Battenfield v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 3 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

BILLY RAY BATTENFIELD,

Petitioner-Appellant,

v. No. 99-7096

GARY L. GIBSON, Warden,
Oklahoma State Penitentiary,

Respondent-Appellee.

Appeal from United States District Court
for the Eastern District of Oklahoma
(D.C. No. 98-CV-36-B)

Robert W. Jackson (Steven M. Presson with him on the brief), Jackson & Presson,
P.C., Norman, Oklahoma, for the appellant.

Seth S. Branham, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General, with him on the brief), Oklahoma City, Oklahoma, for the appellee.

Before KELLY, BRISCOE, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Billy Ray Battenfield, an Oklahoma state prisoner convicted of

first degree murder and sentenced to death, appeals the district court’s denial of
his 28 U.S.C. § 2254 petition for writ of habeas corpus. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291, and reverse and remand with instructions to grant

the writ as to Battenfield’s death sentence, subject to the state district court

conducting a new sentencing trial or vacating Battenfield’s death sentence and

imposing a lesser sentence consistent with law.

I.

On the evening of April 22, 1984, Battenfield and his girlfriend Virginia

Jackson, accompanied by Jackson’s sixteen-year-old son B.G., went to the 108

Club in Muskogee, Oklahoma, and joined a group of people consisting of Donald

Cantrell, brothers William and Robert Bechtol, Robert Bechtol’s daughter Linda

Bechtol, her common-law husband Melvin Battiest, and Grace Alford. Cantrell

used money from a bank bag to purchase beer for several people in the group. At

approximately 10:00 p.m., most of the group decided to continue their partying at

nearby Fort Gibson Lake. Battenfield, Battiest, and Cantrell left in Cantrell’s

truck, with Cantrell driving. Jackson, B.G., Alford, and Linda Bechtol followed

in Battenfield’s car.

The group stopped at a convenience store to purchase more beer and then

drove to an area of the lake known as Wahoo Bay. Battenfield, Battiest, and

Cantrell got out of the truck and stood outside drinking beer. Cantrell walked to

the passenger side of Battenfield’s car and encouraged the occupants to get out

2
and join the party, but they declined because it was cold. Battenfield walked to

the driver’s side of the car and spoke to Jackson, who handed something to

Battenfield. Battenfield walked to the rear of the car, apparently opened and

closed the trunk, and then returned to the driver’s side of the car and handed

something to Jackson. There is also evidence that at this approximate time,

Battiest approached the passenger side of the car and briefly spoke to Bechtol.

Shortly thereafter, the occupants of the car drove some distance away from the

truck to restroom facilities. Alford and Bechtol spent approximately ten minutes

inside the restroom. After they returned to the car, the occupants sat in the car for

approximately five minutes before slowly driving toward the truck, stopping once

on the way for another ten to fifteen minutes.

There is conflicting evidence concerning what transpired when the

occupants of the car returned. Jackson testified that she observed Battenfield

standing beside the truck, but did not see Battiest or Cantrell. Bechtol testified

that she observed Battiest standing by the truck, but did not see Battenfield or

Cantrell. According to Alford, none of the men were in sight when they first

returned to the truck. All of the occupants of the car agreed that, after

approximately five to ten minutes, Battenfield came running toward the car and

told Jackson: “We’re going to Tulsa. Take her [Alford] home. He [Cantrell]

passed out.” Tr. at 1164. Battenfield and Battiest got into Cantrell’s truck, with

3
Battenfield on the driver’s side. Cantrell was not in sight.

On the way back to Muskogee, the vehicles stopped at a convenience store

where Battenfield purchased gasoline for both vehicles and either Bechtol or

Battiest purchased some beer (neither of these two individuals had money prior to

driving to Wahoo Bay). After dropping off Alford, Bechtol, and Battiest at their

homes, Battenfield, Jackson and B.G. left Muskogee, with Battenfield again

driving Cantrell’s truck and Jackson again driving the car. They stopped at

another convenience store and B.G., at Battenfield’s direction, purchased one

dollar’s worth of gasoline in a jug. They then drove to Broken Arrow, Oklahoma,

where Battenfield abandoned Cantrell’s truck and, using the gasoline from the

jug, set the truck on fire. The car broke down on the way back to Muskogee and a

highway patrol officer helped Battenfield jump-start the car.

Cantrell’s body was found the next day at Wahoo Bay. According to the

autopsy results, Cantrell sustained at least three blunt-force injuries to the head

and chest, consistent with blows from a stick, brick, rock, foot, or tire iron. An

injury to the left side of his forehead caused multiple fractures to Cantrell’s skull

bone, as well as bruising and subsequent hemorrhaging of his brain. According to

the forensic pathologist who performed the autopsy, the injury would likely have

rendered Cantrell unconscious. An injury to the right side of Cantrell’s back

involved multiple rib fractures and a punctured lung. The autopsy results indicate

4
Cantrell likely died within minutes of sustaining this latter injury. The autopsy

results also indicated Cantrell suffered various post-mortem abrasions (perhaps

from being dragged along the ground from one area to another).

The highway patrol officer who helped Battenfield jump-start the car

testified that Battenfield was wearing Cantrell’s coat. On April 23, 1984,

Battenfield was again observed wearing Cantrell’s coat, and he allegedly admitted

to B.G. that he hit Cantrell one time on the head with a tire iron. Battenfield was

arrested for the murder of Cantrell on April 24, 1984. Hairs from Cantrell’s head

were found on Battenfield’s jeans and stocking cap (both of which Battenfield

was wearing on the night of the murder).

Battenfield’s jury trial began on February 25, 1985. Battenfield did not

testify or present any evidence in his defense. The jury was instructed on the

lesser included offenses of second degree murder and first degree manslaughter,

but found Battenfield guilty of first degree murder. The state asserted the

existence of four aggravating factors in the second stage of trial: (1) Battenfield’s

previous felony conviction involved the use or threat of violence to the person;

(2) the murder was especially heinous, atrocious, or cruel; (3) the murder and the

destruction of Cantrell’s truck were effected for the purpose of avoiding or

preventing lawful arrest or prosecution; and (4) there was a probability that

Battenfield would constitute a continuing threat to society. The state incorporated

5
by reference the evidence presented during the first stage of trial. The only

additional evidence presented by the prosecution was a copy of a judgment

outlining a previous conviction in 1978 for assault and battery with a deadly

weapon. Battenfield presented no evidence in mitigation. After deliberating for

approximately one hour and forty-five minutes, the jury fixed Battenfield’s

sentence at death. In doing so, the jury found the existence of two aggravating

factors: (1) the murder was heinous, atrocious, or cruel, and (2) Battenfield was a

continuing threat to society. On March 19, 1985, the trial court formally

sentenced Battenfield to death. 1

Battenfield, represented by new counsel, filed a direct appeal asserting

twelve propositions of error. The Oklahoma Court of Criminal Appeals (OCCA)

affirmed Battenfield’s conviction and sentence. Battenfield v. State, 816 P.2d

555 (Okla. Crim. App. 1991) (Battenfield I), cert. denied, 519 U.S. 839 (1996).

In doing so, the OCCA found there was insufficient evidence to support the jury’s

finding that the murder was especially heinous, atrocious, or cruel. However,

after reweighing the remaining valid aggravating factor (the continuing threat

1
Battiest was also charged, tried, and convicted for the first-degree murder
of Cantrell. He received a life sentence. His conviction and sentence were
affirmed on direct appeal by the OCCA. Battiest v. State , 755 P.2d 688 (Okla.
Crim. App. 1988). Although Battiest apparently confessed to the murder, the
details of that confession are not outlined in the OCCA’s opinion, and it remains
unclear precisely what role each of the co-defendants (Battenfield and Battiest)
played in the death of Cantrell.

6
factor) against the mitigating evidence, the OCCA affirmed Battenfield’s death

sentence. Battenfield’s petition for rehearing was denied. Battenfield v. State,

826 P.2d 612 (Okla. Crim. App. 1991) (Battenfield II). Battenfield’s petition for

writ of certiorari was denied on March 23, 1992. Battenfield v. Oklahoma, 503

U.S. 943 (1992).

On February 14, 1995, Battenfield filed an application for post-conviction

relief with the state trial court, asserting twelve grounds for relief. In November

and December 1996, the court conducted an evidentiary hearing on two of the

issues asserted by Battenfield, including his claim that his trial counsel was

ineffective for failing to investigate and present mitigating evidence during the

penalty phase of trial. The court ultimately denied the application for post-

conviction relief on May 13, 1997. Battenfield’s appeal of the decision was

denied on January 21, 1998. Battenfield v. State, 953 P.2d 1123 (Okla. Crim.

App. 1998) (Battenfield III).

In February 1996, Battenfield filed a motion in federal district court

requesting appointment of counsel to represent him in a federal habeas proceeding

and seeking authorization for legal research expenses. Nearly two years later, on

January 26, 1998, Battenfield filed a second motion for appointment of counsel. 2

2
Neither motion is included in the record on appeal. According to the
district court’s docket sheet, the case was considered “filed” as of January 26,
(continued...)

7
The motions were granted on February 9, 1998, and Battenfield’s petition for writ

of habeas corpus was filed on June 15, 1998. On May 5, 1999, the district court

denied Battenfield’s petition. Pursuant to Battenfield’s request, the district court

granted him a certificate of appealability (COA) with respect to four issues: (1)

ineffective assistance of trial counsel during the second stage proceedings; (2)

improper removal of a venire person by the trial court for cause; (3) prosecutorial

misconduct; and (4) cumulative assessment of any of these errors. This court has

granted a COA on an additional issue: whether the evidence presented at trial was

sufficient to prove that Battenfield was a continuing threat to society.

II.

Because Battenfield’s federal habeas petition was filed after the effective

date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is

governed by the provisions of the AEDPA. Wallace v. Ward, 191 F.3d 1235,

1240 (10th Cir. 1999), cert. denied, 120 S. Ct. 222 (2000). Under the AEDPA,

the appropriate standard of review for a particular claim hinges on the treatment

of that claim by the state courts. If a claim was not decided on the merits by the

state courts (and is not otherwise procedurally barred), we may exercise our

independent judgment in deciding the claim. See LaFevers v. Gibson, 182 F.3d

2
(...continued)
1998.

8
705, 711 (10th Cir. 1999). In doing so, we review the federal district court’s

conclusions of law de novo and its findings of fact, if any, for clear error. Id. If

a claim was adjudicated on its merits by the state courts, the petitioner will be

entitled to federal habeas relief only if he can establish that the state court

decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” Id.

§ 2254(d)(2). “Thus, we may grant the writ if we find the state court arrived at a

conclusion opposite to that reached by the Supreme Court on a question of law;

decided the case differently than the Supreme Court has on a set of materially

indistinguishable facts; or unreasonably applied the governing legal principle to

the facts of the prisoner’s case.” Van Woudenberg v. Gibson, 211 F.3d 560, 566

(10th Cir. 2000) (citing Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000)).

III.

Improper removal of a venire person by the trial court for cause

Battenfield alleges the trial court violated his Sixth and Fourteenth

Amendment right to trial by an impartial jury when it excused for cause a venire

member who stated in response to voir dire questioning by the trial court that he

could not impose the death penalty “without doing violence to his conscience.”

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Tr. at 37.

In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme Court held

that a state “infringes a capital defendant’s right under the Sixth and Fourteenth

Amendments to trial by an impartial jury when it excuses for cause all those

members of the venire who express conscientious objections to capital

punishment.” See Wainwright v. Witt, 469 U.S. 412, 416 (1985). The Court also

recognized a “State’s legitimate interest in excluding those jurors whose

opposition to capital punishment would not allow them to view the proceedings

impartially, and who therefore might frustrate administration of a State’s death

penalty scheme.” Id. Balancing these interests, the Court has held “a juror may

not be challenged for cause based on his views about capital punishment unless

those views would prevent or substantially impair the performance of his duties as

a juror in accordance with his instructions and his oath.” Id. at 420. In applying

this standard, a venire member’s bias need not “be proved with ‘unmistakable

clarity.’” Id. at 424. Rather, it is sufficient if “the trial judge is left with the

definite impression that a prospective juror would be unable to faithfully and

impartially apply the law.” Id. at 426. A trial judge’s determination of a venire

member’s bias under this standard is a factual finding entitled to a presumption of

correctness. See id. at 428-29 (pre-AEDPA case); Moore v. Gibson, 195 F.3d

1152, 1168 (10th Cir. 1999) (AEDPA case), cert. denied, 120 S. Ct. 2206 (2000).

10
 Here, the trial court asked each potential juror the following question: “If

selected as a juror in a case where the law and the evidence warrants, could you,

without doing violence to your [conscience], recommend the death penalty?” Tr.

at 24. All of the venire members except Robert Elliott answered in the

affirmative. The following colloquy occurred between the trial court and Elliott:

THE COURT: Sir, you understand that the Defendant is
charged with Murder in the First Degree. The law provides that a
person convicted of Murder in the First Degree shall be punished by
death or by imprisonment for life. It is your duty to determine
whether the Defendant is not guilty or guilty of Murder in the First
Degree. If you find the Defendant guilty of Murder in the First
Degree, your duty is to determine whether or not, considering the
evidence, you should recommend death. If selected as a juror in a
case where the law and the evidence warrants, could you, without
doing violence to your [conscience], recommend the death penalty?
MR. ELLIOTT: No, sir.
THE COURT: You understand that if the evidence is such, and
what this instruction is saying, that if the law says that it’s to be
considered one way or the other, your statement is that you just can’t
consider the death penalty at all?
MR. ELLIOTT: Yes, sir.

Id. at 37-38. Based upon this discussion, the following proceedings were

conducted outside the hearing of the prospective jurors:

THE COURT: You move for cause?
MR. SPERLING [the prosecutor]: (Nods his head in the
affirmative.)
THE COURT: You want to make a record?
MR. SHOOK [defense counsel]: Your Honor, we would object
and request that we be allowed to voir dire the witness concerning
his ability.
THE COURT: You may. Mr. Shook, I will allow you to ask a
few voir dire questions.

11
Id. at 38. The following proceedings then occurred:

MR. SHOOK: Mr. Elliott, to begin with I’m sorry but I didn’t
catch your address where you live.
MR. ELLIOTT: Coweta.
THE COURT: Now, if you wish, just ask as to the question
that was asked by the Court. I’m not just tendering the prospective
juror for just general voir dire questions. It has to do with the
question that was asked by the Court.
MR. SHOOK: I will, Your Honor.
THE COURT: Okay.
MR. SHOOK: Do you understand, sir, that you will receive a
set of instructions, if the trial gets to a second stage, if you would
find the Defendant guilty of Murder in the First Degree, there are
alternative forms of punishment. Did you understand that?
MR. ELIOTT: Yes, sir.
MR. SHOOK: One of those alternatives being life in prison,
one of those alternatives being the death penalty?
MR. ELLIOTT: Yes, sir.
MR. SHOOK: Now, you understand that the instructions are
the law that you’re to apply in this case?
MR. ELLIOTT: Yes, sir.
MR. SHOOK: Okay. Can you consider the law that the Court
submits to you?
MR. ELLIOTT: Yes, sir.
MR. SHOOK: Okay. Can you consider alternative forms of
punishment that the Court instructs you on?
MR. ELLIOTT: Yes, sir.
MR. SHOOK: Can you follow that instruction? Can you
follow the law where the facts warrant them?
MR. ELLIOTT: Yes, sir.
MR. SHOOK: Okay. Knowing that, can you consider the death
penalty as an alternative to punishment if you’re so instructed?
MR. ELLIOTT: I don’t know if I understand. If the law says
death, and I would agree with that, or –
MR. SHOOK: No. Can you consider the instruction on the
death penalty that the Court may or may not submit?
MR. ELLIOTT: I could consider it, yes.
MR. SHOOK: Okay. Nothing further.
THE COURT: Any questions?

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 MR. SPERLING: None, Your Honor.
THE COURT: My question to you again is: Sir, if you find the
Defendant guilty of Murder in the First Degree, your duty is to
determine whether or not, considering the evidence, you should
recommend death. If selected as a juror in a case where the law and
the evidence warrants–that’s just what Mr. Shook asked–could you,
without doing violence to your [conscience], recommend the death
penalty?
MR. ELLIOTT: No, sir, I couldn’t.
THE COURT: You may step down for cause. Exception
allowed to the Defendant.

Id. at 38-40.

On direct appeal, Battenfield asserted that the trial court erred by striking

Elliott from the jury panel. The OCCA rejected this assertion on the following

grounds:

We agree with [Battenfield’s] counsel that trial judges should avoid
asking a potential juror whether he or she could recommend the death
penalty “without doing violence to your conscience.” The use of
such terms is at best confusing. While the trial judge’s question to
Elliott “may not have been ideal, we cannot conclude that it was
inconsistent with the ‘substantial impairment’ test articulated in
Witt .” Despite the trial judge’s use of the confusing phrase “without
doing violence to your conscience,” he inquired further into the depth
of Elliott’s convictions by asking whether Elliott’s position was that
he could not “consider the death penalty at all?” to which Elliott
responded, “Yes, sir.” We recognize that “not all who oppose the
death penalty are subject to removal for cause in capital cases; those
who firmly believe the death penalty is unjust may nevertheless serve
as jurors in capital cases so long as they state clearly that they are
willing to temporarily set aside their own beliefs in deference to the
rule of law.” However, at no point in time did Mr. Elliott state, nor
was he asked by defense counsel, whether he could temporarily set
aside his personal beliefs in deference to the law and recommend the
death penalty where appropriate under the facts and the law.
Considering the entire record surrounding Elliott’s exclusion,

13
 including trial counsel’s attempted rehabilitation, and giving
appropriate deference to the trial judge, we hold that Elliott’s
responses “sufficiently demonstrated that his beliefs about capital
punishment would ‘substantially impair’ his ability to serve as a
juror.”

Battenfield I , 816 P.2d at 559 (internal citations omitted).

We previously have addressed the striking of venire members based upon

questions and answers similar to those employed here. In Coleman v. Brown, 802

F.2d 1227 (10th Cir. 1986), the state trial court excused a prospective juror for

cause based upon his answers to questions:

Court: [I]f you were sitting on a jury and in a case where the
law and the evidence warranted and you were told it was a proper
case to consider the death penalty, could you, if you felt it was
proper, agree to a death penalty . . . without doing violence to your
own conscience?
Juror: No, I don’t think I could.
Court: In other words, you’re telling me that if you find
beyond a reasonable doubt that the Defendant was guilty of Murder
in the First Degree and if under the law and the evidence and all the
circumstances you could consider a death penalty, you tell me that
you have such reservations that you just simply could under no
circumstances impose a death penalty upon another human being?
Juror: I don’t think I could, no.

Id. at 1232. Applying the standard announced by the Supreme Court in Witt, we

found “no grounds for overturning the trial judge’s decision.” Id.

Similarly, in Davis v. Maynard, 869 F.2d 1401, 1408 (10th Cir. 1989),

vacated on other grounds sub nom. Saffle v. Davis, 494 U.S. 1050 (1990), the

state trial court asked each potential juror the following question: “In a case

14
where the law and evidence warrant, in a proper case, could you, without doing

violence to your conscience, agree to a verdict imposing the Death Penalty?” If a

venire member did not answer “yes,” the trial court asked:

If you found beyond a reasonable doubt that the Defendant in
this case was guilty of Murder in the First Degree and if under the
evidence, facts and circumstances of the case the law would permit
you to consider a sentence of death, are your reservations about the
Death Penalty such that regardless of the law, the facts and the
circumstances of the case, you would not inflict the Death Penalty?

Id. We characterized the voir dire as “troublesome,” noting the trial court’s “first

question to the venire members [wa]s of little relevance,” and the second

question, “while a better attempt to incorporate the proper standard, [wa]s

confusing, and . . . invite[d] ambiguous answers.” Id. Nevertheless, affording the

trial court’s findings a presumption of correctness, we concluded that the trial

court “properly found the challenged venire members’ view likely to ‘prevent or

substantially impair’ the performance of their duties as jurors.” Id. at 1409.

Like the state trial courts’ factual findings at issue in Davis and Coleman,

the trial court’s finding of bias on the part of Elliott is entitled to a presumption

of correctness. 3 See 28 U.S.C. § 2254(e)(1). The issue is whether Battenfield has

3
Battenfield argues that “this case does not turn on the trial court’s factual
determinations, but on the legal standard it applied.” Battenfield’s Opening Brief
at 21. What he fails to acknowledge, however, is that the trial court ultimately
made a factual determination that Elliott was biased, and it is that factual
determination we are called upon to review in this federal habeas case. The fact
(continued...)

15
met his burden of rebutting this presumption by clear and convincing evidence.

Id. It is true, as argued by Battenfield, that the trial court’s first and last

questions to Elliott were inconsistent with the standard announced in Witt and

therefore must be considered “of little relevance.” Davis, 869 F.2d at 1408. If

these were the only questions posed to Elliott, there might be a basis for rejecting

the trial court’s finding of bias. However, the trial court’s second question to

Elliott (“[Y]our statement is that you just can’t consider the death penalty at

all? ”), and Elliott’s response (“Yes, sir.”), provide a sufficient basis for the trial

court’s finding that Elliott was biased. Defense counsel’s follow-up questioning,

although apparently aimed at rehabilitating Elliott, did little to demonstrate that

Elliott could “faithfully and impartially apply the law.”

We conclude Battenfield has failed to rebut the presumption that the trial

court was correct in finding that Elliott’s views would have prevented or

substantially impaired the performance of his duties as a juror. Further, we

conclude the OCCA’s resolution of this issue (i.e., its determination that Elliott’s

answers clearly indicated he could not consider imposing the death penalty

3
(...continued)
that the trial judge employed questions which may have been inconsistent with the
legal standard announced in Witt does not mean that Battenfield is automatically
entitled to relief. Rather, the propriety of the questions utilized by the trial court
is but one factor in determining whether Battenfield has sufficiently rebutted the
presumption of correctness afforded under § 2254(e)(1).

16
regardless of the evidence and the instructions) was not contrary to or an

unreasonable application of Witt.

Prosecutorial misconduct

Battenfield contends the prosecutor, during closing arguments in both the

first and second stages of trial, improperly commented on Battenfield’s

constitutional right not to testify. During the first-stage closing arguments, the

prosecutor stated to the jury: “There is no one, I repeat, there is no one who took

the stand and testified that the victim, Don Cantrell, was ever anywhere near these

keys [the keys to his truck which were found by a boat dock area after the

murder],” Tr. at 1323, and “There wasn’t a single witness that took the stand that

indicated that there was any kind of injury to Mel Battiest or to this Defendant,

Billy Ray Battenfield.” Id. at 1403. During closing arguments in the penalty

phase, the prosecutor made a similar statement: “Have you heard, Ladies and

Gentleman, any evidence whatsoever during the course of this trial that indicates

that this Defendant, Billy Ray Battenfield, after he struck that first blow, did

anything to intervene to save Don Cantrell’s life?” Id. at 1453. Battenfield

objected to all of these comments during trial. The trial court overruled the

objection to the first-stage comments, but sustained the objection to the second-

stage comment.

17
 As part of a general challenge to a variety of comments made by the

prosecutor during trial, Battenfield raised this issue on direct appeal. The OCCA

rejected the issue:

Most of the comments complained of were not objected to and, in
several instances where defense counsel’s objections were sustained,
the comment was stricken or the jury was admonished. Appellant
attempts to characterize this case as one falling within the
fundamental error rule where the combined effect of the prosecutor’s
actions “was so prejudicial as to adversely affect the fundamental
fairness and impartiality of the proceedings and mandate a new trial.”
While some of the comments complained of were improper and not to
be condoned, most of the comments when taken in context were
within the bounds of reasonable argumentation, and we cannot agree
they were so grossly improper as to require reversal or modification.

Battenfield I, 816 P.2d at 562 (internal citations omitted).

It is improper for a prosecutor to comment on a defendant's decision to

refrain from testifying at trial. See Griffin v. California, 380 U.S. 609, 615

(1965). If a prosecutor’s remarks “‘concern matters that could have been

explained only by the accused, . . . [they] give rise to an innuendo that the matters

were not explained because [petitioner] did not testify’ and, thus, amount to

indirect comment on the defendant’s failure to testify.” Pickens v. Gibson, 206

F.3d 988, 999 (10th Cir. 2000) (quoting United States v. Barton, 731 F.2d 669,

674 (10th Cir. 1984)). “A prosecutor, however, ‘is otherwise free to comment on

a defendant’s failure to call certain witnesses or present certain testimony.” Id.

(quoting Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir.1999), cert. denied, 2000

18
WL 656673 (2000)). The question is “‘whether the language used [by the

prosecutor] was manifestly intended or was of such character that the jury would

naturally and necessarily take it to be a comment on the defendant’s right to

remain silent.’” Id. at 998 (quoting United States v. Toro-Pelaez, 107 F.3d 819,

826-27 (10th Cir. 1997)). “Error in permitting the prosecutor to comment upon

petitioner’s right to silence is subject to a harmless error analysis.” Id. (citing

Brecht v. Abrahamson, 507 U.S. 619, 628-29 (1993)).

The first-stage comments were proper. Although both were clearly

intended as comments on Battenfield’s failure to call certain witnesses or present

certain testimony, neither concerned matters that could have been explained only

by Battenfield. For example, Cantrell’s whereabouts in the Wahoo Bay area on

the night of the murder, including whether he was ever in close proximity to the

boat dock where his keys were ultimately found, could arguably have been

discussed by any of the persons who were present that evening. Likewise, those

same witnesses, as well as other persons who observed Battenfield and Battiest

after Cantrell’s murder, could have testified regarding whether Battenfield or

Battiest had any observable injuries.

The prosecutor’s second-stage comment is more problematic. Like the two

first-stage comments, this comment was aimed at Battenfield’s failure to present

evidence on a particular issue. However, the closing-stage comment differed

19
from the first-stage comments in that it concerned matters that could have been

explained only by Battenfield or Battiest (who was called by the prosecution at

trial and asserted his right to remain silent). Notwithstanding the impropriety of

this comment, the OCCA did not unreasonably apply controlling Supreme Court

precedent in determining that the effect of the comment was harmless.

Battenfield’s counsel posed a timely objection to the prosecutor’s second-stage

comment, and the trial court sustained the objection and admonished the jury to

disregard the comment. In light of the general presumption that a jury follows a

trial court’s instructions, see Weeks v. Angelone, 120 S. Ct. 727, 733 (2000), we

are persuaded that the trial court’s admonition was sufficient to cure any error

arising out of the prosecutor’s comment.

Ineffective assistance of counsel

Battenfield contends his trial counsel, Dennis Shook, rendered ineffective

assistance during the penalty phase of trial because he failed to adequately

prepare or present any mitigating evidence. According to Battenfield, a variety of

mitigating evidence was available, including (a) evidence that Battenfield’s father

and grandfather were involved in moonshining, (b) Battenfield’s involvement in a

serious car accident at age 18, during which he sustained a serious head injury

and after which he heavily used alcohol and drugs, (c) Battenfield’s family history

20
of alcoholism and possible drug addiction, (d) mental health evidence, including

evidence that Battenfield suffered from substance addiction, (e) the underlying

circumstances of Battenfield’s previous conviction for assault and battery, which

allegedly occurred while he was under the influence of drugs and alcohol and was

an act of self-defense, (f) evidence from family members and friends indicating

that Battenfield was known for his compassion, gentleness, and lack of violence,

even when provoked, and (g) testimony of prison personnel describing the

security where Battenfield would be incarcerated if given a life sentence.

Although Battenfield acknowledges that he informed Shook and the trial court

prior to the beginning of the penalty phase that he did not want to present any

mitigating evidence, he argues that he did not knowingly and intelligently waive

his right to present such evidence. Specifically, Battenfield argues that prior to

the waiver, neither Shook nor the trial court adequately informed him of the

nature or purpose of mitigating evidence.

Battenfield’s claim of ineffective assistance is governed by the familiar

two-part test announced in Strickland v. Washington, 466 U.S. 668, 688-89, 675

(1984). Under that test, Battenfield must demonstrate that (1) defense counsel’s

performance was constitutionally deficient (i.e., it fell below an objective

standard of reasonableness), and (2) there is a reasonable probability that, but for

counsel’s errors, the outcome of the proceedings would have been different.

21
 Because [the adversarial] testing process generally will not function
properly unless defense counsel has done some investigation into the
prosecution’s case and into various defense strategies, [the Supreme
Court has] noted that “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary.”

Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (quoting Strickland, 466 U.S.

at 691). Unquestionably, counsel’s obligation to conduct reasonable

investigations extends to matters related to the sentencing phase of trial. See

Cooks v. Ward, 165 F.3d 1283, 1294 (10th Cir. 1998), cert. denied, 120 S. Ct. 94

(1999). “Indeed, we have recognized a need to apply even closer scrutiny when

reviewing attorney performance during the sentencing phase of a capital case.”

Id. Where counsel’s alleged failure to investigate and present evidence pertains

to the sentencing phase of trial, the prejudice inquiry is whether there is a

“reasonable probability that, absent the errors, the sentencer . . . would have

concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Strickland, 466 U.S. at 695; see also Cooks, 165 F.3d at 1296

(requiring court to consider strength of government’s case and aggravating factors

jury found to exist, as well as mitigating factors that might have been presented).

Battenfield first raised his claim regarding counsel’s failure to adequately

prepare and present mitigating evidence in his application for post-conviction

relief. Although the state district court conducted an evidentiary hearing, it

ultimately denied the application in its entirety, concluding in part that

22
Battenfield knowingly waived his right to present mitigating evidence during the

penalty phase of trial. 4 The OCCA affirmed the denial of Battenfield’s

application for post-conviction relief. In rejecting Battenfield’s ineffective

assistance claim, the OCCA relied heavily on Battenfield’s alleged waiver of his

right to present mitigating evidence:

Battenfield now argues that he did not have a thorough
understanding of mitigation and did not realize it encompassed more
than familial testimony. Although his waiver was not as good as it
might have been, it appears to have been made knowingly and
voluntarily. (Footnote omitted.) Even without the waiver, however,
Battenfield has failed to show that trial counsel was ineffective by
not presenting mitigating evidence. We have reviewed the Affidavits
attached to Petitioner’s Application and find they all contain
evidence that Battenfield and his family could have presented to the
jury had Battenfield cooperated with his attorney. Thus, the . . .
allegations of ineffective assistance of trial counsel are a direct result
of Battenfield’s own refusal to testify and allow his parents to testify.
We will not hold counsel responsible for a client’s obstinate
behavior.

Battenfield III, 953 P.2d at 1127. The OCCA also independently addressed

Battenfield’s assertion that his trial counsel should have gathered and presented

mental health evidence during the penalty phase:

This leaves only the . . . failure to present mental health
evidence as a possible instance of ineffectiveness of counsel.
However, Battenfield has failed to show that such expert testimony

4
The state district court also concluded the ineffective assistance claim
could have been raised by Battenfield on direct appeal and was thus procedurally
barred. However, the OCCA did not affirm on this basis, and the State has not
asserted procedural bar in this federal habeas proceeding.

23
 was necessary. He did not then and does not now suffer from mental
illness, mental infirmity, or incompetence to stand trial.
Furthermore, Battenfield has failed to show prejudice. The
psychologist’s conclusion that Battenfield was chemically dependent
does nothing to undermine our confidence in the jury’s determination
that he constitutes a continuing threat to society. Accordingly,
Battenfield has failed to show that his counsel’s conduct “so
undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.”

Id. (footnotes omitted).

The overriding question is whether the OCCA reasonably applied

Strickland in rejecting Battenfield’s ineffective assistance claim. See generally

Brecheen v. Reynolds, 41 F.3d 1343, 1366 (10th Cir. 1994) (holding that, in pre-

AEDPA case, state court conclusion that counsel rendered effective assistance is a

mixed question of law and fact). Because the OCCA’s decision was based on the

state district court’s finding that Battenfield knowingly waived his right to present

mitigating evidence, we must examine the propriety of that finding. In

performing our analysis, it is necessary to review several factors, including the

investigative efforts of defense counsel prior to the beginning of the penalty

phase, his penalty phase strategy, the advice he rendered to Battenfield prior to

Battenfield’s alleged decision to waive the presentation of mitigating evidence,

and the trial court’s examination of Battenfield regarding his alleged waiver.

Shook received his Oklahoma law license in October 1980. He worked as

an assistant district attorney in Wagoner County, Oklahoma, from October 1980

24
until December 31, 1982, and tried 10-15 felony cases. On January 1, 1983, he

entered private practice in Wagoner County. The trial court appointed Shook to

represent Battenfield and Shook received a total of $2,500.

The evidence presented at the state court evidentiary hearing indicates

Shook spent very little time investigating possible mitigating evidence or

developing mitigation strategies. Although Shook allegedly spent over 100 hours

preparing for the trial, only 20 of those hours were spent interviewing potential

witnesses. Of those 20 hours, it is unclear how many were devoted to penalty

phase preparation. According to Shook, he “spent very little time developing

mitigation,” and the only mitigation strategy he considered was to invoke the

jury’s sympathy and mercy. Shook Aff. His alleged plan was to present the

testimony of Battenfield’s parents “to kind of describe Billy’s background; I

wanted to bring out the positive things, the positive aspects of Billy’s life; and

most importantly, I wanted the parents to be able to ask the jury not to impose the

death penalty.” Evidentiary Hearing Tr., Vol. II at 118-19. However, the

evidence indicates that although Shook may have briefly spoken to Battenfield’s

parents prior to and during trial, he never interviewed them regarding

Battenfield’s background and, indeed, was unaware of many, if not most, of the

mitigating factors now cited by Battenfield. Further, although Shook testified

that he spoke with Battenfield on several occasions regarding the possibility of a

25
penalty phase, there is no indication that he ever interviewed Battenfield

regarding his background. See Battenfield Aff. ¶ 3 (“Dennis Shook . . . never

talked to me about my childhood or past.”). Finally, there is no evidence that

Shook spoke to any of Battenfield’s friends or relatives (other than his parents),

to any mental health experts 5, or to any other potential mitigation witnesses (e.g.,

persons familiar with Battenfield’s personality and temperament, persons familiar

with the underlying facts of Battenfield’s previous conviction 6, persons familiar

with incarceration and security in Oklahoma state prisons).

Based upon this evidence, we conclude that Shook’s penalty phase

preparation was constitutionally deficient. 7 The Supreme Court has emphasized

5
Shook testified that, at some point during trial, he informally spoke to the
trial judge about the possibility of receiving funding to hire a mental health expert
to use during the mitigation phase. The judge indicated there was no funding
available and Shook did not file a formal motion because, in part, he found no
authority for the appointment of a court-paid expert.
6
Shook knew the state intended to rely on evidence of Battenfield’s
previous conviction for assault and battery with a dangerous weapon and should
have performed some type of investigation to determine the underlying facts of
that conviction. Based upon the evidence presented by Battenfield in connection
with his post-conviction application, it appears there were mitigating aspects to
that prior crime that could have been presented to the jury (i.e., the fact
Battenfield may have acted in self-defense, and the fact he was under the
influence of drugs and alcohol at the time of the incident).
7
In disposing of Battenfield’s ineffective assistance claim, the OCCA
made no mention of Shook’s investigative efforts. Thus, we are free to exercise
our independent judgment in determining whether Shook’s investigative efforts
were constitutionally deficient. Even assuming, arguendo, the OCCA intended to
(continued...)

26
that the reliability of a capital sentencing proceeding hinges upon the jury making

an individualized determination based, in part, upon “the particularized

characteristics of the individual defendant.” Gregg v. Georgia, 428 U.S. 153, 206

(1976). A defense attorney “has a duty to conduct a reasonable investigation,

including an investigation of the defendant’s background, for possible mitigating

evidence.’” Brecheen, 41 F.3d at 1366 (quoting Middleton v. Dugger, 849 F.2d

491, 493 (11th Cir. 1988)); see also Stouffer v. Reynolds, 168 F.3d 1155, 1167

(10th Cir. 1999) (noting that defense counsel has a duty to investigate all possible

lines of defense). Here, Shook violated that duty by failing to interview anyone,

including Battenfield himself, regarding possible mitigating aspects of

Battenfield’s background. See, e.g., Clayton v. Gibson, 199 F.3d 1162, 1178

(10th Cir. 1999) (assuming, without deciding, that defense counsel “rendered

deficient assistance by not contacting family members during the course of

conducting a second stage investigation”), cert. denied, 2000 WL 697188 (2000);

Baxter v. Thomas, 45 F.3d 1501, 1513 (11th Cir. 1995) (concluding that

reasonable investigation would have included interviews with defendant’s sister

and neighbor, as well as defendant’s mother and brother); Stafford v. Saffle, 34

F.3d 1557, 1563 (10th Cir. 1994) (concluding that counsel’s penalty-phase

7
(...continued)
indicate that Shook’s investigative efforts were sufficient, we would conclude the
OCCA unreasonably applied Strickland .

27
performance was deficient where counsel explored defendant’s “background to

some degree,” but “conducted no specific investigation for mitigation evidence”);

Blanco v. Singletary, 943 F.2d 1477, 1501-02 (11th Cir. 1991) (concluding

defense counsel was ineffective for failing to contact defendant’s relatives and

acquaintances prior to trial); Harris v. Dugger, 874 F.2d 756, 763 (11th Cir. 1989)

(concluding defense counsel’s performance was deficient where “neither lawyer .

. . investigated [the defendant’s] background, leading to their total–and

admitted–ignorance about the type of mitigation evidence available to them”);

Stephen B. Bright, Advocate in Residence: The Death Penalty As the Answer to

Crime: Costly, Counterproductive and Corrupting, 36 Santa Clara L. Rev. 1069,

1085-86 (1996) (“The responsibility of the lawyer is to walk a mile in the shoes

of the client, to see who he is, to get to know his family and the people who care

about him, and then to present that information to the jury in a way that can be

taken into account in deciding whether the client is so beyond redemption that he

should be eliminated from the human community.”). The result was that Shook

was unaware at the time of trial of various mitigation strategies and

accompanying pieces of evidence that could have been presented during the

mitigation phase by Battenfield or his friends and family. Further, Shook was

wholly unprepared to rebut the aggravating factors argued by the prosecution.

We have no doubt that Shook’s failure to conduct an adequate investigation

28
hampered his ability to make strategic decisions regarding the penalty phase of

trial. In Strickland, the Supreme Court emphasized that “strategic choices made

after less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.” 466

U.S. at 690-91; see also Duvall v. Reynolds, 131 F.3d 907, 917 (10th Cir. 1997)

(“The duty to present mitigating evidence, of course, is not independent of the

duty to investigate and prepare.”), cert. denied, 525 U.S. 933 (1998); Horton v.

Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) (“[O]ur case law rejects the notion

that a ‘strategic’ decision can be reasonable when the attorney has failed to

investigate his options and make a reasonable choice between them.”). Shook’s

failure to investigate Battenfield’s background, and his failure to explore other

readily apparent mitigation possibilities, rendered unreasonable his alleged

penalty-phase strategy of focusing on sympathy and mercy. In other words,

contrary to the dissent’s suggestion, there was no strategic decision at all because

Shook was ignorant of various other mitigation strategies he could have

employed.

In addition to hampering his ability to make strategic decisions, Shook’s

failure to investigate clearly affected his ability to competently advise Battenfield

regarding the meaning of mitigation evidence and the availability of possible

mitigation strategies. Shook testified that, prior to trial, he had “numerous

29
conversations [with Battenfield] about the possibility of having a second stage.”

Evidentiary Hearing Tr., Vol. II at 115. Whatever those conversations may have

entailed, there is no indication Shook ever explained the general meaning of

mitigation evidence to Battenfield or what specific mitigation evidence was

available. Shook acknowledged he never advised Battenfield that mitigation

evidence might include evidence about Battenfield’s substance abuse problems.

At best, the evidence indicates that at some point during the trial proceedings,

Shook discussed with Battenfield his plan to present Battenfield’s parents as

second-stage witnesses and his strategy to have Battenfield’s parents beg for

Battenfield’s life. In an affidavit submitted in connection with his application for

post-conviction relief, Battenfield indicated that Shook never explained to him

“the importance of mitigation or . . . what mitigation actually [wa]s.” Battenfield

Aff. ¶ 2.

Shook’s deficient performance culminated in Battenfield waiving the right

to present mitigating evidence. The jury returned its first-stage verdict at

approximately 11:20 a.m. on the last day of trial. After receiving this verdict, the

trial court took an hour and twenty-minute lunchtime recess. According to Shook,

Battenfield “was quite upset and, in my opinion, pretty irrational at that point in

time.” Evidentiary Hearing Tr., Vol. II at 116. Shook testified that during the

recess, Battenfield “instructed [him] that he did not want to put on evidence in

30
mitigation for the second stage.” Id. Although Shook allegedly advised

Battenfield that they “should proceed with the mitigating evidence,” Battenfield

again indicated that he did not want to proceed with the mitigation evidence

proposed by Shook. Id. at 117. According to Battenfield, he “did not know what

mitigation was [at that point], [he] just did not want [his] mom and dad to

testify.” Battenfield Aff. ¶ 5. More specifically, Battenfield stated:

After I was convicted of first degree murder and before second stage
deliberations began, my attorney asked me as to whether or not I
wanted to have my parents testify. Dennis Shook never talked to me
about any other people [testifying]. I did not want my parents to
testify because I did not want to cause them anymore grief and
sadness. I personally witnessed my father crying and sobbing for the
first time in my life after I was convicted. My dad was always rock
solid and seeing him cry was so out of character for him that it made
me feel that I had to spare him and my mom from any more stress.

Id. ¶ 4.

At the conclusion of the court recess for lunch, Shook asked the trial court

to make a record outside the hearing of the jury. The following discussion took

place between Shook, Battenfield, and the trial judge:

THE COURT: Let the record show the Defendant is present
with his attorney, Mr. Shook. The State is represented by Assistant
District Attorney Mr. Langley and Mr. Sperling. I have been advised
by Mr. Shook that the defendant wants to make a record.
MR. SHOOK: That is correct, Judge. I have just spoken with
Mr. Battenfield, along with Joe Robertson who is the attorney for the
co-defendant, Melvin Battiest. The defendant, Billy Ray Battenfield,
has informed me that he does not wish to take the stand and testify in
this matter. It’s my advice that he do so. Billy, I would like for you
to comment on that.

31
 THE DEFENDANT: I’m going against my attorney’s advice
and not taking the stand.
THE COURT: All right. Are you being abused, mistreated or
forced to make you go against his advice?
THE DEFENDANT: No, sir.
THE COURT: It was my understanding that from visiting with
Mr. Shook that you don’t even want to put on any evidence as to
mitigation; is that correct?
THE DEFENDANT: You mean my parents and stuff?
THE COURT: Yes.
THE DEFENDANT: No, sir, they have been through enough.
THE COURT: You’re not going to present any testimony as to
mitigation?
THE DEFENDANT: No, sir.
THE COURT: You understand you have that right?
THE DEFENDANT: Yes, sir.
THE COURT: All right, then we will proceed.

Trial Tr. at 1421-22

Although the state district court found, and the OCCA agreed, that the

waiver was knowing and intelligent, we conclude the above-outlined evidence is

more than sufficient to overcome any presumption of correctness afforded to this

finding. 8 When the above-quoted colloquy took place, Battenfield did not have a

8
Although there are numerous published cases (both federal and state)
where a capital defendant has waived the right to present mitigating evidence,
very few have actually addressed whether the propriety of the waiver is purely a
factual issue or a mixed question of fact and law. Of the few cases that have
addressed this issue, the holdings appear conflicting. Compare Singleton v.
Lockhart , 962 F.2d 1315, 1321 (8th Cir. 1992) (treating as a factual finding the
question of whether the defendant knowingly and intelligently waived his right to
present mitigating evidence) , and State v. Ashworth , 706 N.E. 2d 1231, 1237
(Ohio 1999) (indicating a trial court in a capital case must “make findings of fact
as to the defendant’s understanding and waiver of” his right to present mitigating
(continued...)

32
proper understanding of the general nature of mitigating evidence or the specific

types of mitigating evidence that might be available for presentation. He only

knew that Shook intended to put his parents on the witness stand and have them

beg for the jury’s mercy and sympathy. Battenfield’s narrow conception of what

mitigation meant is evidenced by his response to the trial judge’s questioning

(“You mean my parents and stuff?”). Finally, the trial judge’s questioning of

Battenfield regarding his decision to waive was brief and, in our view,

inadequate. The trial court failed to adequately determine that Battenfield had

8
(...continued)
evidence), with Wilkins v. Bowersox , 145 F.3d 1006, 1015-16 (8th Cir. 1998)
(suggesting that whether a defendant knowingly and intelligently waived his right
to present mitigating evidence is a mixed question of fact and law), cert. denied ,
525 U.S. 1094 (1999), and Snell v. Lockhart , 14 F.3d 1289, 1302-03 (8th Cir.
1994) (same) . Likewise, the courts have differed in their characterizations of
other types of waivers. See , e.g. , Tacon v. Arizona , 410 U.S. 351, 352 (1973)
(concluding that whether petitioner’s conduct amounted to a knowing and
intelligent waiver of the right to be present at trial was “primarily a factual
issue”); United States v. Burson , 952 F.2d 1196, 1199 (10th Cir. 1991)
(concluding that question of whether waiver of right to counsel was knowing and
voluntary is a mixed question of fact and law) ; Meeks v. Cabana , 845 F.2d 1319,
1323 (5th Cir. 1988) (holding that “[t]he state court’s finding of waiver [of the
right to appeal] involves a pure question of fact”). We find it unnecessary to
definitively characterize the waiver as either a factual issue or a mixed question
of fact and law because the outcome of the appeal would be the same regardless.
In other words, if it is characterized as a mixed question of fact and law, we
would conclude that the OCCA unreasonably determined Battenfield’s waiver was
knowing and intelligent. If the issue is characterized as a question of fact, we
would conclude the state district court’s finding on this issue was unreasonable in
light of the evidence presented during the evidentiary hearing on Battenfield’s
application for post-conviction relief.

33
been provided sufficient information from Shook to make a knowing choice.

In determining that Battenfield’s alleged waiver was knowing when that

issue was raised in Battenfield’s application for post-conviction relief, the state

district court relied heavily on the evidentiary hearing testimony of the judge who

presided over Battenfield’s trial. A review of that testimony, however, suggests it

is of questionable value in determining whether Battenfield’s waiver was knowing

and voluntary. Under cross-examination by Battenfield’s counsel, the trial judge

acknowledged that mitigating evidence could include more than calling a capital

defendant’s parents to the witness stand. In particular, the trial judge

acknowledged that mitigating evidence could include information about a

defendant’s family history, psychological information, evidence of alcoholism, or

a family history of alcoholism. The following series of questions and answers

then took place between Battenfield’s attorney and the trial judge:

Q. Would you agree with me, Judge, that when you responded
“Yes” to Mr. Battenfield saying, “You mean my parents and stuff?”
that he might not have . . . a full and fair understanding on his part
about what mitigation was?
A. Well, I don’t agree with you.
Q. Okay. Explain to me why that might be.
A. Well, I mean, you’re talking about when he says family and
stuff?
Q. Uh-huh.
A. Well, what you’ve gone back over, alcoholism and all these
other things that you’ve named off, social problems and all this, that
would cover it under family and stuff. But it was my understanding
they [Battenfield and Shook] had discussed it, talked about it, and
that was – but he did not want to put on any evidence.

34
 Q. Judge, do you recall – well, if I were to tell you that Mr.
Shook had spent, according to evidence that we have in the record,
had spent virtually no time discussing the concept of mitigation with
Mr. Battenfield or with his parents, would you have any reason to
believe that Mr. Shook could have given adequate advice to Mr.
Battenfield about what that evidence might have been?
A. Sir, I don’t really understand your question.
***
Q. If the evidence in the record is that Mr. Shook had really
spent no time discussing with Mr. Battenfield what mitigation was,
and had spent no time preparing for a mitigation case, then do you
know of any reason why Mr. Shook’s advice to Mr. Battenfield about
what mitigation was would be adequate?
A. Well, I don’t know why the – the record, you say, is silent
as to that?
Q. No. Actually, the record affirmatively, I think,
demonstrates that Mr. Shook didn’t undertake a mitigation
investigation. So my concern is, as a trial judge–
A. Well, wait just a minute. You’re saying that he did not
discuss this mitigation procedure with him at all?
Q. I’m saying we have evidence in the record that would
indicate that that’s the case. And that he did not investigate the
mitigation phase of the case. He had done no investigation of the
social history of Mr. Battenfield, he had done no real family
investigation. My only question to you is: As a trial judge, if you
had been aware of that would you have been less comfortable about
concluding that Mr. Battenfield was adequately informed as to what
mitigation was?
A. I don’t – I think you’re asking me a question that does not
properly reflect what transpired in this case. I think Mr. Shook and
him did discuss it. I was satisfied at the time that they had discussed
it, from visiting with Mr. Shook. That’s the reason they asked to
make a record and come to the bench – or to do that and make that
record. You’re asking me to suppose that certain things did or did
not happen. And sir, I’m satisfied that it did happen the way the
record reflects from the standpoint of him knowing about mitigation.
The bill of particulars was filed. They had them and I assumed had
gone over them. He indicated that they had, that they knew what he
– he knew what he was doing in the courtroom that day.

35
Evidentiary Hearing Tr., Vol. I at 114-16. Obviously, the trial judge’s

assumptions about what transpired between Shook and Battenfield prior to the

waiver are not borne out by the record. In particular, the record is clear that

Shook did not adequately apprise Battenfield of the meaning of mitigation

evidence or what particular mitigating evidence was available in his case.

Further, it is apparent the trial judge failed, at the time he questioned Battenfield

on the record, to ensure that Battenfield had sufficient information to knowingly

waive his right to present mitigation evidence. 9

Less than a month after Battenfield’s trial, the OCCA established

guidelines for trial courts to follow “when a defendant refuses to allow the

presentation of mitigating evidence in the sentencing stage.” Wallace v. State,

893 P.2d 504, 512 (Okla. Crim. App. 1995). Those guidelines, intended to ensure

that a defendant “has an understanding of his or her rights . . . in the sentencing

process,” require a trial court to: (1) inform the defendant of the right to present

mitigating evidence, and what mitigating evidence is; (2) inquire both of the

defendant and his attorney (if not pro se) whether he or she understands these

9
The dissent suggests the state courts could have decided that the
testimony of Shook and the trial judge was more credible than that of Battenfield.
We disagree. Shook never directly controverted Battenfield’s statements. As for
the trial judge, a careful examination of his testimony reveals that he had little, if
any, factual basis for determining whether Shook adequately advised Battenfield
regarding mitigation evidence and strategy.

36
rights; (3) inquire of the attorney if he or she has attempted to determine from the

defendant whether any mitigating evidence exists; (4) inquire what that mitigating

evidence is (if the defendant has refused to cooperate, the attorney must relate

that to the court); (5) inquire of a defendant and make a determination on the

record whether the defendant understands the importance of mitigating evidence

in a capital sentencing scheme, understands such evidence could be used to offset

the aggravating circumstances proven by the prosecution in support of the death

penalty, and the effect of failing to present that evidence; (6) after being assured

the defendant understands these concepts, inquire of the defendant whether he or

she desires to waive the right to present such mitigating evidence; and (7) make

findings of fact regarding the defendant’s understanding and waiver of rights. Id.

at 512-13. The trial judge in Battenfield’s case failed to satisfy any of these

requirements.

Although the State correctly argues that Wallace “was not the law at the

time of Appellant’s 1985 trial,” State’s Appellate Br. at 30 n.3, the guidelines set

forth in Wallace are, in our view, little more than commonsense and should have

been substantially followed by the trial court. We emphasize that our conclusion

regarding the inadequacy of the trial court’s inquiry does not hinge in any way

upon the holding in Wallace. Instead, we simply find it useful, for analytical

purposes, to contrast the trial court’s inquiry in this case with the guidelines set

37
forth by the OCCA in Wallace.

Given our conclusion that Battenfield’s waiver was neither knowing nor

intelligent, the next question is whether Shook was ineffective for failing to

present any mitigating evidence. Although the OCCA determined that

Battenfield’s waiver was knowing and intelligent (a determination we have

already rejected under the AEDPA standards of review), it alternatively

determined that “[e]ven without the waiver, . . . Battenfield ha[d] failed to show

that [Shook] was ineffective by not presenting mitigating evidence.” Battenfield

III, 953 P.2d at 1127. According to the OCCA, most of the mitigating evidence to

which Battenfield pointed in his application for post-conviction relief could have

been presented by “Battenfield and his family . . . had Battenfield cooperated with

his attorney.” Id. In other words, the OCCA determined, Shook’s failure to

present mitigating evidence was “a direct result of Battenfield’s own refusal to

testify and allow his parents to testify.” Id.

In our view, this is a patently unreasonable application of Strickland. We

see no difference between Battenfield’s purported waiver and his so-called “lack

of cooperation.” If the waiver is found to be neither knowing nor intelligent, the

so-called lack of cooperation must fall by the wayside. Even ignoring this flaw in

the OCCA’s reasoning, we fail to see how Battenfield can be held responsible for

38
Shook’s failure to present mitigating evidence unknown to Shook. 10 Had Shook

conducted a constitutionally adequate investigation of potential mitigating

evidence, he would have had a variety of witnesses from whom to choose.

We conclude that Battenfield was deprived of effective assistance of

counsel during the penalty phase of trial. Shook failed to conduct a

constitutionally adequate pretrial investigation into potential mitigation evidence

which, in turn, hampered his ability to make strategic choices regarding the

second-stage proceedings and competently advise his client regarding those

proceedings. Because Battenfield did not receive competent advice from Shook

regarding the second-stage proceedings, and because the trial court failed to

conduct an adequate inquiry into his decision to waive mitigation evidence, we

conclude Battenfield’s purported waiver was neither knowing nor voluntary.

Finally, we conclude Shook was ineffective for failing to present any mitigation

evidence during the second-stage proceedings.

The remaining question is whether Battenfield was prejudiced by Shook’s

10
The dissent suggests that, “[h]ad Mr. Battenfield cooperated with Mr.
Shook’s second-stage strategy, evidence that he ‘was known for his compassion,
gentleness, and lack of violence even when provoked,’ . . . surely would have
been brought out, even without an extensive investigation.” We strongly
disagree. Because Shook never conducted any investigation into the potentially
mitigating aspects of Battenfield’s life or personality (e.g., his apparent lack of
propensity for violence), we fail to understand how Shook would have known to
elicit such evidence from Battenfield or his parents during the second-stage
proceedings.

39
inadequate performance. Because the OCCA never addressed this issue 11, we are

free to exercise our independent judgment. Battenfield must “affirmatively prove

actual prejudice by demonstrating ‘a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’”

Cooks, 165 F.3d at 1296 (quoting Strickland, 466 U.S. at 693-94). “As applied to

the sentencing stage of his trial, [Battenfield] must demonstrate ‘a reasonable

probability that, absent the errors, the sentencer . . . would have concluded that

the balance of aggravating and mitigating circumstances did not warrant death.’”

Id. (quoting Strickland, 466 U.S. at 695).

“In evaluating prejudice, we must keep in mind the strength of the

government’s case and the aggravating [circumstances] the jury found as well as

the mitigating factors that might have been presented.” Castro v. Ward, 138 F.3d

810, 832 (10th Cir.) (internal quotations omitted), cert. denied, 525 U.S. 971

(1998). Here, the jury found two aggravating circumstances to support

Battenfield’s death sentence: (1) the heinous, atrocious, or cruel nature of

Cantrell’s murder; and (2) the continuing threat Battenfield presented to society.

11
The OCCA did discuss whether Battenfield was prejudiced by Shook’s
failure to present expert mental health testimony indicating that Battenfield was
chemically dependent. Battenfield III , 953 P.2d at 1127. However, we find that
analysis irrelevant because we are not persuaded Shook was ineffective for failing
to obtain and present expert mental health testimony. Our prejudice inquiry
focuses instead on Shook’s failure to obtain and present the various other types of
mitigating evidence pointed to by Battenfield.

40
However, the OCCA on direct appeal struck the heinous, atrocious, or cruel factor

on the grounds that it was not supported by the evidence. See Battenfield I, 816

P.2d at 565 (noting that the blow to Cantrell’s head would likely have rendered

him immediately unconscious). Thus, only the continuing threat circumstance

remains to support Battenfield’s death sentence. The state argued that Battenfield

had twice been convicted of violent felonies: once for the 1978 assault and battery

with a dangerous weapon conviction, and again in 1985 for the murder of

Cantrell. 12 When the OCCA reweighed the aggravating and mitigating

circumstances on direct appeal, it concluded the continuing threat factor was

supported by the “calloused nature” of Cantrell’s murder and by the fact that

Battenfield had previously been convicted of a violent felony. Battenfield I, 816

P.2d at 566.

Battenfield had available a variety of mitigating evidence to counterbalance

this single aggravating factor. Although the underlying facts of his 1978

conviction are somewhat sketchy, the record suggests it may have been an act of

self defense on the part of Battenfield. In particular, the evidence indicates

Battenfield “was playing pool in a bar when a ‘drunk Indian’ fell or knocked into

the pool table. Words were exchanged, the Indian pulled a gun, and [Battenfield]

12
During the penalty phase, the state incorporated by reference the
evidence presented during the guilt phase. Aside from that, the only additional
evidence presented by the state was a copy of the 1978 judgment of conviction.

41
defended himself with a knife.” St. Peter Aff. ¶ 17. Both the 1978 crime and the

murder of Cantrell were committed when Battenfield was under the influence of

drugs or alcohol. Arguably, this evidence could be viewed in a mitigating light,

particularly if combined with evidence that Battenfield would have little or no

access to drugs or alcohol while in prison, or evidence that Battenfield was

amenable to treatment for his substance abuse problems (or even perhaps

evidence indicating that Battenfield’s reliance on drugs and alcohol dramatically

worsened after his 1970 car accident). Battenfield’s family members and friends

would have testified that Battenfield “was known for his compassion, gentleness,

and lack of violence even when provoked.” Id. Further, persons familiar with the

Oklahoma correctional system could have testified about Battenfield’s chances of

parole and the limitations that would be placed on his access to alcohol and drugs.

Without discounting the calloused nature of Cantrell’s murder, we conclude

there is a reasonable probability that this mitigating evidence would have led the

jury to reach a different sentencing result. We emphasize that, because of

Shook’s failure to present any mitigating evidence during the penalty phase, the

jury sentenced Battenfield knowing only that he was involved in the murder of

Cantrell and previously had been convicted of assault and battery with a

dangerous weapon. Had they been given more information about Battenfield’s

background, personality, and the facts of his prior conviction, we conclude there

42
is a reasonable probability they would have determined the mitigating

circumstances outweighed the single aggravating circumstance. See generally

Mayes v. Gibson, 210 F.3d 1284, 1288 (10th Cir. 2000) (noting the

“overwhelming importance” of mitigation evidence in humanizing a criminal

defendant and explaining his conduct). Alternatively, we conclude there is a

reasonable probability they would have determined Battenfield did not represent a

continuing threat to society. 13 For these reasons, we conclude that Shook’s

deficient conduct “so undermined the proper functioning of the adversarial

process that the [penalty phase of] the trial cannot be relied on as having

produced a just result.” Strickland, 466 U.S. at 686.

IV.

We REVERSE the judgment of the district court and REMAND with

instructions that the district court grant the writ as to Battenfield’s death sentence,

subject to the state district court conducting a new sentencing trial or vacating

Battenfield’s death sentence and imposing a lesser sentence consistent with law.

13
The dissent asserts that we are speculating regarding the likely effect the
available mitigating evidence would have had on the jury’s second-stage verdict.
Under the circumstances of this case, where we are faced with a determination of
whether Battenfield was prejudiced by his counsel’s inadequate second-stage
performance, we have little choice. Indeed, the dissent must also speculate by
suggesting that Battenfield would not have allowed witnesses other than his
parents to testify and in assuming the available mitigating evidence would not
have altered the second-stage outcome.

43
See Richmond v. Lewis, 506 U.S. 40, 52 (1992) (utilizing conditional issuance of

writ of habeas corpus to require constitutional compliance by state courts);

Pickens, 206 F.3d at 1003 (10th Cir. 2000) (same); see also Smith v. Lucas, 9

F.3d 359, 367 (5th Cir. 1993) (noting that the “real thrust” of a federal court’s

conditional issuance of a writ of habeas corpus “is to alert the state court to the

constitutional problem and notify it that the infirmity must be remedied”). In

light of this determination, we find it unnecessary to address Battenfield’s

remaining contention that the evidence presented during the sentencing phase was

insufficient to support the jury’s finding that he represented a continuing threat to

society.

44
No. 99-7096, Billy Ray Battenfield vs. Gary L. Gibson.

KELLY , Circuit Judge, concurring in part and dissenting in part.

While I concur in the court’s opinion to the extent it affirms the district

court’s denial of habeas relief, I dissent from reversal and remand of Mr.

Battenfield’s ineffective assistance of counsel claim. In my view, the court’s

resolution of this claim does not comport with either the proper standard of

review or the principles governing ineffectiveness claims.

On collateral review, we may only grant relief if the state court’s

adjudication of a federal claim “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),

or “resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding,”

§ 2254(d)(2). State court factual findings are presumed correct, and one seeking

federal habeas relief “shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” § 2254(e)(1).

Ineffective assistance of counsel requires a petitioner to demonstrate

deficient performance and prejudice. Strickland v. Washington , 466 U.S. 668,

687 (1984). As mixed questions of law and fact, we do not afford a presumption

of correctness to State court determinations on these issues. Herrera v. Lemaster ,

225 F.3d 1176, 1178-79 (10th Cir. 2000). However, we do accord a presumption
of correctness to state court findings of historical fact underlying these issues.

Brecheen v. Reynolds , 41 F.3d 1343, 1366 (10th Cir. 1994). Moreover, merely

because we may have come to a different resolution on the same facts does not

warrant habeas relief. An unreasonable application of federal law means

something beyond what we may perceive in our independent judgment as an

erroneous or incorrect application of clearly established federal law. Williams v.

Taylor , 120 S. Ct. 1495, 1522 (2000).

In deciding that the Oklahoma Court of Criminal Appeals (“OCCA”)

unreasonably applied Strickland , the court determines that Mr. Battenfield has

proven that his trial counsel, Mr. Shook, rendered deficient performance because

he failed to adequately investigate potential mitigation evidence in the second

stage of the trial. According to the court, this “hampered” Mr. Shook’s ability to

make strategic choices about the penalty phase and to competently advise his

client. This incompetent advice, coupled with the trial court’s inadequate inquiry

into Mr. Battenfield’s decision to forego mitigating evidence, resulted in a waiver

that was neither knowing nor voluntary.

The claim in this case is merely a vehicle to correct an error in judgment by

Mr. Battenfield, specifically his decision to waive his right to present mitigating

evidence. The proper, and properly limited, function of a federal habeas court in

this context is to insure that the death penalty is not imposed in violation of the

2
Constitution. Herrera v. Collins , 506 U.S. 390, 400-01 (1993). If Mr.

Battenfield made a knowing and intelligent waiver of his right to present

mitigation evidence, then his counsel cannot have been ineffective for failing to

develop such evidence. See Wallace v. Ward , 191 F.3d 1235, 1247-48 (10th Cir.

1999).

The failure to present mitigating evidence is not per se ineffective

assistance of counsel. Brecheen , 41 F.3d at 1368. The reason why no mitigating

evidence was presented matters greatly. Id. Here, the OCCA affirmed the state

post-conviction trial court’s express determinations, made after an evidentiary

hearing, that Mr. Battenfield knowingly and intelligently waived that right.

Battenfield v. State , 953 P.2d 1123, 1127 (Okla. Crim. App. 1998), aff’g

Battenfield v. State , No. CF-84-73, Findings of Fact and Conclusions of Law and

Order Denying Post-Conviction Relief at 6 (Wagoner County Dist. Ct. May 13,

1997) (“It was the opinion of the trial Court that the petitioner knowingly waived

his right to present mitigating evidence and this Court agrees.”). Though this

court reweighs the evidence and comes to a different conclusion, the record

evidence fully supports the state courts’ determination on this point.

Mr. Shook testified that he had “numerous conversations [with Mr.

Battenfield] about the possibility of having a second stage,” and that most of

those conversations took place prior to trial. Hr’g Tr. at 2:115-16. He also

3
testified that, having previously discussed second-stage proceedings with Mr.

Battenfield, Mr. Battenfield’s decision at trial happened completely without

warning. Id. at 134. It is uncontroverted that Mr. Shook advised Mr. Battenfield

to present mitigating evidence and that Mr. Battenfield declined Mr. Shook’s

advice. Trial Tr. at 1421; Hr’g Tr. at 2:117-18. Mr. Battenfield not only

declined to testify on his own behalf, but also to put on any other mitigating

evidence (“my parents and stuff”). Trial Tr. at 1421-22; Hr’g Tr. at 2:117-18.

This was not for want of adequate investigation or lack of a second-stage strategy

by Mr. Shook, or improper safeguards by the state district court on waiver.

Rather, it was due to Mr. Battenfield’s conscious choice.

By affidavit and testimony, Mr. Shook indicated that Mr. Battenfield was

angry about the outcome of the first stage.

Mr. Battenfield waived his right to testify and did not want me to put
his parents on the stand. If I had been permitted to present his
parents, I would have had them testify as to his good character[].
His decision to waive mitigation occurred immediately after the jury
found him guilty. He was angry, upset, depressed, and stated that
the jury could do whatever they wanted. Basically, he just gave up.

Shook Aff. at 1-2. Although Mr. Shook felt that Mr. Battenfield “was not in a

condition to knowingly waive this vital stage of the trial,” Mr. Shook followed

the wishes of his client:

When Mr. Battenfield told me he did not want to put any mitigation
on in the second stage, I was not expecting it. I had never
encountered a situation such as this, and was not sure of what action

4
 to take. I followed Mr. Battenfield’s wishes even though I knew it
was the wrong action to take. If I knew that I could have continued
with the second stage as I had planned despite Mr. Battenfield’s
attitude, I would have done so.

Id. at 2; accord Hr’g Tr. at 2:116-17.

The state courts could certainly reject Mr. Battenfield’s post-conviction

assertion that Mr. Shook never explained “the importance of mitigation or . . .

what mitigation actually is.” Battenfield Aff. ¶ 2. They could instead decide that

the testimony of Mr. Shook and the original trial judge to the contrary was more

credible. E.g. , Hr’g Tr. at 1:116, 119-20; see also id. at 2:120 (direct

examination of Mr. Shook) (Q: “Had you explained to the defendant the meaning

of mitigating evidence and what you intended to present? A: Yes.”). Despite a

vigorous cross-examination at the state post-conviction hearing, the trial judge

was steadfast in his belief (then and at the hearing) that Mr. Shook had discussed

mitigation with his client. Id. at 1:116. He based this belief upon his visits with

Mr. Shook, the request by the defense to make a record on the issue, and the

furnishing of the bill of particulars to the defense. Id. The fact that the OCCA

would later issue guidelines governing the waiver of the right to put on

mitigating evidence should not cause us to disregard the careful inquiry at the

state post-conviction evidentiary hearing. Cf. Wallace v. State , 893 P.2d 504,

512 (Okla. Crim. App. 1995).

Plainly, the reasonableness of Mr. Shook’s actions must be judged against

5
the firm desires of his client. See Strickland , 466 U.S. at 691. We have held that

a defendant may waive the right to put on mitigating evidence. Wallace , 191

F.3d at 1247-48. There is little reason to believe that Mr. Battenfield would have

allowed the presentation of mitigating evidence at his trial, even if that evidence

came from sources other than himself or his parents. Mr. Battenfield’s expert

testified that while defense counsel cannot compel a defendant to testify in the

second stage, counsel that does not present mitigating evidence, even over the

objection of his client, renders deficient performance. Hr’g Tr. at 1:22, 36. This

is directly at odds with the client’s right to participate in his own defense, let

alone Strickland . See Smith v. Massey , No. 99-7143, 2000 WL 1854145, at *6

(10th Cir. Dec. 19, 2000) (“Although the legal expert who testified on behalf of

Smith in her post-conviction proceedings testified that [Smith’s trial attorney]

should have pursued the ‘architect’ or ‘manipulation’ theory notwithstanding

Smith’s wishes, this testimony is clearly inconsistent with the Supreme Court’s

view of the attorney-client relationship.”).

The premise of the court’s decision, that Mr. Shook lacked an adequate

mitigation strategy due to an inadequate investigation also is not supported. Mr.

Shook testified that he visited with Mr. Battenfield’s parents at court appearances

and in his office, though he could not recall how many times, and that he

conversed with them about the purpose of their potential second-stage testimony.

6
Hr’g Tr. at 2:138. He was aware of Mr. Battenfield’s troubled life, including his

problems with substance abuse and his association with the “wrong crowd.” Id.

at 2:131, 135. He further testified that he intended to call Mr. Battenfield’s

parents and perhaps a sibling, as witnesses and that he had conversed with his

client regarding the presentation of such evidence. Id. at 2:115. He intended to

describe Mr. Battenfield’s background, to bring out the positive aspects of his

life, and to have his parents ask the jury not to impose the death penalty. Id. at

2:118-19, 138-39. This was a permissible trial strategy to which a reviewing

court owes deference, notwithstanding that there may have been other ways to

defend the case. See Strickland , 466 U.S. at 689-90; Mayes v. Gibson , 210 F.3d

1284, 1288 (10th Cir. 2000) (mitigation evidence serves to humanize and explain

the defendant).

The mitigating evidence that the court views as significant is contained

primarily in a social worker’s assessment of Mr. Battenfield. It includes a double

hearsay account of the circumstances of Mr. Battenfield’s 1978 conviction,

perhaps related by Mr. Battenfield himself. St. Peter Aff. ¶ 17 (“[Mr.

Battenfield] states that all of this occurred while in a blackout so he only has

others’ descriptions to rely on as to what actually occurred.”). The evidence of

alcohol dependence came from a four-hour evaluation of Mr. Battenfield by a

clinical psychologist. Hr’g Tr. at 2:48; Murphy Aff. at 2 (“His personality testing

7
found that Mr. Battenfield suffers exclusively from alcohol dependence.”). This

court concludes that the “continuing threat” aggravator could have been

mitigated with evidence that Mr. Battenfield would not have had access to

alcohol in prison, that he may have been amenable to treatment, or that his

alcoholism may have worsened as a result of a car accident occurring some eight

years prior to the assault and battery conviction. Ct. Op. at 41-42; see also Boyd

v. Ward , 179 F.3d 904, 918 (10th Cir. 1999) (available mitigating evidence must

be viewed against the strength of the State’s case and the aggravators actually

found), cert. denied , 509 U.S. 108 (2000). All of this is nothing more than

speculation; the evidence about alcoholism just as easily could have had an

unintended and negative effect upon the jury.

Regardless, the OCCA was unassailably correct in concluding that the

substance of the mitigating evidence (which is largely historical data) could have

been presented by Mr. Battenfield and his family, particularly his parents, had he

heeded the advice of counsel. Battenfield , 953 P.2d at 1127. Had Mr.

Battenfield cooperated with Mr. Shook’s second-stage strategy, evidence that he

“was known for his compassion, gentleness, and lack of violence even when

provoked,” St. Peter Aff. ¶ 17, surely would have been brought out, even without

an extensive investigation.

In sum, the court’s decision is at odds with our current standard of review

8
and with Strickland . Mr. Battenfield rejected the assistance his counsel offered.

Moreover, the actions that counsel took prior to the waiver were reasonable under

the circumstances. I respectfully dissent from this portion of the court’s opinion

and would affirm the district court’s denial of the writ. 1

1
Mr. Battenfield also argues that the evidence is insufficient to sustain
the death penalty because the OCCA, in upholding the continuing threat
aggravator, relied upon the 1978 conviction (for assault and battery with a
dangerous weapon after former conviction of a felony), which the jury apparently
rejected as a basis for a continuing threat aggravator. See Battenfield v. State ,
816 P.2d 555, 566, reh’g denied , 826 P.2d 612, 613-14 (Okla. Crim. App. 1991).
The jury’s rejection of the continuing threat aggravator described in the State’s
bill of particulars, however, cannot be viewed as a factual rejection of the 1978
conviction because the bill of particulars misdescribed the 1978 offense. See
Battenfield , 826 P.2d at 613. Mr. Battenfield’s reliance on Presnell v. Georgia ,
439 U.S. 14, 16-17 (1978) (an appellate court may not uphold a death sentence
upon aggravating factor or circumstance not before the jury), is completely
unconvincing. Here, the continuing threat aggravator was contained in the bill of
particulars and both the jury and the OCCA were entitled to consider the 1978
conviction in connection with it.

9