Workman v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 26 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

WINDEL RAY WORKMAN,

Petitioner - Appellant,

v.
No. 01-6448
MIKE MULLIN, Warden,
Oklahoma State Penitentiary,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-97-1378-L)

Robert W. Jackson (Steven M. Presson with him on the briefs), Jackson &
Presson, P.C., for Petitioner-Appellant.

David M. Brockman, Assistant Attorney General (W.A. Drew Edmondson,
Attorney General of Oklahoma, with him on the briefs), State of Oklahoma for
Respondent-Appellee.

Before EBEL, BRISCOE, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.
 Petitioner-Appellant, Windel Ray Workman, was convicted and sentenced

to death by a jury in Oklahoma state court for felony first-degree child abuse

murder. He petitions for a writ of habeas corpus for relief in federal court

pursuant to 28 U.S.C. § 2254. He objects to his death sentence on the ground

that, although the jury found that he had killed a child during the course of the

felony of child abuse, the verdict did not sufficiently determine his degree of

culpability as required by the Supreme Court cases of Enmund v. Florida, 458

U.S. 782, 798 (1982), or Tison v. Arizona, 481 U.S. 137, 157 (1987), such that

the State may impose the death penalty on him. We AFFIRM the district court’s

dismissal of Workman’s petition for a writ of habeas corpus. We hold that an

additional culpability finding as might be required by Enmund or Tison in order

to apply the death penalty for a felony murder conviction does not apply when the

defendant actually killed his victim, as was the case here.

BACKGROUND

Windel Ray Workman was tried by a jury in Oklahoma and convicted of the

first-degree child abuse murder of his live-in girlfriend’s two-year-old daughter.

Workman v. State, 824 P.2d 378, 380 (Okla. Crim. App. 1991). The girl, Amanda

Holman, was pronounced dead upon arrival at South Community Hospital in

Oklahoma City on the morning of January 10, 1987. The emergency room doctor

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and nurse who unsuccessfully attempted to revive Amanda observed numerous

bruises on the girl’s face, chest, back and buttocks, and suspected child abuse.

The police were called to the hospital and spoke with Workman about

Amanda’s injuries. Workman told them that Amanda had fallen backwards out of

bed the night before. He also admitted to spanking the child hard, leaving bruises

on her body. He played “pitch” with Amanda, in which he threw the girl up in the

air and caught her. Amanda’s pediatricians testified, however, that her injuries

could not have resulted from these activities alone and she was not a child who

bruised easily.

According to the medical examiner, Amanda had died from blunt head

injury. Her death was a homicide, not a result of accident. Any of Amanda’s

three serious head injuries could have killed her, and he noted additional injury to

the child’s abdomen and buttocks. Moreover, because bruising cannot occur post-

mortem, the injuries observed must have been inflicted before her death. Had

Amanda’s injuries been the result of a fall as Workman claimed, such a fall must

have been from at least ten feet. The physician in charge of the emergency room

at Children’s Hospital revised upward the medical examiner’s estimate of the

height of a fall that could have inflicted similar injuries, concluding that such

injuries might result from a fall from a two or three-story building. The doctor

from the Children’s Hospital also concluded that, on the basis of the autopsy

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report, photos of Amanda, and discussions with the medical examiner, Amanda

had been “most definitely” a victim of child abuse.

Witnesses established that Amanda had been in Workman’s care during the

time she incurred her injuries. Several employees of the child’s daycare testified

that they had noticed bruises and other injuries on Amanda in the days preceding

her death. Amanda cried when Workman came to pick her up from the center.

January 7, 1987 was the last day that Workman picked Amanda up from

daycare. On that day, the girl screamed and cried when she saw Workman at the

door. She climbed into the lap of a stranger and wet her pants. Workman’s

comment about Amanda’s behavior was that the child, for some reason, “doesn’t

like me.”

Workman kept Amanda home by himself on January 8th and 9th. He

testified that he heard Amanda fall in her room on the 8th and believed that she

had hit a dresser. The two-year-old told him that her stomach hurt afterwards.

On cross-examination, Workman admitted spanking Amanda on the 8th.

According to Workman, on the 9th, Amanda fell again in the bathtub. Workman

did not tell the police about this fall in initial interviews because he said he had

left her unaccompanied at the time, in contravention to a promise he had made her

mother. That evening, Amanda began to vomit. After Amanda could not be

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resuscitated on the 10th, Workman and the girl’s mother took her to the hospital,

and she was pronounced dead on arrival.

Amanda’s pediatricians testified that Amanda’s mother had been a

concerned parent, bringing Amanda in for treatment of even minor injuries. By

contrast, Workman’s own witness, his second wife, had seen Workman spank

their daughter too hard two or three times, causing the child to wet her pants.

Procedural History

At trial, the state court retained a juror who first expressed doubt about

whether she could serve, and then later agreed that she could be fair.

The jury convicted Workman of child abuse murder in the first degree. 1

The jury was instructed that the elements of the crime were (1) “The death of a

human being;” (2) “That this human being was under the age of eighteen years;”

1
Child abuse murder in Oklahoma is similar to felony murder in that it
does not require a specific intent to kill. Malicoat v. State, 992 P.2d 383, 395
(Okla. Crim. App. 2000). Nevertheless, it is categorized as first-degree murder.
Fairchild v. State, 998 P.2d 611, 618 (Okla. Crim. App. 1999); see also Okla.
Stat. tit. 21, §843 (amend. 1989, 1990), renumbered as Okla. Stat. tit. 10, §7115
effective Nov. 1, 1995 (amend. 1995, 1996, 1998, and 1999) (Supp. 2003)
(“‘[C]hild abuse’ means the willful or malicious abuse . . . of a child under
eighteen (18) years of age by another, or the act of willfully or maliciously
injuring, torturing or maiming a child under eighteen (18) years of age by
another.”); Okla. Stat. tit. 21, §701.7(c) (amend. 1989, 1997) (“It is sufficient for
the crime of murder in the first degree that the person either willfully tortured or
used unreasonable force upon the child or maliciously injured or maimed the
child.”).

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(3) that “The death occurred as a result of the willful or malicious use of

unreasonable force upon the child;” and (4) that these actions had been committed

“By the defendant Windel Ray Workman.” Jury Instruction No. 6. During the

sentencing stage of Workman’s trial, the jury found the existence of aggravating

circumstances, including that the murder was “especially heinous, atrocious, or

cruel,” and recommended imposition of the death penalty. See Okla. Stat. tit. 21,

§701.12(4).

On direct appeal, Workman challenged Oklahoma’s first-degree murder

statute as vague, and the jury instructions as not properly relaying to the jury the

requirements of the statute. He also argued that the jury instructions were

insufficient under the Eighth and Fourteenth Amendments because they allowed

conviction without proof of mens rea for the killing, as opposed to mens rea for

the commission of child abuse. Workman exhausted his state remedies on direct

appeal. The Oklahoma state courts did not address the Eighth Amendment issue

and denied relief.

On collateral attack in federal court, Workman argued for the first time that

his trial counsel had a conflict of interest because the attorney represented his

brother, Tracey Workman, on a separate charge.

He also renewed his objection that the jury instructions had not properly

determined his degree of culpability for the child abuse murder and he more

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explicitly referred to the standard for imposition of the death penalty under the

Eighth Amendment cases of Enmund v. Florida, 458 U.S. 782, 798 (1982), and

Tison v. Arizona, 481 U.S. 137, 157 (1987).

The district court found that Workman had properly presented his Eighth

Amendment Enmund/Tison argument on direct appeal. It then ordered Workman

to present the argument again to the Oklahoma state courts so that the Oklahoma

courts could make a determination of Workman’s Enmund/Tison culpability

pursuant to the procedures outlined in Cabana v. Bullock, 474 U.S. 376 (1986).

The Oklahoma Court of Criminal Appeals (the OCCA), however, again

refused to rule on the substance of Workman’s Enmund/Tison argument, now

claiming that it was procedurally barred, apparently predicated on the belief that

the argument had not been raised on direct appeal.

When Workman’s case returned to the federal system, however, the district

court found that his Enmund/Tison claim was not procedurally barred as the

OCCA had determined. The district court reiterated its earlier determination that

Workman had raised the issue of Enmund/Tison culpability on direct appeal.

Because the OCCA declined to rule on the merits of Workman’s

Enmund/Tison claim even when presented with an additional opportunity to do so,

the district court subsequently made the required determination on the issue of

Workman’s culpability itself. The district court found that, although there had

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been no direct finding in the trial record that Workman had intended to inflict

fatal blows to the child, the record contained “abundant circumstantial evidence

of Petitioner’s mental state.” Slip Op. at 15. The district court surveyed the

traumatic physical abuse done to Amanda Holman before her death, and noted

that it was bound by the state court’s determination that Workman had been the

one who had inflicted the abuse. Given the evidence of the type of abuse

presented at trial, the district court concluded that the record was “sufficient to

demonstrate that Petitioner acted with reckless disregard of the consequence of

his actions when he repeatedly struck [the two-year-old child] about the head and

abdomen.” Slip Op. at 16-17. This language satisfied the “reckless disregard” or

“reckless indifference to the value of human life” standard in Tison v. Arizona.

Tison, 481 U.S. at 157.

Now on appeal, Workman argues that his sentence should be overturned on

five main grounds. First, he objects that his attorney had a conflict of interest

that mandates reversal of his sentence. Second, he argues that his right to an

impartial jury was unconstitutionally impaired by the retention of the juror who

initially objected to serving. Third, Workman argues that his right to due process

was unconstitutionally impaired by jury instructions that allegedly relieved the

State of the burden of proving every element of the crime charged. Fourth,

Workman argues that his sentence is unconstitutional because the definition of the

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aggravating circumstance for murder was vague. Fifth, he argues that his

sentence is unconstitutional due to cumulative error. Workman also has filed

motions to have his case held in abeyance because of the Supreme Court’s recent

decision in Ring v. Arizona, 536 U.S. 584 (2002), and to remand his case for an

evidentiary hearing.

We exercise jurisdiction over this appeal pursuant to 28 U.S.C. §§ 2253,

2254. For the reasons that follow, we AFFIRM the district court’s denial of a

writ of habeas corpus, we DENY the motion to hold the appeal in abeyance, and

we DENY the petitioner’s request to remand for an evidentiary hearing.

DISCUSSION

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), issues brought on petition for a writ of habeas corpus must have been

exhausted in the state system. 28 U.S.C. § 2254(b). Federal courts may not issue

a writ unless the state courts’ adjudication of a claim was either “contrary to, or

involved an unreasonable application of, clearly established [f]ederal law” or

“resulted in a decision . . . based on an unreasonable determination of the facts in

light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C. §

2254(d)(1) & (2). State court determinations of fact are “presumed to be correct”

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unless a petitioner rebuts them with “clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1).

Under extraordinary circumstances when a federal district court must make

the initial determination of an issue because the state courts have not addressed

the merits of a claim and there is no state procedural bar, we review the district

court’s conclusions of law de novo and its findings of fact for clear error.

LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).

I. Attorney Conflict of Interest.

We find that Workman’s attorney did not have a conflict of interest that

mandates reversal of his sentence. Workman had argued that his Sixth

Amendment right to counsel was violated because his attorney had also

represented his brother, Tracey, on a separate charge after a search of their joint

residence uncovered marijuana in Tracey’s room.

A conflict of interest may be present even when an attorney’s clients are

not co-defendants if a petitioner can prove that the common representation

adversely affected his attorney’s performance. United States v. Soto Hernandez,

849 F.2d 1325, 1328-29 (10th Cir. 1988) (common representation other than as

co-defendants); United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir. 1990)

(burden of proof on petitioner).

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 But Workman did not raise this issue at trial or on direct appeal, and a

conflict of interest claim brought for the first time on collateral attack is governed

by the Supreme Court’s standard under Cuyler v. Sullivan. 2 446 U.S. 335, 347-48

(1980) (“[A] defendant who raised no objection at trial must demonstrate that an

actual conflict of interest adversely affected his lawyer’s performance.”); Selsor

v. Kaiser, 22 F.3d 1029, 1032 (10th Cir. 1994).

As the Court held in Cuyler, the mere possibility of conflict is insufficient

to reverse a criminal conviction, at least when the conflict was not brought to the

trial court’s attention. Cuyler, 446 U.S. at 350; see also United States v. Cook, 45

F.3d 388, 393 (10th Cir. 1995). An actual conflict of interest exists only if

counsel was “forced to make choices advancing . . . interests to the detriment of

his client.” United States v. Alvarez, 137 F.3d 1249, 1251-52 (10th Cir. 1998)

(citing Stoia v. United States, 22 F.3d 766, 771 (7th Cir. 1994)). Furthermore,

“the petitioner must be able to point to specific instances in the record” that

suggest his interests were damaged for the benefit of another party. Id. (quoting

Danner v. United States, 820 F.2d 1166, 1169 (11th Cir. 1987)).

Workman attempts to list examples of when his interests were compromised

by the attorney’s representation of Tracey, but his assertions are strained and

2
Because the state did not raise an issue of procedural bar, but instead
engaged the Cuyler analysis directly, we do not address the question of whether
procedural bar might have applied to Workman’s conflict of interest claim.

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counterintuitive. In each of Workman’s examples, his interests appear not to have

been damaged, but instead his interests may actually have been furthered by his

attorney’s actions.

First, Workman contends that his attorney should not have moved to

suppress evidence of the drugs found in the house. He asserts that the presence of

drugs in the house was a “nullity” as far as his case was concerned. But it

certainly could not have helped Workman, on trial for murder already, for the jury

to discover that he allowed drugs in the house with a two-year-old child.

Second, Workman contends that his attorney should have cross-examined

Tracey on why he was angry with Workman. Yet the reason why Tracey was

angry with his brother is that Workman had given consent for the search of the

house during which police found the drugs. Had the attorney asked any questions

in this vein, testimony about the drugs would have come in, and that would have

hurt Workman.

Third, Workman contends that his attorney never suggested that Tracey

could have harmed the child instead of himself. This theory of defense, however,

would have contradicted Workman’s own testimony that he was the only person

looking after the child in the days leading up to her death and therefore that no

one else could have injured the child. Workman told the police that the child had

fallen several times in those days on his watch, and that he had been the only one

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to witness her rapid decline. As the district court found then, “defense counsel’s

ability to effectively point the finger at others was severely limited by

[Workman’s] own position — not by any conflicting interests between Petitioner

and his brother.” Slip Op. at 19. Workman’s attorney could thus only have done

damage to the petitioner’s credibility had he attempted this line of questioning.

Fourth, Workman contends that his attorney should not have argued in

camera against the impeachment of Tracey’s testimony through the introduction

of past drug convictions. But again it was apparently against Workman’s own

interests for evidence of his brother’s prior criminal record to be introduced

because it would have made Workman, given his testimony, look like a poor

caretaker to have allowed a two-year-old child to live in a household around such

activities.

Workman’s interests were not tangibly compromised in the attorney’s

representation of his brother. See generally Alvarez, 137 F.3d at 1252 (“Without

a showing of inconsistent interests, any alleged conflict remains hypothetical [and

will not support reversal].”). There is no “actual conflict” here as defined by the

Supreme Court in Cuyler. We AFFIRM the district court’s denial of a writ on this

basis.

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II. Retention of juror.

We hold that Workman’s right to an impartial jury was not

unconstitutionally impaired by the retention of a juror who first expressed doubt

about whether she could serve, and then later agreed that she could be fair.

The Tenth Circuit has specifically held that federal courts may only reverse

state court determinations of juror impartiality upon a showing of “manifest

error.” 3 Brecheen v. Reynolds, 41 F.3d 1343, 1350 (10th Cir. 1994); see also

Cannon v. Gibson, 259 F.3d 1253, 1280 (10th Cir. 2001) (deferring to a trial

judge’s finding as to whether a potential juror is biased unless the finding is

rebutted by clear and convincing evidence); accord Sallahdin v. Gibson, 275 F.3d

1211, 1224 (10th Cir. 2002). This limited degree of review is justified by a trial

judge’s unique advantage in observing and evaluating the demeanor of jurors.

Brecheen, 41 F.3d at 1350 (quoting Church v. Sullivan, 942 F.2d 1501, 1519

(10th Cir. 1991)).

3
The Oklahoma State Court of Criminal Appeals (the OCCA) also
reviewed Workman’s claim regarding the juror and found no error in the trial
court’s actions. Workman v. State, 824 P.2d 378, 380-81 (Okla. Crim. App.
1991). Under Oklahoma law, “no person shall be disqualified as a juror by reason
of having formed or expressed an opinion upon the matter or cause to be
submitted to such jury, founded upon . . . statements in public journals . . .
provided it appears to the court, upon his declaration . . . that he can and will . . .
act impartially and fairly upon the matters to be submitted to him.” Okla. Stat. tit.
22, §662.

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 Prior to being sworn in, one of the jurors told the judge that she had seen a

report about Workman’s case on the television that morning and would have a

difficult time believing that the child he was accused of murdering could have

been fatally injured by “fall[ing] from a bed onto a cocktail table” as reported.

One of her own children had fallen off of a couch onto the floor and suffered no

injuries at all. As a result of this personal experience, the juror was “afraid it

would take much more to convince me that [Workman is] innocent.” ROA II, Tr.

at 278.

The prosecutor and defense counsel examined the juror about her viewing

of the television report, driving home the point that the actual charges at trial

might be more detailed and that Workman’s defense had not yet been presented.

The juror was then asked whether, if she was permitted to stay on the jury, she

could disregard anything she heard outside the courtroom and base her verdict

only on the evidence that she heard in court. Id. at 280. To this question, the

juror replied: “Yes, I can do that.” Id. She reaffirmed her answer when asked

again. Id. at 281 (“Yeah, I can do that.”).

The judge heard further argument from counsel and then explained that the

prospective juror “could probably be a fair and impartial juror. I think she’s

trying very hard to be absolutely fair . . . I’ll overrule the motion to excuse her

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for cause.” Id. at 287. The defense attempted twice more to have her removed

from the jury, but those motions were similarly denied.

The state court’s decision to retain the juror does not appear contrary to

established federal law. See generally 28 U.S.C. § 2254. Indeed, the Supreme

Court has specifically upheld cases in which jurors have been allowed to serve

after giving contradictory testimony on whether they could be fair. In Patton v.

Yount, 467 U.S. 1025 (1984), for example, the Supreme Court wrote that it is

generally a matter for the state courts to determine whether “a juror [who swears]

that he could set aside any opinion he might hold and decide the cases on the

evidence . . . [should be] believed.” Id. at 1036.

Workman does not carry the heavy burden of showing that the state court’s

judgment constituted manifest error. We are bound by prescribed deference to the

decisions of state courts under AEDPA and AFFIRM the denial of a writ on this

basis.

III. Jury instructions.

Workman makes the constitutional argument that the jury instructions in his

case did not require the jury to make a finding as to his culpability for Amanda

Holman’s killing such that he should be eligible for the death penalty. In

opposition, Oklahoma argues that Workman’s constitutionality-of-the-jury-

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instructions argument cannot be heard in federal court because it was not raised

on direct appeal in state court and so is not exhausted.

The district court nevertheless found that Workman had raised his

constitutional determination argument regarding the jury instructions on direct

appeal in the state courts. We agree. Because the Eighth Amendment issue was

raised on direct appeal but never addressed by the OCCA, Workman has

exhausted his state remedies and we consider the issue de novo. See generally

LaFevers, 182 F.3d at 711.

Workman’s brief on direct appeal argued that it was impermissibly vague to

subject a person to capital punishment on the basis of a prescription that may or

may not require the jury to find intent to kill. 4 He specifically objected that it was

a violation of the Eighth and Fourteenth Amendments to sentence him under such

a scheme.

The Oklahoma Court of Criminal Appeals, though, never separately

addressed Workman’s argument regarding the constitutionality of the jury

4
According to Workman’s brief on direct appeal, “It is impermissibly
vague to subject a person to capital punishment on the basis of an either/or
prescription. Willfully is defined as that which is done on purpose, requiring
absolutely no intent to violate the law or [to] injure another; while that which is
done maliciously, requires the actor to possess a specific intent to harm, injure, or
take the life of another.” Although this section of the brief opened with a
reference to vagueness doctrine, Workman concluded the section, as noted above,
with reference to a violation of the Eighth and Fourteenth Amendments.

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instructions. It did conclude that the Oklahoma state statute contained a mens rea

requirement, but it did not address the constitutional adequacy of that requirement

under the Eighth Amendment. See Workman, 824 P.2d at 383.

We find that Workman’s formulation sufficiently raised the heart of an

Enmund/Tison objection on direct appeal despite the failure of the Oklahoma

state courts to recognize the issue. Workman’s claim was therefore properly

exhausted and federal courts may examine it under AEDPA.

Some background is necessary to understand the legal context of

Workman’s Enmund/Tison claim. To be convicted of first degree child abuse

murder in Oklahoma, a jury must find that the defendant willfully or maliciously

injured, tortured, maimed, or used unreasonable force on a child, and that the

child died as a result. Okla. Stat. tit. 21, §707.7(c). The jury need not find that

the defendant intended to kill the child. Cf. Malicoat v. State, 992 P.2d 383, 395

(Okla. Crim. App. 2000) (child abuse murder is a general intent crime). Child

abuse murder in Oklahoma does not require the jury to find that the defendant

intended to kill his victim, but rather the crime is a type of felony murder. See

generally Black’s Law Dictionary 556 (5th ed. 1979) (defining the traditional

felony-murder rule as holding that “one whose conduct brought about an

unintended death in the commission or attempted commission of a felony [is]

guilty of murder.”); accord 2 Wharton’s Criminal Law §147 (Charles E. Torcia

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ed., 15th ed.) (“[T]he author of an unintended homicide is guilty of murder if the

killing takes place in the perpetration of a felony.”) [hereinafter Wharton’s

Criminal Law]. In this sense, the felony murder rule in its classic form is very

broad, encompassing both crimes in which there are co-defendants, and crimes

involving just a single actor. See 2 Substantive Criminal Law §14.5(b) (Wayne

R. LaFave ed.); Wharton’s Criminal Law at §147. Oklahoma categorizes child

abuse murder as murder in the first degree. Fairchild v. State, 998 P.2d 611, 618

(Okla. Crim. App. 1999).

The central concern of the Enmund/Tison line of Supreme Court cases is

whether a conviction for felony murder contains an adequate determination of

defendants’ culpability such that imposition of the death penalty does not violate

the Eighth Amendment’s prohibition against cruel and unusual punishment. U.S.

Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.”).

Three Supreme Court cases in particular provide the necessary guidance as

to the specificity required for a culpability determination in order to sustain the

death penalty against an Eighth Amendment challenge. Enmund v. Florida is the

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first of these three cases. 5 458 U.S. 782 (1982). As the Court itself explained in

a later case discussing Enmund:

Enmund explicitly dealt with two distinct subsets of all felony
murders in assessing whether Enmund's sentence was disproportional
under the Eighth Amendment. At one pole was Enmund himself: the
minor actor in an armed robbery, not on the scene, who neither
intended to kill nor was found to have had any culpable mental state.
Only a small minority of States even authorized the death penalty in
such circumstances and even within those jurisdictions the death
penalty was almost never exacted for such a crime. The Court held
that capital punishment was disproportional in these cases. Enmund
also clearly dealt with the other polar case: the felony murderer who
actually killed, attempted to kill, or intended to kill. The Court
clearly held that the equally small minority of jurisdictions that
limited the death penalty to these circumstances could continue to
exact it in accordance with local law when the circumstances
warranted.”

Tison, 481 U.S. at 149-50 (emphasis added).

Workman’s crime falls into the category of cases under Enmund in which a

felony murderer has “actually killed” his victim. See id. at 150. The phrase

“actually killed, attempted to kill, or intended to kill” or variations thereof is

5
In Enmund, the Supreme Court reversed the death sentence of a
defendant convicted under Florida’s felony-murder rule. 458 U.S. at 801.
Enmund was the driver of a getaway car, and his accomplices conducted an armed
robbery of a home while he waited on the street in the car. Id. at 784. During the
course of the robbery, his accomplices shot and killed the elderly couple who
lived in the home. Id. The Supreme Court concluded on the basis of these facts
that, because Enmund had not himself killed, attempted to kill, or intended to kill
the victims of the robbery, his “degree of participation in the murders was so
tangential that it could not be said to justify a sentence of death.” Tison, 481 U.S.
at 148 (describing Enmund’s ruling) (emphasis redacted).

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repeated at least nine times in Enmund, 458 U.S. at 797, 793 n.15, 795, 796, 797,

798, 799, 801, is repeated at least three times in Tison, 481 U.S. at 148, 150, 152

n.4, and is repeated at least twenty times in Cabana v. Bullock, 474 U.S. 376, 378,

383, 384, 385, 386, 387, 387 n.4, 388 n.5, 389, 390, 391, 391 n.6, 392, 392 n.7.

In short, the iteration of this test has been carefully formulated by the Supreme

Court and often reaffirmed. Accord also Revilla v. Gibson, 283 F.3d 1203, 1210

(10th Cir. 2002) (quoting language in Enmund requiring that a defendant “himself

kill, attempt to kill, or intend that a killing take place or that lethal force will be

employed”). The significance of falling into Enmund’s category of when a felony

murderer has “actually killed” his victim is that the Eighth Amendment’s

culpability determination for imposition of the death penalty has then been

satisfied. 6 Cabana, 474 U.S. at 386 (“If a person sentenced to death in fact killed

. . . the Eighth Amendment itself is not violated by his or her execution.”).

Five years later, the Supreme Court decided the case of Tison v. Arizona to

consider situations between the two poles discussed in Enmund, specifically

“whether the Eighth Amendment prohibits the death penalty in the intermediate

6
The particular case we examine today involves the serious and highly
culpable felony of child abuse murder and conduct by the defendant directly
causing the death of the victim. We need not, and do not, in this case explore the
outer parameters of whether the requisite culpability for imposition of the death
penalty can be established when the underlying felony involves substantially less
culpable behavior or where the causal connection between the defendant’s
conduct and the victim’s death might be more attenuated or remote.

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case of the defendant [who did not kill, attempt to kill, or intend to kill under

Enmund but] whose participation [in the felony] is major and whose mental state

is one of reckless indifference to the value of human life.” 7 Tison, 481 U.S. at

152. In the general literature, Tison has thus come to be distinguished from

Enmund as promulgating the test for defining the culpability determination

necessary for “non-triggerman,” as opposed to those who have “actually killed”

under Enmund. See, e.g., James J. Holman, Note, Redefining a Culpable Mental

State for Non-Triggermen Facing the Death Penalty Tison v. Arizona, 33 Vill. L.

Rev. 367 (1988); Andrew H. Friedman, Note, Tison v. Arizona: The Death

Penalty and the Non-Triggerman: The Scales of Justice are Broken, 75 Cornell L.

Rev. 123 (1989); see also generally Lynn D. Wittenbrink, Note, Overstepping

Precedent? Tison v. Arizona Imposes the Death Penalty on Felony Murder

Accomplices, 66 N.C. L. Rev. 817 (1988). While refusing “precisely [to]

delineate the particular types of conduct and states of mind warranting imposition

7
Tison specifically considered the constitutionality of a death sentence
imposed on a defendant convicted of felony murder but who did not himself kill
the victims of the crime. 481 U.S. at 139-41. The defendant’s degree of
participation in the murders in Tison, though, had not been as tangential as in
Enmund. See id. Tison involved a scheme in which a heavily armed group
entered a prison and escaped with two inmates. Id. at 139. In the course of their
flight from the prison, their car broke down in the Arizona desert. Id. They
flagged down a passing car containing a mother and father, their two-year old son,
and a fifteen-year old niece. Id. at 140. After taking control of the family’s car,
the two escaped inmates murdered the family. Id. at 141.

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of the death penalty” in its intermediate zone of cases, the Tison Court simply

held “that major participation in the felony committed, combined with reckless

indifference to human life, is sufficient to satisfy the Enmund culpability

requirement.” 481 U.S. at 158.

Finally, Cabana v. Bullock 8 was a procedural case in which the Court

considered who could make the determination of culpability if a case fell outside

of the established categories in Enmund, and later Tison, after a jury’s verdict.

474 U.S. 376 (1986), abrogated on other grounds by Pope v. Illinois, 481 U.S.

497, 503 n.7 (1987). However, only when a federal court reviews a claim in

which the jury has not already determined that a defendant is culpable under

Enmund because he killed, attempted to kill, or intended to kill, must a court

consider further inquiry under Cabana. Id. at 380-84 (quoting at length the jury

instructions in the case and examining them first for a potential finding of

culpability); see also id. at 387. In that rare situation in which a jury has not

already made a finding that permits a defendant’s case to fall into one of the

defined categories under Enmund or Tison, Cabana held that state courts may

make the finding on appeal, or, as a final alternative, that the finding may be

8
The facts in Cabana were that Crawford Bullock held a man down as a
friend smashed a bottle over the man’s head and then pummeled him to death.
Cabana, 474 U.S. at 379. Bullock also helped the friend dispose of the man’s
body afterwards. Id. He confessed to his participation in these events and was
convicted by a Mississippi jury of felony capital murder. Id.

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made by a federal court upon review for habeas corpus. Id. at 390 (“[Assuming

that the Enmund determination is not made at trial], [t]he federal court could

itself make the factual determination whether the defendant killed, attempted to

kill, or intended to kill, and either grant or deny the writ depending on the

outcome of that inquiry. Alternatively, the federal court could take steps to

require the State’s own judicial system to make the factual findings in the first

instance. . . . We believe . . . that the second course of action is the sounder one

. . . [and that the state court should have the initial] opportunity to carry out in the

first instance the factual inquiry called for by Enmund.”); id. at 386 (“At what

precise point in its criminal process a State [or federal court on review for habeas

corpus] chooses to make the Enmund [or Tison] determination is of little concern

from the standpoint of the Constitution.”).

This is not the first time that we have confronted a defendant’s

Enmund/Tison challenge to a death sentence imposed after conviction under

Oklahoma’s first degree child abuse murder statute. In Revilla v. Gibson, 283

F.3d 1203 (10th Cir. 2002), the defendant similarly argued in his federal habeas

proceeding that the state courts did not make findings that established the level of

culpability required by Enmund or Tison to impose a death sentence. Id. at

1210–11. In Revilla’s case, we found that we could easily dispose of the

petitioner’s Enmund/Tison claim because the OCCA had, in that case, found that

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the victim had died as a result of “injuries intentionally inflicted by the Appellant

in a premeditated design to effect death.” Id. at 1211. Nevertheless, we

cautioned that we were not holding that an additional culpability determination

was necessary where the defendant had actually killed the victim, and we stated

explicitly that in Revilla we were “avoid[ing], rather than implicitly resolv[ing]

this debate.” 9 Id. at 1211, n.4; see also Cannon v. Gibson, 259 F.3d 1253, 1279

n.26 (10th Cir. 2001) (noting the OCCA and district court’s doubts whether

additional Enmund or Tison culpability determinations would be required in a

case in which the defendant actually killed the victim, but finding that it did not

have to address the question).

9
Our discussion of the issue in Revilla was:

Our decision to affirm on this [substantive rationale] does not imply
that an Enmund claim would otherwise necessarily be established on
these facts. Enmund, a felony murder case in which the defendant
did not kill the victim, held that the Eight Amendment prohibits
capital punishment ‘for one who neither took life, attempted to take
life, nor intended to take life.’ Enmund, 458 U.S. at 787 [emphasis
added by the Tenth Circuit] . . . . Since Revilla did in fact kill [his
victim], it is not clear that Enmund would undermine use of the death
penalty here, whatever his intent . . . . By rejecting Revilla’s Enmund
claim on [another basis], we merely avoid, rather than implicitly
resolve, this debate.

Revilla, 283 F.3d at 1211 n. 4.

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 In other cases, we have appeared to assume that the culpability requirement

in Enmund or Tison was satisfied where the jury verdict determined that the

defendant actually killed the victim. In Johnson v. Gibson, 169 F.3d 1239 (10th

Cir. 1999), for example, we held that the requisite culpability was established

when a defendant killed his victim during the felony of rape. First, we reiterated

language found in Tison:

[T]he reckless disregard for human life implicit in knowingly
engaging in criminal activities known to carry a grave risk of death
represents a highly culpable mental state, a mental state that may be
taken into account in making a capital sentencing judgment when that
conduct causes its natural, though also not inevitable, lethal result.

Id. at 1250 (quoting Tison 481 U.S. at 157).

We then went on to conclude:

The jury in [Johnson’s case] was instructed that it should find the
defendant guilty if it found beyond a reasonable doubt that he ‘did . .
. willfully and unlawfully kill [his victim], [b]y asphyxiation with his
hands inflicting mortal wounds which caused her death . . . [w]hile in
the commission of Forcible Rape in the First Degree.’ Such an
instruction is sufficient to satisfy the requirements of Tison, and the
evidence presented at trial supports this conclusion.

Id. at 1250-51 (citations omitted).

We now hold that the constitutional check that Enmund, and certainly that

Tison, represent is satisfied in felony murder cases in which the defendant

actually killed his victim. Other Circuits have read the Supreme Court’s decisions

the same way. In Murray v. Delo, 34 F.3d 1376 (8th Cir. 1994), the Eighth

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Circuit wrote that “Enmund and Tison are felony-murder cases which apply in

situations in which the defendant was not the shooter. [Here] the evidence at trial

indicated that the petitioner actually committed at least one murder, and perhaps

both.” Id. at 1367. In Adams v. Wainwright, 709 F.2d 1443 (11th Cir. 1983), the

Eleventh Circuit wrote that “[t]he Supreme Court held the death penalty

disproportionate to Enmund’s culpability, reasoning that he personally ‘did not

kill or attempt to kill’ or have ‘any intention of participating in or facilitating a

murder.’ Here [the defendant] personally killed his victim, savagely beating him

to death.” Id. at 1447. Finally, in Williams v. French, 146 F.3d 203 (4th Cir.

1998), the Fourth Circuit wrote:

The evidence in this case satisfied the Enmund [and therefore also
the lower Tison] standard because [the defendant] was a major
participant in the murder itself, and his actions showed a reckless
indifference to [the victim] Joines’ life. Williams got out of the car
carrying his loaded shotgun, went inside the Service Distributors
station, stood behind or over Joines, and shot Joines in the back of
his head after the robbery had been accomplished. Manifestly, these
circumstances satisfy the standard set forth in Enmund and its
progeny.

Id. at 215.

Oklahoma has also given the same reading as we do to Enmund and Tison.

In Fairchild v. State, 998 P.2d 611 (Okla. Crim. App. 1999), the OCCA stated

“[t]his Court has found Tison does not apply to a defendant who, by his own

hand, does kill . . . If a person sentenced to death in fact killed, attempted to kill,

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or intended to kill, the Eighth Amendment itself is not violated by his or her

execution.” Id. at 630 (quotation marks and citations omitted). Additionally, the

California Supreme Court has concluded that further analysis is not necessary

under Enmund or Tison when the defendant in a felony murder does in fact kill,

and that court has now overruled its earlier precedent to the contrary. People v.

Anderson, 742 P.2d 1306, 1325 (1987).

Workman was not convicted of felony murder generally: he was convicted

of child abuse murder in which a jury determined that he had actually killed

Amanda Holman, and that he had done so in the willful or malicious commission

of physical battery upon the child. The evidence of abuse at trial included expert

testimony regarding the multiple blows to the head and abdomen that the two-

year-old suffered before she died. Three doctors testified that the child’s death

was caused by blunt trauma; her injuries were consistent with being hit by a fist, a

hard object such as a board, or by being picked up by her legs and slammed into a

wall. Workman was found to have purposefully inflicted these blows. We hold

that no further analysis is required by a court under Enmund or Tison because the

Eighth Amendment is not offended in this case of felony murder after the jury’s

finding that Workman actually killed his victim. 10 Enmund, 458 U.S. at 801;

10
Moreover, even if the determination of culpability required by Enmund
had not been so directly answered by the verdict of Workman’s jury, under the
(continued...)

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accord Revilla v. Gibson, 283 F.3d 1203, 1211 (10th Cir. 2002) (noting that

Edmund restricted the imposition of the death penalty only on defendants who

“aid[] and abet[] a felony in the course of which a murder is committed by others

but who do[] not [themselves] kill.”) (emphasis added).

Accordingly, the Enmund/ Tison test for culpability was satisfied by the

jury’s finding in this case and thus, on this issue, we AFFIRM the district court’s

dismissal of Workman’s petition for habeas corpus.

IV. Abeyance.

In Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court held that a

capital defendant is entitled to have a jury determine the presence or absence of

aggravating factors in death penalty cases. Id. at 609 (“[W]e overrule [a previous

case] to the extent that it allows a sentencing judge, sitting without a jury, to find

10
(...continued)
intermediate test in Tison, Workman certainly would have been found to be a
major participant in the felony of abusing Amanda Holman and to have acted with
reckless disregard for her life in committing that abuse. The district court in
Workman’s case went beyond the requirements of Enmund to examine the facts of
Workman’s case and make a Tison finding, but the district court properly did this
under Cabana when precedent in this circuit was unclear and once the state courts
repeatedly refused on non-substantive grounds to adjudicate the case. See 474
U.S. at 390.

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an aggravating circumstance necessary for imposition of the death penalty.”). The

aggravating factors in Workman’s case, though, were decided by the jury.

Nevertheless, Workman would have us read Ring for a different proposition

than its central holding. He would expand Ring’s narrow holding from barring a

sentencing judge, sitting alone, from finding aggravating circumstances to

establishing that only juries, not judges ever, could find culpability necessary for

the imposition of the death penalty under Enmund or Tison.

However, we do not in this case need to address this argument because, as

noted above, the jury did determine that Workman actually killed Amanda

Holman and thus the Enmund/Tison test is satisfied. Furthermore, Ring may not

be applied retroactively to cases on collateral review. Cannon v. Mullin, 297 F.3d

989, 994 (10th Cir. 2002).

Accordingly, the Ring case does not aid Workman’s argument, and we

DENY his motion for abeyance.

V. Alleged vagueness of Oklahoma’s “especially heinous, atrocious or
cruel” aggravating circumstance.

We have repeatedly held that Oklahoma’s current definition of “especially

heinous, atrocious or cruel” aggravating circumstance is not unconstitutionally

vague.

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 Workman acknowledges that the Tenth Circuit has routinely upheld the

constitutionality of this aggravating circumstance, see, e.g., Romano v. Gibson,

239 F.3d 1156, 1176 (10th Cir. 2001); Thomas v. Gibson, 218 F.3d 1213, 1226

(10th Cir. 2000); Medlock v. Ward, 200 F.3d 1314, 1319 (10th Cir. 2000); Moore

v. Gibson, 195 F.3d 1152, 1175-76 (10th Cir. 1999); Smallwood v. Gibson, 191

F.3d 1257, 1274 (10th Cir. 1999); Hooks v. Ward, 184 F.3d 1206, 1239-40 (10th

Cir. 1999); Foster v. Ward, 182 F.3d 1177, 1194 (10th Cir. 1999); Duvall v.

Reynolds, 139 F.3d 768, 793 (10th Cir. 1998). Nevertheless, Workman attempts

to find room for his argument that the aggravating circumstance is

unconstitutionally vague in snippets of language from our cases such as a line

from Thomas expressing doubt about blanket application of Oklahoma’s early

formulation and Judge Lucero’s concurrence in Medlock. See generally Thomas,

218 F.3d at 1229 n.17 (“There exists, at a minimum, a serious constitutional

question as to whether an aggravator which makes eligible for the death penalty

all murderers who strike more than one blow adequately narrows the class of

murderers eligible for the death penalty.”); Medlock, 200 F.3d at 1324 (“There

must be conscious suffering of more than the brief duration necessarily

accompanying virtually all murders. Were this not so, the narrowing construction

[that Oklahoma has given the aggravating circumstance] would not have the

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discretion-limiting effect required by [the Eighth Amendment].”) (Lucero, J.,

concurring).

Oklahoma, however, has limited application of the aggravating

circumstance to only those crimes where the death of the victim was preceded by

torture of the victim or serious physical abuse. Stouffer v. State, 742 P.2d 562,

563 (Okla. Crim. App. 1987). This limitation was included in the jury

instructions in Workman’s case. ROA Criminal Appeal, Original Record at 98,

Instruction No. 3 – penalty phase (“The phrase ‘especially heinous, atrocious, or

cruel’ is directed to those crimes where the death of the victim was preceded by

torture of the victim or serious physical abuse.”). We have specifically found

Oklahoma’s new formulation to be constitutional since this limiting language was

enacted. Hatch v. State, 58 F.3d 1447, 1468 - 69 (10th Cir. 1995); see also

Duvall, 139 F.3d at 793. Moreover, the details of Workman’s crime of first-

degree child abuse murder seem to sit at the heart of what the Oklahoma statute

contemplates in which the death of a victim is preceded by torture or serious

physical abuse. See generally Stouffer, 742 P.2d at 563.

Workman’s objection, therefore, has no merit and we AFFIRM the district

court’s denial of a writ of habeas corpus.

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VI. Cumulative error.

Workman’s sentence cannot be unconstitutional due to cumulative error

because we have not found that the district court committed error. Cumulative

error is present when the “cumulative effect of two or more individually harmless

errors has the potential to prejudice a defendant to the same extent as a single

reversible error.” Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir. 2002) (quoting

United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)). “A

cumulative-error analysis merely aggregates all the errors that individually have

been found to be harmless, and therefore not reversible, and it analyzes whether

their cumulative effect on the outcome of the trial is such that collectively they

can no longer be determined to be harmless.” Id.

In reviewing a case for cumulative error, we may only consider actual

errors in determining whether the defendant's right to a fair trial was violated. Le

v. Mullin, 311 F.3d 1002, 1023 (10th Cir. 2002) (citing Rivera, 900 F.2d at

1470-71 (“[A] cumulative error analysis should evaluate only the effect of matters

determined to be error, not the cumulative effect of non-errors.”)). Our analysis

in this case, however, has not disclosed any errors.

Accordingly, we do not reverse on the basis of cumulative error.

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VII. Requested remand for an evidentiary hearing.

Finally, Workman’s case will not be remanded for an evidentiary hearing

because he does not suggest what evidence has yet to be discovered, or what

evidentiary questions might yet remain for resolution. His only proposed grounds

for factual inquiry are into “Enmund/Tison issues” or “any factual issue present in

this appeal to which the Appellee takes issue.” There is no factual inquiry left to

be done in his case. The State also contested no issue of fact on appeal.

As Workman presents no ground upon which his case could be remanded

for an evidentiary hearing, we DENY his motion for remand.

CONCLUSION

For the reasons stated above, we AFFIRM the district court’s denial of a

writ of habeas corpus. Additionally, we DENY Workman’s request that we hold

this appeal in abeyance and that we remand for an evidentiary hearing.

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