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Benjamin BREWER

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: Rape
Number of victims: 1
Date of murder: August 16, 1978
Date of arrest: 3 days after
Date of birth: 1973
Victim profile: Karen Joyce Stapleton (female, 20)
Method of murder: Stabbing with knife
Location: Tulsa County, Oklahoma, USA
Status: Executed by lethal injection in Oklahoma on April 26, 1996
 
 
 
 
 

Benjamin Brewer, a white man, was 26 when he was sentenced to death in Tulsa County for fatally stabbing Karen Joyce Stapleton, 20, an accounting student at Tulsa Junior College. He spent 12 years and 6 months on death row and was executed on April 26, 1996.

 
 

Old Law Would Let Sheriff Kill Inmate in Cell

The New York Times

October 27, 1991

Under an obscure 80-year-old Oklahoma law, Benjamin Brewer, a prisoner on death row at the state penitentiary in McAlester, could have been killed in his cell by a county sheriff next week.

But a state appeals court halted the proceedings on Friday and gave lawyers for all sides two weeks to submit further legal briefs.

"It's a very odd situation," said the prisoner's lawyer, Mitchell A. Lee.

It began two months ago in Tulsa County, where Mr. Brewer had been sentenced to death for killing a woman in 1978. On Aug. 27, a district judge there, B. R. Beasley, ordered Sheriff Stanley Glanz to execute Mr. Brewer on Oct. 29.

The order was based on the seldom-used law, which allows a sheriff to carry out an execution if no legal reason exists to delay it. David Moss, the Tulsa County District Attorney, had requested the order because no action had been taken in Mr. Brewer's case in 18 months.

But on Oct. 2, a district judge in Pittsburg County, where the state penitentiary is situated, ordered penitentiary officials not to assist Sheriff Glanz because Mr. Brewer still had several appeals available. That order, issued by Judge Robert Layden, meant that the sheriff would not be allowed to use the prison's death chamber.

Then, this Tuesday, Judge Layden refused to issue an order to stop Sheriff Glanz, saying he had no authority over a sheriff from Tulsa.

Mr. Lee, the defense lawyer, said Judge Layden's two orders, taken together, meant that Sheriff Glanz would have to "shoot Brewer or strangle him or whatever he wants to kill him in his cell."

Sheriff Glanz went to the prison on Friday to ask Mr. Brewer whom he wanted to witness his execution. "We felt we needed to go ahead and make the arrangements," Sheriff Glanz said later. "Our main purpose was to visit with Mr. Brewer and advise him he had the right to have clergy and up to five witnesses attend the execution."

But the Oklahoma Court of Criminal Appeals issued its stay about 15 minutes before the sheriff arrived at the prison.

Sheriff Glanz and Mr. Moss, the Tulsa County District Attorney, conceded that they had never expected to be allowed to execute Mr. Brewer. But the sheriff insisted that he had been prepared to do so.

Legislators said the case illustrated the need to repeal the law. "It might have worked 80 years ago," said Representative Gary Maxey, chairman of the House Criminal Justice Committee. "But with the changes that have been made in capital punishment laws, I don't think it would work today."

 
 

Witnesses to an Execution

The New York Times

April 28, 1996

A man who raped and stabbed a 20-year-old neighbor, then sat on her sofa and watched her die, was executed on Friday while her family watched on closed-circuit television.

The man, Benjamin Brewer, 38, had nothing to say and kept his eyes shut as he was put to death by lethal injection.

One floor below the execution chamber at the Oklahoma State Penitentiary, five relatives of his victim, Karen Joyce Stapleton, watched him die. They were the first members of a victim's family to do so under a new state law that allows them to watch on television in an area separated from the other witnesses.

"Karen faced him alone, and she fought hard to survive," said her brother, Mark Gregory. "We promised he would not go unpunished, and we wanted to be here to represent her when justice was finally carried out."

The Supreme Court rejected Mr. Brewer's final appeal on Thursday.

 
 

1982 OK CR 128

650 P.2d 54

BENJAMIN BREWER, APPELLANT,
v.
THE STATE OF OKLAHOMA, APPELLEE.

Case No. F-79-609.

August 18, 1982
As Corrected August 20, 1982.

An Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.

Benjamin Brewer, appellant, was charged and convicted of Murder in the First Degree, was sentenced to death, and appeals. REVERSED and REMANDED.

Frank W. McCarthy, Deputy Chief Public Defender, Johnie O'Neal, Asst. Public Defender, Tulsa, for appellant.

Jan Eric Cartwright, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

1 The appellant, Benjamin Brewer, was charged, tried and convicted in the District Court of Tulsa County, Oklahoma, Case No. CRF-78-2137, for Murder in the First Degree, pursuant to Laws 1976, ch. 1, 1 [1-1], now 21 O.S. 1981 701.7 [21-701.7]. He was sentenced to death by the jury.

2 The facts in this case are relatively simple. Karen Joyce Stapleton was found dead in her Tulsa apartment on August 17, 1978. Examination of the semi-nude body revealed that death had occurred on or around August 16, 1978, as a result of twenty (20) stab wounds. The appellant was arrested on August 19, 1978, for the murder. He made three separate statements to Tulsa police officers in which he confessed killing Karen Stapleton and directed them to the location of her car, which he had stolen and hidden.

3 Unfortunately, the appellant's right to a fair trial was the victim of an overzealous prosecutor. The record is replete with error committed during both stages of the trial, which when considered in a cumulative fashion, necessitates that the conviction be reversed and remanded for a new trial. Because of the result reached in this decision, we need only address those issues pertinent to our reasons for reversal, and to those affecting the re-trial.

4 We turn first to the factor contributing the most weight to our decision to reverse the appellant's conviction: the overzealous conduct of the prosecuting attorney. The prosecutor in this case embarked on a campaign of prejudicial theatrics which doubtless resulted in unfair prejudice to the appellant. The following examples illustrate, though certainly do not exhaust, the prosecutor's erroneous conduct at trial.

5 1) As he was cross-examining the appellant's expert witness concerning the appellant's insanity defense, the prosecutor stabbed State's Exhibit Number 10 (a 16 inch by 20 inch photograph of the deceased victim's body as it was found at the murder scene) four separate times with the knife used in the murder. Although we recognize that the prosecutor's range of free speech and illustration is wide, Wright v. State,

6 2) At another point the prosecutor ridiculed the defense attorney's objections before the jury:

MR. FALLIS; . . . so we know there is testimony in this case now, testimony of your own client

MR. BURNS: Objection, Your Honor.

MR. FALLIS: It's in this statement.

MR. BURNS: Ask that the jury be admonished to disregard it and move for a mistrial.

MR. FALLIS: So help me God is what he said, so help me God

MR. BURNS: Mr. Fallis, I have an objection

MR. FALLIS: That's what happened, he didn't say `I don't know what happened.'

MR. BURNS: I have an objection before the Court.

MR. FALLIS: Object, object, when it gets tight, he starts objecting.

MR. BURNS: Object to his comment now and ask that the jury be admonished to disregard it and move for a mistrial and ask that he be admonished.

THE COURT: Motion denied.

MR. FALLIS: Isn't that interesting. They stood before you during the opening statement, they stood before you during the voir dire, `we are not going to contest that the death was occasioned by Ben Brewer'; and we have been prolonging this trial, running back and forth like a yo-yo to the bench making records, objecting to everything that ever happened in this courtroom.

MR. McCARTHY: Your Honor, we object

MR. FALLIS: Rather inconsistent, isn't it?

MR. McCARTHY: We object to counsel's comments concerning matters of law. That's up to the court.

THE COURT: I'll sustain the objection, concerning the approach to the bench.

MR. McCARTHY: I would ask that the jury be

MR. FALLIS: Thank you, Your Honor.

MR. McCARTHY: Would you admonish the jury?

THE COURT: They are so admonished.

7 The prosecutor's conduct of not allowing defense counsel an opportunity to be heard on his objections, coupled with the needless ridicule demonstrate a lack of respect for the appellant's constitutional right to a fair trial which this Court shall neither tolerate nor condone. See generally, Chandler v. State,

8 3) During the sentencing hearing, the prosecutor twice referred to the possibility that, if acquitted, the appellant would commit similar crimes in the future. This line of argument is highly improper. It is error to comment on the possibility that a defendant may commit crimes in the future. 1 See, Hager v. State,

9 4) The prosecutor told the jury during the sentencing stage that the homicide rate in Oklahoma had increased 28 percent, and that although juries were imposing the death penalty, no one had been put to death since 1966. We have held numerous times that references to the crime rate are improper because they present matters extraneous to the evidence and tend to impose responsibility on the jurors for the rising crime rates. Hager, supra; Coats v. State,

10 The above remarks and other similar comments amply support the appellant's contention that he was denied a fair trial.

11 The appellant's next contention that certain evidence should have been excluded from the trial pursuant to a motion in limine presents a troublesome issue. In one of his statements to the police, the appellant admitted that he gained entrance into the victim's apartment by first breaking into an adjacent apartment and crawling through a common attic-way. The judge sustained the appellant's motion in limine to delete that portion of the confession. During the hearing on that motion, the prosecutor agreed to the deletion, stating:

When taken as a whole I can see no relevance to the entry into the apartment next door at this time and I can find no exception for its use as evidence in this case, so we have no objection to the court granting that motion and we would join in the motion and the only thing left, of course, is the physical aspect of extracting that from the confession, so however counsel wants to go about that, we'll be glad to join in that.

12 During the trial, the State introduced evidence which demonstrated that the appellant may have broken into the apartment adjacent to the victim's. 23

13 The prosecutor complied with the motion to the extent that no references to the deleted portion of the appellant's confession were made. However, the prosecutor accomplished the same result that the motion in limine was designed to prevent by introducing the evidence described above. Thus, although we do not accuse the prosecutor of going back on his word, we urge that the better practice on retrial will be for the prosecutor to either 1) not join in such a motion, and then to follow the procedure outlined in Burks v. State,

14 The appellant further complains that the prosecutor improperly introduced evidence of other crimes in his trial. There was evidence which indicated that the appellant stole the victim's automobile, purse, and dog. The presence of semen in the victim's vagina led the prosecutor to infer throughout the trial that the appellant raped her. Because of the manner of disposition of this case, we need once again only remind the prosecutor of the guidelines established in this State for the introduction of other crimes at trial. If the State wishes to use the evidence, the appropriate measures must be taken to ensure the appellant is forewarned.

15 We turn now to issues not affecting our decision in this case, but nonetheless pertinent to retrial.

16 In his eighteenth allegation of error, the appellant claims the trial court erred in failing to sustain his demurrer to the information. The information adequately met the requirements of 22 O.S. 1981 401 [22-401]. The appellant was not misled as to the charges against which he had to defend himself, neither was he exposed to the possibility of being placed in jeopardy a second time for his offense. Holloway v. State,

17 The next issue concerns the introduction of photographic reproductions of the victim's body and wounds at trial. We find no error in the introduction of eight color slides depicting specific wounds on the victim's body. The photographs were taken at the morgue after the body had been cleansed. They served to illustrate the testimony of the medical examiner. See, Bills v. State,

18 We also find no error in the introduction of a 16 inch by 20 inch black and white photograph of the victim's body as it was found at the murder scene. The photograph is admittedly gruesome in nature, however the occasioned death was a gruesome deed. The photograph accurately and faithfully represented the scene as it was found by Tulsa police officers. Pate v. State,

19 We have stated numerous times that the admission of photographic evidence rests within the discretion of the trial court. Collins v. State,

20 We find next that the appellant's arrest was lawful, and the evidence and confessions obtained pursuant thereto admissible at trial. At the time of the arrest, the Tulsa police knew:

1. That a homicide had been committed;

2. That the victim's automobile and small white dog were missing;

3. That the appellant had been identified by a security guard as the man who was driving an automobile matching a description of the victim's automobile and who was in possession of a small white dog in the early morning hours of the murder (the security guard had engaged in a short conversation with the appellant, and identified him from several photographs for the police prior to the arrest);

4. That the appellant was well-known in the area of the victim's apartment and had once lived in that vicinity;

5. That a female who was known to one of the Tulsa detectives but wished to remain anonymous telephoned the Tulsa police and informed them they should "look at" the appellant in the homicide.

21 This information, collectively considered, would warrant a prudent and reasonable police officer's belief that the appellant committed the offense. Copling v. State,

22 Two of the appellant's assignments of error concern his attorney's unsuccessful attempt to enter a guilty plea to the first degree murder charge at the 1978 arraignment. The judge refused to accept the plea and allowed the State to file a Bill of Particulars to enhance the potential punishment to death, pursuant to 21 O.S. 1981 701.10 [21-701.10] and 701.12. The appellant filed an application for issuance of writ of prohibition and/or mandamus with this Court ordering the judge to accept the guilty plea and sentence him to life imprisonment.

23 This Court denied the application on December 7, 1978, reasoning that the judge was not obligated to accept the guilty plea because the appellant did not personally and orally enter the plea as required by 22 O.S. 1981 516 [22-516] and Dukes v. Page,

24 We now reaffirm our holding, noting that a defendant does not have a constitutional right to have a guilty plea accepted by the court. Stewart v. State,

25 In addition, although Dukes, supra, is factually distinguishable from this case in that the appellant was present at the arraignment, whereas the defendant in Dukes, was not, the reasoning behind Dukes is applicable. In Dukes, we held that guilty pleas must be entered personally and orally so the trial court can be satisfied that the defendant understands and appreciates the consequences of his plea, and that the defendant is competent to enter such a plea. This holding applies as well to a defendant who sits mute at the defense table as it does to one who is absent. Since the appellant did not personally and orally enter the plea, the judge could not have accepted it.

26 The appellant challenges several instructions given by the trial court to the jury. Instructions concerning murder and reduction to lesser degrees of homicide were properly given. Numerous cases have held that murder may be reduced to manslaughter. Davis v. State,

27 The trial court also correctly instructed the jury not to consider sympathy in the second stage of the bifurcated trial. The appellant construes the sympathy instruction to be a barrier to the jury's consideration of any mitigating circumstances presented. We cannot agree that the instruction had such an effect. The jury was expressly instructed to weigh the mitigating circumstances in determination of the severity of the sentence to be imposed.

28 In addition, 21 O.S. 1981 701.13 [21-701.13](C)(1) requires this Court, in reviewing the death sentence to determine whether it was imposed under the influence of passion, prejudice or any other arbitrary factor. The trial court's instruction against sympathy was designed to prevent "arbitrary" influences such as sympathy for the victim or her family from affecting the jury's decision.

29 The appellant's nineteenth assignment of error alleges that a preliminary hearing on the bill of particulars should have been held. The appellant argues that since a preliminary hearing is required in all after former conviction of felony (AFCF) cases, the same requirement should be had in capital cases.

30 We reject this argument for two reasons. Initially, title 21 O.S. 1981 701.10 [21-701.10], does not provide for a preliminary hearing on a bill of particulars filed in a first degree murder case. If the legislature had intended such a procedure, it presumably would have so stated in the statute.

31 Secondly, the leading case which espoused the fundamental right to preliminary hearings in AFCF cases, Carter v. State,

32 In addition, 21 O.S. 1981 701.10 [21-701.10] specifically states that, "Only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible." This provision removes all possible surprise or uncertainty concerning the nature of the potential penalties from the sentencing stage of the trial. It is apparent that there is no need for a preliminary hearing on the bill of particulars in capital cases.

33 Lastly, we address the appellant's arguments that the State improperly proved both aggravating circumstances in the sentencing stage of his trial. He first argues that evidence improperly introduced in the first stage was erroneously incorporated into the second stage when the State relied on that evidence to support the contention that the murder was especially heinous, atrocious and cruel. Due to the fact that this case must be remanded for a new trial, we need not discuss all the error alleged concerning this matter. Suffice it to say that we presume the second trial will be conducted properly, thus the error alleged herein should be alleviated.

34 We cannot agree with the appellant's second argument that the aggravating circumstance alleging he had previously been convicted of a felony involving the use or threat of violence to the person was improperly proven. The State offered as evidence to prove the aggravating circumstance the judgment and sentence of the appellant's 1976 rape conviction, the information charging him with that crime, and the limited personal testimony of the victim. He argues initially that the State informed him the prior conviction would be proved only by the use of court records. It must be noted, however that during the pre-trial arguments concerning this matter the prosecutor informed the judge and the appellant that he reserved the right to call witnesses to support the allegation, and would provide the appellant with names and addresses should he decide to call them. The appellant later conceded that he had received an endorsed list of witnesses in which the name of the victim was included, and that he knew why her name was listed. Thus, the State complied with the statutory mandate of 21 O.S. 1981 701.10 [21-701.10] that, "Only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible." The evidence was timely made known, and the appellant was not surprised thereby.

35 The appellant additionally argues that the State should not have been allowed to go behind the judgment and sentence of the rape conviction to prove that he had been previously convicted of a felony involving the use or threat of violence to the person. The appellant argues that neither the information charging him in that case nor the testimony of the victim should have been allowed into evidence during the sentencing hearing. He cites Baker v. State,

36 The aggravating circumstance in question reads as follows: "The defendant was previously convicted of a felony involving the use or threat of violence to the person." 21 O.S. 1981 701.12 [21-701.12](1). Thus, the State is required to go beyond simple proof that a defendant in a capital case had prior felony convictions to establish the aggravating circumstance. The State must additionally prove that the prior felonies involved the use or threat of violence to the person. The fact that the prior felonies were committed and that the defendant committed them are properly and most easily proven through the use of the judgment and sentence. However, the element that the felonies involved the use or threat of violence is not so easily and summarily proven. It is therefore necessary that the State present sufficient information concerning the prior felony convictions to support its contention.

37 The necessity for additional information concerning the nature of the prior convictions to be made known to the trier of fact is obviated by two examples. First we take the example of a person who, not unlike the appellant, stands to be sentenced for murder in the first degree with a prior conviction of rape. One might be led to assume from the face of the crime that rape necessarily involves the use or threat of violence to the victim. It is possible, however, that the rape conviction stemmed not from acts or threats of violence on the part of the defendant, but through sexual intercourse with one incapable of consent. In such a case, the rape conviction would not support the aggravating circumstance.

38 A second example would be that of a person who stands before the trier of fact in the capital sentencing stage with a prior conviction of murder in the second degree. Once again, as in the above example, the crime seems to imply on its face the use or threat of violence. However, it is possible that the murder conviction may have resulted from the fact that the defendant, while driving under the influence of intoxicants after having been previously convicted of driving under the influence of intoxicants, wrecked his automobile and caused the death of his passengers. The person caused the death of the passengers while in the commission of a felony (i.e. driving while under the influence of intoxicants, second offense, See, 47 O.S. 1981 11-902 [47-11-902]), thereby supporting a murder in the second degree conviction, but no one would say that the crime involved the use or threat of violence to the person.

39 Thus, in many cases, to allege prior convictions, without more, could very well result in an erroneous finding by the trier of fact that previous felonies support the aggravating circumstance, when, in truth they do not. This would result in a gross miscarriage of justice.

40 We realize that the argument might be made that a defendant in a position similar to those described above could simply produce evidence to rebut the implication that his previous felonies involved the use or threat of violence. Such a requirement, however, would amount to a shift in the burden of proof onto the appellant's shoulders to prove the absence of the aggravating circumstance. Although the appellant may rightfully be required to raise any mitigating circumstances he wishes the trier of fact to consider, he certainly cannot be required to disprove the aggravating circumstances alleged. In Mullaney v. Wilbur,

41 We therefore hold that the following must be the procedure concerning the State's allegation of 21 O.S. 1981 701.12 [21-701.12](1) in this and all future capital cases: First, as mandated by 701.10, the defendant must be given due notice of all evidence in aggravation the State intends to present; second, the judge must review the evidence proffered by the State in support of its allegation in camera to ensure that the felonies did indeed involve the use or threat of violence to the person; third, upon a finding by the trial court that the prior felony convictions did involve the use or threat of violence to the person, the defendant must be given the opportunity to personally stipulate that the prior felony conviction(s) alleged by the State did involve the use or threat of violence to the person. Counsel for the defendant must not be allowed to so stipulate for him. The judge must satisfy himself that the defendant understands and appreciates the nature of the proposed stipulation and the consequences potentially arising from either an agreement or a refusal to stipulate before he may accept the defendant's decision.

42 If the defendant stipulates, the State's proof of the aggravating circumstances must be limited to introduction of the judgment and sentence in the prior felonies along with the defendant's written stipulation that the felonies involved the use or threat of violence to the person. If the defendant refuses to so stipulate, the State shall be permitted to produce evidence sufficient to prove that the prior felonies did involve the use or threat of violence to the person. We emphasize that prosecutors and trial courts should exercise informed discretion in permitting only the minimal amount of evidence to support the aggravating circumstances. We do not today authorize the State to re-try defendants for past crimes during the sentencing stage of capital cases.

43 In the present case, we cannot say that the prosecutor overstepped permissible bounds in proof of the aggravating circumstance. The victim's testimony did not provide gruesome details of the violence committed upon her by the appellant. She simply identified the appellant as the man who raped her, and testified that he used a knife to threaten her life during the commission of the crime. Likewise, the information charging the appellant in that case served only to inform the jury that the crime involved the use or threat of violence. Although we hold that there was no error in this aspect, we emphasize that the rules herein set forth shall apply to the re-trial of this case. 5

44 The remainder of the appellant's allegations of error need not be discussed. They concern issues peculiar to the trial giving rise to this appeal. Due to the fact that the appellant must be afforded a new trial, no opinion on the issues are necessary.

45 For the reasons herein stated, we REVERSE the appellant's conviction and REMAND the case for further proceedings not inconsistent with this opinion.

CORNISH, J., concurs.

BRETT, P.J., concurs in part and dissents in part.

Footnotes:

1 We note that under 21 O.S. 1981 701.12 [21-701.12](7), the propensity of a defendant to commit future crimes may be used as an aggravating circumstance to justify imposition of the death sentence, if listed in the bill of particulars. In the present case the State failed to do so. If the prosecutor wishes to properly make such an argument on retrial, the statutory provisions must be complied with.

2 The evidence consisted of a portion of the wall of the apartment adjacent to the victim's which contained a fingerprint matching the appellant's; photographs of fingerprints matching the appellant's which were also found in that apartment; testimony concerning those fingerprints; and evidence concerning the possibility he crawled through the attic-way.

3 It should be noted that the judge who allowed the evidence to be introduced was one other than the judge who presided over the motion in limine.

4 We emphasize that the motion in limine is not binding on the retrial of this case. We leave to the trial court the decision whether to delete that part of the appellant's confession, should the issue again be raised.

5 The record in this case does not reflect that the State proved that the appellant was either represented by counsel or intelligently waived representation in his former conviction. Should the State attempt to prove the former conviction as an aggravating circumstance on re-trial, it has the burden to prove the above. Failure to do so will render the former conviction inadmissible. See, Tucker v. State,

*****

BRETT, Presiding Judge, concurring in part and dissenting in part:

1 While I agree with the majority opinion that this case must be reversed due to error present at trial, I find that I cannot agree with the opinion's treatment of the appellant's assertion that the use at trial of photographs of the victim was error. In my opinion neither the eight color slides depicting specific wounds on the victim's body at the morgue, nor the sixteen by twenty inch black and white photograph of the victim at the scene of the crime should have been admitted into evidence.

2 The test used by this Court to determine whether pictures of a homicide victim made subsequent to his death are admissible into evidence is that

. . . they are inadmissible unless they are relevant to some material issue and would reasonably assist the jury in the determination of the defendant's guilt, and this relevancy must outweigh the danger that the jury would substitute emotion for reason as a basis of their verdict. Oxendine v. State,

The State argues that the eight color slides were necessary to illustrate the testimony of the medical examiner. However, the medical examiner testified that the wounds depicted in the color slides would not be difficult to describe to the jury without slides and further were not necessary to explain the cause of death. Further, there was no issue or controversy as to the cause of death. These color slides could not aid in the determination of the appellant's guilt, but could only serve to prejudice his right to a fair trial by their gruesome nature and size. The majority opinion mistakenly relies on Bills v. State,

3 As for the sixteen by twenty inch black and white photograph taken of the victim at the scene of the crime, there may be some relevance to show the position of the body at the scene. However, I find that because of the large size of the picture, this relevancy is outweighed by the danger that the jury would substitute emotion for reason as a basis of their verdict. Oxendine, supra, at 943.

 
 

BREWER v. STATE

1986 OK CR 55
718 P.2d 354

Case Number: F-83-677

Decided: 04/18/1986

Oklahoma Court of Criminal Appeals

Appeal from the District Court of Tulsa County; Margaret Lamm, District Judge.

Benjamin Brewer, appellant, was convicted of Murder in the First Degree, After Former Conviction of a Felony, in the District Court of Tulsa County, Case No. CRF-78-2137, was sentenced to death, and he appeals. AFFIRMED.

Johnie O'Neal, Asst. Public Defender, Tulsa, for appellant.

Michael C. Turpen, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

[718 P.2d 359]

1 The appellant, Benjamin Brewer, was convicted of First Degree Murder (21 O.S. 1981 701.7 [21-701.7]) and sentenced to death in Tulsa County District Court, Case No. CRF-78-2137, in 1979. This Court reversed the conviction on appeal because appellant had not received a fair trial. Brewer v. State, 650 P.2d 54 (Okl.Cr. 1982). Upon retrial, appellant was again convicted of First Degree Murder and again sentenced to death. We affirm.

2 Karen Joyce Stapleton was found murdered in her Tulsa County apartment on August 17, 1978. She had died as a result of twenty stab wounds. Physical evidence introduced at trial corroborated Brewer's confession that he had killed Stapleton. The main issue of fact at trial was Brewer's sanity at the time of the slaying.

I.

3 In his first and second assignments of error, the appellant claims that his motion to dismiss should have been sustained because the intentional overreaching by the prosecutor in the first trial (a) gave rise to an exception to the general rule that retrial is not barred by double jeopardy when the appellant requests the same and (b) denied him his constitutional right to a fair and speedy trial.

4 The general rule is that double jeopardy principles do not bar retrial following appellate reversal. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Under that rule, retrial is clearly not a violation of double jeopardy in this case as the reversal was granted at appellant's request.

5 Nevertheless appellant argues that this case falls under another category of cases, namely those in which double jeopardy precludes retrial following a mistrial if the defendant was goaded into requesting the mistrial by prosecutorial overreaching designed to provoke the mistrial. See, United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)

6 Without deciding whether the mistrial rule should ever be applied to reversals on appeal, we find that the retrial in this case was not barred by double jeopardy because in order to invoke double jeopardy as a bar to retrial following a mistrial, the appellant must show not only that there was error but that such error was committed by the prosecution for the purpose of forcing the defendant to move for a mistrial. Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977). The record is devoid of evidence that District Attorney Fahis was provoking a mistrial because there was a danger of acquittal or because a retrial would afford the prosecution a more favorable opportunity to convict the defendant. "Only where the governmental conduct in question is intended to `goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982).

7 Appellant filed a supplemental brief urging this Court to modify his sentence to life imprisonment on the basis of a recent United States Supreme Court decision, Morris v. Matthews, ___ U.S. ___, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986). Inasmuch as his argument is based on the premise that jeopardy bars retrial, a contention we reject, this argument must also fail.

II.

8 We also reject the appellant's claim that the lapse of several years between the commission of the crime and the trial because of the reversal denied him his right to a fair speedy trial. We are cognizant of the greater difficulty involved in proving a defense five years after the fact. But at the same time, the State's case is also harder to prove after such a delay. Unfortunately the wheels of justice often turn slowly. It is no more a disadvantage or advantage to one party than to the other that the case was not properly tried the [718 P.2d 360] first time. We have already determined that the errors which mandated reversal of the case were not committed for the purpose of obtaining a new trial at a more favorable time. Thus, we sympathize with the appellant's plight but find no constitutional error. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) (a defendant who obtains a reversal of a conviction through appeal may be retried in the normal course of events, notwithstanding the delay incident to such legal proceedings).

III.

9 In his third assignment of error the appellant contends the trial court erred in overruling his motions to strike the bill of particulars and to accept his plea of guilty. The appellant had attempted to plead guilty in 1978 before the State filed a bill of particulars seeking the death penalty. Appellant has twice urged this Court to rule the district court had to accept the plea and impose life imprisonment. Twice this Court has rejected his argument.

10 Appellant's admitted reason for wanting to have his guilty plea accepted is his belief that entering a guilty plea to first degree murder before a bill of particulars is filed precludes the imposition of the death penalty. We find no authority for this theory. It is clear from reading the statutes that imposition of the death penalty is not contingent upon the filing of a bill of particulars.

11 A person who is convicted of or pleads guilty or nolo contendere to murder in the first degree is subject to punishment by death or by imprisonment for life. 21 O.S. 1981 701.9 [21-701.9]. The death penalty cannot be imposed unless at least one statutory aggravating circumstance is found to exist beyond a reasonable doubt, and the State cannot present evidence in aggravation that has not been made known to the defendant prior to trial. 21 O.S. 1981 701.11 [21-701.11] and 701.10, respectively.

12 The filing of a bill of particulars is not required per se by statute but is simply written notice of which aggravating circumstances the State intends to prove and what evidence will be introduced to prove them. of course if the defendant pleads not guilty, once trial has commenced it is too late for the State to notify the defendant of what evidence in aggravation will be relied upon. Thus, no evidence can be presented on which the judge could instruct and from which the jury could find beyond a reasonable doubt that an aggravating circumstance was present, justifying imposition of the death penalty.

13 But when a defendant pleads guilty or nolo contendere to first degree murder, there is no commencement of a trial to mark the deadline for notice by the State. In reading 21 O.S. 1981 701.10 [21-701.10] in conjunction with 22 O.S. 1981 973 [22-973], it is clear that under these circumstances the court, upon the suggestion of either party that there are mitigating or aggravating circumstances to be considered, may in its discretion hear the evidence at a specified time and upon notice to the adverse party. Unlike commencement of a trial, acceptance of a guilty plea does not preclude the filing of a bill of particulars.

14 Even if this Court were to find that the trial court erred in the case at bar in failing to accept appellant's guilty plea, there is no reason to believe that life imprisonment, rather than death, would have been imposed by the court. Error, if any, was therefore harmless.

IV.

15 That the trial court improperly instructed the jury on the defense of insanity is appellant's fourth assignment of error. The trial court instructed that the defendant is presumed to be sane until a reasonable doubt of his sanity is raised, but that if a reasonable doubt is raised by sufficient evidence, the State then must prove beyond a reasonable doubt that the defendant was sane at the time of the [718 P.2d 361] commission of the crime. The appellant had requested that the jury instead be instructed only that the State has the burden to prove that the defendant was sane at the time of the commission of the crime, with no reference to the initial presumption of sanity or overcoming the presumption.

16 Appellant supports this contention with the Oklahoma Uniform Jury Instruction-Criminal Number 730, which recommends the instruction appellant requested and is followed by a discussion of why the OUJI Commission did not prepare instructions informing the jury of the presumption of sanity or of the defendant's burden to come forward with evidence of insanity, even though instructions on both were routinely being given when the Commission developed the Uniform Jury Instructions. The Commission felt that whether the defendant sufficiently raised a doubt about his sanity was a question of law: if the trial court does not find a sufficient doubt is raised, the jury is given no insanity instruction, but if a sufficient doubt is raised, the jury is instructed only that the State has the burden to prove beyond a reasonable doubt the defendant's sanity. The Commission feared that instructing the jury on the defendant's initial burden would confuse the jury.

17 We disagree with the Commission that OUJI-CR 730 does not change the law. Whether the defendant has raised a defense of insanity is a mixed question of law and fact. If any evidence of insanity is raised, the judge must instruct the jury on the defense of insanity. Johnson v. State, 621 P.2d 1162 (Okl.Cr. 1980). But unless the jury determines the defendant has presented evidence sufficient to raise a reasonable doubt as to his sanity at the time of the offense, the presumption of sanity prevails.

18 If a defendant presents some evidence of insanity but the trial court refuses to instruct on the defense because he or she deemed the evidence insufficient to rebut the presumption, reversible error would be committed. On the other hand, if the trial court gave the instruction, the error would be against the State, depriving it of a presumption it has a right to rely upon.

19 Simply put, whether any evidence has been presented is a question of law for the judge; whether enough evidence has been presented is a question of fact for the jury. We therefore find that OUJI-CR 730 standing alone is an incomplete, insufficient statement of law. The trial court did not err by refusing to give it.

20 Nor did the trial court err in restricting both the defense and the prosecution from explaining the burden of proof in this regard to the jury. The trial court is given broad discretion in ruling on the appropriateness of voir dire questions. Nauni v. State, 670 P.2d 126 (Okl.Cr. 1983). The jury would only have become confused if the prosecutor and defense counsel had been allowed to continue their respective arguments on who has what burden of proof.

V.

21 The next assignment of error concerns the admission of certain photographs and slides. This Court ruled those same exhibits properly admissible when the case was originally appealed. Brewer v. State, 650 P.2d 54, 59-60 (Okl.Cr. 1982). While this writer still thinks the sixteen by twenty photograph and the eight color slides were inadmissible for the reasons given in my dissent to that portion of the opinion, 650 P.2d at 64, it is a matter of stare decisis which the State and the trial court relied upon. In the interest of fundamental fairness, the Court's previous decision will not be reviewed.

VI.

22 The medical examiner testified that spermatoza was present in the victim's vaginal cavity, indicating recent intercourse, but that there were no injuries to the genitalia. The prosecutor asked the medical examiner whether there was any way he could determine "whether or not that individual, Karen Joyce Stapleton, had had intercourse before or after death?" Defense counsel object before the question could be answered, and a bench conference followed.

[718 P.2d 362]

23 Defense counsel accused the prosecutor of asking a prejudicial question which he knew could not be answered, clearly an unprofessional tactic. The prosecutor admitted he knew the M.E. could not make such a determination but wanted it to go before the jury "so you don't leave it open to speculation."

24 We are mystified by the prosecutor's reasoning. Nevertheless, the objection was sustained and the jury admonished to disregard the question; thus, the error was cured. See Stout v. State, 693 P.2d 617 (Okl.Cr. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985).

VII.

25 Appellant's seventh assignment of error alleges that admitting evidence of other crimes was error. The State introduced evidence to show that the appellant gained entrance to the victim's apartment not by being invited inside by the victim as he claimed in a statement to the police but by breaking into the adjacent vacant apartment (second degree burglary), passing through a common attic way, and coming in through the attic opening in the victim's apartment (first degree burglary). The State inferred that the act of sexual intercourse that appellant claimed was consensual was actually rape. The State also introduced evidence that after committing the murder, Brewer took the victim's automobile (larceny), her dog (larceny), and her purse and its contents (larceny).

26 We first observe that the State gave proper Burks notice of its intent to introduce the evidence and that the jury was given a limited-use instruction at the close of the evidence. See Burks v. State, 594 P.2d 771 (Okl.Cr. 1979).

27 As a general rule evidence of other crimes is inadmissible. Each of these crimes, however, can be properly viewed as part of the entire transaction surrounding the homicide for which Brewer was on trial. There is a logical connection between the burglaries leading up to the murder, the rape occurring about the same time as the murder, and the larcenies after the murder. In addition, the probative value of the crimes outweighed any prejudicial effect. Despite appellant's contentions, the evidence that the crimes were committed was clear and convincing. Admitting the evidence was not error. See Coleman v. State, 668 P.2d 1126 (Okl.Cr. 1983); Blackwell v. State, 663 P.2d 12 (Okl.Cr. 1983).

VIII.

28 The appellant next complains that a mistrial should have been granted when a statement concerning the victim's sexual proclivities was admitted into evidence through the testimony of a police officer. The statement was allegedly made by the appellant to the police officer but was not disclosed to defense counsel before trial. No objection was made at the time the officer testified. Later an objection was made and sustained, and the court agreed to admonish the jury. Defense counsel asked the court not to admonish the jury and moved for a mistrial, which was refused.

29 Had the appellant made a timely objection the jury would not have heard the evidence. Had the appellant not rejected the court's offer to admonish the jury, the jury would have been instructed to disregard the evidence. By failing to object when the testimony was first elicited the appellant waived any error. See Lavicky v. State, 632 P.2d 1234 (Okl.Cr. 1981).

IX.

30 In his ninth assignment of error the appellant alleges that his arrest was unlawful and the fruits of the arrest should have been suppressed. This Court ruled in the appeal of the first trial that the arrest was lawful. 650 P.2d at 60. No new argument or authority is offered. We again hold that the arrest was supported by probable cause and was lawful.

X.

31 Next the appellant argues the sentence should be modified because during voir dire the prosecutor told the jury that [718 P.2d 363] the Court of Criminal Appeals has ruled that neither the prosecutor nor the trial court may define reasonable doubt. This statement, according to appellant, indirectly indicated to the jury that if a conviction resulted, the case would be reviewed by an appellate court; thus, an arbitrary factor was inserted into the jury's consideration of both guilt or innocence and punishment, and jurors may have voted for the death penalty knowing that if they were in error it would be corrected on appeal. We find this argument ridiculous. The remark was a proper and correct statement of Oklahoma law. See Vaughn v. State, 697 P.2d 963 (Okl.Cr. 1985).

XI.

32 Appellant also alleges it was error to inform the jury during voir dire that if the appellant was convicted, there would be a second stage of the proceeding at which the jury would hear additional evidence and then determine punishment. After an objection was interposed, the court allowed the prosecutor to tell jurors the proceeding was bifurcated but did not allow the prosecutor to mention again that additional evidence would be presented. Although the jury should not have been told that additional evidence would be presented, we do not think the one brief remark was so prejudicial as to require reversal or modification. See 20 O.S. 1981 3001.1 [20-3001.1].

XII.

33 In his twelfth assignment of error appellant complains the trial court improperly eliminated four mitigating circumstances from the jury's consideration by refusing to instruct the jury that Benjamin Brewer "is a living, breathing, human being"; that he "has a family which is concerned about his future and who are willing to stand by him and give him support"; that he "is not guilty of the crime of First Degree Murder by reason of insanity"; and that he "is guilty only of the crime of Manslaughter in the First Degree." Three of the four alleged mitigating circumstances are not mitigating factors at all. Contrary to appellant's assertion, the trial court would have erred in giving the final two factors as the jury had already determined the appellant was sane and guilty of first degree murder. As for the fact that the appellant is a "living, breathing, human being, " all persons on trial for first degree murder fall into this category; it does not mitigate the crime.

34 It is true that a defendant must be permitted to present any evidence in mitigation that may be relevant to sentencing in a capital case. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). But in this case no evidence was presented that Brewer had a family that was concerned about his future, willing to stand by him and give him support. The trial court did not err in refusing to instruct the jury accordingly.

XIII.

35 Appellant's thirteenth assignment of error claims the trial court erred in failing to appoint expert witnesses for purposes of the second stage proceedings. This Court has held that there is no right to State funds to hire experts to present mitigating factors on behalf of an accused charged with a capital crime. Davis v. State, 665 P.2d 1186 (Okl.Cr. 1983).

36 In Ake v. Oklahoma, ___ U.S. ___, 105 S.Ct. 1087, ___, 84 L.Ed.2d 53 (1985), the United States Supreme Court held that defendant Ake was entitled to the assistance of a psychiatrist on the issue of future dangerousness, an aggravating circumstance argued at the sentencing stage of the capital trial. That case, however, is distinguishable in that a psychiatrist testified for the State that Ake did pose a threat of continuing criminal violence. In the case at bar, the only psychiatrist who testified appeared on behalf of the appellant. Thus, the State did not have a strategic advantage over Brewer that would create a risk of error in the proceeding absent a defense witness to counter balance the State's expert testimony. The trial court [718 P.2d 364] did not err in refusing to appoint the requested experts.

XIV.

37 The State sought to prove the appellant had been previously convicted of a crime involving the use or threat of violence to a person by introducing certified copies of a judgment and sentence for rape and the docket sheet regarding the case. Appellant stipulated that his prior conviction involved use or threat of violence but did not stipulate that he was represented by counsel. The fourteenth assignment of error alleges that the evidence presented failed to properly prove, as is required by case law, that appellant was in fact represented by counsel at the time of his prior conviction. See Tucker v. State, 499 P.2d 458 (Okl.Cr. 1972).

38 Brewer's first argument is that the copy of the appearance docket was not adequately certified in that the copy consists of two pieces of paper taped together, with only the bottom page bearing the court clerk's seal. It is obvious, as the State suggests, that the single docket sheet was reproduced on two sheets of paper and taped together because the docket book was larger than the photocopying ability of the machine used to make the reproduction. The instrument certified was the entire page of the felony docket book, not the one sheet of paper that bore the seal.

39 Brewer's second argument is that the only indication on the docket sheet that he was represented by counsel is the upper right hand corner where the name "Dick Lock" is inserted under the label "Attorneys For Defendant", and that that alone is insufficient to prove he was represented by counsel. We cannot agree. The State introduced evidence that Brewer was represented by an attorney, and Brewer has never attempted to refute the evidence. We find the rape conviction was properly admitted. See Collums v. State, 654 P.2d 1070 (Okl.Cr. 1982).

XV.

40 The fifteenth assignment of error claims modification to life imprisonment is necessitated by improper comments made by the prosecuting attorneys. The first comment cited as error was actually an argument by defense counsel. The next four occurred during voir dire. Appellant claims the questions posed were designed to invoke sympathy for the victim. We disagree. Attorneys for both sides engaged in an effort to explain that the jury should not allow sympathy for the victim or for the appellant to serve as a basis of their verdict. None of the comments cited were improper or prejudicial.

41 Appellant argues that the prosecutor's characterization of the twenty-year-old victim as "this little girl" and "this young girl" during cross-examination was also designed to invoke sympathy. Although "young woman" would have been a more accurate description of the victim, we do not find these two comments to be prejudicial. The jury, having viewed many pictures of the victim, and having heard that she had been married and divorced, knew the victim was not a little girl.

42 The next two comments complained of were made during closing argument. Both were met with objection. The first objection was sustained but an admonishment was refused. We do not think one was necessary. In the second comment, the prosecutor remarked that he, being a man, could not imagine how horrible it must be to be raped. We find this comment to be within the permissible range of closing argument, and that the objection was properly overruled.

43 Several comments made allegedly cast aspersions on defense counsel and/or castigated defense witness Dr. Gagliano, a psychiatrist. The first occurred when in cross-examination the prosecutor asked Dr. Gagliano if it was correct to say that he had provided defense counsel with a defense and that if he had not provided them with the defense of insanity that they would have had to think of something else. [718 P.2d 365] The trial court sustained the objection and admonished the jury to disregard the statement; thus any error was cured. See Williams v. State, 702 P.2d 382 (Okl.Cr. 1985).

44 The remaining remarks were made during closing argument. One was a correct statement of law concerning expert testimony and was not improper. Others were fair inferences from Dr. Gagliano's testimony. One comment, however, was improper. When defense counsel was objecting to certain statements, the prosecutor said, "Let's defend old Dr. Gagliano. Let's defend him." This unprofessional outburst is similar to one made during Brewer's first trial that contributed to the need for a retrial. Brewer, 650 P.2d at 57-58. In the first trial, however, there were numerous errors that, taken together, demonstrated appellant's denial of a fair trial. This time appellant was given a fair, though imperfect, trial. Neither modification nor reversal is mandated by this single, uncured error.

45 Another remark made in closing argument is objected to for the first time on appeal. As it was brief and did not result in fundamental error, any error was waived. The final two comments complained of were met with timely objections, which were sustained, and followed by admonitions by the trial court for the jury to disregard the remarks. Both comments were improper, but they did not determine the verdict. The errors were cured by the admonition. See Stout v. State, 693 P.2d 617 (Okl.Cr. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985).

XVI.

46 The next assignment of error alleges the trial court erred in refusing to instruct the jury at the second stage that if they could not agree on a penalty within a reasonable time, the trial court would impose life imprisonment. This Court has considered this argument in the past and found it to be without merit. See, e.g., Brogie v. State, 695 P.2d 538 (Okl.Cr. 1985). Our stance has not since changed.

XVII.

47 Nor has our stance changed on appellant's argument that excluding jurors who are unequivocally opposed to the death penalty denies an accused of a fair and impartial cross-section of the community. See Foster v. State, 714 P.2d 1031 (Okl.Cr. 1986).

XVIII.

48 Appellant filed a supplemental brief claiming that a recent Tenth Circuit Court of Appeals case mandates reversal because the trial court did not instruct the jury sua sponte that the State had to prove beyond a reasonable doubt that he did not kill in the heat of passion. The case appellant relies on, United States v. Lofton, 776 F.2d 918 (10th Cir. 1985), is distinguishable from the case at bar.

49 Defendant Lofton's affirmative defense to first degree murder was that she had killed her husband in the heat of passion or adequate provocation, which would constitute the lesser included offense of voluntary manslaughter. The instructions given did not advise the jury that this was Lofton's sole defense to murder. On the contrary, the jury was instructed to consider manslaughter only if it found Lofton not guilty of first degree murder.

50 In the case at bar the defense was insanity. The instruction on manslaughter was given as a lesser included offense, not as a defense to the charge of murder. We hold that under these circumstances the Lofton instruction is not required.

XIX.

51 Finally this Court must determine whether the evidence supports the aggravating circumstances found and whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. 21 O.S.Supp. 1985 701.13 [21-701.13]1

[718 P.2d 366]

52 We have already determined that the evidence supported a finding that Benjamin Brewer had been previously convicted of a felony involving the use or threat of violence to the person. Likewise we find that the record amply supports that the manner of death was especially heinous, atrocious, and cruel.

53 Appellant argues that the passage of time between the homicide and trial constituted an arbitrary factor, and that the large picture of the victim, the allegation that Brewer raped his victim, and improper closing argument and cross-examination of witnesses resulted in a verdict based on passion or prejudice. We have examined the record thoroughly and conclude that the death sentence was imposed not due to passion, prejudice, or any other arbitrary factor, but because of the overwhelming evidence of guilt and the nature of this gruesome crime.

54 The judgment and sentence is AFFIRMED.

BUSSEY, J., specially concurs.

PARKS, P.J., concurs in results.

Footnotes:

1 Comparing appellant's sentence to similar crimes to determine whether the sentence of death is excessive or disproportionate is no longer mandated by statute. See 1985 Okla. Sess.Laws, ch. 265, 1. When first presented with the question of whether this statute should be applied retroactively, this author believed it should not. See Green v. State, 713 P.2d 1032 (Okl.Cr. 1985). Upon reconsideration, I believe the change is procedural only and should be applied retroactively. See Foster v. State, 714 P.2d 1031 (Okl.Cr. 1986). Insofar as the Green opinion is inconsistent with Foster, it is hereby overruled.

*****

BUSSEY, Judge, specially concurring:

1 Finding that the evidence overwhelmingly supports the judgment and sentence of death, and that the record is free of any error requiring modification or reversal, I concur.

 
 

1991 OK CR 85
814 P.2d 505
STATE OF OKLAHOMA, PETITIONER, v. BENJAMIN BREWER, RESPONDENT.
Case No. F-83-677.
August 2, 1991

ORDER DECLINING JURISDICTION

�1 The Attorney General of the State of Oklahoma and the District Attorney for Tulsa County have jointly filed an Application For Execution Date alleging that this Court affirmed Benjamin Brewer's death penalty on April 26, 1986, denied post-conviction relief on September 8, 1989, and the United States Supreme Court denied certiorari on March 26, 1990. Petitioners request that this Court set a new execution date since all state appeals are exhausted and federal appeals were abandoned more than 60 days prior to the filing of the application.

�2 We find that Petitioners have failed to follow the proper procedure. 22 O.S. 1981 � 1012 [22-1012] provides:

If, for any reason, a judgment of death has not been executed, and it remains in force, the court in which the conviction was had, on application of the district attorney, must order the defendant to be brought before it, or, if he is at large, a warrant for his apprehension may be issued.

22 O.S. 1981 � 1013 [22-1013] then provides:

Upon the defendant being brought before the court, it must inquire into the facts, and if no legal reason exists against the execution of the judgment, must make an order that the sheriff of the proper county execute the judgment at a specified time. The sheriff must execute the judgment accordingly.

It is clear that the trial court is the forum for the setting of a new execution date, and it is the duty of the district attorney to seek the new date in that forum. The responsibility of the trial court to set the date was recognized by this Court in Armstrong v. State, 2 Okl.Cr. 567, 103 P. 658 (1909).

�3 For the above reasons, we decline to assume jurisdiction to grant the requested relief.

�4 IT IS SO ORDERED.

 
 

51 F.3d 1519

Benjamin BREWER, Plaintiff-Appellant,
v.
Dan REYNOLDS, Defendant-Appellee.

No. 94-5072.

United States Court of Appeals,
Tenth Circuit.

April 5, 1995.

Before ANDERSON, TACHA and KELLY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

In 1983, an Oklahoma jury convicted Benjamin Brewer of first degree murder and sentenced him to death. After unsuccessfully pursuing a direct appeal of his conviction and post-conviction relief in the Oklahoma state courts, Mr. Brewer filed this, his first federal petition for writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254. In his petition, Mr. Brewer raised thirty-six claims. The district court denied the petition, but issued a certificate of probable cause.

In this appeal, Mr. Brewer's only challenge is to the district court's denial of two of his claims. First, he contends the district court erred in ruling that he received effective assistance from his trial counsel during the penalty phase of his trial. Specifically, he claims his counsel was ineffective for failing to introduce mitigation evidence relating to his mental condition and for failing to call his mother as a mitigation witness. Second, Mr. Brewer contends that the district court erred in concluding that he did not have a constitutional right to the appointment of a mental health expert to assist in the penalty phase of his trial. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.

On August 17, 1978, the semi-nude body of Karen Joyce Stapleton was discovered in her Tulsa apartment. She had been stabbed twenty-one times. Mr. Brewer confessed to the crime and physical evidence introduced at trial corroborated that confession.

In 1979, Mr. Brewer was tried in the Tulsa County District Court on a charge of first degree murder. He raised the defense of insanity, relying on the expert testimony of Dr. Anthony C. Gagliano, a private osteopath specializing in psychiatry. Mr. Brewer was represented at trial by Frank McCarthy of the Tulsa County Public Defender's Office. The jury found Mr. Brewer guilty of first degree murder and, in the bifurcated penalty phase, recommended the death penalty. Finding prosecutorial misconduct during the trial, the Oklahoma Court of Criminal Appeals reversed the conviction. Brewer v. State, 650 P.2d 54 (Okla.Crim.App.1982).

Mr. Brewer was retried in 1983, again raising the defense of insanity. In the second trial, he was represented by Mr. McCarthy with the assistance of Thomas Burns, another attorney in the Tulsa County Public Defender's Office.

In support of his insanity defense, Mr. Brewer again introduced the expert testimony of Dr. Gagliano. Dr. Gagliano did not conduct any psychological testing on Mr. Brewer. Rather, he based his findings on his review of Mr. Brewer's mental health records, a discussion with one of the mental health experts who previously had examined Mr. Brewer, an interview with Mr. Brewer's mother and written materials received from her, and interviews with Mr. Brewer.

Dr. Gagliano testified that, although Mr. Brewer was not psychotic, he suffered from a personality disorder. R.Supp.Vol. III at 921. Dr. Gagliano further testified that he found no insanity or thought disorder either prior to or after the homicide, but that the "bizarreness and insaneness of the crime" represented a thought disorder at the time of the act. R.Supp.Vol. III at 920; R.Vol. I, Doc. 52 at 5.

As to the legal defense of insanity, Dr. Gagliano testified that at the time he committed the murder Mr. Brewer was insane; that is, he neither knew the difference between right and wrong, nor could he appreciate the consequences of his actions. R.Supp.Vol. III at 925.1

The jury rejected Mr. Brewer's insanity defense and returned a guilty verdict on the first degree murder charge. In the penalty phase of the trial,2 the State alleged the following aggravating factors: (1) that Mr. Brewer previously had been convicted of a felony involving the use or threat of violence to the person;3 and (2) that the murder was especially heinous, atrocious, or cruel.4

The State introduced by motion the guilt/innocence phase prosecution evidence. Additionally, in support of the prior violent felony aggravator, the State introduced the judgment and sentence of the 1977 rape conviction and Mr. Brewer's stipulation that the crime involved the use or threat of violence to the person. R.Supp.Vol. III at 1065-67. The State called no witnesses during the penalty phase.

Mr. Brewer instructed his attorneys not to call any witnesses during the penalty phase. At the federal habeas corpus hearing, Mr. McCarthy testified5 that he and Mr. Burns discussed whether or not they should override Mr. Brewer's direction and present mitigation witnesses. R.Vol. VIII at 18. Mr. McCarthy further testified that, at the time of trial, he did not believe Mr. Brewer was competent to make the decision to forego presentation of mitigating evidence; that, as far as Mr. McCarthy knew, Mr. Brewer had no reason for directing his counsel not to put on mitigating evidence; and that defense counsel's decision to forego presentation of mitigating evidence was not a "tactical decision." Id. at 18, 22, 31.

Thus, although defense counsel believed that the testimony of Mr. Brewer's mother, Shirley Brewer Botkin, would have been helpful, they nonetheless acceded to the wishes of their client and called no mitigation witnesses. Id. at 18, 30-31. Defense counsel did, however, introduce by motion the defense evidence presented during the guilt/innocence phase. Thus, Dr. Gagliano's testimony, presented during the guilt/innocence phase of the trial, was again before the jury in the penalty phase.

The jury found the two statutory aggravating factors beyond a reasonable doubt and returned a recommendation that the death penalty be imposed. On October 27, 1983, the court sentenced Mr. Brewer to death.

On direct appeal, the Oklahoma Court of Criminal Appeals affirmed the conviction and sentence, Brewer v. State, 718 P.2d 354 (Okla.Crim.App.1986), and the United States Supreme Court denied certiorari, Brewer v. Oklahoma, 479 U.S. 871, 107 S.Ct. 245, 93 L.Ed.2d 169 (1986). Mr. Brewer thereafter sought post-conviction relief in the Oklahoma state courts. The district court denied post-conviction relief on September 19, 1988. See Brewer v. State, No. CRF-78-2137 (Tulsa County Dist.Ct. Sept. 21, 1988). That decision was affirmed in an unpublished opinion by the Oklahoma Court of Criminal Appeals on September 8, 1989. See Brewer v. State, No. PC-88-868 (Okla.Crim.App. Sept. 8, 1989).

On June 12, 1992, Mr. Brewer filed this federal habeas corpus petition. The district court held an evidentiary hearing on December 23, 1993, and subsequently entered an order denying the petition. The court did, however, grant a certificate of probable cause and Mr. Brewer filed a timely notice of appeal with this court. A stay of execution order, entered by the district court on June 12, 1992, remains in effect. See R.Vol. I, Doc. 11.

As to each of the claims presented in this appeal, Mr. Brewer has exhausted the available state-court remedies. See 28 U.S.C. Sec. 2254(b). Mr. Brewer first presented the ineffective assistance of counsel claim to the Oklahoma district court in his application for post-conviction relief. Brewer v. State, No. CRF-78-2137 (Tulsa County Dist.Ct. Sept. 19, 1988).

The court concluded that because ineffective assistance of counsel is a claim which may be raised on direct appeal, Mr. Brewer could not raise it for the first time on collateral review. Id. at 3-4 (citing Jones v. State, 704 P.2d 1138, 1140 (Okla.Crim.App.1985). The Oklahoma Court of Criminal Appeals affirmed. Brewer v. State, No. PC-88-868 (Okla.Crim.App. Sept. 8, 1989). However, in Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir.1994), we recently held that the failure to raise a claim of ineffective assistance of counsel on direct review will not preclude federal review of that claim. Id. at 1363-64. Thus, Mr. Brewer's ineffective assistance of counsel claim is not procedurally barred.6

Mr. Brewer's second claim, that he was denied the appointment of a mental health expert in violation of the Fourteenth Amendment, was raised on direct appeal and the Oklahoma Court of Criminal Appeals disposed of the claim on the merits. See Brewer v. State, 718 P.2d 354, 363 (Okla.Crim.App.1986).

DISCUSSION

In reviewing the district court's denial of Mr. Brewer's habeas corpus petition, we accept the court's findings of fact unless clearly erroneous and we review the court's conclusions of law de novo. Thomas v. Kerby, 44 F.3d 884, 886-87 (10th Cir.1995); Kell v. United States Parole Comm'n, 26 F.3d 1016, 1019 (10th Cir.1994); Hill v. Reynolds, 942 F.2d 1494, 1495 (10th Cir.1991).

I. INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PENALTY PHASE

Mr. Brewer's first claim is that his trial counsel was ineffective in not introducing the following evidence during the penalty phase of his trial: psychological evidence relating to his lifelong mental and emotional disturbance; and the testimony of his mother, Shirley Brewer Botkin. Noting that Mr. Brewer had instructed his attorneys not to present mitigating evidence, the federal district court stated its refusal to "establish a rule whereby an attorney must disregard the explicit instructions of his client, who has been found competent, or risk being found ineffective as counsel," R.Vol. I, Doc. 53 at 14, and denied habeas corpus relief on this ground.

A claim of ineffective assistance of counsel presents a mixed question of law and fact which we review de novo. Brecheen v. Reynolds, 41 F.3d 1343, 1365-66 (10th Cir.1994); United States v. Whalen, 976 F.2d 1346, 1347 (10th Cir.1992). We accept the factual findings of the district court unless they are clearly erroneous. United States v. Haddock, 12 F.3d 950, 955 (10th Cir.1993).

The two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs review of an ineffective assistance of counsel claim:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. at 2064; Stafford v. Saffle, 34 F.3d 1557, 1562 (10th Cir.1994); see Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986); United States v. Rivera, 900 F.2d 1462, 1472 (10th Cir.1990).

"The Supreme Court has observed that often it may be easier to dispose of an ineffectiveness claim for lack of prejudice than to determine whether the alleged errors were legally deficient." Haddock, 12 F.3d at 955; see Strickland, 466 U.S. at 697, 104 S.Ct. at 2069-70; United States v. Smith, 10 F.3d 724, 728 (10th Cir.1993); Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987). This is a case in which we may heed the Supreme Court's suggestion and turn immediately to Strickland's prejudice component.7

In order to establish the prejudice component of the Strickland analysis, Mr. Brewer must show there exists "a reasonable probability that, but for counsel's purported unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; see Osborn v. Shillinger, 861 F.2d 612, 626 (10th Cir.1988); see also Kimmelman, 477 U.S. at 381, 106 S.Ct. at 2586; Andrews v. Deland, 943 F.2d 1162, 1193 (10th Cir.1991), cert. denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992); Tapia v. Tansy, 926 F.2d 1554, 1564 (10th Cir.), cert. denied, 502 U.S. 835, 112 S.Ct. 115, 116 L.Ed.2d 84 (1991); Rivera, 900 F.2d at 1472.

In the context of a challenge to counsel's effectiveness at the penalty phase of a capital trial, prejudice is established if the petitioner demonstrates "a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent that it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. at 2069; Osborn, 861 F.2d at 626 n. 12.

In reviewing a claim of prejudice, we must "keep in mind the strength of the government's case and the aggravating factors the jury found as well as the mitigating factors that might have been presented" if the petitioner had been provided effective assistance of counsel. Stafford, 34 F.3d at 1564; see Strickland, 466 U.S. at 696, 104 S.Ct. at 2069.A.

Mr. Brewer first claims that the sentencing jury should have heard evidence regarding "the severe mental and emotional impairments suffered by Benjamin Brewer throughout his life that mitigated the degree of his culpability." Petr's Br. at 27. In support of this argument, Mr. Brewer introduced the testimony of two psychologists at the federal habeas corpus hearing: Dr. Patricia Fleming, a clinical psychologist, and Sally Church, a licensed professional counselor.8

Dr. Fleming conducted her evaluation of Mr. Brewer in 1993, fifteen years after the crime. She and her associate conducted a battery of psychological tests which included the Minnesota Multiphastic Personality Inventory ("MMPI"), the Wechsler Adult Intelligence Scale, the Wechsler Memory Scale, and various other tests of sensory and perceptual functioning. Mr. Brewer tested within the average or normal range on most of these tests. Dr. Fleming noted that Mr. Brewer's I.Q. of 120 was slightly above average.

Dr. Fleming reviewed Mr. Brewer's previous mental health records which included two competency evaluations performed at the Eastern State Hospital (one in 1976, prior to his trial for rape; the second in 1979, prior to his first trial on the first-degree murder charge); the report of Dr. Paul Aleksic, a psychologist who examined Mr. Brewer when he was sixteen years old; and the testimony of Dr. Gagliano. Dr. Fleming also communicated with Mr. Brewer's family members and conducted approximately nine hours of interviews with Mr. Brewer.

Dr. Fleming testified that Mr. Brewer suffers from a "schizoid personality disorder";9 that he exhibits a "high level of paranoia, alienation, social alienation, suspiciousness"; and that, in her examination of Mr. Brewer, he "showed some antisocial behavior things on [the MMPI and Beck Depression Scale tests], some psychotic thinking." R.Vol. VIII at 59. She noted in her evaluation that Mr. Brewer "has a number of traits typical of the aggressive man with little regard for others, poor interpersonal relationships, and social isolation." R.Vol. III, Doc. 13 at 12.

Mr. Brewer contends that, had the jury heard this psychological evidence, it would have viewed him in a different light, and he concludes that there is a reasonable probability the jury would not have rendered a recommendation of death. The State, on the other hand, contends that a good deal of the psychological testimony Mr. Brewer now claims should have been introduced during the penalty phase was adequately placed before the jury by way of Dr. Gagliano's testimony, given during the guilt/innocence phase and introduced t 12.

Mr. Brewer contends that, had the jury heard this psychological evidence, it would have viewed him in a different light, and he concludes that there is a reasonable probability the jury would not have rendered a recommendation of death. The State, on the other hand, contends that a good deal of the psychological testimony Mr. Brewer now claims should have been introduced during the penalty phase was adequately placed before the jury by way of Dr. Gagliano's testimony, given during the guilt/innocence phase and introduced by motion into the penalty phase. We disagree.

The major requirement of the penalty phase of a capital trial is that the sentence be individualized by focusing on the particularized characteristics of the defendant. See Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976); Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976). And, as the Supreme Court has observed, "[e]vidence of ... emotional disturbance is typically introduced by defendants in mitigation." Eddings, 455 U.S. at 115, 102 S.Ct. at 877; see Hill v. Lockhart, 28 F.3d 832, 844 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 778, 130 L.Ed.2d 673 (1995); Schlup v. Armontrout, 941 F.2d 631, 643 (8th Cir.1991), cert. denied, 503 U.S. 909, 112 S.Ct. 1273, 117 L.Ed.2d 499 (1992); see also Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 300-03 (1983). Clearly, such mitigating evidence is not limited to evidence of guilt or innocence, nor does it necessarily relate solely to the circumstances of the offense. See Parks v. Brown, 860 F.2d 1545, 1554-55 (10th Cir.1988), rev'd sub nom. Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990).

In this case, Dr. Gagliano's testimony was given at a point in the proceedings when the jury was focused on guilt or innocence rather than the sentence to be imposed. Furthermore, the testimony centered on Mr. Brewer's sanity at the time he committed the offense, and only tangentially touched upon the more chronic mental health problems to which Dr. Fleming testified at the federal habeas corpus hearing.10

Thus, while Dr. Gagliano's guilt/innocence phase testimony clearly was relevant to the first of the five mitigating instructions given by the court at sentencing,11 its relevance with respect to the remaining instructions would have been less obvious to the jury. Unfortunately, counsel did nothing to clarify this obfuscation. Counsel waived opening statement and directed his closing argument toward his disagreement with the jury's verdict of guilt and his generalized opposition to the death penalty. See R.Supp.Vol. III at 1070-71, 1080-91.

Simply stated, defense counsel did nothing more with Dr. Gagliano's guilt/innocence phase testimony than to properly move for its introduction at sentencing. As a result, although the jury instructions provided "standards to guide" the jury in its deliberation of the sentence, we harbor serious doubt that "the sentencing authority [was] apprised of the information relevant to the imposition of the sentence." Gregg, 428 U.S. at 195, 96 S.Ct. at 2935. The jurors simply were left with no guidance as to how they might consider Dr. Gagliano's testimony in light of the mitigating instructions given by the court. See Stephens v. Kemp, 846 F.2d 642, 654-55 (11th Cir.), cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988); see also Blanco v. Singletary, 943 F.2d 1477, 1503 & n. 124 (11th Cir.1991), cert. denied, 504 U.S. 943, 112 S.Ct. 2282, 119 L.Ed.2d 207 (1992); Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir.1987). Accordingly, we must consider the evidence offered by Mr. Brewer at the federal hearing as well as the impact that evidence would have had on the jury had it been presented at sentencing.

In reviewing Dr. Fleming's testimony, and the thirteen-page psychological evaluation of Mr. Brewer that she prepared, we note the conclusory nature of her diagnosis of Mr. Brewer as a man "who suffers significant mental illness." R.Vol. VIII at 69. We also note the absence in Mr. Brewer's mental health history of any diagnoses which corroborate Dr. Fleming's conclusion. There is nothing in the record which suggests Mr. Brewer suffers from significant mental health problems, nothing to suggest an organic brain disorder, nothing suggesting brain damage. He is not mentally retarded; he has an I.Q. of 120. He has never been hospitalized for treatment of any form of mental disease or condition, nor has he ever been on medication to control any mental disorder.

On the standardized psychological tests administered by Dr. Fleming, Mr. Brewer tested within the normal range. When he was evaluated in 1974 by Dr. Paul Aleksic, he was diagnosed as having "pronounced schizoid features," but there was no indication at that time of "serious emotional deterioration." R.Vol. III, Doc. 10 at 7. Indeed, Dr. Aleksic found only "some schizophrenic traits evident in that he is socially and emotionally detached but there is no evidence of disorder thought or dissociation from reality." Id.

Mr. Brewer was evaluated at the Eastern State Hospital for his competency to stand trial on two occasions, in 1976 and again in 1978. While the foci of these evaluations were on Mr. Brewer's competency, we cannot overlook the fact that qualified physicians12 at this state institution, on two separate occasions, found that Mr. Brewer had "no mental disorder." R.Vol. III, Docs. 11, 12.

Although Dr. Fleming had some reservations regarding the Eastern State Hospital reports, her evaluation stated only that, had the examining physician "addressed the issue of behavioral stability and the schizoid and depressive characteristics the report would have noted dynamics that indicated the need for treatment for this young man." Petr's Br., App. 1, at 7. Thus, Dr. Fleming did not dispute the hospital's conclusion regarding the absence of a mental disorder, it was simply her opinion that Mr. Brewer needed some form of unspecified "treatment." And finally, Dr. Gagliano testified that Mr. Brewer is not psychotic, nor did he suffer from any mental disorder or thought disorder prior to, or following, the homicide. R.Supp.Vol. III at 921.

We find nothing in Dr. Fleming's written evaluation of Mr. Brewer or her habeas hearing testimony which directly refutes, or even calls into question, the diagnoses of the several other mental health professionals who found no mental illness or thought disorder in Mr. Brewer.13 She simply arrived at a different conclusion, which is not surprising given that psychiatry is not "an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to a given behavior and symptoms, [and] on cure and treatment." Ake v. Oklahoma, 470 U.S. 68, 81, 105 S.Ct. 1087, 1095, 84 L.Ed.2d 53 (1985); see Harris v. Vasquez, 949 F.2d 1497, 1517 (9th Cir.1990), cert. denied, 503 U.S. 910, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992); Silagy v. Peters, 905 F.2d 986, 1013 (7th Cir.1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991).

In light of the rather speculative nature of Dr. Fleming's conclusions and the conflicting diagnoses regarding Mr. Brewer's mental condition, we believe the jury would have viewed Mr. Brewer as, at most, a paranoid, antisocial man, suffering from a personality disorder evinced by violent and inappropriate behavior. Psychological testimony of the sort proffered at the federal hearing would not have been afforded considerable weight by the jury. Thus, we are doubtful that the jury would have found such evidence sufficiently mitigating to change the sentence rendered.

B.

Mr. Brewer next claims that the jury should have heard testimony from his mother, Shirley Brewer Botkin. Ms. Botkin did not testify at the federal hearing. The only evidence proffered as to what her testimony would have been is an eighteen-page letter, prepared by Ms. Botkin, wherein she details her son's life history. R.Vol. III, Doc. 16.14

The substance of this letter suggests that Ms. Botkin would have testified regarding her son's difficult childhood; her own inability to spend time with her son due to the demands of her employment; his father's disaffection and abuse, unspecified as to type, time, manner, degree, or duration; the family's instability, frequent moves, and financial hardships; Mr. Brewer's inability to make friends or form lasting relationships; his failed attempts at suicide; the fact that her son had been diagnosed with "schizophrenia brought on by pressures from his peers"; and Mr. Brewer's failed marriage.

Mr. Brewer argues that this evidence would have cast him as the unfortunate victim of a violent and turbulent upbringing. In considering Mr. Brewer's ineffectiveness claim, however, we "must consider the totality of the evidence before the judge or jury," Strickland, 466 U.S. at 695, 104 S.Ct. at 2069, not merely that part of the testimony which may have been helpful to Mr. Brewer's case.

Thus, we believe it is just as probable that the jury may have concluded, not that Mr. Brewer was a victim of his environment, but that his crime was the culmination of his own, self-directed, violent, and irresponsible life. The jury would have heard testimony regarding Mr. Brewer's problems in school and the fact that he eventually dropped out of school; his drug and alcohol abuse, and the fact that he had left home to take up residence with other drug users; his increasing alienation of his family; his inability to hold down a job; and his numerous parole violations.

The jury undoubtedly would have been struck, as we are, by Mr. Brewer's escalating criminality: he had run away from home and been adjudged an ungovernable youth in 1973; he had been charged with third degree burglary for theft and placed on parole in 1975; he was convicted of first degree rape in 1977; and finally, he committed the instant crime in 1978. See R.Vol. III, Doc. 16. In short, while testimony from a family member may generally be beneficial to a capital defendant at sentencing, we believe that, in this case, the totality of Ms. Botkin's revelations could have been devastating.

We have taken due account of the impact that the errors Mr. Brewer claims were committed by his counsel would have had on the sentencing jury. This is not a case, however, in which the sentence rendered is "only weakly supported by the record." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Given the State's overwhelming case against him, the number and gravity of the aggravating circumstances found by the jury, and the nature of the crime itself, we do not believe that the speculative, conclusory, and possibly damaging mitigating evidence offered now, seventeen years after the crime, would have resulted in the imposition of a sentence other than death. Even assuming deficient performance by counsel, Mr. Brewer has failed to demonstrate a reasonable probability that the outcome of his sentencing would have been different. Thus, our confidence in the outcome has not been undermined, id., and we affirm the district court's denial of habeas relief on Mr. Brewer's ineffective assistance of counsel claim.

II. AKE CLAIM

Prior to trial, Mr. Brewer filed a motion requesting appointment of "a private medical expert" in order to "determine whether there exists a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society as is alleged in the bill of particulars filed by the state of Oklahoma in this case." R.Vol. III, Doc. 4 at 1.15 The trial court denied the motion.16 Mr. Brewer contends that the trial court's failure to appoint a mental health expert to assist in the penalty phase of his trial was a denial of due process.17

Subsequent to Mr. Brewer's trial, the Supreme Court decided Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the Court held that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, "the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Id. at 83, 105 S.Ct. at 1096.

The Court in Ake observed that "under certain circumstances, due process also entitles a criminal defendant to court-appointed psychiatric assistance during the sentencing phase of a capital proceeding." Liles v. Saffle, 945 F.2d 333, 335 (10th Cir.1991) (citing Ake, 470 U.S. at 83-84, 105 S.Ct. at 1096-97), cert. denied, 502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992); see Clisby v. Jones, 960 F.2d 925, 928-29 (11th Cir.1992); Thompson v. Wainwright, 787 F.2d 1447, 1458-59 (11th Cir.1986), cert. denied sub nom. Thompson v. Dugger, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987).18

Finding that the state trial court had deprived the petitioner of due process during the sentencing phase of his trial by denying him court-appointed psychiatric assistance "to rebut the State's evidence of his future dangerousness," Ake, 470 U.S. at 83, 105 S.Ct. at 1096 (emphasis added), the Court held that due process entitles a defendant to the appointment of a mental health expert "when the State presents psychiatric evidence of the defendant's future dangerousness." Id.

We have rejected a narrow construction of Ake. In Liles v. Saffle, 945 F.2d 333 (10th Cir.1991), we held that due process requires the appointment of a mental health expert to assist the defendant in the penalty phase when the State presents evidence, psychiatric or otherwise, concerning the defendant's future dangerousness, and the defendant establishes the likelihood that his mental condition could have been a significant mitigating factor. Id. at 341.

In denying Mr. Brewer's habeas corpus petition, the district court observed that, in this case, the State had not alleged the continuing threat aggravating circumstance in the sentencing phase of Mr. Brewer's trial, nor had the State presented evidence regarding Mr. Brewer's future dangerousness. Thus, according to the court, Ake and Liles did not dictate appointment of a mental health expert. See R.Vol. I, Doc. 53 at 12-13. While we agree with the district court, we arrive at our conclusion via a slightly different analysis.

At the time Mr. Brewer made his motion for the appointment of a mental health expert, the State had not dropped the continuing threat aggravating circumstance from its bill of particulars. Thus, although the trial court had before it a bill of particulars alleging the continuing threat aggravator, it nevertheless denied the defense motion for the appointment of a mental health expert. Under Liles, this was error. See Liles, 945 F.2d at 341; see also Clisby, 960 F.2d at 930; Moore v. Kemp, 809 F.2d 702, 710 (11th Cir.) ("[W]e must assess the reasonableness of the trial judge's action at the time he took it."), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). We therefore must consider whether Mr. Brewer suffered any harm resultant from the error.

The Eighth Circuit recently held that the denial of a psychiatric expert in violation of Ake is "trial error," and thus, subject to harmless-error analysis. Starr v. Lockhart, 23 F.3d 1280, 1291-92 (8th Cir.), cert. denied sub nom. Norris v. Starr, --- U.S. ----, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994). We agree with the court's conclusion that "a right to which a defendant is not entitled absent some threshold showing [cannot] fairly be defined as basic to the structure of a constitutional trial." Starr, 23 F.3d at 1291. Thus, harmless error review is appropriate. See Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 3105-06, 92 L.Ed.2d 460 (1986) ("[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis."); United States v. Crozier, 987 F.2d 893, 891-92 (2d Cir.1993); cf. Arizona v. Fulminante, 499 U.S. 279, 307-10, 111 S.Ct. 1246, 1263-65, 113 L.Ed.2d 302 (1991) (holding that certain constitutional errors, such as the deprivation of the right to counsel, are so fundamental that their existence abrogates the basic structure of a constitutional trial and are not, therefore, subject to harmlessness review).

We disagree with the Eighth Circuit, however, as to which harmless-error analysis is applicable. While the court in Starr applied the standard of Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967) (appropriate harmless error standard is whether federal constitutional error is "harmless beyond a reasonable doubt"), Starr, 23 F.3d at 1292, the Supreme Court, in Brecht v. Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993), directed the federal courts, on habeas corpus review, to apply the standard set forth in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), and determine whether the error "had substantial and injurious effect or influence in determining the jury's verdict." Id. at 776, 66 S.Ct. at 1253. The Court in Brecht held that "the Kotteakos harmless-error standard, rather than the Chapman standard, applies in determining whether habeas relief must be granted because of constitutional error of the trial type." Brecht, --- U.S. at ----, 113 S.Ct. at 1722. Accordingly, we apply the Kotteakos harmless-error standard in our review of Mr. Brewer's Ake claim.

It is clear that the trial court's denial of Mr. Brewer's motion, though erroneous, was nonetheless harmless. Mr. Brewer's motion requesting appointment of the mental health expert was framed exclusively for the purpose of rebutting the State's allegation that he posed a continuing threat to society. Therefore, when the State did not pursue the continuing threat aggravator at sentencing, the sole basis for Mr. Brewer's request disappeared. Simply stated, there was nothing for a defense psychiatric expert to rebut.19 The error committed by the court in denying Mr. Brewer's motion, therefore, could not have had a substantial and injurious effect, nor could it have had any influence on the jury's recommendation of death. Brecht, --- U.S. at ----, 113 S.Ct. at 1722. Thus, in this case, we harbor no "grave doubt" that the error was harmless. See O'Neal v. McAninch, --- U.S. ---- - ----, 115 S.Ct. 992, 994-95, 130 L.Ed.2d 947 (1995).

Mr. Brewer does not dispute that once the State dropped the continuing threat aggravating factor, any right which he may have had to the appointment of an expert to rebut that aggravator also became a nullity. He contends, however, that he nonetheless was entitled to appointment of a psychiatric expert. He argues that the mere fact that a capital defendant may offer affirmative psychiatric evidence in mitigation sufficiently calls the defendant's mental condition into question under Ake as to warrant appointment of an expert. We disagree.

Under Mr. Brewer's analysis, every capital defendant desiring such would be entitled to a court-appointed psychiatric expert at sentencing, regardless of whether he makes the requisite threshold showing of need. The Supreme Court, however, has rejected such a proposition: "A defendant's mental condition is not necessarily at issue in every criminal proceeding ... and it is unlikely that psychiatric assistance of the kind we have described would be of probable value in cases where it is not." Ake, 470 U.S. at 82, 105 S.Ct. at 1096.

Ake does not stand for the proposition that every capital defendant has a fundamental right to the appointment of a psychiatric expert to assist in the sentencing phase of trial. Rather, Ake ensures that when the resources of the State are brought to bear upon an indigent individual in the sentencing stage of the proceeding, he is provided with the "basic tools of an adequate defense" necessary to rebut the State's challenge. Id. at 77, 80, 105 S.Ct. at 1093, 1094-95; Liles, 945 F.2d at 341; Kordenbrock v. Scroggy, 919 F.2d 1091, 1105 (6th Cir.1990), cert. denied, 499 U.S. 970, 111 S.Ct. 1608, 113 L.Ed.2d 669 (1991); Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir.1987) (en banc), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988); see also Smith v. McCormick, 914 F.2d 1153, 1162-63 (9th Cir.1990); Davis v. Maynard, 869 F.2d 1401, 1407 (10th Cir.1989), vacated sub nom. Saffle v. Davis, 494 U.S. 1050, 110 S.Ct. 1516, 108 L.Ed.2d 756, aff'd, 911 F.2d 415 (10th Cir.1991); Cartwright v. Maynard, 802 F.2d 1203, 1214 (10th Cir.1986), point aff'd on reh'g, 822 F.2d 1477 (10th Cir.1987), aff'd, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); Thompson v. Wainwright, 787 F.2d 1447, 1458-59 (11th Cir.1986); Bowden v. Kemp, 767 F.2d 761, 763-64 (11th Cir.1985); cf. United States v. Sloan, 776 F.2d 926, 929 (10th Cir.1985); Gore v. Dugger, 763 F.Supp. 1110, 1120-21 (M.D.Fla.1989), aff'd, 933 F.2d 904 (11th Cir.1991), cert. denied, 502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992). See generally Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (state must insure meaningful chance to present defense); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (state must provide indigent defendant trial transcripts). In this case, the State did not pursue the continuing threat aggravating factor at sentencing and there was, therefore, nothing for a defense psychiatrist to rebut. Thus, with respect to future dangerousness, Mr. Brewer's mental condition was not at issue during the penalty phase.

Mr. Brewer argues, however, that the State did place his mental condition at issue in the penalty phase by alleging that the crime was committed in an especially heinous, atrocious, and cruel manner. We disagree.20

The Oklahoma Court of Criminal Appeals has narrowed the heinous, atrocious, and cruel aggravating factor to encompass only those crimes in which "torture or serious physical abuse" precede the death of the victim. See Stouffer v. State, 742 P.2d 562, 563 (Okla.Crim.App.1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). As noted previously, the jury instruction which was read to the jury in this case reflected that narrowing construction. See supra note 4. The Oklahoma Court of Criminal Appeals has construed the heinous, atrocious, and cruel aggravator in such a manner such that it does not implicate a defendant's mental condition. Compare Stouffer, 742 P.2d at 563, with State v. Walton, 159 Ariz. 571, 769 P.2d 1017, 1032-34 (1989) (construing "Especially heinous, cruel or depraved" aggravating circumstance to implicate mental state), aff'd, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), it has not done so; see also Cartwright v. Maynard, 822 F.2d 1477, 1482 (10th Cir.1987) (determination of what narrowing construction of the "Especially heinous, atrocious, or cruel" aggravating circumstance would satisfy constitutional requirements left to state to decide in the first instance), aff'd, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Accordingly, we reject Mr. Brewer's argument that the State's allegation of the heinous, atrocious, and cruel aggravator sufficiently placed his mental condition at issue as to trigger the right to a court-appointed psychiatric expert.

In sum, the State of Oklahoma alleged two aggravating factors in the penalty phase of Mr. Brewer's trial. Neither of these factors, however, placed his mental condition at issue. Accordingly, we hold that the trial court did not deprive Mr. Brewer of due process by denying his request for a psychiatric expert to assist in the penalty phase of trial, and the district court did not err in denying habeas corpus relief on Mr. Brewer's Ake claim.

III. CONCLUSION

We have exhaustively reviewed the record in this case and carefully considered each of Mr. Brewer's claims properly before this court. For the foregoing reasons, we AFFIRM the district court's order denying Mr. Brewer's petition for a writ of habeas corpus.

*****

1

Oklahoma follows the M'Naughten test of legal insanity. See Okla.Stat.Ann. tit. 21, Sec. 152 (West 1983); Manous v. State, 745 P.2d 742, 744 (Okla.Crim.App.1987)

2

Under the Oklahoma capital sentencing scheme, a separate penalty phase of the trial is held. Okla.Stat.Ann. tit. 21, Sec. 701.10 (West 1983). Before the jury may recommend the sentence of death, it must unanimously find, beyond a reasonable doubt, at least one of the enumerated aggravating circumstances, and it must determine that the aggravating circumstance(s) outweigh the mitigating factors. Id. Secs. 701.11-.12

3

Okla.Stat.Ann. tit. 21, Sec. 701.12(1) (West 1983). Mr. Brewer had been convicted of first degree rape in 1977

4

Okla.Stat.Ann. tit. 21, Sec. 701.12(4) (West 1983). Following our decision in Cartwright v. Maynard, 822 F.2d 1477, 1482 (10th Cir.1987), aff'd, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), the Oklahoma Court of Criminal Appeals restricted the application of this circumstance to murders preceded by torture or serious physical abuse. Stouffer v. State, 742 P.2d 562, 563 (Okla.Crim.App.1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). Uniform Jury Instruction OUJI-CR 436, which the Oklahoma Court of Criminal Appeals held in Stouffer sufficiently directed and limited the jury's discretion to impose the death penalty, was read in Mr. Brewer's case:

As used in this instruction, the term "Heinous" means extremely wicked or shockingly evil; "Atrocious" means outrageously wicked or vile; "Cruel" means pitiless, or designed to inflict a high degree of pain, with utter indifference to, or enjoyment of, the sufferings of others.

The phrase "Especially heinous, atrocious, or cruel" is directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse.

Id. In this case, the state district court on collateral review found, and Mr. Brewer has not challenged, the following facts in support of this aggravating circumstance: the victim was awake and aware of what was happening to her as evinced by the presence of "defensive wounds"; the victim had been stabbed twenty-one times; she bled to death as a result of the severing of the carotid artery, as evinced by the great amount of blood around her body; she had numerous defensive wounds on her arms, hands, and sides indicating that she was attempting to defend herself from the petitioner; the petitioner stated that he knew the victim was dead or dying because "she was ... drowning in her own blood"; and finally, the petitioner stated that after stabbing the victim he "sat down on the couch and watched Karen Stapleton thrash in her own blood." Brewer v. State, No. CRF-78-2137, at 8-9 (Tulsa County Dist.Ct. Sept. 21, 1988).

5

Mr. Burns, then deceased, did not testify at the federal hearing

6

Although the briefs in this case were filed prior to our decision in Brecheen, at oral argument, the State conceded that, under Brecheen, Mr. Brewer's ineffective assistance of counsel claim was not procedurally barred

7

In so doing, we need not, and therefore do not express any opinion as to whether Mr. Brewer's trial counsel's performance was deficient

8

Ms. Church testified regarding Mr. Brewer's competence to assist his counsel at trial and on the importance of placing mitigating psychological testimony before a sentencing jury. In all other respects, her testimony essentially paralleled that of Dr. Fleming. See R.Vol. VIII at 92-104

In this appeal, Mr. Brewer's claims relate only to the sentencing phase of his trial. Furthermore, regarding Mr. Brewer's competence during the penalty phase, at oral argument counsel for Mr. Brewer conceded, "Mr. Brewer was competent, I believe, from a legal standpoint." Thus, Mr. Brewer's competence to assist counsel during the penalty phase is not at issue in this case, and any question regarding his competence to stand trial for the substantive criminal offense is not properly before us.

9

The district court concluded that this diagnosis was essentially the same as that of Dr. Gagliano. R.Vol. I, Doc. 53 at 13. In his trial testimony, Dr. Gagliano characterized Mr. Brewer as having a "personality disorder." R.Supp.Vol. III at 921

10

Dr. Gagliano testified that reviewing material from Mr. Brewer's mother and an interview with Mr. Brewer gave him

a firm hold on Ben as a child, the manner in which he related, the multiple school changes, the never having had a stable relationship, his never forming good interpersonal or friendship relations which immediately was the seed for an antisocial personality or dissocial. He has never been a social person.

R.Supp.Vol. III at 924. Dr. Gagliano further testified that

Ben is not a thought disorder or psychotic individual. Ben is a personality disorder.

...

.. I think this report in 1976 [referring to the report from Eastern State Hospital] sums it up beautifully like what I just said. "Thus, he has many attitudes in common with antisocial personalities, such as the negative viewing of his environment," and this important point, "a propensity to do things on the spur of the moment with little reflection and a good deal of self-centeredness.... And it was predicted in 1976, and it was predicted in 1974 when Dr. Alexis also stated almost verbatim that he is not likely to act in a violent manner unless provoked and when provoked, even Dr. Alexis predicted that it would be in some form of a violent fashion, whether it would be homicide or stealing cars, but it would be something antisocial.

Id. at 921-22.

11

The court five mitigation instructions given by the court were as follows:

(1) Mental disease or defect impaired Mr. Brewer's capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law;

(2) Mr. Brewer committed the crime while under the influence of extreme mental or emotional disturbance;

(3) Mr. Brewer's childhood and environment and the manner in which he was raised had an adverse effect on his personality and contributed to the cause of the homicide;

(4) Mr. Brewer's age at the time of the crime;

(5) Mr. Brewer's criminal record consisted of only one prior conviction. Petr's Br. at 40 n. 14.

12

Mr. Brewer argues that the competency evaluations performed at the Eastern State Hospital are unreliable because the attending physician, Dr. R.D. Garcia, suffered from an untreated manic-depressive illness during the time he evaluated Mr. Brewer. Petr's Br. at 4 n. 1. The district court found Mr. Brewer's evidence on this issue unpersuasive and we discern no error in that finding

13

Dr. Fleming also noted that Mr. Brewer's relationships with women have been dysfunctional, especially in his sexuality. Yet, Dr. Fleming's own evaluation states that Mr. Brewer's wife reported their "marriage had been good" until Mr. Brewer began to associate with two other men, whom Ms. Brewer believed were drug users, and it was at that time that Mr. Brewer became abusive and violent. Petr's Br., App. 1 at 5. We are therefore left to speculate whether this dysfunctionality was the product of mental illness, as Dr. Fleming suggests, or attributable to some other factor such as Mr. Brewer's drug use

14

We are unable to locate where this letter was made part of the record. It is not in the form of an affidavit, it is undated, and while it is represented on appeal as being written "for her son's federal habeas appeal," Petr's Br. at 27, the text of the letter makes clear that it was prepared prior to Mr. Brewer's trial. The letter was included in an appendix to Mr. Brewer's original petition for habeas corpus. See R.Vol. III, Doc. 16. While we retain reservations as to the reliability of this document, because it is the only evidence proffered in the district court relating to Ms. Botkin's possible testimony, we consider it in this appeal

15

The State of Oklahoma's bill of particulars alleged the following aggravating circumstances: (1) the murder was especially heinous, atrocious, or cruel; (2) there existed of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) Mr. Brewer previously had been convicted of a felony involving the use or threat of violence. R.Vol. III, Doc. 21; see Okla.Stat.Ann. tit. 21, Sec. 701.12 (West 1983). At trial, only the heinous, atrocious, or cruel aggravator and the continuing threat aggravator were alleged

It is unclear at what point in the proceedings the State of Oklahoma determined not to pursue the continuing threat aggravating circumstance. For purposes of our review, however, we assume that on the date Mr. Brewer filed his motion seeking appointment of a mental health expert, January 18, 1983, the State was continuing to allege the continuing threat aggravator.

16

On direct review, the Oklahoma Court of Criminal Appeals noted that the only psychiatric expert to testify during the trial was the defense expert, Dr. Gagliano. The court then went on to hold that because the State had not introduced psychiatric testimony, it "did not have a strategic advantage over Brewer that would create a risk of error in the proceeding absent a defense witness to counter-balance the State's expert testimony." Brewer v. State, 718 P.2d 354, 363 (Okla.Crim.App.1986)

17

Mr. Brewer's argument on appeal suggests that he is challenging the court's denial of appointment of an expert for both the guilt/innocence phase and the penalty phase of his trial. Provision of psychological assistance during the guilt/innocence phase of his trial, however, was not an issue presented to the habeas court below and, consequently, it is not properly before this court now. See Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720 (10th Cir.1993). We therefore limit our review of Mr. Brewer's Ake claim to the penalty phase

18

The nonretroactivity rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), is not implicated in this case. Ake was decided on February 26, 1985 and Mr. Brewer's direct appeal did not become final until October 6, 1986, when the United States Supreme Court denied certiorari. Brewer v. Oklahoma, 479 U.S. 871, 107 S.Ct. 245, 93 L.Ed.2d 169 (1986)

In cases such as this, in which the trial court denied the defendant's motion for appointment of a mental health expert prior to the Court's decision in Ake, but to which the holding of Ake is applicable, "the question presented is whether, 'upon review of the entire record, [petitioner] could have made a threshold showing under Ake that "his sanity at the time of the offense is to be a significant factor at trial...." ' " Liles, 945 F.2d at 336 (quoting Cartwright v. Maynard, 802 F.2d 1203, 1212 (10th Cir.1986)) (alteration in original).

19

We note that although Mr. Brewer has challenged various facets of his trial counsel's effectiveness in this appeal, he has not raised the claim that counsel was ineffective in failing to frame the motion seeking appointment of a mental health expert more broadly

20

At oral argument, Mr. Brewer's counsel also suggested that the prior violent felony aggravating circumstance, Okla.Stat.Ann. tit. 21, Sec. 701.12(1) (West 1983), places the defendant's mental condition at issue. Again, we disagree. Especially in a case such as this, where the defendant stipulated that he had been convicted of a prior felony involving the use or threat of violence to the person, this aggravating circumstance relates simply to the fact of a prior violent felony conviction

 
 

83 F.3d 431

United States Court of Appeals for the Tenth Circuit

April 22, 1996

Before ANDERSON, TACHA, and KELLY, Circuit Judges.

ORDER AND JUDGMENT*

ANDERSON, Circuit Judge.

Benjamin Brewer appeals from an order of the district court denying his Motion to Reconsider Judgment Pursuant to Federal Rule of Civil Procedure 60(b), and denying his application for a stay of execution. The district court's order was entered on April 9, 1996. We received Mr. Brewer's notice of appeal, request for a stay, and brief on Friday afternoon, April 19. We ordered the state to file its response brief by noon today, Monday, April 22. Mr. Brewer is scheduled to be executed in the early morning hours of Friday, April 26, 1996.1

Mr. Brewer raises a single issue in this appeal: whether the district court properly held that the Findings of Fact, Conclusions of Law and Order and Judgment entered by district court Judge Thomas Brett on February 10, 1994, dismissing Mr. Brewer's habeas petition, need not be vacated for violation of 28 U.S.C. 455(a). He also seeks a stay of execution and transfer of his case to a different judge for the purpose of instituting new proceedings on the issues raised in his amended habeas corpus petition.

Several courts have determined that a Fed.R.Civ.P. 60(b)(6) motion raising new claims may be treated as the functional equivalent of a successive habeas petition, implicating abuse of the writ, procedural bar and exhaustion principles. Hunt v. Nuth, 57 F.3d 1327, 1339 (4th Cir.1995), cert. denied, 116 S.Ct. 724 (1996); Guinan v. Delo, 5 F.3d 313, 316 (8th Cir.1993); Clark v. Lewis, 1 F.3d 814, 825 (9th Cir.1993) (but deciding the Rule 60(b) claim also on the merits in the alternative; Williams v. Whitley, 994 F.2d 226, 230 n. 1 (5th Cir.), cert. denied, 114 S.Ct. 608 (1993); Bolder v. Armentrout, 983 F.2d 98, 99 (8th Cir.1992), cert. denied, 506 U.S. 1088 (1993); Blair v. Armentrout, 976 F.2d 1130, 1134 (8th Cir.1992), cert. denied, 508 U.S. 916 (1993); Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir.) (applying exhaustion requirement to Rule 60(b)(6) motion but otherwise not deciding the issue), cert. denied, 498 U.S. 811 (1990); Lindsey v. Thigpen, 875 F.2d 1509, 1511-12 (11th Cir.1989). Other courts including our own, without addressing the issue, have evaluated the denial of Rule 60(b) relief in the habeas context for an abuse of discretion. See Resnover v. Pearson, 9 F.3d 113, 1993 WL 430159 (7th Cir.1993) (unpublished order); Robison v. Maynard, 958 F.2d 1013, 1018 (10th Cir.), cert. denied, 503 U.S. 929 (1992); May v. Collins, 961 F.2d 74 (5th Cir.), cert. denied. 504 U.S. 901 (1992). We need not decide the issue because even under the abuse of discretion standard for the denial of Rule 60(b)(6) relief, we conclude that the district court acted well within its discretion.2

Mr. Brewer's argument is that the district court misapplied the harmless error standard of Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988), in determining that the February 10 order need not be vacated. In particular, he claims that the court erroneously focused on harm or error in the context of the merits of Mr. Brewer's own case, and he suggests, without citation of supporting authority, that the court should have looked at systemic harm. While we agree that systemic harm is a consideration, we disagree that it is the only consideration. Any error resulting from the violation of 455(a) must also be analyzed and determined as it relates to Mr. Brewer and his own case.

Mr. Brewer does not argue that he is actually innocent of the crime,3 nor does he claim any constitutional error occurred at his trial, nor does he claim any actual bias resulting from the involvement of Judge Thomas Brett, the judge who erroneously failed to recuse himself from Mr. Brewer's habeas proceeding, in which an evidentiary hearing was held. In recently determining that a conviction occurring in a case in which 455(a) was violated because the trial judge erred in failing to recuse herself, the Fifth Circuit made just such a case-specific inquiry:

After a thorough review of the trial record, we are convinced that the conviction should stand. First, Appellant does not contend that Judge Melinda Harmon was actually biased during the trial phase, nor does she allege an explicit nexus between the alleged errors and the appearance of bias. Second, Appellant never contends that she suffered any harm during trial because of any alleged bias or prejudice. Third, we find neither an indication of bias in the trial record nor any error requiring reversal.

United States v. Jordan, 49 F.3d 152, 158 (5th Cir.1995); see also Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1412-13 (5th Cir.1994).

In holding that Judge Brett's order need not be vacated, the district court relied in part on Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir.1988), cert. denied, 490 U.S. 1066 (1989), which Mr. Brewer claims is wrong. In Parker, in considering the third prong of the Liljeberg harmless error standard, "the risk of undermining the public's confidence in the judicial process," Liljeberg, 486 U.S. at 864, the court observed that a determination that 455(a) had been violated would itself "instill greater confidence in our judiciary," Parker, 855 F.2d at 1527, without the necessity of also vacating the judgment. Indeed, on this latter point the Parker court said, "[i]n fact, if we reverse and vacate a decision that we have already determined to be proper, the public will lose faith in our system of justice because the case will be overturned without regard to the merits of the [underlying] claims." Id. We have cited this analysis with approval in applying the harmless error standard. See Harris v. Champion, 15 F.3d at 1572.

We have carefully reviewed all filings in this case and the record before us in this appeal. In our previous opinion affirming the district court order Mr. Brewer would have us now vacate, we explained that we had "exhaustively reviewed" the record in the case. We AFFIRM the denial of Mr. Brewer's Motion, for substantially the reasons set forth in the district court's order. We DENY his request for a stay of execution. The mandate shall issue forthwith.