Fox v. Ward

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 6 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

BILLY RAY FOX,

Petitioner - Appellant,
vs. Nos. 98-6343, 98-6359

RON WARD, Warden, Oklahoma
State Penitentiary,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-95-705-T)

Don J. Gutteridge, Jr., Oklahoma City, Oklahoma, for Petitioner - Appellant.

Sandra D. Howard, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General, on the brief) Attorney General, Oklahoma City, Oklahoma, for
Respondent-Appellee.

Before BRORBY, EBEL, and KELLY, Circuit Judges.

KELLY, Circuit Judge.
 Background

In the early morning hours of July 3, 1985, three employees of the Wynn’s

IGA in Edmond, Oklahoma, were murdered during a robbery planned and

executed by Petitioner-Appellant, Billy Ray Fox (“Mr. Fox”) and co-defendant

Mark Andrew Fowler (“Mr. Fowler”). They were arrested on July 4, 1985. Both

admitted to involvement in the robbery, but each accused the other of committing

the murders. Following a jointly held jury trial in the Oklahoma County District

Court, both were convicted of three counts of first degree felony murder. Okla

Stat. Ann. tit. 21 § 701.7(B). Both were thereafter sentenced to death. The

Oklahoma Court of Criminal Appeals (“OCCA”) affirmed both Mr. Fox’s murder

convictions and death sentence. See Fox v. State, 779 P.2d 562 (Okla. Crim.

App. 1989). Mr. Fox’s application for post-conviction relief was denied by the

OCCA in 1994. See Fox v. Oklahoma, 880 P.2d 383 (Okla. Crim. App. 1994).

On June 16, 1995, Mr. Fox filed a petition for habeas corpus in the federal district

court for the Western District of Oklahoma pursuant to 28 U.S.C. § 2254,

asserting fifteen grounds for relief from his state convictions and sentences. On

July 6, 1998, the district court denied Mr. Fox’s habeas petition but granted a

certificate of probable cause for all issues in this appeal. See 28 U.S.C. § 2253

(pre-AEDPA); Foster v. Ward, 182 F.3d 1177, 1183 (10th Cir. 1999).

Petitioner asserts the following twelve grounds for relief: (1) the trial court

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refused to sever Mr. Fox and Mr. Fowler’s trial, resulting in the violation of Mr.

Fox’s right to due process; (2) petitioner’s trial counsel was constitutionally

ineffective in violation of the Sixth Amendment; (3) the trial court admitted

misleading testimony of three state expert witnesses, violating due process; (4)

the trial court admitted Mr. Fox’s pretrial statements to the police in violation of

the Fifth and Fourteenth Amendments; (5) the “especially heinous, atrocious, or

cruel” aggravating circumstance was applied in Mr. Fox’s case in violation of the

Eighth and Fourteenth Amendments; (6) during his closing argument, the

prosecutor violated Mr. Fox’s constitutional rights by instructing the jury to

ignore mitigating evidence, in violation of the Eighth Amendment; (7) the trial

court erroneously failed to instruct the jury that it had the option of returning a

life sentence even if the aggravating factors outweighed the mitigating factors; (8)

the trial court erroneously restricted Mr. Fox’s cross-examination of one of the

government’s expert witnesses, resulting in a violation of the Sixth Amendment

right of confrontation; (9) the trial court and the Oklahoma Court of Criminal

Appeals applied and interpreted the “avoid arrest or prosecution” aggravating

circumstance in an unconstitutionally vague and overbroad manner in violation of

the Eighth Amendment; (10) the “continuing threat” aggravating circumstance as

applied in Mr. Fox’s case violates the Eighth Amendment; (11) the trial court

failed to instruct the jury that mitigating factors need not be found unanimously,

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thus violating the Eighth Amendment; (12) the state and federal district courts

denied Mr. Fox an evidentiary hearing on his claim that the jury was permitted to

consider misleading evidence, and his ineffective assistance of counsel claim,

violating his constitutional right to due process. Our jurisdiction arises under 28

U.S.C. § 1291, and we affirm.

Discussion

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) does not

apply to this appeal, because Mr. Fox filed his habeas petition on June 16, 1995,

before the law’s enactment. See Lindh v. Murphy, 521 U.S. 320, 322-323

(1997). Therefore, we refer to pre-AEDPA law for guidance as to the appropriate

standards of review. Our review is limited insofar as we can grant relief only if

state court error “deprived [petitioner] of fundamental rights guaranteed by the

Constitution of the United States.” See Brown v. Shanks, 185 F.3d 1122, 1124

(10th Cir. 1999) (quoting Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir.

1998)). We review legal issues de novo, “affording deference to the state court’s

construction of state law.” Id. We review the federal district court’s factual

findings for clear error, while presuming that the findings of fact made by the

state court are correct unless they are not fairly supported by the record. See id.;

28 U.S.C. § 2254 (pre-amendment).

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I. Erroneous Failure to Sever

Mr. Fox asserts that the trial court erroneously joined his trial with co-

defendant Mr. Fowler’s, resulting in unconstitutionally unfair proceedings. As

this court articulated in Cummings v. Evans, 161 F.3d 610 (10th Cir. 1998),

“whether the trial court erred in denying severance is generally a question of state

law that is not cognizable on federal habeas appeal. . .a criminal defendant has no

constitutional right to severance unless there is a strong showing of prejudice

caused by the joint trial.” Id. at 619; see also, Arbuckle v. Dorsey, No. 98-2262

1999 WL 672274, *3 (10th Cir. Aug. 30, 1999). Mr. Fox argues, citing Zafiro v.

United States, 506 U.S. 534 (1993), that two specific trial rights were

compromised by the trial court’s denial of severance. He first claims that his

constitutional right of Confrontation was violated by virtue of the limitation on

his cross-examination of a witness regarding his co-defendant’s redacted

confession. Secondly, Mr. Fox argues that it amounts to constitutional error that

he was required to share peremptory strikes with his co-defendant. Mr. Fox

concludes that as a result of these errors, the jury was left with the misimpression

that he actually committed the murders rather than his co-defendant, Mr. Fowler.

a. Bruton violation

Mr. Fox contends that he was deprived of his rights guaranteed by the

Confrontation Clause when the trial court refused to permit Mr. Fox’s attorney to

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elicit additional portions of Mr. Fowler’s confession. The statement, admitted

through the testimony of the interviewing detective, essentially established that

co-defendant Fowler was present at the Wynn’s IGA on the night of the murder,

watching for people entering and leaving. Mr. Fox’s counsel sought to establish

that Mr. Fowler was in the storeroom at the time of the murders. However, the

trial judge sustained Mr. Fowler’s objection to this cross-examination on the

grounds that it would open the door for the prosecutor to elicit the full admission

of Mr. Fowler, which included the statement that he saw Mr. Fox committing the

murders in the back storeroom. Mr. Fox asserts on appeal that this limitation on

cross-examination constitutes a Bruton violation.

Mr. Fox misconstrues Bruton. Mr. Fox is neither explicitly nor implicitly

implicated by the admitted portion of Mr. Fowler’s confession - the hallmark of a

Bruton violation. See Richardson v. Marsh, 481 U.S. 200, 201-02 (1987) (“In

Bruton v. United States, 391 U.S. 123 (1968), we held that a defendant is

deprived of his rights under the Confrontation Clause when his nontestifying co-

defendant’s confession naming him as a participant in the crime is introduced at

their joint trial, even if the jury is instructed to consider that confession only

against the co-defendant.”). Thus, Bruton is not implicated by the trial court’s

restriction on Mr. Fox’s cross-examination of the detective. On the contrary, as

we discuss below, the trial court’s restriction of Mr. Fox’s cross-examination was

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integral to the court’s compliance with the mandates of Bruton. Moreover, to

permit Mr. Fox to elicit the additional portions of the Fowler admission while

omitting Mr. Fowler’s statement that he witnessed Mr. Fox killing the victims

would have been tantamount to permitting a deliberate act of deception, totally

recasting the nature of the admission. A trial court may not sit idly on the

sidelines and permit counsel to deliberately distort the evidence or mislead the

jury. Admission of a redacted version of a defendant’s post-arrest statement is

impermissible if it unfairly distorts the original, or excludes substantially

exculpatory information. See United States v. Mussaleen, 35 F.3d 692, 696 (2d

Cir. 1994); United States v. Zamudio, No. 96-2182, 1998 WL 166600 (10th Cir.

1998); United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982)

Mr. Fox’s objection is more properly characterized as a challenge to an

evidentiary ruling by the trial court. This court held in Sellers v. Ward, 135 F.3d

1333 (10th Cir. 1998), that “[h]abeas relief is not available on this ground unless

the petitioner can show his whole trial was rendered fundamentally unfair by the

limitation of the cross-examination.” 135 F.3d at 1342. Mr. Fox has not satisfied

this standard. Mr. Fox was not prejudiced in any way by the trial court’s

limitation on his cross-examination of the detective. Moreover, there was ample

evidence before the jury, based on testimony of the state’s forensic experts, that

Mr. Fowler was in the storeroom at the time of the murders. Whatever

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“exculpatory” benefit Mr. Fox sought to elicit from Mr. Fowler’s admission was

provided by this forensic evidence. Additionally, it bears noting that neither Mr.

Fowler’s admission nor the forensic evidence exculpated Mr. Fox, but rather

merely inculpated Mr. Fowler. Despite Mr. Fox’s assertions to the contrary, in

view of the evidence presented at trial, these are not equivalent. Establishing that

Mr. Fowler was present at the site of the murders does not render Mr. Fox’s

participation in the murders impossible or even unlikely. There was ample

evidence to suggest that Mr. Fox and Mr. Fowler were both involved in the actual

murders. In sum, Mr. Fox has failed to demonstrate any prejudice by the trial

court’s limit on his cross-examination of the detective who interviewed Mr.

Fowler. Thus, Mr. Fox’s Confrontation Clause argument fails.

b. Sharing Peremptory Strikes

Mr. Fox next argues that he was unconstitutionally prejudiced because he

was required to share peremptory challenges with his co-defendant. Mr. Fox

claims that because their defenses were inconsistent, he was entitled to his own

nine peremptory challenges, rather than having to share nine with his co-

defendant. See Okla. Stat. Ann. tit. 22 § 655 (1981).

Mr. Fox has not challenged the impartiality of the jury. Thus, he is

objecting only to the number of peremptory challenges. This is a question of state

law, not of constitutional dimension. See Cummings, 161 F.3d at 619 (citing Ross

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v. Oklahoma, 487 U.S. 81, 88 (1988)). We may not review this claim as a result.

Id.

Moreover, to the extent that Mr. Fox implies that severance was warranted

because his defense was mutually antagonistic with that of his co-defendant, his

argument is unpersuasive. “Mutually antagonistic defenses are not prejudicial per

se.” Zafiro, 506 U.S. at 538. In order to prevail on such a theory for severance,

the defendant must show real prejudice, rather than merely note that each

defendant is trying to exculpate himself while inculpating the other. See United

States v. Dirden, 38 F.3d 1131, 1140-41 (10th Cir. 1994); Arbuckle, at *3; United

States v. Briseno-Mendez, Nos. 96-2218; 96-2145, 96-2172 WL 440279, **4

(10th Cir. July 17, 1998). Such actual prejudice is shown if the defenses are truly

mutually exclusive, such that “the jury could not believe the core of one defense

without discounting entirely the core of the other.” Dirden, 38 F.3d at 1141. Mr.

Fox has not shown this type of prejudice in either the guilt phase or the

sentencing phase of trial.

c. Severance at Guilt Phase

Mr. Fox argues that he was prejudiced during the guilt phase of his trial,

because his defense was mutually antagonistic with that of his co-defendant.

Namely, each defendant admitted to involvement in the felony, but tried to

exculpate himself by inculpating the other in the actual commission of the

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murders. Mr. Fox overlooks the fact that during the guilt phase of the instant

case, the relative culpability of the defendants was irrelevant, given that they were

charged with first degree felony murder, which only requires that a murder result

during the commission of a robbery with a dangerous weapon. Okla. Stat. Ann.

tit. 21 § 701.7 (B). The evidence at trial amply established both Mr. Fox and Mr.

Fowler’s participation in the underlying robbery. Thus, Mr. Fox has not

sufficiently demonstrated that he was prejudiced during the guilt phase by joinder

with Mr. Fowler.

d. Severance at the Penalty Phase

Mr. Fox argues that the prejudice he suffered from the denial of severance

was especially acute in the penalty phase of his trial. Beyond his above claims of

Confrontation clause and peremptory challenge violations, he does not develop or

support his argument beyond simply claiming that “who actually committed the

murders would have made a substantial difference to the jury when they

considered punishment.” The failure to develop this aspect of his legal argument,

supported by relevant authority, effects a forfeiture of the claim. See United

States v. Callwood, 66 F.3d 1110, 1115 n.6 (10th Cir. 1995). Mr. Fox does not

challenge the constitutionality of the Oklahoma statute requiring the same jury to

sit for both guilt and penalty phases. See Okla. Stat. Ann. tit. 21 § 701.10. Nor

does he discuss (with reference to the relevant facts and authority) why it was

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impossible for the jury to believe the core of Mr. Fowler’s defense without

discounting entirely the core of his own. Dirden, 28 F.3d at 1141.

The relevance of who specifically committed the murders in the penalty

phase is not automatically apparent, given that Enmund v. Florida, 458 U.S. 782,

797 (1982), and Tison v. Arizona, 481 U.S. 137, 157 (1987), require only that the

petitioner “himself kill[ed the victim], attempt[ed] to kill [the victim], or

intend[ed] that a killing [of the victim] take place or that lethal force will be

employed.” Enmund, 458 U.S. at 797. (Emphasis added). Moreover, “major

participation in the felony committed, combined with reckless indifference to

human life is sufficient to satisfy the Enmund culpability requirement.” Tison,

481 U.S. at 158. Ample evidence, including Mr. Fox’s own confession,

demonstrated that Mr. Fox intended that lethal force might be employed. Mr. Fox

acquired firearms in preparation for the robbery of the Wynn’s IGA, immediately

prior to the murders, and admitted the killing to his roommate.

II. Ineffective Assistance of Counsel

Mr. Fox next claims that he was deprived of effective assistance of trial

counsel. Specifically, he argues that trial counsel was deficient because he (i)

implicated Mr. Fox during voir dire in such a way as to unfairly poison the jury

against him; and (ii) failed to sufficiently inculpate the co-defendant, in order to

exculpate Mr. Fox. Ineffective assistance claims are mixed questions of law and

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fact reviewed by this court de novo. See Moore v. Reynolds, 153 F.3d 1086, 1096

(10th Cir. 1998).

a. Ineffective Assistance during Voir Dire

Mr. Fox relies upon the following incidents to support his claim of

ineffective assistance of counsel during voir dire. Trial counsel asked several

times whether the venire could be open minded about the imposition of life

imprisonment rather than the death penalty, should his client be convicted. One

member of the venire 1 formed an opinion as to Mr. Fox’s guilt based on the voir

dire. This person was subsequently dismissed for cause. Moreover, the trial court

expressed the opinion that Mr. Fox’s counsel had gone too far in this line of

questioning, to the detriment of his client.

To prevail on his ineffective assistance of counsel claim, Mr. Fox must

demonstrate that (i) counsel’s performance was objectively deficient and (ii)

counsel’s deficiency prejudiced the defense, depriving petitioner of a fair trial

with a reliable result. See Strickland v. Washington , 466 U.S. 668, 687 (1984).

To demonstrate constitutional deficiency, Mr. Fox must show that counsel’s

performance was completely unreasonable, not simply wrong. See Hoxsie v.

Kerby , 108 F.3d 1239, 1246 (10th Cir. 1997). Similarly, to show unconstitutional

prejudice, Mr. Fox must demonstrate that but for counsel’s errors, there is a

1
In his brief, Mr. Fox refers improperly to this individual as a “juror.”

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reasonable probability that the result of the proceedings would have been

different. See Strickland , 466 U.S. at 694. Mr. Fox bears a heavy burden in that

he must overcome the presumption that his counsel’s actions were sound trial

strategy, in the context of his case. See id. at 689. Moreover, counsel’s actions

during voir dire are presumed to be matters of trial strategy. See Nguyen v.

Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997).

Mr. Fox cannot overcome this burden. Like the counsel in Nguyen, Mr.

Fox’s attorney chose, as a strategic matter, to focus on whether potential jurors

could give his client a fair trial. Id. Mr. Fox’s attorney commented to this effect,

in response to the judge’s disapproval of his line of questioning:

First of all, Your Honor, it is over our objection that we
have the same jury determine guilt or innocence and
punishment. We believe that even if we get past guilt or
innocence we have to have some idea as to how these
people will behave, if you will, on punishment. We have
to ask certain questions so that we exercise our peremptory
challenges and whether they could consider life
imprisonment...

Tr. 340-341. Thus it is clear that Mr. Fox’s counsel, properly recognizing that

Oklahoma law requires the same jury to sit for both guilt and penalty phases of a

trial for first degree murder, Okla. Stat. Ann. tit. 21 § 701.10, chose to focus on

whether the jurors could be fair during the sentencing phase. This was neither

unreasonable nor prejudicial, Nguyen, 131 F.3d at 1349, especially in view of the

evidence that counsel undoubtedly was aware would later be admitted. It was an

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entirely understandable strategic decision. We reject Mr. Fox’s claim of

ineffective assistance of counsel based on questions posed during voir dire.

b. Counsel’s Failure to Inculpate Co-Defendant

Mr. Fox next argues that counsel was ineffective in that he failed to

inculpate the co-defendant, on the theory that had he done so, it would have

proven that Mr. Fox “did not kill, attempt to kill or intend to kill any of the

victims” Aplt. Br. at 16. Citing Enmund, Mr. Fox implies that had his counsel

demonstrated that it was Mr. Fowler who committed the actual murders, Mr. Fox

would have been exonerated from the first degree felony murder charge. In this

vein, Mr. Fox argues counsel was ineffective for not refuting the state’s blood

spatter expert, who testified that two people were involved in the murders; for not

making an opening statement; for failing to rebut Mr. Fowler’s comments

inculpating Mr. Fox during the guilt phase closing argument; and for failing to

inculpate Mr. Fowler during the penalty phase closing argument.

An ineffective assistance claim may be resolved on either performance or

prejudice grounds alone. See Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir.

1995). This is true in the instant case regarding Mr. Fox’s arguments about

counsel’s failure to inculpate Mr. Fowler in the guilt phase of trial. Because Mr.

Fox was charged with first degree felony murder, he would not have been

exculpated by inculpating defendant Mr. Fowler in the murders themselves, since

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Mr. Fox concedes that he participated in the underlying robbery. Okla Stat. Ann.

tit. 21 § 701.7(B). Moreover, the state’s blood spatter expert was cross-examined

by Mr. Fowler’s counsel, who elicited the expert’s concession that it was

possible, albeit improbable, that one person committed the murders. Thus, Mr.

Fox has not demonstrated any prejudice resulting from his counsel’s failure to

orally contest the expert’s conclusion that two people committed the murders.

Additionally, Mr. Fox has not shown that his counsel was constitutionally

deficient. That is, he has not overcome the presumption of trial strategy

regarding his counsel’s waiver of opening statement in the guilt phase, the failure

to rebut Mr. Fowler’s closing argument inculpating Mr. Fox in the guilt phase,

and the failure to inculpate Mr. Fowler in the penalty phase. For counsel’s actions

to rise to the level of constitutional ineffectiveness, his strategic decisions must

have been “‘completely unreasonable, not merely wrong, so that [they] bear no

relationship to a possible defense strategy.’” Hatch, 58 F.3d at 1459 (quoting

United States v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir. 1983)).

While opening and closing statements are not to be lightly waived in a

capital case, it is well-settled that the decision to waive an opening or closing

statement is a commonly adopted strategy, and without more, does not constitute

ineffective assistance of counsel. See Nguyen, 131 F.3d at 1350; see also United

States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993); United States v. Miller, 907

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F.2d 994, 1000 (10th Cir. 1990). The record indicates Mr. Fox’s counsel chose to

waive closing argument during the guilt phase as a strategic matter as well. Mr.

Fox’s counsel initially believed that waiving closing argument in the guilt phase

would preclude the State from presenting rebuttal argument aimed at Mr. Fox.

When the judge made it clear that this was not an accurate understanding of the

trial procedures, Mr. Fox’s counsel stated that he nevertheless thought that if he

made a closing argument rebutting Mr. Fowler’s arguments inculpating Mr. Fox,

he would waive his objections to those arguments on Eighth Amendment grounds.

Finally, Mr. Fox’s counsel’s failure to argue that Mr. Fox was innocent during the

penalty phase was a reasonable strategy, especially in light of the overwhelming

evidence militating in favor of Mr. Fox’s guilt. Instead, Mr. Fox’s counsel

understandably shifted the focus from Mr. Fox’s innocence (or Mr. Fowler’s

guilt) to the humanity of his client. It was a reasonable strategy to do so, both to

maintain credibility with the jury, and to try to emphasize the mitigating factors

presented. Thus, following Hatch, we find that counsel’s decisions amounted to a

reasonable trial strategy, and as such, do not rise to the level of unconstitutional

deficiency.

III. Admission of Misleading Testimony

Mr. Fox next claims that the state court permitted the jury to consider

misleading evidence, thus violating his right to due process. Specifically, he

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alleges that the trial court impermissibly admitted the testimony of the state’s

forensic experts on blood, blood spatter, and hair evidence. Additionally, he

asserts that the trial court impermissibly admitted forensic evidence regarding an

article of clothing discovered with blood on it.

Mr. Fox’s claims are properly characterized as a due process challenge to

the state evidentiary rulings. On habeas review, we will not disturb the state

court’s evidentiary rulings unless the appellant demonstrates that the court’s error

was “so grossly prejudicial that it fatally infected the trial and denied the

fundamental fairness that is the essence of due process.” Williamson v. Ward, 110

F.3d 1508, 1522 (10th Cir. 1997). Mr. Fox has not demonstrated any error in the

admission of this evidence, much less that the admission of the above evidence

rendered the proceeding fundamentally unfair. Mr. Fox simply disagrees with the

testimony.

As for the testimony of the various forensic experts, they were all

adequately qualified to testify, See Saathoff v. Hesse, No. 95-1130, 1995 WL

749722, at **2 (10th Cir. Dec. 19, 1995), and were subject to rigorous cross-

examination. Weaknesses in the testimony of each of the state’s forensic experts

were sufficiently pursued and developed on cross-examination. First, the state’s

forensic blood expert witness admitted on cross-examination that the blood tests

performed were presumptive and not conclusive. That is, he openly stated that he

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was unable to determine conclusively whether the stains were of animal or human

origin. Next, the “blood spatter” expert who recreated the murder scene for the

jury admitted on cross-examination that his account was not the only possible

description. Rather, he conceded that it was possible, though not plausible, that

one person could have committed the homicides. Moreover, this forensic expert

stated clearly that he relied on data produced from the aforementioned

“presumptive” blood testing, the validity of which was discussed and tested at

length. Finally, the state forensic hair expert’s opinions were thoroughly tested

on cross-examination, and a defense expert with a differing view was presented

during the trial to rebut her claims. The state’s hair expert candidly admitted that

she was rushed in completing her testing. The credibility of these witnesses was a

question exclusively for the jury.

Furthermore, the admission of evidence regarding blood found on an article

of clothing, a white polo shirt, was not error and in any event, did not render the

entire trial fundamentally unfair. The record reflects that the evidence bearing on

what Mr. Fox wore the night of the murder was conflicting; the shirt was

discovered behind the front seat of the vehicle driven by Mr. Fox the night of the

murders. It was certainly relevant for the State to introduce evidence from

forensic experts that there was blood on the shirt, most likely wiped off from the

knife used in the murder. It seems that Mr. Fox is actually objecting to the weight

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accorded to the evidence admitted by the state trial court; this is not of

constitutional dimension, and fails to satisfy our standard of review of state

evidentiary rulings on habeas.

IV. Admission of Pre-trial Statements to Police

Next, Mr. Fox claims that the trial court failed to suppress pre-trial

custodial statements to the police in violation of his Fifth and Fourteenth

Amendment rights. After his arrest, and while in custody, two police officers

approached Mr. Fox in the absence of his attorney, removed him from his cell,

and gave him their business cards. The officers were aware that Mr. Fox had

elected to remain silent, and that he had requested his attorney be present during

any interrogation. The record reflects that as the officers were leaving, Mr. Fox

indicated to them that he wanted to talk to them. The officers advised Mr. Fox of

his right to counsel, and asked him if he wanted to waive it. Mr. Fox responded

that while he preferred his counsel be present, he was nevertheless willing to talk

with them 2. The statements taken during this interrogation were not admitted at

trial. However, evidence was recovered as a result of information thus gathered.

Mr. Fox argues that the officers’ actions constitute interrogation in violation of

2
Mr. Fox stated: “My case is not getting any better. It is getting worse, I
mean. I would like it if the lawyer was on his way. While I am talking to you
now, I mean, I don’t mind him not being here, you know, but I am ready to talk to
you all now.” State’s exhibit 108(A) at 2 (admitted only for purposes of in camera
hearing).

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his Fifth Amendment and Fourteenth Amendment rights. Moreover, Mr. Fox

asserts, citing Minnick v. Mississippi, that he was legally incapable of waiving

his right to counsel, once invoked, without his counsel present.

We find his claims unpersuasive. The officers’ initial conduct did not

constitute “interrogation” under controlling standards. Under Rhode Island v.

Innis, interrogation extends only to words or actions that the officers should have

known were reasonably likely to elicit an incriminating response. 446 U.S. 291,

301 (1980); see also United States v. Roman-Zarate, 115 F.3d 778, 782 (10th Cir.

1997). In the instant case, the officers merely introduced themselves to Mr. Fox

and left him their business cards. The fact that Mr. Fox was in custody does not

automatically render this exchange an interrogation. See Innis, 446 U.S. at 299.

Such interaction between Mr. Fox and the police constituted conduct “normally

attendant to arrest and custody,” and was not the “functional equivalent” of

interrogation. See id. at 301. Thus, we agree with the Oklahoma Court of

Criminal Appeals in its conclusion that the officers’ actions were not evocative

within the meaning of Innis. See Fox v. State, 779 P.2d 562, 569 (Okla. Crim.

App. 1989).

It is certainly true that once an individual has expressed his desire only to

deal with police through counsel, all interrogation absent counsel will be deemed

involuntary. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); United States

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v. Giles, 967 F.2d 382, 385 (10th Cir. 1992). However, if the individual

voluntarily initiates further communication with law enforcement officials, he can

effectively waive his previously invoked right to counsel. See Oregon v.

Bradshaw, 462 U.S. 1039, 1045-46 (1983); Cooks v. Ward, 165 F.3d 1283, 1288

(10th Cir. 1998). In the instant case, the facts presented at trial make it clear that

Mr. Fox reinitiated contact with the officers as they were leaving. Reviewing his

waiver de novo, Miller v. Fenton, 474 U.S. 104, 112 (1985), we agree with the

district court’s finding that Mr. Fox’s waiver was voluntary. The evidence

demonstrates that Mr. Fox’s waiver “was a product of free and deliberate

choice...and was made in full awareness of the nature of the right being waived

and the consequences of waiving.” Cooks, 165 F.3d at 1288. Like the defendant

in Cooks, Mr. Fox was fully appraised of his rights, he had previously exercised

his right to remain silent absent his counsel (demonstrating his understanding of

the right), and there is no evidence of coercion or compulsion on the part of the

officers. Id.

Mr. Fox argues that it is legally impossible for an individual to waive his

right to counsel, once invoked, absent counsel’s presence. This badly

misconstrues Minnick v. Mississippi, 498 U.S. 146 (1990). Minnick stands for

the proposition that once counsel is requested, interrogation must cease, and law

enforcement officials may not reinitiate interrogation without counsel present,

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regardless of whether the accused has conferred with his attorney. See id. at 153.

Minnick does not bear on the instant situation, namely, where the accused

voluntarily reinitiates contact with law enforcement officials. Because Mr. Fox

voluntarily reinitiated contact with law enforcement officials, and validly waived

his right to counsel, his instant claim does not warrant relief.

V. “Heinous, Atrocious, or Cruel” Aggravator

Mr. Fox argues next that the jury instruction given by the state trial court

regarding the “heinous, atrocious, or cruel” aggravator is unconstitutional.

Moreover, he argues that there was insufficient evidence to support the jury’s

finding of the above aggravator.

This identical challenge has been considered and rejected by this court on

several occasions, see Cooks, 165 F.3d at 1289-90; see also Hatch, 58 F.3d at

1468-69; Duvall v. Reynolds, 139 F.3d 768, 792-93 (10th Cir. 1998), and binds

this panel in the instant case. See Cooks, 165 F.3d at 1289 (citing United States

v. Foster, 104 F.3d 1228, 1229 (10th Cir. 1997).

Next we consider whether given the evidence presented, viewed in the light

most favorable to the prosecution, any rational trier of fact could have found the

aggravating circumstance beyond a reasonable doubt. See LaFevers v. Gibson,

182 F.3d 705, 723 (10th Cir. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). This is a question of law which we review de novo. See, e.g., Romero

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v. Tansy, 46 F.3d 1024, 1032 (10th Cir. 1995).

John Barrier’s murder was “especially heinous, atrocious, or cruel.” It was

marked by torture and serious physical abuse, evidenced by proof of conscious

physical suffering. Sufficient evidence was presented to support this conclusion.

The State’s forensic expert testified that Mr. Barrier had defensive wounds on his

hands, consistent with those one suffers in a fight for his life. Tr. 1677.

Additionally, the detective who interviewed co-defendant Mr. Fowler testified

that Mr. Fowler heard Mr. Barrier cry out and beg for his life. Tr. 1877. This is

strong evidence of conscious physical suffering. Thus, Mr. Fox’s claim for relief

on this ground fails.

VI. Prosecutorial Misconduct

Mr. Fox next argues that he was subjected to unconstitutional prosecutorial

misconduct. Specifically, he takes issue with the prosecutor’s comments in two

ways. First, he objects to the prosecutor’s comments regarding the weight that

should be accorded to the mitigating evidence presented. Second, he objects to

the prosecutor’s comments regarding the procedural and discretionary hurdles that

are required before seeking the death penalty. Finally, Mr. Fox argues that he is

entitled to a rehearing because the state and district courts applied the incorrect

standard in reviewing his claim of prosecutorial misconduct.

Prosecutorial misconduct claims present mixed issues of law and fact and

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are reviewed by this court de novo. See Fero v. Kerby, 39 F.3d 1462, 1473 (10th

Cir. 1994). Mr. Fox will be entitled to habeas relief only if he can establish that

the prosecutor’s misconduct or improper remarks infected the trial to such an

extent that it resulted in a fundamentally unfair trial. See Donnelly v.

DeChristoforo, 416 U.S. 637, 645 (1974).

The prosecutor in the instant case made several comments that Mr. Fox

regards as tantamount to instructing the jury that it should ignore mitigating

evidence. Namely, the prosecutor said:

I tell you today that what these two were prior to 1985 is irrelevant.
Tr. 2345.

Why these defendants are what they are may be a good field of
research, but it’s no mitigation or justification for what they did. It
doesn’t change them back and it doesn’t mitigate what they did. Tr.
2348.

Is it adequate punishment just to lock them up on a clean bed with
clean clothes and three meals a day? Is that adequate punishment
for taking three lives? Tr. 2358.

Mr. Fox argues that these comments violate the dictates of Hitchcock v. Dugger,

481 U.S. 393 (1987), which reversed a death sentence because the advisory jury

was instructed not to consider, and the sentencing judge refused to consider,

evidence of nonstatutory mitigating circumstances.

The facts of Mr. Fox’s case are distinguishable. Only the court instructs

the jury. The prosecutor merely argues to the jury. In this case, the prosecutor’s

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comments bore on the weight to be accorded to the mitigating evidence. The

comments did not contradict the court’s instructions and did not preclude the jury

from considering this evidence. The court is permitted to shape and structure the

jury’s consideration of mitigating evidence, provided that it does not preclude the

jury from giving effect to the mitigating evidence. See Buchanan v. Angelone,

118 S.Ct. 757, 761 (1998). In the instant case, the prosecutor merely commented

on the weight that should be accorded to the mitigating factors. He did not

suggest that the jury was not permitted to consider the factors. It is well-settled

that the prosecutor may comment on “information about the defendant, his

character, and the circumstances of his offense made known to the jury

throughout the bifurcated trial.” Coleman v. Brown, 802 F.2d 1227, 1239 (10th

Cir. 1986). The trial court clearly instructed the jury that “the determination of

what are mitigating circumstances is for you as jurors to resolve under the facts

and circumstances of this case.” O.R. at 202. Also, after listing thirty factors that

Mr. Fox offered in mitigation, the trial court further instructed the jury that

“whether these circumstances existed, and whether these circumstances are

mitigating, must be decided by you.” O.R. at 204. The prosecutor’s remarks did

not constitute misconduct that prejudiced Mr. Fox so as to deny him a fair trial

consistent with due process.

Mr. Fox further claims that the following comments made by the prosecutor

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diminished the jury’s sense of responsibility in violation of the rule set forth in

Caldwell v. Mississippi, 472 U.S. 320 (1985):

I had to make the decision to seek the death penalty.
Before I could do that, the Edmond police department and
the Oklahoma City police department had to bring the
evidence to me upon which I could justify such a decision.
And all of you, you, the jury and my staff and the police
departments and their experts did what we did because it’s
our responsibility and duty.

Tr. at 2350. Mr. Fox misconstrues Caldwell. In that case, the court held that the

prosecutor could not suggest to the jury that it was not the final arbiter of the

defendant’s fate, given that there was an appeals process in which their

determination was reviewable. See Caldwell, 472 U.S. at 328-329. In this case,

the prosecutor told the jury that he did not undertake the decision to seek the

death penalty lightly, and pointed to the different elements that went into making

his decision. This is a permissible line of commentary. See Moore v. Gibson,

1999 WL 765893, *19-20 (10th Cir. 1999) (holding that it was not a violation of

Caldwell for the prosecutor to note “a number of things have to happen” before a

death sentence is sought); see also Sellers v. Ward, 135 F.3d 1333, 1343 (10th

Cir. 1998) (prosecutor’s suggestion that he personally approved of death penalty

and statements that “many hurdles had to be jumped before a capital murder trial

could ever occur” were insufficient to suggest that anyone other than the jury had

the burden to make ultimate sentencing decision). Thus, we reject Mr. Fox’s

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claims based on a Caldwell violation.

The district court reviewed the merits of Mr. Fox’s claim of prosecutorial

misconduct, and properly applied the Donnelly standard in reaching its

determination. Mr. Fox is not entitled to re-sentencing on these grounds.

VII. Jury Instructions Regarding Option of Life Sentence

Mr. Fox next argues that he is entitled to relief because the jury instructions

given did not explicitly inform the jury that they were not required to give a

sentence of death, even if they made a determination that the aggravating factors

outweighed the mitigating factors. Mr. Fox properly recognizes that we have

rejected this very claim in Duvall v. Reynolds, 139 F.3d 768, 789-91 (10th Cir.

1998). He urges that we nevertheless depart from our earlier holding given that

the court there failed to consider the relevance of Oklahoma’s revision of its

uniform jury instructions in 1994, to include the instruction he sought at trial.

This argument is likewise unavailing; the court squarely passed on this contention

in Bryson v. Ward, 187 F.3d 1193, 1207 (10th Cir. 1999). In Bryson, we held that

while the revised jury instruction clearly sets forth the settled law, the failure to

give such an instruction is not constitutional error. Id. As stated previously, this

resolution binds this panel in the instant case.

VIII. Restriction of Cross-Examination

Mr. Fox argues that he is entitled to relief because the state trial court

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unconstitutionally restricted his cross-examination of the state’s forensic expert

regarding hair evidence. Mr. Fox sought to elicit from her, in cross-examination

that there was a delay in her analysis due to her large caseload. The court

sustained the state’s objection to this question, and held that while the inquiry

was relevant, any probative value was outweighed by the prejudice that the

defendant would suffer by implying that there was an unusually high rate of crime

in the county where the murders took place.

As stated previously, Mr. Fox faces a demanding burden in raising a

challenge to the trial court’s evidentiary ruling on habeas review. That is, relief

is not available on this ground unless Mr. Fox shows that the entire proceeding

was rendered fundamentally unfair by the trial court’s limit on cross-examination.

See Sellers, 135 F.3d at 1342. The inquiry focuses on the materiality of the

excluded evidence to the presentation of Mr. Fox’s defense, and ultimately turns

on whether or not the trial court deprived Mr. Fox of an opportunity for effective

cross examination. Id.

Mr. Fox has not satisfied this burden. We are not persuaded that the entire

trial was rendered fundamentally unfair by the trial court’s restriction on Mr.

Fox’s cross-examination. Mr. Fox’s counsel was permitted to elicit that the

state’s forensic expert had been under pressure to complete her analysis, and as

such, her work was hurried. Additionally, the state’s expert was thoroughly

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cross-examined concerning her conclusions. Moreover, Mr. Fox’s co-defendant

presented his own expert testimony directly challenging the state expert’s

opinions. In light of the foregoing, prohibiting Mr. Fox’s inquiry into the delay in

the forensic expert’s analysis did not have the effect of rendering the entire

proceeding fundamentally unfair. Thus, Mr. Fox’s claim for relief on this ground

fails.

IX. “Avoid Arrest or Prosecution” Aggravator

Mr. Fox next seeks relief on the grounds that the state trial court applied

the “avoid arrest or prosecution” aggravating circumstance in an

unconstitutionally vague and overbroad manner. However, the arguments Mr.

Fox advances in support of this proposition are more accurately characterized as a

challenge to the sufficiency of the evidence supporting the finding of this

aggravating circumstance. That is, Mr. Fox merely argues that there is nothing in

the record to support this aggravating circumstance.

To support the finding of this aggravating circumstance, the focus is on

the defendant’s intent, whether proved by the defendant’s own statement or

through circumstantial evidence. See Boyd v. Ward, 179 F.3d 904, 923 (10th Cir.

1999). In the instant case, there was ample evidence from which a rational fact

finder could conclude that the aggravating circumstance was present. Neither Mr.

Fox nor Mr. Fowler attempted to conceal their identities. Mr. Fox had worked at

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the Wynn’s IGA previously, and it is thus reasonable to infer that he knew one or

more of the victims and that they could have identified him. Moreover, as the

federal district court observed, Mr. Fox and Mr. Fowler committed these crimes

in the early morning hours, when it was unlikely that other customers would be

present. The robbery was planned for a time when there would be a minimal

number of employees present. All of the foregoing is persuasive circumstantial

evidence supporting a finding of the aggravating circumstance in question. Mr.

Fox’s claim for relief on this ground fails.

X. “Continuing Threat” Aggravator

Mr. Fox next argues that the “continuing threat” aggravating circumstance,

as used in Oklahoma is constitutionally deficient, insofar as it would apply to

every defendant convicted of murder. Mr. Fox properly recognizes that this court

has upheld the constitutionality of this aggravating factor in Nguyen v. Reynolds,

131 F.3d 1340, 1353 (10th Cir. 1997). He nevertheless asks that we revisit the

issue and grant relief. Even if we were so inclined, we are unable to do so, given

that the determination of the Nguyen panel binds this panel.

XI. Jury Instruction Regarding Unanimity Requirement for Mitigating Factors
Determination

Mr. Fox next argues that the trial court’s failure to instruct the jurors that

they need not be unanimous in their findings of mitigating evidence was error of

constitutional magnitude warranting relief on habeas. This court has squarely

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addressed and rejected this claim in LaFevers v. Gibson, 182 F.3d 705 (10th Cir.

1999), in which we held that “a trial court need not, however, expressly instruct a

capital sentencing jury that unanimity is not required before each juror can

consider a particular mitigating circumstance.” Id. at 719. This resolution is

binding on this panel.

XII. Evidentiary Hearing

Finally, Mr. Fox claims that he is entitled to an evidentiary hearing to

develop his claims that the jury was permitted to consider misleading evidence

and ineffective assistance of counsel. To establish entitlement to an evidentiary

hearing under pre-AEDPA standards, Mr. Fox must “make allegations which, if

proved, would entitle him to relief.” See Stouffer v. Reynolds, 168 F.3d 1155,

1168 (10th Cir. 1999). If Mr. Fox has made these requisite allegations, he is

entitled to a hearing only if there is a factual dispute, and he did not receive a full

and fair evidentiary hearing in a state court. See Miller v. Champion, 161 F.3d

1249, 1252 (10th Cir. 1998). Following our own independent review, we agree

with the district court that the issues here raised by Mr. Fox were properly

resolved on the basis of the record and the law, and as such, an evidentiary

hearing is not required. See Castro v. Ward, 138 F.3d 810, 832 (10th Cir. 1998).

AFFIRMED.

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