   Batson requires a race neutral explanation which was provided in this case.   The prosecutor excused both a black and a white juror with criminal records.   We do not find an evidentiary hearing is warranted based on the application presented.   As such, the request is denied.

11.  Llewyellyn Brooks testified Shankles came by and asked Brooks to help him beat up some guy from Ardmore.   When Brooks refused, Shankles left.   Shankles returned in approximately 30 minutes to an hour and asked Brooks if he had a club Shankles could borrow.   Brooks testified he told Shankles no, but noted he had a shovel handle in the back of his pick-up truck.   He did not notice if it was missing after Shankles left.   Brooks also did not see if Shankles was with anyone.   However, the time frame outlined by Brooks would allow the jury to infer that Shankles was with the Blacks during his second visit when Shankles was in search of a club.

12.  Justin Hightower testified that he had agreed to meet Shankles the evening of January 4, 1998.

13.  Appellant maintains that premeditation is a component of malice aforethought arguing the use of the “qualifier deliberate before the requisite mental state of intent to kill carries forward the age-old requirement of premeditation.”   See Appellant's Brief at 13.   To act premeditatedly simply means “thought of beforehand for any length of time, however short.”   Black's Law Dictionary (5th ed.1983).   This definition is consistent with our interpretation of malice aforethought and explains why such term appears throughout this Court's opinions over the years.

14.  Although the trial court administered correct self-defense instructions, Appellant's primary defense was heat of passion manslaughter making the cases cited by the State unhelpful.   During voir dire, defense counsel advised jurors they had to decide if Appellant killed Pogue with malice aforethought or in a heat of passion.  (Tr. 112) During closing argument, defense counsel said, “I'm not going to talk to you about self-defense.   We've never talked to you about self-defense.”  (Tr. 747) Later, counsel stated, “Johnny Black has offered this Jury a plea of guilty to manslaughter ․” (Tr. 758) “Manslaughter conviction and a Manslaughter sentence is not a day in the park ․ Finding him guilty of manslaughter, which is what he did and confessed to, why wouldn't that be enough?   Why is the State so afraid to punish Johnny Black for what he did?   Why? We wouldn't be here today.   He-Mr. Black was more than happy to plead guilty to Manslaughter.”  (Tr. 761)

15.  The Fifth Circuit has found that Lofton went too far in making the prosecution prove the absence of heat of passion when the element of malice is neither presumed nor required to be disproved by the defendant.   It interprets Mullaney as holding only that an element of a crime may not be presumed and that a burden may not be imposed upon a criminal defendant to disprove an element of a crime.   See U.S. v. Molina-Uribe, 853 F.2d 1193, 1204 (5th Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989), overruled on other grounds by, U.S. v. Bachynsky, 934 F.2d 1349 (5th Cir.1991).

16.  See Black's Law Dictionary, (5th ed.1983).

17.  That is not to say more specific instructions, if requested, are not desirable.

18.  O.R. 82.

19.  OUJI-CR2d 4-98.

20.  The instruction administered by the trial court advised that a person's use of deadly force was justified if the jury found the defendant believed he was in imminent danger of death or great bodily harm.

21.  The trial court defined “deadly weapon” as “any instrument designed or constructed to cause death or great bodily injury.   A knife is a deadly weapon.”  (O.R. at 88)

22.  Knives that are per se deadly weapons include:  dagger, bowie knife, dirk knife, switch blade knife, spring-type knife or a knife having a blade which opens automatically.   OUJI-CR2d 4-28.

23.  It should be noted the elements instruction concerning assault and battery with a deadly weapon administered by the trial court increased the State's burden with respect to the disputed intent issue by requiring the State to prove Appellant intended to kill Lewis rather than that Appellant intended to do Lewis great bodily harm.   See O.R. 86;  OUJI-CR2d 4-6.   Additionally, the trial court instructed the jury on the lesser included offense of assault and battery with a dangerous weapon and defined dangerous weapon.  (O.R.89-90)

24.  As discussed above, Appellant filed an “Application for Evidentiary Hearing on Jury Issues” pursuant to Rule 2.1(A)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1999) and 12 O.S.1991, § 2606(B).   Contained in his application is an affidavit from one of the jurors who served in his case in which the juror states that an unnamed juror, who was somehow familiar with the crime scene area, told the other jurors that Pogue could not have gone around the Neon because of a ditch on the side of the road.   Based on this affidavit, Appellant maintains the jury was exposed to and relied on extraneous information in reaching its verdict.   He requests an evidentiary hearing to investigate his claim.   Both Lewis and Charles Pogue testified Pogue could not go around the Neon because of the bar ditches.   Nowhere in the affidavit does the juror state that she or the other jurors relied on this unnamed juror's opinion rather than on the evidence.   Given that this affidavit does not support a finding that the jury relied on extraneous information, the request for an evidentiary hearing is denied.

25.  Appellant asks this Court to abandon its traditional standard of review used in determining the sufficiency of the evidence of an aggravating circumstance in favor of de novo review.   We are unpersuaded a different standard is needed and decline to do so.

26.  Appellant cites Lewis' participation in the plea negotiations of Robbie Seale as evidence the victims' family directed the actions of the prosecutor.   These negotiations occurred the day after Appellant's trial and no such direct participation in Appellant's trial appears in the record.

27.  The District Attorney stated at sentencing “[w]e consulted the victim's family on almost every aspect of the case.   Never once did we surrender our discretion to them, but we did inform them.”  (Sent.9)

28.  Per Brewer, a defendant may stipulate to any prior felony convictions involving threat and violence and thus prevent the State from going behind the judgment and sentence to present the specific details of the crime as proof of the threat and violence.   If the defendant stipulates, the State is only allowed to introduce the judgment and sentence from the prior conviction.  Brewer v. State, 1982 OK CR 128, ¶ 42, 650 P.2d 54, 63, cert. denied, 459 U.S. 1150, 103 S.Ct. 794, 74 L.Ed.2d 999 (1983).

29.  The State's notice provided that Daly would “testify regarding the facts involving the death of Cecil Martin at the hands of [Appellant] on the 13th day of December, 1983.”

30.  Prosecutor Burns advised the trial court that his office had only sent an agent the day before to retrieve the file from the O.S.B.I. He claimed the prosecution and the defense were working from the same facts as contained in prior court records.  (Tr. 814)

31.  Defense counsel stated she was late to court because she was reviewing the new material and was unprepared to proceed.

32.  Although the State claims defense counsel did not request an additional continuance, the record shows otherwise.  (Tr. 830)

STRUBHAR, Judge:

LUMPKIN, P.J., JOHNSON, V.P.J., LILE, J., concur.CHAPEL, J., concurs in result.

 
 


Johnny Dale Black

 

Johnny Dale Black

 

Johnny Dale Black