Slaughter v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 6 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk

JIMMIE RAY SLAUGHTER,

Petitioner-Appellant,

v. No. 01-6185
(D.C. No. CIV-99-76-L)
MIKE MULLIN, * Warden, (W.D. Okla.)
Oklahoma State Penitentiary,

Respondent-Appellee.

ORDER AND JUDGMENT **

Before KELLY , HENRY , and MURPHY , Circuit Judges.

Petitioner-appellant Jimmie Ray Slaughter, a state prisoner, appeals the

district court’s decision denying him habeas relief from his two Oklahoma

first-degree malice murder convictions and death sentences. A jury convicted

Slaughter of shooting, stabbing and mutilating his former girlfriend, Melody

*
Mike Mullin replaced Gary Gibson as Warden of the Oklahoma State
Penitentiary effective March 25, 2002.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Wuertz (Wuertz), and shooting to death their eleven-month old-daughter, Jessica. 1

On appeal, Slaughter contends both that his trial attorneys’ first-phase

representation was constitutionally deficient because counsel did not try to

implicate a different, alternate suspect and that there was insufficient evidence to

support the jury’s second-phase finding that his killing Wuertz was especially

heinous, atrocious or cruel. This court affirms the denial of habeas relief under

28 U.S.C. § 2254.

I. FACTS

On July 2, 1991, Melody and Jessica Wuertz were each shot twice and

killed. The killer also stabbed Wuertz and mutilated her body. Suspicion

immediately centered on Slaughter, Jessica’s father, who was at that time

embroiled in a contentious paternity and child-support dispute with Wuertz.

Slaughter worked as a nurse at the Veterans’ Administration (VA) Hospital

in Oklahoma City. In approximately July 1989, Slaughter, who was married,

began an extramarital affair with Wuertz, who also worked at the VA hospital.

Slaughter, however, apparently never told Wuertz he was married. In July 1990,

Wuertz gave birth to Jessica. Soon thereafter, Slaughter, who was an Army

1
The jury also convicted Slaughter on five counts of perjury, based on
testimony he gave before the grand jury investigating these deaths. Slaughter
does not challenge these perjury convictions in this proceeding.

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reservist, volunteered for active duty during the Gulf War. He was stationed at

Fort Riley, Kansas, about a four-and-a-half-hour drive from Wuertz’s home in

Edmond, Oklahoma. Before leaving for active duty, Slaughter remarked to a

co-worker that “he was actually glad to be leaving . . . and that he was especially

glad to get away from Melody because she was getting pushy, and if she kept

pushing [him], [he’d] have to kill her.” Trial tr., July 19, 1994, at 81. Slaughter

further asserted that he could kill Wuertz without getting caught; “they would

know who did it but they would never be able to prove it,” id., July 21, 1994,

at 122.

In late October 1990, Wuertz discovered Slaughter was married. In fact,

she called Slaughter’s wife to tell her about Slaughter’s infidelity. Slaughter was

furious with Wuertz for this, but managed to explain to his wife that this must

have been a prank call, probably made by one of his former wives. Slaughter

later told a co-worker in Kansas that “his wife did not know about” Jessica and

“he would do anything to keep [her] from finding out.” Id., Sept. 12, 1994, at 87.

Although Wuertz had previously considered filing a paternity suit against

Slaughter, she had not yet done so because she feared that this would drive him

away and they would never marry, as she had hoped. Aware now that Slaughter

was already married to someone else, Wuertz sought the Oklahoma Department of

Human Services’ (DHS) help in collecting child support from him. Slaughter,

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however, had previously told Wuertz that if she ever pursued such a child-support

proceeding, he would kill both Wuertz and the baby. Numerous witnesses

testified to Slaughter’s rage stemming from Wuertz’s commencing those

proceedings. On at least one occasion, Slaughter told his then girlfriend in

Kansas that he wished Wuertz were dead.

While still in Kansas, Slaughter was able to keep tabs on Wuertz’s progress

with the paternity proceedings through another of his paramours, Cecilia Johnson.

Johnson was also a nurse at the Oklahoma City VA hospital, and Wuertz’s

apparent friend.

Although having signed an affidavit soon after Jessica’s birth admitting he

was the child’s father, Slaughter, in response to the paternity proceedings, denied

paternity and submitted to blood tests. Those test results established that there

was a 99.39% likelihood Slaughter was Jessica’s father. Wuertz received those

test results on June 19, 1990. Although DHS mailed those results to Slaughter at

Fort Riley, via certified mail, and attempted to have the results served on

Slaughter through the fort’s Provost Marshal’s office, Slaughter never officially

received those test results. Nevertheless, Wuertz did share the test results with

her co-workers. Slaughter testified that Cecilia Johnson, having heard the test

results from Wuertz, probably did inform him of those results. Slaughter’s grand

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jury testimony, Jan. 3, 1992, at 36 (played at trial, see Trial tr., Aug. 29, 1994,

at 6).

Slaughter called Wuertz during the early morning hours of Sunday, June 30,

1991, telling her there was no way that the baby was his, nor was there any way

he was going to pay Wuertz anything. Minutes later, Johnson called Slaughter

and they talked for over three and one-half hours. Wuertz was afraid to go home

that night because she feared Slaughter would be there.

The State theorized that Slaughter wanted to kill Wuertz and Jessica while

he was still stationed in Kansas, so he could use that as an alibi. If so, he would

soon run out of time to do so. Slaughter would be discharged from active duty

within a week, and Wuertz and Jessica were to fly to her parents’ home on July 3

for a two-week visit.

Wuertz and her daughter were killed July 2, 1991. The two medical

examiners performing autopsies on the victims estimated they died somewhere

between 10:00 a.m. and 2:00 p.m., and most likely around noon that day. Several

of Wuertz’s neighbors reported hearing what may have been gunshots sometime

between 11:30 a.m. and 12:45 p.m. Additionally, neighbors living in the house

right next door to Wuertz testified that, at around noon, their dog “went into

chaos” and “went ballistic and [was] barking tremendously and was very scared.”

Trial tr., Aug. 2, 1994, at 118, 120. This was just before the neighbors heard

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what may have been a gunshot. The State theorized that the killer had hopped the

fence to Wuertz’s backyard, startling the neighbors’ dog.

Wuertz’s neighbors testified at trial that they had not seen any vehicles

other than Wuertz’s car at her home that morning. At 12:37 p.m., however,

several young teenage boys walking down a street near the victims’ home noticed

a man fairly matching Slaughter’s description, in a car parked away from the

other houses, next to an open field. The boy walking closest to that car positively

identified Slaughter as the man he saw, both in a photo lineup conducted soon

after the murders and at Slaughter’s trial, three years later. Further, a second boy

also positively identified Slaughter at trial as the man he saw in the car.

Additionally, these two boys described the car they had seen as a

bluish-gray, four-door vehicle which also generally matched Slaughter’s car’s

description. And, although the second boy specifically identified the car he had

seen as a Nissan, and Slaughter’s car was, instead, a Dodge, both boys did pick

Slaughter’s car out of a photo lineup soon after the murders.

Donald Stoltz, who had spent time with Slaughter in jail, corroborated the

boys’ identification, testifying Slaughter had told him that the kids who saw him,

the day the murders occurred, mistakenly identified his car as a Japanese-made

vehicle. According to Stoltz, Slaughter said he did not know why he had left his

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car window down; and that, if he had kept his tinted window raised, no one would

have ever seen him.

The State’s experts testified that the killer most likely entered Wuertz’s

home, using a key, and killed the victims in a “blitz-style attack.” There was no

sign of forced entry, yet Wuertz was very security conscious and always kept her

house locked, even when she was inside. The confrontation between Wuertz and

the killer appeared to have occurred solely in the hallway, rather than near the

front door. Although Slaughter denied having a key to Wuertz’s house,

investigators found those keys in Slaughter’s car the day after the murders.

Both victims had been shot twice with Eley brand .22 caliber long-rifle,

subsonic, hollow-point bullets that had not been copper washed. This imported

ammunition was quite rare, representing only one tenth of one percent of the total

.22 caliber ammunition sold in the United States during 1990 and 1991. It could

generally not be purchased in American gun shops, but instead had to be special

ordered. Police found this same rare ammunition in Slaughter’s gun safe in his

Oklahoma home. Metallurgical tests indicated that the Eley ammunition in

Slaughter’s safe was elementally identical to the bullets that had killed the

victims. According to the State’s expert, this indicated that Slaughter’s

ammunition had been manufactured from the same piece of lead that produced the

bullets that had killed the victims. Based on this information, the State argued the

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bullets that killed the victims had to come from the very same box of Eley

ammunition found in Slaughter’s gun safe.

Police could not use the bullets that had killed the victims to identify the

murder weapon because those bullets were so badly damaged. According to the

State’s ballistics expert, this is a common phenomenon with .22 caliber

ammunition. Slaughter, who collected guns, did own several .22 caliber weapons.

In addition to shooting each victim twice, the killer stabbed Wuertz once in

the heart; deeply slashed both her breasts multiple times; scratched and cut her

abdomen, including apparently inscribing a variation on the letter R; and inflicted

a deep, nine-inch cut running from her vagina through her anal canal and lower

back. The medical examiner testified that the killer had used a single-edged

knife, at least six inches long and one-inch wide. Slaughter had a large collection

of knives.

Although the killer planted evidence and arranged the crime scene to look

like a sexual assault, police could find no physical evidence that a sexual assault

had occurred. Nor did robbery appear to be a motive for the killings, as police

found cash in plain sight near the bodies, and Wuertz’s purse, with $140, had

been left untouched. An FBI behavioral scientist testified that the manner in

which the killer had carried out these murders suggested, instead, a domestic

violence crime, carried out in a very controlled manner.

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 Evidence that the killer left at the crime scene included a comb, on which

Negroid hairs had been bunched, and a pair of men’s underwear. The comb was a

type that was not generally available but sold for institutional use in such places

as the Oklahoma City VA hospital and Fort Riley. Another Negroid hair was

found on Wuertz’s body. Cecilia Johnson admitted having collected these hairs,

as well as the underwear, from a transient black man who had been a patient at

the VA hospital the month before the murders. Johnson told a co-worker that she

had collected these items at Slaughter’s request and mailed them to him in

Kansas. According to Johnson’s co-worker, Slaughter “felt that he could confuse

them at the scene” with these items. Trial tr., Aug. 16, 1994, at 74. There was

evidence corroborating that Johnson had, in fact, mailed Slaughter a small

package in early June 1991. After the murders, Slaughter, who disliked

African-Americans, suggested to police and his co-workers that perhaps a black

man or a black transient had killed the victims. At different times, Slaughter also

suggested to police both that there had been a black man seen jumping fences in

Wuertz’s neighborhood and that Wuertz preferred to date African-American men.

There was, however, no evidence to support either contention. Cecilia Johnson

later suggested to a black co-worker, J.C. Sanders, that the planted evidence was

actually meant to implicate Sanders in the murders.

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 On Wuertz’s body, police also found a heavily-treated head hair,

microscopically consistent with one of Slaughter’s black co-workers at Ft. Riley.

This co-worker, however, had never been to Oklahoma.

Finally, two inmates, Dennis Hull and Lloyd Hunter, both testified that,

while they were in jail with Slaughter, he confessed to them that he had killed

the victims.

At trial, Slaughter propounded an alibi defense through his former wife,

Nicki Bonner. Bonner, who was married to Slaughter at the time the murders

occurred, testified that Slaughter had been in Kansas all day July 2, spending time

with her and their two daughters, who were visiting him for the Fourth-of-July

holiday. According to Bonner, on that day, Slaughter slept until 10:00 or 10:30

a.m. The family then ate lunch at the Country Kitchen restaurant, arriving

between 12:30 and 1:00 p.m. The waitress there did recognize Bonner and her

two daughters, and further testified that there was a man with them that day who

looked similar to Slaughter. The waitress, however, never got a good enough

look at the man’s face to identify him. According to jailhouse informant Stoltz,

Slaughter told him that maybe the waitress could not identify him because he was

not at the restaurant that day. Rather, “it could have been a friend” eating with

his family. Id. Aug. 4, 1994, at 79.

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 According to Bonner, the family drove around a nearby lake after lunch and

then travelled an hour to Topeka to shop. A Walmart store clerk in Topeka

remembered Slaughter buying his daughter a watch one afternoon, but could not

pinpoint the exact date this had occurred. The sales clerk did remember that

Slaughter had paid with a fifty dollar bill. Although Slaughter did not have the

receipt for this purchase, the store’s register tapes indicated that there was a sale

of that particular type of watch at 3:26 p.m. on July 2, and that the customer had

paid with a fifty-dollar bill. The defense argued that this must have been

Slaughter’s purchase.

The family also bought several other items at Walmart. The separate

receipt for those items indicated that this second purchase occurred at 4:16 p.m.

on July 2. The cashier who conducted this sale recognized Bonner and her older

daughter, and she remembered there was a younger girl, too. The clerk, however,

did not remember seeing a man with them that afternoon.

Several other Kansas merchants, located in a mall near the Walmart, did

remember seeing Slaughter later that afternoon, beginning just after 5:00 p.m.

This, however, does not lend any further support to Slaughter’s alibi. According

to the parties’ stipulation as to the mileage between the victims’ home and this

mall, if Slaughter had left Edmond soon after 12:30 p.m., he would have been

able to drive from Edmond to the mall by 5:00 p.m.

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 At trial, Slaughter’s attorneys supplemented his alibi defense by also

arguing that it might have been Cecilia Johnson, acting on her own, who killed

Wuertz and her baby. The trial court, nevertheless, instructed jurors that they

could convict Slaughter of first-degree murder if they found that he had actually

killed the victims or, alternatively, if they found, instead, that he had aided and

abetted Cecilia Johnson in doing so. Jurors, then, convicted Slaughter of two

counts of first-degree, malice-aforethought murder.

II. ISSUES

A. Ineffective representation during guilt stage. Slaughter now

contends that his trial attorneys were constitutionally ineffective for arguing that

Cecilia Johnson, rather than Slaughter, killed the victims; and that defense

counsel should have argued, instead, that another of Wuertz’s boyfriends, Rick

Gullotto, killed the victims.

1. Exhaustion/procedural default. The State first argues that these

claims remain unexhausted because Slaughter never raised them in state court.

See 28 U.S.C. § 2254(b)(1)(A). In order to exhaust his state-court remedies,

Slaughter must have fairly presented the substance of these habeas claims to the

state court before he raised them in this federal habeas proceeding. See Duncan

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v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam) (pre-AEDPA); see also, e.g.,

O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (pre-AEDPA).

Slaughter devoted at least forty pages of his state post-conviction

application to detailing the evidence implicating Gullotto in the murders.

Although in that state-court pleading Slaughter primarily argued that these facts

implicating Gullotto were either newly discovered or the State had wrongfully

withheld them from the defense, Slaughter did also assert that his trial attorneys

were ineffective “[t]o the extent these issues could have been identified at trial or

developed in direct appeal.” State post-conviction application at 78.

Additionally, Slaughter alleged that

[t]rial counsel was ineffective. Trial counsel’s errors were
numerous. Trial counsel failed to meaningfully and adequately
investigate, develop and present all facts, matters and issues relevant
to the constitutionality of [Slaughter’s] conviction and death
sentence. These errors included by way of example, but not
limitation, the development and investigation of an alternative
suspect, Rick Gullotto; the development and investigation of
evidence challenging the prosecution’s theory on the victims’ time of
death[, which supported the claim that Gullotto was the actual killer];
and the development and investigation of information known by
Edmond Police Detective, Dennis Dill[, who championed the theory
that it was Gullotto, and not Slaughter, who had killed the victims].

Id., addendum A at 19-20. These state-court allegations were sufficient to fairly

present the substance of Slaughter’s current federal habeas claims to the state

court. See Engberg v. Wyoming, 265 F.3d 1109, 1114, 1115-16 (10th Cir. 2001)

(holding habeas petitioner had exhausted his claim that prosecutor presented false

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argument regarding witness’s composure during robbery, when petitioner had

presented “essential substance” of this issue in state court claim challenging

State’s failure to reveal its attempt to hypnotize State witness), cert. denied, 535

U.S. 1001 (2002). Slaughter, therefore, has exhausted his state-court remedies.

See 28 U.S.C. § 2254(b)(1)(A).

Slaughter did not raise these particular ineffective-trial-counsel claims on

direct appeal, but instead asserted them for the first time in his initial state

post-conviction application. The state appellate court, therefore, deemed

Slaughter to have procedurally defaulted these claims, determining that “the facts

upon which his claims of ineffective assistance of trial counsel are based were

contained in the [trial] record or could have been available to direct appeal

counsel such that the arguments could have been raised in the direct appeal.”

Slaughter v. State, 969 P.2d 990, 995 (Okla. Crim. App. 1998). Nonetheless, two

of Slaughter’s three trial attorneys had also represented him on direct appeal.

See id. at 994 n.2. As a consequence, this state procedural bar is inadequate to

preclude federal habeas review. See English v. Cody, 146 F.3d 1257, 1263, 1264

(10th Cir. 1998); see also, e.g., Neill v. Gibson, 278 F.3d 1044, 1054, 1058

(10th Cir. 2001), cert. denied, 123 S. Ct. 145 (2002). Because the state appellate

court did not address the merits of this claim, however, we review the district

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court’s decision denying Slaughter habeas relief de novo. See, e.g., Romano v.

Gibson, 278 F.3d 1145, 1150 (10th Cir. 2002).

2. Merits. To obtain habeas relief on this claim, Slaughter must

establish both that his trial attorneys’ representation was deficient and that their

deficient performance prejudiced his defense. See Strickland v. Washington,

466 U.S. 668, 687 (1984). Because we conclude that Slaughter’s attorneys’

performance was not deficient, however, we need not address Strickland’s

prejudice inquiry. See id. at 697.

“[T]he overriding question under the [performance] prong of Strickland

is whether, under all the circumstances, counsel performed in an objectively

unreasonable manner.” Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir.),

cert. denied, 123 S. Ct. 703 (2002); see also Strickland, 466 U.S. at 688, 690.

“[W]e always start th[at] analysis [by presuming] that an attorney acted in an

objectively reasonable manner and that an attorney’s challenged conduct might

have been part of a sound trial strategy.” Bullock, 297 F.3d at 1046; see also

Strickland, 466 U.S. at 689. Additionally, this court reviews defense counsel’s

performance deferentially, “eliminat[ing] the distorting effects of

hindsight, . . . reconstruct[ing] the circumstances of counsel’s challenged conduct,

and . . . evaluat[ing] the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689. “For counsel’s performance to be constitutionally

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ineffective, it must be completely unreasonable, not merely wrong, so that it bears

no relationship to a possible defense strategy.” Le v. Mullin, 311 F.3d 1002, 1025

(10th Cir. 2002) (further quotation omitted), petition for cert. filed, (U.S. May 9,

2003) (No. 02-10634). We conclude that was not the case here.

As an initial matter, it was objectively reasonable for defense counsel not

to rely solely on Slaughter’s alibi defense, which was far from airtight. It was

therefore objectively reasonable and not inconsistent to suggest someone else

murdered the victims. See Appellant’s opening br. at 21 (acknowledging his alibi

defense was weak; agreeing that counsel’s asserting an alibi defense and arguing

someone else killed the victims “falls well within the prevailing norms of

professional conduct”). Furthermore, the circumstantial evidence of Slaughter’s

guilt was extensive and much of that was equally consistent with Johnson’s guilt.

In that light, defense counsel suggested to jurors that the real killer may

have been Cecilia Johnson, who died before trial. From a prosecution motion

filed before the taking of any testimony defense counsel became aware that the

State would counter by arguing that, even if Johnson did the actual killing,

Slaughter was still guilty of aiding and abetting her in doing so. Slaughter now

asserts, however, that this defense strategy implicating Johnson was objectively

unreasonable because, by suggesting that Johnson was the actual killer, defense

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counsel in essence conceded Slaughter’s guilt under the State’s

aiding-and-abetting theory. We disagree.

Johnson had already been inextricably linked to the murders when she

admitted to a co-worker that she had obtained the evidence found planted at the

crime scene. She also knew where the victims lived and, as Wuertz’s purported

friend, she could have gained entrance into Wuertz’s otherwise locked home.

Johnson, too, may have possessed the weapons necessary to commit these crimes.

Several co-workers testified that she carried a .22 caliber gun in her purse. A few

months before the murders occurred, Slaughter had given Johnson a knife as

a birthday gift. Johnson had no alibi and, soon after the murders, she removed

a number of items from her home, fearing police would search her residence.

There was also evidence supporting defense counsel’s theory that Johnson

could have killed the victims without Slaughter’s involvement. Johnson was

emotionally unstable. Witnesses described her as struggling with low self esteem

and she also had a significant history of depression. Years earlier, she had tried

to kill herself. And, several months after these murders, she again tried to take

her own life. Eventually she succeeded in killing herself, in February 1992, a

month after a grand jury indicted Slaughter.

Johnson had also been diagnosed with a personality disorder which

included avoidant, dependent, and self-defeating personality traits. According to

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the State’s psychological expert, such a disorder could produce intense fits of

jealousy and result in her becoming obsessed with things. The evidence further

suggested that Johnson became obsessed with Slaughter. She had begun a sexual

relationship with him in the spring of 1990, while Wuertz was pregnant with

Jessica. At the outset of their relationship, Johnson was jealous of Evelyn

Cunningham, another VA employee with whom Slaughter was pursuing a

romantic relationship at this same time. Further, according to her co-workers, as

time went on Johnson began to espouse Slaughter’s views. After Slaughter

reported to Fort Riley in September 1990, he and Johnson spoke with each other

several times a week, using the federal government’s tele-communication system

(FTS) available at their workplaces. Johnson’s friend, Jennifer Underwood,

testified that Johnson became very dependent upon her relationship with

Slaughter, and Johnson grew to be more concerned about Slaughter than herself.

In the fall of 1990, Johnson became pregnant with Slaughter’s child, but

she soon miscarried. According to Underwood, this was devastating to Johnson.

It was also around this same time that Johnson began telling Underwood and other

nurses that she would like to have custody of Jessica. Her co-workers also

testified that Johnson was jealous of Wuertz because of the child.

Johnson had initially befriended Wuertz. At one point, however, Johnson

became upset after finding a romantic letter Slaughter had written Wuertz.

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Further, after Wuertz filed the paternity action against Slaughter in the fall of

1990, Johnson started to avoid Wuertz and became more hostile toward her.

Through Johnson’s connection with Wuertz, however, Johnson remained privy to

information concerning the paternity proceedings which she passed along to

Slaughter. Johnson was aware that the paternity proceedings upset Slaughter. In

fact, after Slaughter received a DHS notice concerning his support obligations,

Slaughter told a girlfriend in Kansas that he was concerned because he had a

friend in Oklahoma who wanted to do something to Wuertz. The State argued

that Slaughter’s friend was Johnson.

Before the murders, Johnson had told her co-worker, J.C. Sanders, that she

would be willing to help Slaughter kill Wuertz and she would even do it for him

if he asked. After the VA hospital staff heard about the murders, however,

Johnson took Sanders aside and suggested to him that she had never made any

such statement.

There was, then, substantial evidence supporting defense counsel’s

argument that Johnson, obsessed with Slaughter and jealous of Wuertz, acted on

her own to kill the victims. Further, and contrary to Slaughter’s assertions to this

court, it was not the defense alone who produced this evidence tying Johnson to

the murders. Rather, from the trial’s outset, it was the State’s theory that

Johnson had assisted Slaughter in carrying out these murders. The State

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presented much of the evidence implicating Johnson’s involvement in the

murders. Defense counsel just took this evidence and the State’s theory a step

further, arguing it was Johnson acting alone who actually killed the victims.

To be sure, there was also significant evidence presented at trial closely

linking Johnson to Slaughter; suggesting that Johnson would never have harmed

Jessica; that it was Slaughter, and not Johnson, who controlled their relationship;

and that, when Johnson heard about the murders, she appeared genuinely shocked

and upset. Nonetheless, in the face of the State’s compelling case against

Slaughter and the evidence inextricably linking Johnson to the murders, it was not

objectively unreasonable for defense counsel to argue that it was Johnson,

unbeknownst to Slaughter, who took it upon herself to kill the victims.

Slaughter now contends, however, that defense counsel had a much better

alternate suspect that they should have instead implicated: Wuertz’s friend,

Rick Gullotto. Gullotto was also a nurse at the Oklahoma City VA hospital and

an Army reservist; he disliked African-Americans; he collected guns and knives,

and in particular owned several .22 caliber weapons; he liked to carve his initials

into things; he talked about committing the perfect crime; and he had remarked to

different people that he could murder anyone and make it look like they had died

at another time. Gullotto also had a history of domestic violence.

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 Gullotto and Wuertz had dated a few times. Wuertz wrote Gullotto the day

before the murders, breaking off their relationship. According to Gullotto,

however, he found this note at work at approximately 7:00 a.m. on the day the

murders occurred. Further, Gullotto testified before the grand jury that it was

Wuertz who was more interested in a romantic relationship with him, rather than

he with her. In fact, at this same time, Gullotto had also been pursuing a romantic

relationship with another VA nurse and was also apparently living with a third

woman. According to Gullotto, therefore, he was relieved rather than angered by

Wuertz’s note ending their relationship. Several other VA nurses corroborated

Gullotto’s version of his relationship with Wuertz.

Nevertheless, the day after the murders, Gullotto lied to police, falsely

asserting both that he had spent the night preceding the murders with still another

girlfriend, and also denying that he had had a sexual relationship with Wuertz.

Gullotto apparently never explained, at least anywhere in the record, where he

was during the early morning hours of July 2, 1991.

Certainly, then, there was evidence from which defense counsel could have

also developed a defense strategy suggesting that Gullotto was the real killer.

There were, however, several obstacles to such a defense. As an initial matter,

“Oklahoma has an evidentiary rule that a criminal defendant cannot put on

evidence that someone else might have committed the charged offense, absent

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proof that person took an overt act toward the commission of the crime.” Romano

v. Gibson, 239 F.3d 1156, 1165-66 (10th Cir. 2001); see also, e.g., Dennis v.

State, 879 P.2d 1227, 1232 (Okla. Crim. App. 1994); Woodruff v. State, 846 P.2d

1124, 1137 (Okla. Crim. App. 1993). “The main purpose of [this] rule . . . is to

prevent juries from embarking on wild goose chases.” Romano, 239 F.3d at 1168.

Accordingly, the trial court granted the State’s motion in limine precluding the

defense from asserting any evidence implicating someone other than Slaughter or

Johnson, without first establishing for the court a direct connection between that

other person and the murders.

Slaughter now asserts that he could have met these trial-court requirements

because he had sufficient evidence directly linking Gullotto to the murders.

Wuertz’s neighbor, John Harris, reported seeing a dark colored, small pickup

truck in front of the Wuertz residence shortly before 6:00 a.m. the morning the

murders occurred. Gullotto drove a red pickup truck that matched the description

Harris gave police. Several other neighbors also told police they had observed

such a truck parked at the Wuertz residence on several previous occasions, but not

on the day of the murders. Still another neighbor, Larry Huthison, reported

hearing gunshots at approximately 6:30 a.m., “[s]omewhere around the time of the

homicides, but possibly several days before.” Section 2254 pet., app. doc. 22

at 2. This was, however, contrary to numerous neighbors’ reports that they heard

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gunshots, instead, sometime between 11:30 a.m. and 12:45 p.m. the day the

murders occurred.

It is not clear whether these two reports would have been sufficient under

Oklahoma law to permit Slaughter to argue to the jury that Gullotto was the actual

killer. Cf. Tahdooahnippah v. State, 610 P.2d 808, 810 (Okla. Crim. App. 1980)

(noting “[i]t is insufficient to merely place” the alternate suspect “at the scene of

the murder;” noting, also, that another’s motive, alone, is insufficient); Quinn v.

State, 25 P.2d 711, 714 (Okla. Crim. App. 1933) (indicating another person’s

motive and opportunity were insufficient, without evidence of overt act taken by

alternate suspect to commit murder). Assuming the evidence was sufficient to

indicate Gullotto took an overt act toward killing the victims, there were still

additional problems with this defense theory. First, Gullotto had an apparently

airtight alibi for midday Tuesday, July 2, 1991, when the State argued the murders

occurred. He worked that day at the VA hospital, arriving at approximately

7:30 a.m. and working until 4:20 p.m. Several co-workers corroborated

Gullotto’s alibi. Therefore, in order for Slaughter to have argued effectively to

the jury that it was Gullotto who actually killed the victims, Slaughter would have

also had to challenge the State’s theory that the murders occurred midday July 2.

There was some evidence from which defense counsel could have challenged this

midday time of death, although such a theory would still have been contrary to the

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weight of the evidence. Nonetheless, an earlier time of death would have actually

diminished, rather than strengthened, Slaughter’s own alibi. If the murders had,

instead, occurred during the early morning hours of July 2, Slaughter’s midday

alibi would not exclude him as the killer. For these reasons, therefore, we cannot

say defense counsel was objectively unreasonable in deciding not to challenge the

State’s theory that the murders occurred around midday July 2.

Another problem defense counsel would have faced, had they decided to

argue that Gullotto was the actual killer, was the necessity to connect Gullotto to

Johnson, who had already inextricably been connected to the murders. 2 While

Gullotto and Johnson did both work at the VA hospital, there is no evidence that

2
Johnson indicated she had, at Slaughter’s request, obtained the evidence
found planted at the crime scene and mailed this evidence to him. In support of
his current theory that Gullotto killed the victims, Slaughter now asserts that
Johnson travelled to Ft. Riley to be with him the week after she mailed him the
hair and underwear. Slaughter theorizes that, while she was there, Johnson must
have retrieved these items from Slaughter’s military quarters, taking them back to
Oklahoma where she later gave them to Gullotto to plant at the crime scene.
Slaughter further asserts that, while Johnson was at Ft. Riley, she must have also
obtained a hair from Army nurse Mosely, again to give to Gullotto to plant at the
crime scene.

In posing this theory, Slaughter now relies on Johnson’s statements to
police, made after she entered into an immunity agreement with the State. The
trial court, however, held these statements were inadmissible at trial, apparently
in part at the defense’s request. Defense counsel, however, was not objectively
unreasonable in preventing Johnson’s statements from reaching the jury because,
in those statements, Johnson also made numerous assertions that corroborated the
State’s evidence against Slaughter and that would otherwise have been extremely
detrimental to Slaughter’s defense.

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Gullotto even knew Johnson, let alone plotted the murders. Slaughter does try to

connect Gullotto with Johnson by pointing to a series of twenty-five telephone

calls made from the VA hospital FTS line to Gullotto’s home, beginning in

February 1991, and ending the night following the murders. Slaughter now

contends these calls must have been made by Johnson to Gullotto. There is

simply no evidentiary basis for that assertion. The parties stipulated that “[t]here

are several hundred telephones within the hospital complex from which a caller

can engage the FTS system and it is impossible to determine from which

telephone a call is being placed.” Trial tr., July 18, 1994, at 183. Gullotto did

work at the VA hospital during most of this time period, and he was also trying to

establish romantic relationships with several hospital employees. These calls,

therefore, could have been made by any number of people for many different

reasons. They do not suggest a link between Johnson and Gullotto, a link which

would have been necessary for defense counsel to argue to the jury that it was

Gullotto, conspiring with Johnson, who actually killed the victims. 3

Finally, had defense counsel chosen to present a defense premised on

Gullotto’s having killed the victims, aided by Johnson, this defense still remains

3
Slaughter complains that the trial court permitted the State to argue at trial,
based on similar evidence, that Johnson, using the FTS line, had made numerous
calls to Slaughter while he was stationed in Kansas. But, at trial, the defense and
the State stipulated to those calls. Additionally, the trial record contained other
evidence supporting the fact that Johnson had used the FTS line to call Slaughter.

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susceptible to the same counter arguments that the State, in any event, asserted at

Slaughter’s trial. In light of the direct connection between Johnson and the

evidence found planted at the crime scene, as well as the significant evidence

linking Johnson with Slaughter, the State could still have argued that Slaughter

aided and abetted these murders by, perhaps, getting Johnson and Gullotto to kill

the victims, or getting Johnson to hire Gullotto to kill the victims. There was, in

fact, a significant amount of testimony at trial that Slaughter, in other contexts,

had previously suggested hiring people to kill others for him. Even had the

defense argued it was Gullotto who actually killed the victims, therefore,

Slaughter would not necessarily have avoided the State’s aiding-and-abetting

theory.

In summary, then, there was certainly some evidence upon which defense

counsel could have formulated a defense premised on Gullotto being the actual

killer. And defense counsel could perhaps have gotten that evidence before the

jury by satisfying Oklahoma law requiring proof of an overt act Gullotto had

taken toward committing these crimes. Nonetheless, in light of the further

obstacles defense counsel would have faced in asserting such a defense, we

cannot conclude that it was objectively unreasonable for defense counsel to have

chosen between these two plausible defenses and decided not to assert a defense

blaming Gullotto, but, instead, to argue that Cecilia Johnson, acting on her own

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and unbeknownst to Slaughter, had killed the victims. See Bell v. Cone, 535 U.S.

685, 702 (2002) (holding state court did not unreasonably apply Strickland where

neither option available to defense counsel “so clearly outweigh[ed] the other”);

Duckett v. Mullin, 306 F.3d 982, 996 (10th Cir. 2002) (noting this court must

“apply a heavy measure of deference to trial counsel’s strategic decision to raise”

one plausible defense instead of another) (further quotation omitted), cert. denied,

123 S. Ct. 1911 (2003). “It is all too tempting for a defendant to second-guess

counsel’s assistance after conviction . . ., and it is all too easy for a court,

examining counsel’s defense after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at

689. “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in

the same way.” Id.; see also, e.g., Romano, 278 F.3d at 1154. “In light of all the

circumstances, [therefore,] we cannot say that defense counsel’s strategic

decision [here] was completely unreasonable.” Romano, 278 F.3d at 1154

(further quotation omitted). Because Slaughter’s defense attorneys’ performance

did not fall “below an objective standard of reasonableness,” he is not entitled to

federal habeas relief. Strickland, 466 U.S. at 688.

Slaughter further argues, however, that defense counsel, here, did not

choose between plausible defense strategies because, although defense counsel,

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prior to trial, had most of this evidence suggesting Gullotto might have actually

killed the victims, defense counsel was simply unaware of this evidence,

essentially losing it in the enormity of this case. Slaughter’s speculation,

however, flies in the face of the pretrial record.

Early in the case, police considered Gullotto a suspect. He testified before

the grand jury, along with several of his co-workers, who were able to corroborate

his alibi. Slaughter’s attorneys had access to these grand jury transcripts prior to

trial. The State had also listed Gullotto on numerous pretrial witness lists.

Moreover, at Slaughter’s preliminary hearing, the defense itself presented

testimony concerning Gullotto’s being a suspect. In light of Gullotto’s prevalence

throughout the pretrial proceedings, therefore, we cannot accept, without more,

Slaughter’s current contention that defense counsel were unaware they had

evidence from which they could have asserted Gullotto was the actual killer. See

Duckett, 306 F.3d at 995-96 (holding that, when defense counsel was aware of

facts supporting a different defense, it was “clear that defense counsel’s decision

not to pursue other possible defenses was a tactical one”); see also Bryan v.

Gibson, 276 F.3d 1163, 1176 (10th Cir. 2001), reh’g en banc granted. In light of

this record, therefore, Slaughter has failed to “overcome the presumption that,

under the circumstances, the challenged action might be considered sound trial

strategy.” Strickland, 466 U.S. at 689 (further quotation omitted); see also

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Bullock, 297 F.3d at 1047 (noting Strickland “places upon the defendant the

burden of showing that counsel’s action or inaction was not based on a valid

strategic choice”) (further quotation omitted).

B. Ineffective appellate representation. Slaughter argues that his

appellate counsel was ineffective for failing to raise the preceding

ineffective-trial-counsel claim on direct appeal. The first relevant question posed

by this claim is whether direct-appeal counsel’s representation was objectively

unreasonable. See Smith v. Robbins, 528 U.S. 259, 285 (2000). Because

Slaughter’s ineffective-trial-counsel claim lacked merit, his direct-appeal counsel

was not objectively unreasonable in failing to assert that claim on direct appeal.

See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003).

C. Was there sufficient evidence to support a determination that

Melody Wuertz’s death was especially heinous, atrocious or cruel? At the

capital sentencing proceeding, the jury found that Wuertz’s death was especially

heinous, atrocious or cruel, and that Slaughter, in killing both victims, had created

a great risk of death to more than one person. After balancing these aggravating

factors with Slaughter’s mitigating evidence, the jury imposed two death

sentences.

Slaughter now contends there was insufficient evidence to support the

jury’s finding that he killed Wuertz in an especially heinous, atrocious or cruel

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manner. “To establish th[is] aggravator under Oklahoma law, the [State] must

prove the murder was preceded by torture or serious physical abuse. Torture

includes the infliction of either great physical anguish or extreme mental cruelty,

while physical abuse requires evidence of conscious physical suffering.” Hooker

v. Mullin, 293 F.3d 1232, 1240 (10th Cir. 2002) (further quotations omitted),

cert. denied, 123 S. Ct. 975 (2003). The Oklahoma Court of Criminal Appeals

determined that there was sufficient evidence to support this aggravating factor.

Slaughter v. State, 950 P.2d 839, 859-60 (Okla. Crim. App. 1997).

Both Slaughter and the State assert that, applying Jackson v. Virginia,

443 U.S. 307 (1979), the relevant question here is whether, viewing the evidence

in the light most favorable to the prosecution, any rational factfinder could have

found this aggravating factor beyond a reasonable doubt. See also, e.g., Lewis v.

Jeffers, 497 U.S. 764, 781 (1990) (applying Jackson). The state appellate court,

however, in denying Slaughter relief on this claim, considered only “whether

there was any competent evidence to support” this aggravator. Slaughter,

950 P.2d at 859 (further quotation omitted; emphasis added). Because the state

appellate court did not apply Jackson’s “rational fact finder standard,” Hooker,

293 F.3d at 1240, we do not afford that court’s decision any deference. See also

Jackson, 443 U.S. at 320 (holding that reviewing only for any relevant supporting

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evidence is inadequate to insure due process by requiring criminal convictions to

be proved by evidence beyond reasonable doubt).

The State’s theory was that Slaughter had purposefully shot Wuertz in the

neck to paralyze her, but not render her unconscious. Then, in an effort to punish

Wuertz further for commencing the paternity proceedings against him, Slaughter

forced her to watch helplessly as he shot their daughter to death. Slaughter now

asserts, however, that the evidence at trial does not support a determination that

Wuertz remained conscious after the initial attack. We disagree.

The evidence indicated that Wuertz suffered a blow to her lip, which the

State theorized occurred at the outset of the killer’s attack. However, the medical

examiner, Dr. Choi, testified that this blow to Wuertz’s lip “probably” did not

render her unconscious. Wuertz then suffered two gunshot wounds, one behind

her left ear, near the back of her head, at about the hairline, and a head wound

inflicted at her left ear lobe. The shot to the neck fractured the cervical spine at

C-2 and would have paralyzed Wuertz’s arms, legs and torso, but would not

necessarily have rendered her unconscious. The other shot to the head, however,

would have been the fatal shot and might have resulted in immediate

unconsciousness. Before she died, Wuertz also suffered a stab wound to the heart

which contributed to, but would not have immediately caused, her death. This

stab wound also would not alone have rendered Wuertz immediately unconscious.

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The other knife wounds occurred perimortem, that is, just prior to the time of

death, after there had been a drop in blood pressure and after Wuertz was very

near death and likely unconscious.

Dr. Choi believed the paralyzing gunshot wound to Wuertz’s neck occurred

before the fatal shot to the head or the knife wounds, based upon the directional

flow of the dried blood on Wuertz’s face, forward and to the right, which

paralleled the angle of the neck wound; the difficulty inflicting a wound with this

angle if Wuertz had already been lying on the ground; the angle of the subsequent

stab wounds, which indicated Wuertz may have been lying on the ground when

the killer inflicted them; and the fact that Wuertz did not suffer any defensive

wounds, indicating an incapacitating injury occurred at the attack’s outset.

Although Dr. Choi could not say whether or not the gunshot wound to the

neck would have rendered Wuertz immediately unconscious, the State’s crime

scene reconstructionist, Tom Bevel, testified this shot “would not [have]

lower[ed] her blood pressure,” Trial tr., Aug. 31, 1994, at 50, and thus would not

have produced unconsciousness. According to Bevel, it was the second shot that

would have lowered Wuertz’s blood pressure. In addition, according to Dennis

Hull, who was in jail with Slaughter for a brief period of time, Slaughter told him

Slaughter had shot Wuertz in the spinal cord to paralyze her.

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 This evidence is sufficient to permit, though not compel, a reasonable

factfinder’s inference that Wuertz, conscious but paralyzed, suffered extreme

mental anguish at Slaughter’s hands. See Hooker, 293 F.3d at 1243 n.11;

Romano, 239 F.3d at 1176, 1177; see also McCracken v. Gibson, 268 F.3d 970,

982 (10th Cir. 2001), cert. denied, 123 S. Ct. 165 (2002). Habeas relief,

therefore, is not warranted. See Hooker, 293 F.3d at 1243 n.11; Romano,

239 F.3d at 1177.

Slaughter further argues, however, that Wuertz did not suffer a sufficient

length of time to establish extreme mental cruelty. 4
Oklahoma case law is not

always consistent concerning the length of time a victim must consciously endure

extreme mental cruelty sufficient to support this aggravating factor. See, e.g.,

Turrentine v. State , 965 P.2d 955, 976 (Okla. Crim. App. 1998) (noting some

Oklahoma cases indicate that “[t]he length of time which the victim suffers

mental anguish is irrelevant,” while other cases require that “the victim is

terrorized for a significant period of time before death”) (further quotation

omitted). Nonetheless, it is clear that under Oklahoma law making a parent watch

4
To the extent Slaughter is also asserting that Oklahoma is applying this
aggravating factor in an unconstitutionally vague and overbroad manner, he never
raised that particular claim in federal district court. We, therefore, decline to
address that issue here. See, e.g, Hooker, 293 F.3d at 1241 n.7 (“Typically, this
court does not consider issues that were not first presented to the federal district
court.”).

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as his or her child is murdered will suffice. Cf. id. at 976 (holding there was

sufficient evidence to support finding that defendant had inflicted extreme mental

anguish upon his girlfriend when defendant told his girlfriend that he was going

to kill her and her children before doing so); Smith v. State , 932 P.2d 521, 535

(Okla. Crim. App. 1996) (holding “evidence that [children] witnessed the

stabbing [death] of their mother supports a finding of extreme mental cruelty”).

For these reasons, we, therefore, AFFIRM the district court’s decision

denying Slaughter federal habeas relief.

Entered for the Court

Michael R. Murphy
Circuit Judge

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