Welch v. Sirmons

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 20, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

FRANK DUANE WELCH,

Petitioner-Appellant,
v. No. 05-6159
MARTY SIRMONS, Warden, Oklahoma
State Penitentiary,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-O1-587-R)

James L. Hankins (Robert L. Wyatt, IV, Wyatt Law Office, Oklahoma City, Oklahoma,
with him on the briefs), The Coyle Law Firm, Oklahoma City, Oklahoma, for Petitioner-
Appellant.

Seth S. Branham, Assistant Attorney General (W. A. Drew Edmondson, Attorney General
of Oklahoma, with him on the brief), State of Oklahoma, Oklahoma City, Oklahoma, for
Respondent-Appellee.

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Frank Duane Welch, an Oklahoma state prisoner convicted of first
degree malice aforethought murder and sentenced to death, appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas petition. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.

I.

Factual background

The relevant underlying facts of this case were outlined in detail by the Oklahoma

Court of Criminal Appeals (OCCA) in addressing Welch’s direct appeal:

On February 25, 1987, Tracy Cooper arrived at his Norman home
around 1:00 p.m. and found his wife, Jo Talley Cooper, lying dead in their
living room. She was nude and had leather straps forming a ligature around
her neck that also went down her back binding her hands. She had a piece
of duct tape covering her mouth and one of her seven-month-old child’s
toys inserted in her vaginal area. The Coopers’ seven-month-old child was
unharmed and in his crib in his room.

The physical and circumstantial evidence at trial supported the State’s
theory that [Welch] secured entry into the Coopers’ home by posing as a
Norman Cablevision employee [Welch was fired from his employment with
Norman Cablevision prior to the day of the murder, but retained possession
of his employee uniform] as there were no signs of forced entry and the
Coopers’ dogs were found secured in the garage, the location where Mrs.
Cooper kept them when repairpersons were working who needed access to
the backyard. After gaining secure entry, [Welch] bound Mrs. Cooper with
leather straps and tightened the straps around her neck causing her death by
ligature strangulation. [Welch] then raped Cooper, shoved a toy pylon into
her vagina and left. The medical examiner testified Cooper’s anal swab
was positive for sperm and that she had perianal peri-postmortem tears
which indicated the tears were sustained immediately after or during death.
The medical examiner testified that Cooper had also sustained a
peri-postmortem vaginal tear which was consistent with a trauma that could
be caused by the insertion of a plastic toy like the one found in her vagina.
The medical examiner also noted that Mrs. Cooper was approximately
twelve weeks pregnant.

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 This case remained unsolved for approximately ten years until [Welch]’s
name surfaced when his DNA was matched to a similar crime scene in the
ten-year-old unsolved Debra Stevens homicide case in Grady County.
Thereafter, Norman police detective, Steve Lucas, obtained a sample of
[Welch]’s blood and had DNA testing performed. [Welch]’s DNA matched
the DNA from sperm found on a towel at the Cooper home and charges
were filed.

Welch v. State, 2 P.3d 356, 364-65 (Okla. Crim. App. 2000) (paragraph numbers

omitted).

Procedural background

On February 25, 1997, Welch was charged by information in the District Court of

Cleveland County, Oklahoma, with one count of first degree malice aforethought murder.

On July 10, 1997, the State filed a bill of particulars alleging the existence of two

aggravating factors: (1) that the murder was especially heinous, atrocious and cruel; and

(2) the existence of a probability that Welch would commit criminal acts of violence that

would constitute a continuing threat to society in the future.

The case proceeded to trial on March 23, 1998. At the conclusion of the first stage

evidence, the jury found Welch guilty of first degree malice aforethought murder. At the

conclusion of the second-stage evidence, the jury found the existence of the two

aggravating factors alleged in the bill of particulars and recommended that Welch be

sentenced to death. The trial court formally sentenced Welch on April 3, 1998, in

accordance with the jury’s recommendation.

Welch filed a direct appeal, and the OCCA affirmed his conviction and sentence

on April 10, 2000. Welch, 2 P.3d at 377. Welch filed a petition for writ of certiorari with

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the United States Supreme Court. That petition was denied by the Supreme Court on

December 11, 2000. Welch v. Oklahoma, 531 U.S. 1056 (2000).

On March 27, 2000, while his direct appeal was still pending before the OCCA,

Welch, in accordance with Oklahoma procedural rules, filed an application for post-

conviction relief with the OCCA asserting seven propositions of error. The OCCA

denied the application for post-conviction relief on May 25, 2000, in an unpublished

opinion. Welch v. State, No. PCD-2000-86 (Okla. Crim. App. May 25, 2000).

Welch initiated this federal habeas action on April 16, 2001, by filing an

application to proceed in forma pauperis and a request for appointment of counsel. Those

requests were granted and, on December 10, 2001, Welch filed his federal habeas

petition. On April 5, 2005, the district court denied Welch’s petition in a written

memorandum opinion. The district court subsequently granted Welch a certificate of

appealability (COA) with respect to seven issues.

II.

Because Welch filed his federal habeas petition well after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), its provisions apply to

this appeal. Malicoat v. Mullin, 426 F.3d 1241, 1246 (10th Cir. 2005). “Under AEDPA,

the appropriate standard of review depends on whether a claim was decided on the merits

in state court.” McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir. 2003). “If the claim

was not heard on the merits by the state courts, and the federal district court made its own

determination in the first instance, we review the district court’s conclusions of law de

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novo and its findings of fact, if any, for clear error.” Id. (internal quotation marks

omitted). If, however, the claim was adjudicated on the merits by the state courts, the

petitioner will be entitled to federal habeas relief only if he can establish that the state

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

established Federal law, as determined by the Supreme Court of the United States,” 28

U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding,” id. § 2254(d)(2). “When

reviewing a state court’s application of federal law, we are precluded from issuing the

writ simply because we conclude in our independent judgment that the state court applied

the law erroneously or incorrectly.” McLuckie, 337 F.3d at 1197. “Rather, we must be

convinced that the application was also objectively unreasonable.” Id.

III.

Admission of evidence relating to the murder of Debra Stevens

Approximately one month prior to trial, the prosecution filed a notice stating that it

intended to introduce at trial evidence that on or about May 6, 1987, in Grady County,

Oklahoma, Welch forcibly raped and killed by means of strangulation a woman named

Debra Anne Stevens. State ROA at 167. The notice alleged that evidence of Stevens

murder would be offered “to establish motive and intent” and the “absence of mistake or

accident” on the part of Welch. Id. The notice further alleged that evidence of Stevens

murder “show[ed] a common scheme or plan, perpetration and criminal knowledge or

intent.” Id.

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 Although Welch objected to the introduction of this other crimes evidence, the trial

court concluded that the evidence was relevant and admissible under Burks v. State, 594

P.2d 771 (Okla. Crim. App. 1979). In Burks, the OCCA held that “[e]vidence of other

offenses may be admissible where it tends to establish motive, intent, absence of mistake

or accident, identity or a common scheme or plan which embraces the commission of two

or more crimes so related to each other that proof of one tends to establish the other.” Id.

at 772.

Consistent with the trial court’s ruling, the prosecution proceeded to introduce, as

part of its first stage case-in-chief against Welch, evidence regarding the Stevens murder.

The first reference to the Stevens murder came during the direct examination of Stephen

Lucas, a detective with the Norman Police Department. Lucas, who had been assigned as

the primary investigator for the Cooper murder in November 1989, testified that in

October 1996 the investigative team received a telephone call from Ed Briggs, an agent

with the Oklahoma State Bureau of Investigation (OSBI). Briggs indicated that Welch

had been identified as a suspect in the Stevens murder, which occurred in a similar

fashion less than three months after the Cooper murder, and suggested that they look at

Welch as a suspect in the Cooper murder. Following the tip from Briggs, Lucas testified

that he obtained a blood sample from Welch and that the results of the DNA testing of

that sample led to Welch being charged with the murder of Cooper. Lucas also testified

that his investigation revealed that the two murders were similar in several respects. In

particular, Lucas testified that each murder occurred the day after Welch appeared in

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court on criminal charges. Further, Lucas testified that Stevens’ body was found bound in

a manner similar to that of Cooper’s body, and that both bodies were positioned in a

similar manner at the time of their discovery.

Following Lucas’ testimony, the prosecution proceeded to introduce several

witnesses who described the key details of the Stevens murder that were similar to those

of the Cooper murder. Stacie Stromberg, the daughter of Debra Stevens, testified about

discovering her mother’s body in their home on May 6, 1987. According to Stromberg,

her mother was lying face up on her bed with a rope around her neck. Stromberg also

testified that she found the family dog, which normally had the run of the house, locked in

her sister’s room. Robert Lee, an OSBI agent who assisted in the investigation of the

Stevens murder, testified that Stevens’ naked body was found lying face-up with a small

rope tied tightly around her neck, her hands bound tightly behind her with the same small

gauge rope found around her neck, and white tissue or toilet paper stuffed in her mouth.

Larry Balding, the deputy medical examiner who performed the autopsies on both

victims, testified that Stevens died as a result of ligature strangulation, and that sperm was

found in vaginal swabs taken from her body. Lastly, Mary Long, a criminalist with the

OSBI, testified that she performed DNA testing on the sperm samples taken from

Stevens’ body, and that those samples matched the DNA found in a blood sample given

by Welch.1

1
Welch testified in his own defense and asserted that he and Stevens had been
involved in a consensual affair. Welch further testified that he told Stevens about
Cooper’s death and that Stevens responded by threatening to tell the authorities unless

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 In these federal habeas proceedings, Welch contends the trial court’s admission of

evidence regarding the details of the Stevens murder violated his right to a fair trial and a

reliable sentencing proceeding.2 Welch first raised this issue on direct appeal. The

OCCA rejected it, stating as follows:

In his first proposition of error, [Welch] argues he was denied a fair trial
by the admission of evidence that he murdered Debra Stevens in Grady
County three months after Talley Cooper’s death. He claims the
introduction of this other crimes evidence did not fall within the exceptions
of 12 O.S.1991, § 2404(B), forced him to defend against a collateral crime
with which he was not charged, confused the issues and was nothing more
than improper propensity evidence designed to prejudice him. Specifically,
[Welch] alleges evidence of the Stevens murder was improperly admitted
because: (1) the State’s Burks notice was defective because the State failed
to specify under which exception the evidence was sought to be admitted;
(2) evidence of the Stevens murder was not necessary for the purposes cited
by the State; (3) there was no visible connection between the Cooper and
Stevens murders; (4) evidence of the Stevens murder was not necessary for
the State to sustain its burden of proof; (5) the trial court’s limiting
instruction was defective because it failed to specify under which exception
the evidence was being admitted; (6) the Stevens homicide was not part of
the res gestae; and (7) evidence of the Stevens murder was more prejudicial
than probative. The trial court consistently overruled [Welch]’s objections
before the evidence was presented and throughout trial finding the evidence
was relevant and that the probative value of the evidence outweighed its
prejudicial effect. [Welch] was granted a continuing objection to all
evidence and testimony of the Stevens murder.

Welch paid her ten thousand dollars. Lastly, Welch testified that he intentionally killed
Stevens in response to her threat.
2
In his opening appellate brief, Welch alleges that the admission of evidence
regarding the Stevens murder violated his rights “under the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.” Aplt. Br. at 30. Presumably, Welch is
referring to “his right to a fair trial under the Sixth and Fourteenth Amendments and his
Eighth Amendment right to an individualized jury determination as to whether the death
penalty should be imposed.” Malicoat, 426 F.3d at 1249.

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 Evidence of other crimes or bad acts is not admissible as proof of bad
character to show a person acted in conformity therewith but “may . . . be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident.”
12 O.S.1991, § 2404(B). The reason other crimes evidence is so limited
and its admission guarded revolves around fairness to the accused who
should be convicted, if at all, by evidence of the charged offense and not by
evidence of separate, albeit similar, offenses. Bryan v. State, 1997 OK CR
15, ¶ 33, 935 P.2d 338, 356, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139
L.Ed.2d 299 (1997). To be admissible, evidence of uncharged offenses
must be probative of a disputed issue of the crime charged, there must be a
visible connection between the crimes, evidence of the other crime(s) must
be necessary to support the State’s burden of proof, proof of the other
crime(s) must be clear and convincing, the probative value of the evidence
must outweigh the prejudice to the accused and the trial court must issue
contemporaneous and final limiting instructions. Bryan, 1997 OK CR 15,
at ¶ 33, 935 P.2d at 356-57. When other crimes evidence is so prejudicial it
denies a defendant his right to be tried only for the offense charged, or
where its minimal relevancy suggests the possibility the evidence is being
offered to show a defendant is acting in conformity with his true character,
the evidence should be suppressed. Id.

[Welch] first attacks the Burks notice filed by the State because it failed
to specify under which exception the evidence was sought to be admitted.
[Welch] also attacks the trial court’s limiting instructions alleging the same
defect. Because [Welch] failed to object to the notice or the instructions,
we will review for plain error. Wood v. State, 1998 OK CR 19, ¶ 35, 959
P.2d 1, 10. The record before this Court shows [Welch] was adequately
apprised that the State intended to introduce evidence of the Stevens
murder. At trial defense counsel conceded he received proper notice under
Burks, but argued the evidence was irrelevant and prejudicial. In light of
the evidence presented against [Welch] coupled with his own trial
testimony, we find the failure to specify the section 2404(B) exception
under which the evidence was sought to be admitted in the State’s notice
and in the trial court’s instruction does not amount to plain error. However,
we take this opportunity to remind trial judges and prosecutors of the
importance of delineating the exception and purpose for which other crimes
evidence is being offered. Specific rulings ensure fairness to the accused as
well as facilitate expedient review of claims contesting admission of other
crimes evidence.

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 The remainder of [Welch]’s complaints boil down to his assertion that
the evidence of the Stevens murder did not fall within one of section
2404(B)’s exceptions and therefore the evidence was irrelevant,
unnecessary and was more prejudicial than probative. Because [Welch]
lodged timely objections on this basis, the claim is properly preserved for
review. When such a claim is properly preserved as in the instant case, the
State must show on appeal that admission of the other crimes evidence did
not result in a miscarriage of justice or constitute a substantial violation of a
constitutional or statutory right. Bryan, 1997 OK CR 15, at ¶ 33, 935 P.2d
at 357.

In past cases, this Court has allowed evidence of other crimes or bad acts
to be admitted under the “plan” exception of § 2404(B) where the methods
of operation were so distinctive as to demonstrate a visible connection
between the crimes. Aylor v. State, 1987 OK CR 190, ¶ 5, 742 P.2d 591,
593. In addressing the admissibility of such evidence, we have found it is
relevant in determining the guilt or innocence of the accused when the
peculiar method of operation is so unusual and distinctive as to be like a
signature. Eberhart v. State, 1986 OK CR 160, ¶ 23, 727 P.2d 1374, 1379;
Johnson v. State, 1985 OK CR 152, ¶ 4, 710 P.2d 119, 120; Driver v. State,
1981 OK CR 117, ¶ 5, 634 P.2d 760. Even though this Court has allowed
such evidence under the “plan” exception, this exception is not the most
accurate because it deals primarily with the admission of other crimes
evidence to show the commission of one crime facilitated another. See
Jones v. State, 1995 OK CR 34, ¶ 52, 899 P.2d 635, 649, cert. denied, 517
U.S. 1122, 116 S.Ct. 1357, 134 L.Ed.2d 524 (1996); Luna v. State, 1992
OK CR 26, ¶ 8, 829 P.2d 69, 72. However, in Eberhart, we recognized that
distinctive methods of operation are relevant to prove the identity of the
perpetrator of the crime. Eberhart, 1986 OK CR 160, at ¶ 23, 727 P.2d at
1379-80. Identity is the more appropriate label for such signature evidence
because distinctive methods of operation are indicative of who perpetrated
the crime.

In the instant case, one of the issues at trial was who killed Talley
Cooper. In an effort to solidify its case against [Welch], the State
introduced the Stevens homicide evidence with its similarities to prove to
the jury that [Welch] was in fact the person who also killed Cooper.
Contrary to [Welch]’s assertion, the similarities between the two murders
were sufficiently distinctive to create a visible connection between the
crimes making the Stevens homicide evidence probative of a disputed fact
in [Welch]’s trial. The similarities include: (1) no signs of forced entry; (2)

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each victim’s house was adjacent to a large field; (3) the family dogs were
locked inside rooms contrary to where the dogs were normally kept; (4)
both murders occurred one day after [Welch] appeared in Cleveland County
District Court; (5) both victims were white females who were raped and
strangled in their own homes during daytime hours; (6) drawers had been
opened suggesting a robbery although nothing was missing; (7) both
women were gagged; (8) both victims were found nude, spread eagle, lying
on their backs; and (9) both had ligatures around their necks which were
similar with a loop forming a knot with the remaining cord/strap running
through it.

Evidence of the Stevens murder also arguably fits within the absence of
mistake or accident exception, notwithstanding [Welch]’s trial testimony.
During opening statement, defense counsel stated that the State would not
be able to show Mrs. Cooper’s death was intentional. He routinely
questioned witnesses about the lack of forced entry and the lack of any
evidence of a struggle, suggesting Mrs. Cooper was expecting [Welch] and
was a willing participant. Defense counsel also asked about the vaseline
that was found at the scene and elicited that vaseline was sometimes used as
a lubricant in consensual anal intercourse. Defense counsel elicited from
the medical examiner that Mrs. Cooper’s death could have been the result
of autoerotic behavior. He also elicited from the DNA expert that DNA is
the same whether it is the result of consensual or non-consensual conduct.
This questioning was designed to suggest to the jury that Cooper’s death
could have equally been the result of an accident rather than an intentional
murder as alleged by the State.

The more difficult questions to decide are whether the Stevens murder
evidence was necessary to support the State’s burden of proof and whether
it was more probative than prejudicial. “In dealing with the relevancy of
evidence, we begin with the presumption that in determining whether to
admit such evidence, the trial judge should lean in favor of admission.”
Mayes v. State, 1994 OK CR 44, ¶ 77, 887 P.2d 1288, 1309-10, cert.
denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995). The party
opposing its introduction has the burden to show it is substantially more
prejudicial than probative. Mayes, 1994 OK CR 44, at ¶ 77, 887 P.2d at
1310. When balancing the relevancy of evidence against its prejudicial
effect, the trial court should give the evidence its maximum reasonable
probative force and its minimum reasonable prejudicial value. Id.

In the instant case, the State bore the burden to prove [Welch]

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 intentionally killed Cooper. As discussed above, this case remained
unsolved for ten years until [Welch]’s name surfaced when his DNA was
matched to the Stevens homicide case. The State’s DNA evidence placed
[Welch] at the Cooper residence and showed he had sex with Mrs. Cooper
on the day of her death. It did not prove that he actually killed her.
Evidence that [Welch] killed Stevens in an almost identical manner to
Cooper bolstered the State’s case that [Welch] killed Cooper. Further,
evidence that [Welch] killed Stevens showed [Welch] intentionally killed
Cooper and that her death was not an accident resulting from consensual
autoerotic behavior. Despite its highly prejudicial nature, we find the
probative value of the Stevens murder evidence outweighed its prejudicial
effect and that the evidence was necessary to support the State’s burden of
proof. Finding the evidence properly admitted, this proposition is denied.

Welch, 2 P.3d at 365-67 (footnotes and paragraph numbers omitted).

Welch contends that we are not required to defer to the OCCA’s ruling, and

instead are free to apply a de novo standard of review, because the OCCA failed to cite to

any federal cases in reaching its decision. Welch’s contention, however, is contrary to the

decision in Early v. Packer, 537 U.S. 3 (2002). In Packer, the Supreme Court held that a

state court is not required to cite to, nor even be aware of, controlling Supreme Court

precedent “so long as neither [its] reasoning nor the result of [its] decision contradicts”

such precedent. Id. at 8; e.g., Gipson v. Jordan, 376 F.3d 1193, 1196 n.1 (10th Cir. 2004)

(treating state court decision as an “adjudication on the merits,” even though its reasoning

was not expressly stated). Here, although the OCCA relied exclusively on its own

precedent in resolving the issue, it is clear from the court’s decision that it was aware that

Welch was alleging a deprivation of his constitutional right to a fair trial. See Welch, 2

P.3d at 365 (“Appellant argues he was denied a fair trial by the admission of evidence

that he murdered Debra Stevens . . . .”).

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 Turning to the merits of the issue, Welch relies initially on Michelson v. United

States, 335 U.S. 469 (1948), arguing that “[i]t is a fundamental truism in the law that an

accused . . . must be convicted, if at all, based upon the evidence of the crime charged and

not the character of the accused or his propensity to commit crimes.” Aplt. Br. at 34. The

problem for Welch, however, is that Michelson was a direct criminal appeal and dealt

with the admissibility in a federal criminal proceeding of “evidence of a defendant’s evil

character to establish a probability of his guilt.” 335 U.S. at 475. Further, the rules

announced in Michelson regarding the admissibility of such evidence have been

superseded by the enactment of Rule 405, Federal Rules of Evidence. E.g., United States

v. Scholl, 166 F.3d 964, 974 (9th Cir. 1999) (recognizing that Michelson has been

superseded by rule). Thus, Michelson has no applicability to Welch’s current appeal.

Welch does not cite to, nor does research reveal, any Supreme Court cases directly

addressing the constitutionality of a trial court admitting evidence of a defendant’s other

crimes, particularly during the first or second stages of a capital murder case. Thus,

Welch must rely on the more general principle that “the Due Process Clause of the

Fourteenth Amendment provides a mechanism for relief” when “evidence is introduced

that is so unduly prejudicial that it renders the trial fundamentally unfair . . . .” Payne v.

Tennessee, 501 U.S. 808, 825 (1991) (citing Darden v. Wainwright, 477 US. 168, 179-83

(1986)); see also Estelle v. McGuire, 502 U.S. 62, 69-70 (1991); Knighton v. Mullin, 293

F.3d 1165, 1170 (10th Cir. 2002) (applying similar principles in federal habeas

proceeding). We have held that this standard will be satisfied only if “the probative value

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of [the challenged] evidence is . . . greatly outweighed by the prejudice flowing from its

admission . . . .” Knighton, 293 F.3d at 1171 (internal quotation marks omitted).

We conclude that the OCCA’s rejection of Welch’s claim on direct appeal is

neither contrary to, nor an unreasonable application of, these general principles. To begin

with, the Oklahoma cases and statutes applied by the OCCA are consistent with the

constitutional principles outlined above, in that they acknowledge the prejudice

associated with the admission of other crimes evidence and place strict limitations on the

admission of such evidence. Welch, 2 P.3d at 365. Further, the OCCA reasonably

concluded that evidence of the Stevens murder was relevant to prove that Welch was the

perpetrator of the Cooper murder. As noted by the OCCA, both murders bore similar yet

distinctive characteristics that strongly suggested they were committed by the same

perpetrator. The OCCA also reasonably concluded that evidence of the Stevens murder

was relevant to establish that Cooper’s death was not the result of a mistake or accident.

Although the evidence found at the Cooper crime scene strongly suggested that the death

was the result of a crime and not a mistake or accident, evidence of the substantially

similar Stevens murder, committed less than three months later, clearly removed any

doubt as to the intentional nature of Cooper’s death. Thus, the OCCA reasonably

concluded that, “[d]espite [the] highly prejudicial nature” of the evidence regarding the

Stevens murder, its “probative value . . . outweighed its prejudicial effect” and it “was

necessary to support the State’s burden of proof.” Id. at 367.

It is also worth noting that both the prosecution and the trial court were careful to

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explain to the jury the limited relevance of the challenged evidence. For example, during

opening statements, the prosecution emphasized that Welch was “not [o]n trial for” the

Stevens murder, and that evidence of the Stevens murder was “offered . . . for a limited

purpose only.” Vol. IV of Trial Tr. at 688. The prosecution also emphasized to the jury

during opening statements that it would be asked “to examine the similarities between

th[e] two crimes . . . .” Id. Prior to the introduction of evidence regarding the Stevens

murder, the trial court read to the jury Oklahoma Uniform Jury Instruction CR-9-9, which

explained to the jury the limited purpose of the evidence of other crimes. Id., Vol. V at

1011-12. Finally, during closing arguments, the prosecution, as noted in its opening

statements, asked the jury to “[c]ompare the similarities between the [two] crimes” in

determining whether Welch was guilty of intentionally killing Cooper. Id., Vol. VI at

1296.

In sum, we conclude the OCCA reasonably rejected Welch’s assertion that

admission of evidence regarding the Stevens murder violated his due process right to a

fair trial.

Improper testimony of two police officers during first stage proceedings

Welch next asserts that “evidentiary harpoons” and “improper opinion testimony”

delivered by prosecution witnesses Stephen Lucas and Robert Lee, both of whom were

experienced police officers, violated his due process right to a fair trial. Welch first

raised this issue on direct appeal. The OCCA rejected it on the merits:

In his second proposition, [Welch] alleges he was denied due process

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and a fair trial by the admission of irrelevant and speculative opinion
evidence and evidentiary harpoons. In particular, [Welch] complains about
several opinions and statements made by Detective Steve Lucas and OSBI
Agent Robert Lee.

[Welch] first complains that Detective Lucas’ opinion, that the Coopers’
dogs were put in the garage as part of a ruse to enter the house, was
impermissibly speculative and unduly prejudicial. At trial, [Welch]
objected to the initial question to elicit Lucas’ opinion about the dogs on the
ground of speculation. The trial court sustained the objection as to the
“form of the answer” and stated that Lucas could give an opinion if he had
one, but Lucas would not be allowed to state his suspicions or speculations.
The prosecutor then asked Lucas if he had an opinion based on his analysis
of the crime scene concerning the location of the dogs given the lack of
forced entry. Lucas opined the dogs were in the garage as part of a ruse to
enter the house. Because [Welch] did not object to this response, he has
waived all but plain error. (citation omitted).

We find, based on our review of the record, that Detective Lucas’
challenged testimony constituted a proper lay opinion based on his
investigation. 12 O.S.1991, § 2701. Lucas testified that he took over the
Cooper homicide investigation in November 1989, some two and half years
after the crime. In order to familiarize himself with the case, he read all the
police reports along with the witnesses’ statements as well as reviewed the
physical evidence. He then re-interviewed family members and friends in
an effort to generate relevant leads. Family members testified that the dogs
were usually in the backyard unless a repairperson was there and needed
access to the backyard. [Welch]’s ex-wife testified that [Welch] still had
his Norman Cablevision uniforms when Cooper was killed. Lucas’ opinion
was rationally based on his perceptions following his investigation which
aided the jury in its determination of a fact in issue. Accordingly, the
opinion was proper and did not amount to error, much less plain error.

Second, [Welch] complains about Detective Lucas’ statement that both
the Cooper and Stevens homicides occurred the day after [Welch] appeared
in court. As the State points out, the statement constitutes factual testimony
rather than opinion. Further, there is nothing speculative about it. It is
simply a factual statement properly admitted to show another similarity
between the two crimes in an effort to establish [Welch] as the perpetrator
of the Cooper homicide. 12 O.S.1991, § 2404(B). Such evidence was more
probative than prejudicial. 12 O.S.1991, § 2403.

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 Next, [Welch] complains that Detective Lucas injected irrelevant and
speculative evidence into the trial when he described the manner in which
Talley Cooper’s hands were bound. Lucas described the bindings as “it’s
got a large slipknot almost on one hand that’s pulled tight and then wrapped
in, oh, half-inch cattle--like calf roping-type thing.” [Welch] claims Lucas
used the calf roping description in an effort to unfairly incriminate him after
he told Lucas during an interview that he had been involved in rodeos and
owned livestock. [Welch] also attacks Lucas’ testimony that the leather
straps used to bind Talley Cooper were scrap leather known as “farmer’s
bundles” which Lucas said were sold at saddle and boot shops. He
maintains this testimony allowed Lucas “to improperly imply that [Welch],
as a rodeo veteran, had tied up Talley Cooper like livestock.” (citation
omitted). Contrary to [Welch]’s claim, this testimony was neither
speculative nor irrelevant opinion evidence. Lucas merely described his
personal observations of how the victim’s hands were tied using the
calf-roping reference to explain what he saw. Moreover Lucas described
his investigation that uncovered the fact that the straps were scrap leather
known as “farmer’s bundles.” Accordingly, we find the admission of this
testimony was not error.

Fourth, [Welch] maintains Lucas improperly invaded the province of the
jury when he testified Cooper’s death was not self-inflicted or the result of
autoerotic behavior, that her death was not accidental but intentionally
inflicted and that Cooper’s wounds were not consistent with sexual
asphyxiation. In Romano v. State, 1995 OK CR 74, ¶ 21, 909 P.2d 92, 109,
cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996), we
addressed the propriety of opinion evidence on ultimate issues and stated:
Opinion evidence on ultimate issues is generally admissible.
12 O.S.1991, § 2704. However, the “otherwise admissible”
language of § 2704 must be read in context with 12 O.S.1991,
§§ 2403, 2701, 2702. While expert witnesses can suggest the
inferences which jurors should draw from the application of
specialized knowledge to the facts, opinion testimony which
merely tells a jury what result to reach is inadmissible.
(citations and footnotes omitted)
See also Cannon v. State, 1998 OK CR 28, ¶ 18, 961 P.2d 838, 846.

In the instant case, the prosecutor did not formally qualify Detective
Lucas as an expert by asking the trial court to recognize him as such.
However, the prosecutor qualified Lucas to render certain opinions after

-17-
asking him about his sixteen year career as a police officer and his
specialized training in sexual asphyxiation deaths. Thereafter during
questioning, the prosecutor asked Lucas if he attached any significance to
his analysis of Mrs. Cooper’s injuries given his training. Lucas testified
Cooper’s injuries were intentionally inflicted and were not accidental,
self-inflicted or the result of autoerotic behavior. The trial court sustained
defense counsel’s objection to Lucas’ opinion after the prosecutor offered to
rephrase the question. Lucas then explained that in sexual asphyxiation
cases, the participants pad the noose device so no marks are left on the
neck. Further, the participants employ an escape mechanism in case of
distress so they will not die. Lucas testified these common attributes he
learned of in training were not present in the instant case.

A review of the record shows Lucas’ opinion was not improper opinion
testimony on an ultimate issue since it did not tell the jury what result to
reach. Lucas’ testimony was based upon his examination and investigation
of the crime scene coupled with his training. In his testimony Lucas
described his in depth investigation and review of police reports, witnesses’
statements and numerous photographs of the crime scene. Lucas then told
the prosecutor that the physical evidence was not consistent with consensual
behavior. At no time did Lucas say that [Welch] intentionally killed
Cooper; rather, he testified Cooper’s bindings that resulted in her death
were not consistent with consensual autoerotic behavior based on his
specialized knowledge in homicide investigation. As this was proper
opinion testimony, no error occurred in its admission.

In [Welch]’s final complaint about Detective Lucas, he claims Lucas
intentionally injected an evidentiary harpoon when he testified that [Welch]
told him he had participated in rodeos not only during childhood, but while
in prison. As the trial court found, [Welch] was not prejudiced by this
reference to other crimes/prison. As part of his defense against imposition
of the death penalty, defense counsel advised the jury in opening statement
that [Welch] was serving a life sentence plus consecutive forty-five and
twenty year sentences in an effort to show the jury [Welch] was not a
continuing threat because he would never be in society again. To bolster
his credibility, [Welch] detailed his many prior convictions during his
testimony maintaining he accepted responsibility when he was in fact
guilty. Given this evidence, we find that Lucas’ reference to prison had no
impact on the verdict or sentence.

Lastly, [Welch] claims he was prejudiced by an evidentiary harpoon

-18-
 willfully launched by OSBI Agent Robert Lee. Agent Lee testified that
[Welch] was investigated in connection with the Stevens homicide because
they received information that [Welch] had left the Grady County area
abruptly after the crime, that [Welch] and his former wife were friends with
the Stevens and lived in property adjoining or close to them and that
[Welch] had raped his former wife prior to their marriage and liked to tie
her up during sex. The trial court overruled [Welch]’s objection and denied
his motion for mistrial to the latter portion of Lee’s answer finding such
evidence was not prejudicial in light of the properly admitted other crimes
evidence. However, the trial court did offer to admonish the jury since the
evidence was irrelevant. Initially, defense counsel refused any admonition
claiming it would only serve to emphasize the improper evidence and could
not cure the error. Following a lunch break and additional discussion,
defense counsel acceded to having the jury admonished. Thereafter, the
trial court advised the jury there was no evidence to support Lee’s statement
that [Welch] had raped his former wife and that such statement should be
disregarded and not considered.

This Court has consistently held that when inadmissible evidence or an
improper comment is presented to a jury, an admonishment to the jury by
the court that the evidence or comment is not to be considered will cure any
error. (citations omitted). Here, the admonishment given to the jury was
sufficient to cure any error, even though the admonition failed to
specifically address Lee’s statement that [Welch] liked to tie up his former
wife during sex. A review of the record shows that such remark was not
verdict or sentence determinative given the strong evidence against
[Welch]. Accordingly, this proposition of error is denied.

Welch, 2 P.3d at 367-70 (paragraph numbers omitted).

Welch suggests that the OCCA “did not address squarely his federal constitutional

claims concerning these issues,” Aplt. Br. at 44 n.9 (italics in original), and thus he

contends we are free to apply a de novo standard of review. Welch is clearly mistaken.

As noted above, the OCCA expressly acknowledged at the outset of its discussion that

Welch was alleging a denial of “due process and a fair trial . . . .” Welch, 2 P.3d at 367.

Although the OCCA relied largely on its own precedent in addressing Welch’s claims,

-19-
that does not mean that it failed to address the merits of his federal due process claim.

Rather, as previously noted, our only concern is that its reasoning and result are consistent

with controlling Supreme Court precedent. See Packer, 537 U.S. at 8.

As with his challenge to the admission of evidence regarding the Stevens murder,

Welch’s constitutional challenge to the testimony of Lucas and Lee is governed by the

general principle that “the Due Process Clause of the Fourteenth Amendment provides a

mechanism for relief” when “evidence is introduced that is so unduly prejudicial that it

renders the trial fundamentally unfair . . . .” Payne, 501 U.S. at 825.

a) Detective Lucas’ testimony

In discussing Lucas’ testimony, Welch focuses primarily on Lucas’ statement, in

response to cross-examination by defense counsel regarding Welch’s experience with

rodeos, that Welch indicated he had participated in rodeos not only while growing up but

also “while in prison.” 3 Trial Tr., Vol. V at 930. Both the trial court and the OCCA,

however, concluded that Lucas’ statement was not prejudicial because Welch’s defense

counsel had informed the jury during opening statements that Welch was serving a

significant term of imprisonment. Welch attempts to side-step these holdings by asserting

that he “clearly suffered extreme prejudice from both the harpoon and his [trial] counsel’s

inexplicable decision to open that door [i.e., telling the jury that Welch was serving time

3
As indicated in the OCCA’s decision, evidence of Welch’s rodeo experience was
relevant in two respects. First, the manner in which Cooper’s hands were bound was
allegedly similar to that used by participants in the rodeo event of calf-roping. Second,
the leather strips used to bind Cooper were alleged to be similar to scrap leather often sold
by saddle and boot shops for use in saddle and bridle repair.

-20-
in prison] prior to the conclusion of the State’s case.” 4 Aplt. Br. at 51-52. In other words,

Welch argues that “if trial counsel had been minimally effective and sought to restrict the

use of such priors under state law then such a harpoon would have been overwhelmingly

prejudicial and resulted in reversal.” Id. at 52. The problem for Welch, however, is that

he did not assert these ineffective assistance arguments before the OCCA at the time of

his direct appeal or in his application for post-conviction relief. Rather, he focused

exclusively on the propriety of Lucas’ statement. Thus, he is now precluded from

asserting any type of ineffective assistance of counsel claim in this appeal (even if the

purpose of that claim is, as it appears, to bolster his claim regarding the admission of

Lucas’ testimony).

Welch also argues that Lucas “injected several ideas that, while perhaps falling

short of evidentiary harpoons, nevertheless were extremely prejudicial within the context

of the entire trial.” Aplt. Br. at 50 n.11. According to Welch, “[t]hese include: 1)

hypothesizing why the dogs were found in the garage at the Cooper residence (he

speculated that in his opinion it was ‘part of a ruse to enter the house’); 2) attaching

‘significance’ that the deaths of both Cooper and Stevens occurred the day after a court

appearance by Welch; and 3) giving his opinion that the wounds on Cooper were not the

result of autoerotic asphyxiation as claimed by Welch, but rather were ‘intentionally

inflicted.’” Id.

4
Welch all but concedes in his opening brief that Lucas’ statement was not
prejudicial in light of the fact that defense counsel informed the jury that Welch was
serving time in prison. See Aplt. Br. at 51.

-21-
 We conclude the OCCA reasonably rejected all three of these arguments. With

respect to Lucas opining as to why the Coopers’ dogs were found in the garage (rather

than outside where they were normally kept), the OCCA concluded this was admissible

lay opinion testimony because it “was rationally based on [Lucas’] perceptions following

his investigation,” and it “aided the jury in its determination of a fact in issue.” Welch, 2

P.3d at 368. With respect to Lucas’ testimony that each of the two murders occurred the

day after Welch appeared in court, the OCCA concluded this was “simply a factual

statement properly admitted to show another similarity between the two crimes in an

effort to establish [Welch] as the perpetrator of the Cooper homicide.” Id. at 368.

Finally, with respect to Lucas opining that Cooper’s wounds were not consistent with

consensual sexual asphyxiation, the OCCA concluded it was properly admitted because it

“was based upon his examination and investigation of the crime scene coupled with his

training” and “did not tell the jury what result to reach.” Id. at 369. Notably, Welch

makes no attempt in this appeal to explain why any of these conclusions reached by the

OCCA were erroneous.

Finally, even assuming for purposes of argument that these pieces of testimony

should not have been admitted, a review of the transcript of Welch’s trial indicates that,

given the strength of the prosecution’s case against Welch, the admission of these

statements by Lucas did not have a “‘substantial and injurious effect or influence in

determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)) (outlining harmless error

-22-
test to be utilized in federal habeas proceedings).

b) Agent Lee’s testimony

Welch complains, as he did on direct appeal, about the following statement (which

he characterizes as an “evidentiary harpoon”) given by Agent Lee in response to the

prosecution’s question about how his investigation of the Stevens murder led him to

Welch:

Initially, we received information that Frank Welch had left the Tuttle
[Oklahoma] area abruptly after Stevens’ death. And the other information
we received concerning Frank was that he and his wife at the time, Bonnie,
had been close friends of the Stevens, that they lived on property that was
adjacent to or butted up to the Stevens’ property. Also that Frank liked to
tie up Bonnie during sex, and that prior to their marriage, that Frank had
raped Bonnie.

Trial Tr., Vol. V at 1031 (emphasis added).

As noted, the OCCA concluded that the admonishment given by the trial court to

the jury regarding Lee’s remark “was sufficient to cure any error, even though the

admonition failed to specifically address Lee’s statement that [Welch] liked to tie up his

former wife during sex.” Welch, 2 P.3d at 370. In the OCCA’s view, “[a] review of the

record show[ed] that such remark was not verdict or sentence determinative given the

strong evidence against [Welch].” Id.

Welch contends that the OCCA’s determination was “an unreasonable application

of the law and of the facts because the nature of the harpoons by Agent Lee clearly

prejudiced Welch to a tremendous degree resulting in a fundamentally unfair trial.” Aplt.

Br. at 49. More specifically, Welch asserts that Lee’s statements had a “devastating

-23-
effect” because “Lee was an experienced law enforcement officer” who, “under oath, . . .

basically called Welch a rapist and a participant in kinky sex . . . .” Id. Welch further

asserts that his trial counsel “was absolutely correct in arguing that a curative instruction

could not assuage the . . . effect of these harpoons,” id., and “the conclusion of the

[OCCA] to the contrary must result in habeas relief.” Id. at 50.

In determining the merits of Welch’s arguments, we begin by analyzing the

evidence that was presented at trial. During its case-in-chief, the prosecution presented

evidence that strongly, if not overwhelmingly, established that Cooper was the victim of a

violent and intentional attack. More specifically, the prosecution’s evidence established

that:

* Cooper’s mouth was covered with layers of duct tape, the sticky side of
which contained some blood, suggesting the tape may have been placed on
her mouth and lips in an aggressive manner;

* Cooper’s neck was tightly bound with two leather ligatures, under which
were blisters or abrasions where the skin had been scraped off (prior to,
rather than after, her death);

* Cooper’s eyes, face and neck area displayed petechial hemorrhages (i.e.,
fine pinpoint areas where small blood vessels had been broken), consistent
with ligature strangulation;

* both of Cooper’s wrists were bound tightly behind her back (with the
leather ligatures running from her neck directly to her hands), leaving
ligature marks on both wrists (particularly the right wrist, on which the
ligature was bound so tightly that the coroner had to cut it off);

* Cooper had “parchment abrasions” on the front of both of her shoulders,
likely the result of being pushed or dragged on the carpet, that were
incurred after she was dead or while she was in the process of dying
(because the abrasions didn’t hemorrhage or bleed);

-24-
 * very small tears were found in Cooper’s perianal area that were likely
incurred after Cooper was dead (because they showed no evidence of
bleeding or hemorrhage);

* sperm was found in swabs taken from Cooper’s anus (suggesting, along
with the presence of the perianal tears, that she was anally raped while she
was dying or after she had died); and

* approximately two to four inches inside of Cooper’s external vaginal
opening was a laceration approximately an inch long, that was likely
incurred after her death (perhaps as a result of the toy pylon being placed in
her vagina).

The government’s evidence also established that Welch, while employed with Norman

Cablevision, performed a service call to the Cooper’s home in December 1986, little more

than two months prior to the murder. Further, the government’s evidence established that

Welch was fired from his job with Norman Cablevision in January 1987 for destroying

original work records, but retained his uniforms for at least two months thereafter.

Finally, as part of its case-in-chief, the government presented testimony from a forensic

serologist who testified that he performed DNA analysis on sperm samples taken from a

kitchen towel found laying near Cooper’s body and that the DNA found in those samples

matched the DNA in the known sample of Welch’s blood. The forensic serologist further

testified that the DNA profile found in the semen samples occurs one time in 5.2 million

males in the general population, thus making it extremely unlikely that a male other than

Welch was responsible for the semen samples found on the towel.

Welch testified in his own defense during the first stage proceedings and attempted

to rebut or explain away all of the damning evidence presented by the prosecution. To

-25-
begin with, Welch denied ever raping or tying up his ex-wife Bonnie. As for his

connection with Talley Cooper, Welch admitted making a service call to her home in

December 1986 and testified that, during the course of that service call, he asked Talley

Cooper “if she fooled around,” to which she allegedly responded “yes” and provided him

with her phone number. Welch further testified that in early 1997, prior to Talley

Cooper’s death, he visited her house on two occasions and had consensual sex with her.

As for the day of Cooper’s murder, Welch admitted that he had been in Cooper’s house

(although he initially told police that he did not know Talley Cooper at all) and testified

that they first, at Cooper’s urging, had consensual anal intercourse, and then, at his

suggestion, tried the “asphyxiation deal” he had read about in pornographic magazines.

Welch testified that Cooper collapsed to the floor and died while they were engaged in

sex, and that he panicked and decided to try and make it look like somebody had attacked

her. Thus, Welch testified, he put the duct tape over her mouth, wrapped the leather cord

tightly around her neck and tied it off, and placed the toy in her vagina (he “figured the

weirder it looked the better it would be”).

The prosecution presented several key pieces of evidence in rebuttal. In particular,

the coroner who performed the autopsy on Cooper testified that the perianal tears he

found on her body were inconsistent with Welch’s story, in that they occurred after she

died or while she was in the process of dying. In addition, Katherine Roberts, a close

friend of Cooper’s, testified that several weeks prior to the murder, Cooper called and

said “something weird” had happened and she was feeling scared. According to Roberts,

-26-
Cooper told her that a “greasy-looking” man had come to her house to look at her cable

television system and that, when he entered the house, he followed her “real close” and

seemed more interested in following and talking to her than working.5

Considering all of this evidence together, as well as the fact that the trial court

admonished the jury not to consider Lee’s statement that Welch had raped his ex-wife, we

agree with the OCCA that Lee’s statements did not violate Welch’s due process right to a

fair trial. Applying the AEDPA standards of review, we therefore conclude that the

OCCA’s rejection of Welch’s due process claim was neither contrary to, or an

unreasonable application of, the general constitutional principles previously outlined.

Admission of hearsay evidence during first stage proceedings

Welch contends that the trial court violated his constitutional right to confront and

cross-examine witnesses against him when it admitted, during the prosecution’s first stage

case in rebuttal, hearsay testimony from Katherine Roberts, a friend of Talley Cooper’s,

regarding a conversation she had with Cooper several weeks prior to her death. As noted,

Roberts testified that Cooper related to her a “weird” incident involving a male cable

employee who came to her home and then proceeded to follow her closely, effectively

scaring her and giving her “the creeps.”

Welch first raised this issue on direct appeal. The OCCA rejected it, stating as

5
The prosecution also presented two other witnesses, one of whom testified with
regard to the investigation of the Stevens murder and the other, a woman named Paige
Hora, who testified that on the morning of October 8, 1994, in the parking lot of the Wal-
Mart store in Tulsa, Oklahoma, where she worked, she was attacked by Welch, who she
did not know, with a large knife.

-27-
follows:

In his third proposition of error, [Welch] claims he was denied a fair trial
and his right to confront witnesses against him by the admission of
prejudicial hearsay evidence whose probative value was questionable and
whose reliability was suspect. In rebuttal, Katherine Roberts testified she
received a telephone call from her friend, Talley Cooper, several weeks
before her death. Cooper told Roberts that a man had come to her house to
look at her cable who followed her very closely and seemed more interested
in following and talking to her than in looking at the cable. Cooper told
Roberts that he scared her and gave her the “creeps.” Cooper described the
man as greasy-looking and dirty.

The trial court correctly allowed Cooper’s statement that the cableman
scared her and gave her the “creeps” under the state of mind exception to
the hearsay rule. 12 O.S.1991, § 2803(3). Such antecedent declarations by
a decedent are admissible in a homicide case to show the decedent’s state of
mind toward the defendant or to supply the motive for killing. Moore v.
State, 1988 OK CR 176, ¶ 18, 761 P.2d 866, 870. Here, although Cooper
did not identify [Welch] as the cableman, [Welch] testified he met Cooper
several weeks before her death when he responded to a service call thereby
supplying that fact. The testimony concerning Cooper’s apprehension of
[Welch] provided an insight into her state of mind especially in light of
[Welch]’s claim that after his initial service call he and Cooper started a
consensual extramarital affair and that her death was an accident. See Moss
v. State, 1994 OK CR 80, ¶ 40, 888 P.2d 509, 519; Hooker v. State, 1994
OK CR 75, ¶ 27, 887 P.2d 1351, 1360, cert. denied, 516 U.S. 858, 116 S.Ct.
164, 133 L.Ed.2d 106 (1995).

However, the remainder of the statement that [Welch] came to her home
to look at the cable, followed her around and seemed more interested in her
than in looking at the cable does not go to Cooper’s state of mind. The
State concedes this part of the statement touches on [Welch]’s past acts
which is generally inadmissible, but argues such testimony was necessary to
establish the reliability of Cooper’s statement to Roberts and to establish
that [Welch] was the cableman to which Cooper referred. These references
to [Welch]’s past acts were not necessary to establish reliability or identity
in light of [Welch]’s testimony. Therefore, that part of the statement should
have been excluded. However, because we find beyond a reasonable doubt
that this error did not contribute to the verdict or sentence, this error is
harmless and relief is not warranted. Hooker, 1994 OK CR 75, at ¶ 28, 887

-28-
 P.2d at 1360.

Welch, 2 P.3d at 370.

Although Welch acknowledges that the OCCA addressed the issue, he argues that,

because the OCCA “failed to cite or discuss controlling, or for that matter, any federal

authority,” the OCCA “did not expressly adjudicate [his] constitutional claim[] on the

merits,” and that we are therefore free to review the claim de novo. Aplt. Br. at 54. We

disagree. In addressing the issue, the OCCA expressly noted that Welch was claiming a

violation of his constitutional right to confrontation. Further, as previously noted, the

Supreme Court has held that a state court is not required to cite to, nor even be aware of,

controlling Supreme Court cases, “so long as neither [its] reasoning nor the result of [its]

decision contradicts” controlling Supreme Court precedent. Packer, 537 U.S. at 8. Thus,

we are bound to apply the deferential AEDPA standards in reviewing this claim.

Turning to the merits of Welch’s claim, “[t]he Sixth Amendment’s Confrontation

Clause, made applicable to the States through the Fourteenth Amendment, provides: ‘In

all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.’” Ohio v. Roberts, 448 U.S. 56, 62-63 (1980) (internal citations

omitted). That right, however, “does not bar admission of an unavailable witness’s

statement against a criminal defendant if the statement bears adequate indicia of

reliability.” Crawford v. Washington, 541 U.S. 36, 40 (2004) (internal quotation marks

omitted) (citing Roberts, 448 U.S. at 66). “To meet that test, evidence must either fall

within a ‘firmly rooted hearsay exception’ or bear ‘particularized guarantees of

-29-
trustworthiness.’” Id. (quoting Roberts, 448 U.S. at 66).6

Here, the OCCA, in concluding the trial court properly admitted Roberts’

testimony regarding Cooper’s statements to her that the cableman scared her and gave her

the “creeps,” relied on a “firmly rooted hearsay exception” under Oklahoma law, i.e., “the

state of mind exception to the hearsay rule.” Welch, 2 P.3d at 370; see Moore v.

Reynolds, 153 F.3d 1086, 1107 (10th Cir. 1998) (holding, in federal habeas case brought

by Oklahoma capital defendant, that Oklahoma’s state of mind exception to the hearsay

rule satisfies the reliability requirement of Roberts). Thus, the OCCA’s ruling with

respect to this aspect of Roberts’ testimony was neither contrary to, nor an unreasonable

application of, controlling Supreme Court precedent. Further, even assuming, for

purposes of argument, that this aspect of Roberts’ testimony should not have been

admitted, its admission was harmless. More specifically, given the strength of the

prosecution’s evidence, we conclude that Roberts’ testimony did not have a “‘substantial

and injurious effect or influence in determining the jury’s [first stage] verdict.’” 7 Brecht,

6
Although the Supreme Court in Crawford rejected certain of the statements in
Roberts, those aspects of Crawford are inapplicable here because the decision was issued
long after the OCCA decided Welch’s direct appeal.
7
Welch argues that Roberts’ testimony was “crucial to the State’s case” against
him. Aplt. Br. at 63 (italics in original). More specifically, Welch argues that, without
Roberts’ statements, “the State would have been left with only the DNA evidence which
proves merely that Welch may have been at the scene at one time and had intercourse
with Cooper at some point in time . . . .” Id. A review of the trial transcript, however,
clearly refutes these arguments. As previously discussed, the prosecution’s evidence
against Welch was extremely strong, if not overwhelming, and Roberts’ testimony, which
came during the prosecution’s rebuttal case, was clearly not crucial to the outcome of the
trial.

-30-
507 U.S. at 623 (quoting Kotteakos, 328 U.S. at 776).

As for the remaining portions of Roberts’ testimony (concerning the acts of the

cableman while in Cooper’s home), the OCCA concluded that they were improperly

admitted, but that the resulting error was harmless beyond a reasonable doubt. Again,

given the strength of the government’s first stage evidence, we conclude that the OCCA’s

decision in this regard was neither contrary to, nor an unreasonable application of, the

harmless-beyond-a-reasonable-doubt standard announced in Chapman v. California, 386

U.S. 18, 24 (1967).8

Refusal of trial court judge to recuse

Welch contends he was deprived of his right to a fair trial and a fair tribunal due to

the failure of the trial judge, Honorable Tom A. Lucas, to sua sponte recuse in light of the

fact that one of the lead detectives in the case, Norman police officer Stephen Lucas, was

the trial judge’s son. Welch first raised this issue on direct appeal. The OCCA concluded

the issue had been waived by Welch prior to trial:

In his fifth proposition of error, [Welch] claims the trial judge erred in
failing to recuse sua sponte from the instant case because the judge’s son
was the primary case agent and a key prosecution witness. [Welch]
maintains that by presiding over a case in which his son was a crucial,
material witness for the State, the trial judge was unavoidably biased
thereby creating a structural defect not subject to waiver or harmless error

8
Although the OCCA did not cite to Chapman or expressly refer to a “harmless
beyond a reasonable doubt” standard, it cited to its prior decision in Hooker v. State, 887
P.2d 1351, 1360 (Okla. Crim. App. 1994), in which such a standard was expressly
discussed. Welch, 2 P.3d at 370. Even assuming, arguendo, that the OCCA did not apply
the proper harmless error standard, the error would be considered harmless under the
standard outlined in Brecht.

-31-
analysis. To support his claim the trial judge was biased, [Welch] avers he
was prejudiced by the evidentiary rulings during Detective Lucas’
testimony as argued in his second proposition of error. (footnote omitted
stating: “The record shows that the jurors were not apprised of the
relationship between the trial judge and the witness.”).

“The Oklahoma Constitution guarantees a defendant a right to a fair,
impartial trial not tainted by the personal bias or prejudice of the trial
court.” Fitzgerald v. State, 1998 OK CR 68, ¶ 10, 972 P.2d 1157, 1163.
The decision of a trial judge to disqualify herself from hearing a criminal
case is within the sound discretion of that judge whose decision will not be
disturbed on appeal unless abuse of that discretion is shown. Id. A
defendant asserting a claim that the trial judge was biased and abused her
discretion must show the trial court harbored prejudice against him which
materially affected his rights at trial and that he was prejudiced by the trial
court’s actions. Id. However, “the right to preclude a disqualified judge
from trial is a personal privilege which can be waived” by the failure to
strictly comply with the proper procedure for seeking the disqualification of
the trial judge. See Hatch v. State, 1983 OK CR 47, ¶ 5, 662 P.2d 1377,
1380, cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986);
Willis v. State, 1982 OK CR 134, ¶ 4, 650 P.2d 873, 874.

During a pre-trial hearing, the trial judge advised the parties that his son
was one of the detectives in this case. Both defense counsel and [Welch]
stated on the record they did not have any objection to the trial judge
presiding over the trial. Following the pre-trial hearing, neither defense
counsel nor [Welch] sought to have the trial judge disqualified pursuant to
20 O.S.1991, § 1403.

This case is similar to Smith v. State, 1987 OK CR 94, ¶ 5, 737 P.2d
1206, 1209, cert. denied, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383
(1987), also a capital case, in which the appellant alleged prejudice on
appeal because the preliminary hearing magistrate was the brother of the
prosecuting attorney. The Smith court found the appellant and his defense
counsel expressly waived any conflict in open court and the appellant did
not show why the waiver would be invalid. Smith, 1987 OK CR 94, at ¶ 6,
737 P.2d at 1209. An examination of the record herein reveals [Welch] and
defense counsel affirmatively waived any conflict by so stating on the
record and by failing to follow the mandated procedures for seeking a trial
judge’s disqualification. Hatch, 1983 OK CR 47, at ¶ 5, 662 P.2d at 1380;
Willis, 1982 OK CR 134, at ¶ 4, 650 P.2d at 874. Even if we were to
indulge [Welch] and find he did not waive his right, he could not prevail

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 because he cannot show the trial court harbored prejudice against him. See
Proposition II, supra. Accordingly, this proposition is denied. (footnote
omitted stating: “Because the scrutiny is higher in death penalty cases as a
death sentence is qualitatively different from other punishments, we
recommend trial judges recuse when a familial relationship exists between
the judge and a witness so as to avoid any appearance of partiality.”).

Welch, 2 P.3d at 372-73 (paragraph numbers omitted).

Welch again contends that we are not bound to defer to the OCCA’s ruling under

the AEDPA standards of review because, in his view, the OCCA did not address the

merits of his federal constitutional claim. In support of his contention, Welch notes that

the OCCA did not “cite or discuss controlling, or for that matter any, federal authority,”

and instead “appears to have explicitly and solely relied upon the Oklahoma State

Constitution in analyzing this claim . . . .” Aplt. Br. at 65 (emphasis in original). For the

reasons discussed in connection with Welch’s first three arguments, we again disagree.

Although the OCCA relied on the Oklahoma Constitution and its own precedents in

addressing Welch’s claim, that does not mean that it failed to address the merits of his

federal due process claim. Rather, as previously noted, our only concern is that the

OCCA’s reasoning and result are consistent with controlling Supreme Court precedent.

See Packer, 537 U.S. at 8. Moreover, as discussed below, the OCCA concluded, and

reasonably so, that Welch expressly waived the issue prior to trial.

The Supreme Court has long held that it is a violation of due process for a criminal

defendant to be tried by a judge who “has a direct, personal, substantial pecuniary interest

in reaching a conclusion against [the defendant] in his case.” Tumey v. Ohio, 273 U.S.

51, 523 (1927). In other words, “the Due Process Clause of the Fourteenth Amendment

-33-
establishes a constitutional floor” regarding a trial judge’s qualifications to hear a case,

Bracy v. Gramley, 520 U.S. 899, 904 (1997), and requires that the trial judge have “no

actual bias against the defendant or interest in the outcome of his particular case.” Id. at

905.

Here, although Welch argued on direct appeal, and continues to insist in this

federal habeas appeal, that the trial judge in his case exhibited actual bias, there is simply

no basis for reaching such a conclusion. To begin with, it is clear from reviewing the trial

transcript that, as determined by the OCCA, Welch and his defense counsel expressly

stated on the record that they had no objection to the trial judge presiding over the trial,

notwithstanding his relationship to Detective Lucas. Consistent with those express

statements, neither Welch nor his defense counsel made any mention of actual bias before

or during the trial. Thus, the OCCA reasonably concluded that Welch “affirmatively

waived any conflict by so stating on the record and by failing to follow the mandated

procedures for seeking a trial judge’s disqualification.” Welch, 2 P.3d at 372.

Even absent Welch’s waiver, the mere fact that the lead investigator, and

consequently a key witness, in the case was the trial judge’s son did not mean that the

trial judge had a personal interest in the outcome of the case. See Dyas v. Lockhart, 771

F.2d 1144, 1146 (8th Cir. 1985) (concluding that judge who presided over criminal trial

in which the prosecuting attorney was the judge’s nephew, the two deputy prosecuting

attorneys were the judge’s brother and son, and the court reporter was the judge’s wife,

did not have a personal interest in the outcome of the trial). Moreover, for the reasons

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previously discussed, we conclude the trial judge properly admitted the challenged

portions of his son’s testimony. And, even assuming those evidentiary rulings were

wrong, that, standing alone, would not be enough to establish actual bias. See Liteky v.

United States, 510 U.S. 540, 555 (1994) (holding that “judicial rulings alone almost never

constitute a valid basis for a bias or partiality motion.”). Thus, in sum, it is clear “that any

biasing influence from the circumstances here was too remote and insubstantial to create

a presumption [or even a reasonable likelihood] of bias.” Fero v. Kerby, 39 F.3d 1462,

1480 (10th Cir. 1994); see generally Withrow v. Larkin, 421 U.S. 35, 47 (1975) (noting

“that the probability of actual bias on the part of the judge is too high to be

constitutionally tolerable” in cases where “the adjudicator has a pecuniary interest in the

outcome and in which he has been the target of personal abuse or criticism from the party

before him”).

That leaves only Welch’s claim that the trial judge should have sua sponte recused

himself on the basis of the appearance of bias. Unlike its firm stance on the constitutional

impermissibility of a biased judge presiding over a criminal trial, the Supreme Court has

not directly addressed a criminal case involving the appearance of bias on the part of the

trial judge. To be sure, the Supreme Court has, on occasion and in dicta, suggested that

something less than actual bias can result in a violation of due process. E.g., Taylor v.

Hayes, 418 U.S. 488, 501 (1974) (“the inquiry must be not only whether there was actual

bias on [the judge’s] part, but also whether there was such a likelihood of bias or an

appearance of bias that the judge was unable to hold the balance between vindicating the

-35-
interests of the court and the interests of the accused”) (internal quotation marks and

citation omitted); In re Murchison, 349 U.S. 133, 136 (1955) (noting that “our system of

law has always endeavored to prevent even the probability of unfairness” and that this

“stringent rule may sometimes bar trial by judges who have no actual bias”). Those

references, however, appear to pertain to situations in which the circumstances are

sufficient to give rise to a presumption or reasonable probability of bias. Thus, as the

Third Circuit recently concluded, these cases cannot reasonably be read as “stand[ing] for

the conclusion . . . that a judge with an appearance of bias, without more, is required to

recuse himself sua sponte under the Due Process Clause.” Johnson v. Carroll, 369 F.3d

253, 260 (3d Cir. 2004) (rejecting, in context of federal habeas proceedings, state

prisoner’s claim of bias on the part of trial judge); see also Del Vecchio v. Illinois Dept.

of Corrections, 31 F.3d 1363, 1371 (7th Cir. 1994) (en banc) (rejecting the notion that an

appearance of bias on the part of a trial judge amounted to a due process violation); see

generally Bracy, 520 U.S. at 904 (noting that “most questions concerning a judge’s

qualifications to hear a case are not constitutional ones, because the Due Process Clause

of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard.”).

“Because the Supreme Court’s case law has not held, not even in dicta, let alone ‘clearly

established,’ that the mere appearance of bias on the part of a state trial judge, without

more, violates the Due Process Clause,” Johnson, 369 F.3d at 263, Welch cannot establish

his entitlement to federal habeas relief under the standards outlined in § 2244(d)(1).

Finally, even assuming for purposes of argument that it was clearly established

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that the mere appearance of bias could result in a due process violation, the OCCA

reasonably concluded that Welch and his counsel expressly waived any such claim prior

to trial. In Liljebert v. Health Serv. Acquisition Corp., 486 U.S. 847, 866 (1988), the

Supreme Court noted (albeit in the context of a civil case tried in federal district court)

that “[a] full disclosure” by the trial judge of the possible bases for disqualification can

“completely remove[] any basis for questioning the judge’s impartiality . . . .” That is

precisely what occurred here. As noted by the OCCA, during a pre-trial hearing the trial

judge advised the parties that Detective Lucas was his son and asked the attorneys, as

well as Welch himself, whether they had any objections to the trial judge presiding over

the trial. Both Welch and his counsel expressly stated on the record that they had no

objections.

Admission of victim impact evidence during second stage proceedings

Welch contends that the admission, during the second-stage proceedings, of certain

victim impact evidence violated his constitutional right to a fundamentally fair sentencing

hearing. More specifically, Welch complains that all five of the second-stage witnesses

who provided victim impact testimony, Talley Cooper’s older sister, her two brothers, her

husband, and her mother, were allowed to state that they believed death was the

appropriate punishment for Welch.

Welch first raised this issue on direct appeal. The OCCA rejected it, stating as

follows:

In his sixth proposition of error, [Welch] claims he was denied a fair
sentencing proceeding by the admission of improper, prejudicial and

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 irrelevant victim impact evidence.

***

[Welch] . . . claims there is no provision allowing for an opinion of a
recommended sentence in capital cases in Oklahoma and asks this Court to
reconsider its prior decisions upholding sentence recommendations.
Section 984 [of Title 22 of the Oklahoma Statutes] authorizes “the victim’s
opinion of a recommended sentence.” Based on this language, we continue
to find that sentencing recommendations by victims or their survivors are
relevant and admissible as long as the recommendation is given as a
straight-forward, concise response to a question asking what the
recommendation is; or a short statement of recommendation in a written
statement, without amplification. Wood, 1998 OK CR 19, at ¶ 46, 959 P.2d
at 12. Because each of the sentence recommendations in this case fit within
the above parameters, no error occurred.

Welch, 2 P.3d at 373-74.

Welch contends that the OCCA’s ruling is not entitled to deference under the

AEDPA because the OCCA relied explicitly and solely on Oklahoma statutes and case

law in analyzing Welch’s claim. Thus, Welch contends, we must review the claim de

novo. For the reasons discussed below, we agree with Welch on this point.

In Booth v. Maryland, 482 U.S. 496, 501-02 (1987), the Supreme Court addressed

the question of “whether the Eighth Amendment prohibits a capital sentencing jury from

considering victim impact evidence.” The petitioner in Booth had been convicted of two

counts of first-degree murder and sentenced to death. During the sentencing phase of his

trial, the prosecution, consistent with Maryland law, presented a written victim impact

statement (VIS) that “provided the jury with two types of information.” Id. at 502.

“First, it described the personal characteristics of the victims and the emotional impact of

the crimes on the family.” Id. “Second, it set forth the family members’ opinions and

-38-
characterizations of the crimes and the defendant.” Id. The Supreme Court, by a 5-4

majority, concluded that victim impact evidence was per se inadmissible during the

sentencing phase of a capital trial, except to the extent that it related “directly to the

circumstances of the crime . . . .” Id. at 507 and n.10. With respect to the first type of

information contained in the VIS, the Court determined it might “be wholly unrelated to

the blameworthiness of a particular defendant,” id. at 504, and, in any event, “create[d] an

impermissible risk that the capital sentencing decision w[ould] be made in an arbitrary

manner.” Id. at 505. As for the second type of information contained in the VIS (family

members’ opinions and characterizations of the crimes), the Court concluded it could

“serve no other purpose than to inflame the jury and divert it from deciding the case on

the relevant evidence concerning the crime and the defendant.” Id. at 508.

In 1989, the Court extended the rule announced in Booth to statements made by a

prosecutor to a capital sentencing jury regarding the personal qualities of the victim. See

South Carolina v. Gathers, 490 U.S. 805 (1989).

In 1991, the Court revisited these issues, and partially reversed course, in Payne v.

Tennessee, 501 U.S. 808 (1991). The petitioner in Payne was sentenced to death for the

murders of a woman and her two-year-old daughter. During the sentencing phase of trial,

the prosecution presented testimony from the woman’s mother, who testified about the

physical and emotional impact the murders had on the woman’s surviving three-year-old

son (who had also been assaulted by the defendant but had survived). During closing

arguments in the sentencing phase, the prosecutor commented on this testimony and

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discussed the continuing effects of the boy’s experience. The Court, expressly overruling

its decisions in Booth and Gathers, held that “if the State chooses to permit the admission

of victim impact evidence and prosecutorial argument on that subject, the Eighth

Amendment erects no per se bar.” Id. at 827.9 Instead, the Court held, the only

constitutional limitation on such evidence is if it “is so unduly prejudicial that it renders

the trial fundamentally unfair . . . .” Id. at 825. In such an event, the Court indicated, “the

Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Id.

Importantly, Payne left one significant portion of Booth untouched. Unlike Booth,

Payne did not involve any testimony or statements from the victim’s family members

regarding their “opinions and characterizations of the crimes and the defendant.” Booth,

482 U.S. at 502. Thus, although the Court expressly overruled Booth, it stated in a

9
In reaching this conclusion, the Court specifically outlined why victim impact
evidence was relevant to a capital jury’s sentencing decision:
We are now of the view that a State may properly conclude that for the jury
to assess meaningfully the defendant’s moral culpability and
blameworthiness, it should have before it at the sentencing phase evidence
of the specific harm caused by the defendant. “[T]he State has a legitimate
interest in counteracting the mitigating evidence which the defendant is
entitled to put in, by reminding the sentencer that just as the murderer
should be considered as an individual, so too the victim is an individual
whose death represents a unique loss to society and in particular to his
family.” Booth, 482 U.S., at 517, 107 S.Ct. at 2540 (WHITE, J., dissenting)
(citation omitted). By turning the victim into a “faceless stranger at the
penalty phase of a capital trial,” Gathers, 490 U.S., at 821, 109 S.Ct. at 2216
(O'CONNOR, J., dissenting), Booth deprives the State of the full moral
force of its evidence and may prevent the jury from having before it all the
information necessary to determine the proper punishment for a first-degree
murder.
Id. at 825.

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footnote:

Our holding today is limited to the holding[] in Booth . . . that evidence . . .
relating to the victim and the impact of the victim’s death on the victim’s
family [is] inadmissible at a capital sentencing hearing. Booth also held
that the admission of a victim’s family members’ characterizations and
opinions about the crime, the defendant, and the appropriate sentence
violates the Eighth Amendment. No evidence of the latter sort was
presented at the trial in this case.

Payne, 501 U.S. at 830 n.2.

This circuit and several other circuits have expressly recognized that the portion of

Booth prohibiting family members of a victim from stating “characterizations and

opinions about the crime, the defendant, and the appropriate sentence” during the penalty

phase of a capital trial survived the holding in Payne and remains valid. See United

States v. Brown, 441 F.3d 1330, 1352 (11th Cir. 2006); Humphries v. Ozmont, 397 F.3d

206, 217 (4th Cir. 2005) (en banc); Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir.

1999); Hain v. Gibson, 287 F.3d 1224, 1238-39 (10th Cir. 2002); United States v.

McVeigh, 153 F.3d 1166, 1217 (10th Cir. 1998); Woods v. Johnson, 75 F.3d 1017, 1038

(5th Cir. 1996).

Turning to Welch’s arguments, it is clear that the testimony he now challenges was

improperly admitted. All five of the second-stage witnesses presented by the prosecution

stated they thought Welch should receive the death penalty. This testimony was clearly

contrary to Payne and Booth and resulted in a violation of Welch’s Eighth Amendment

rights. While the OCCA specifically resolved the issue, it relied solely on Oklahoma

state law and made no attempt to reconcile Payne or Booth. Its decision is contrary to

-41-
“clearly established Federal law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), making federal habeas relief available.

The question then becomes whether the constitutional error resulting from the

admission of these victim impact statements was harmless, or instead requires the reversal

of Welch’s death sentence. See Willingham v. Mullin, 296 F.3d 917, 931 (10th Cir.

2002) (applying harmless error analysis to similar error arising in habeas case filed by

Oklahoma capital prisoner); Hain, 287 F.3d at 1239-40 (same). Because the OCCA

erroneously concluded that the admission of the victim impact evidence was proper, it did

not address the issue of harmlessness. Accordingly, we must “consider the question of

harmless error de novo under the general standard established for habeas cases in” Brecht.

Willingham, 296 F.3d at 931. Under that standard, the question is “whether the

objectionable victim impact evidence had substantial and injurious effect or influence in

determining the jury’s [death penalty] verdict . . . .” Id. (internal quotation marks

omitted).

After carefully examining the trial transcript, we conclude that the error was,

indeed, harmless. As noted, the prosecution alleged, and the jury found, the existence of

two aggravating factors, both of which were amply supported by the evidence. In

particular, the jury reasonably found, based upon the first stage evidence that was

incorporated by reference into the second-stage proceedings, that Welch’s brutal and

demeaning attack on Talley Cooper was especially heinous, atrocious and cruel. The jury

also reasonably found, based upon Welch’s commission of three violent attacks against

-42-
women (two of which were fatal and the third that resulted in serious injuries to the

victim), as well as Welch’s lengthy criminal history, the existence of a probability that

Welch would commit criminal acts of violence that would constitute a continuing threat

to society in the future. In light of the existence of these two aggravators, we conclude

that the improper aspects of the victim impact evidence did not play a substantial role in

the jury’s assessment of the death penalty in this case.

Ineffective assistance of trial counsel

Welch contends that his trial counsel was constitutionally ineffective for (a) failing

to prohibit the introduction of Welch’s prior convictions, (b) failing to impeach the

rebuttal testimony of Katherine Roberts, (c) failing to list adaptability to prison life as a

mitigating circumstance, (d) failing to request recusal of the trial judge (due to the trial

judge’s relationship to Detective Lucas), (e) failing to advise Welch regarding the

decision to testify in his own defense, and (f) failing to investigate and present available

mitigating evidence. Welch first raised these claims on direct appeal and the OCCA

rejected them on the merits.

Welch’s claims are governed by the governed by the familiar two-part test

announced in Strickland v. Washington, 466 U.S. 668 (1984). Under that test, Welch

must establish that (1) counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s errors, the

outcome of the proceedings would have been different. Id. at 688, 694; see also

Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).

-43-
 Notably, Welch acknowledges that the OCCA applied the Strickland standards in

rejecting each of his claims of ineffective assistance. Thus, he concedes that he cannot

obtain federal habeas relief on any of those claims unless he establishes that the OCCA’s

resolution of the claim(s) was contrary to, or an unreasonable application of, Strickland.

a) Failure to prohibit introduction of Welch’s prior convictions

Welch contends there was “no valid trial strategy” to justify his trial counsel

telling the jury during opening statements that Welch had been convicted of crimes and

was serving life in prison without the possibility of parole, or to justify his trial counsel

asking Welch, during his direct examination, about his string of prior felony convictions.

Welch raised this same issue on direct appeal and the OCCA rejected it:

[Welch] attacks counsel’s decision to elicit his prior Tulsa County
convictions that did not involve dishonesty along with some of the
circumstances of that case without obtaining a ruling that these prior felony
convictions, for purposes of impeachment, were more probative than
prejudicial. The record shows this was part of the defense’s strategy.
[Welch]’s defense to the instant case was he never intended to kill Cooper
and her death was an accident that resulted from a consensual sexual
encounter. To boost his credibility, defense counsel elicited [Welch]’s prior
convictions and some of the facts about the Tulsa County crimes in an
effort to show [Welch] was willing to admit and take responsibility for his
prior misconduct. Defense counsel elicited facts about the Tulsa County
crimes in lieu of merely listing them to show that [Welch] attacked Paige
Hora because he thought she was trying to interfere with a drug deal in
which he was acting as lookout. Counsel employed this strategy to avoid
leaving the jury with the impression that [Welch] was a man who liked to
terrorize and kill women.

To further boost [Welch]’s credibility and his overall defense, defense
counsel elicited from [Welch] that he had plead guilty to all his prior
crimes, including the Tulsa County crimes, accepting responsibility for his
wrongful acts. This strategy bolstered [Welch]’s claim that he went to trial
in the instant case because he believed he was not guilty. Defense counsel

-44-
 further elicited [Welch]’s Tulsa County convictions, for which [Welch] was
serving a life plus consecutive forty-five year sentence, to argue [Welch]
did not constitute a continuing threat because he would be incarcerated for
the rest of his natural life. Inasmuch as [Welch] cannot overcome the
presumption that the challenged action was sound trial strategy under the
circumstances, this claim must fail.

Welch, 2 P.3d at 375.

Although Welch takes issue with the OCCA’s conclusions, we conclude they are

neither contrary to, nor an unreasonable application of, the standards outlined in

Strickland. As noted by the OCCA, defense counsel’s strategy appears to have been two-

fold: (1) to bolster Welch’s credibility during the first stage proceedings (by

demonstrating that Welch was willing to admit to and take responsibility for his criminal

conduct) in an attempt to avoid Welch being convicted of first degree malice murder; and

(2) to set the stage for rebutting the prosecution’s assertion that he represented a

continuing threat to society by demonstrating that he was already serving a prison

sentence that would last for most of his adult lifetime. Given the horrendous nature of

Talley Cooper’s rape and murder, and the substantial weight of the evidence against

Welch, we conclude these strategies were entirely reasonable.

b) Failure to impeach the rebuttal testimony of Katherine Roberts

Welch contends that his trial counsel failed to properly impeach the rebuttal

testimony of prosecution witness Katherine Roberts who, as previously noted, testified

that Talley Cooper called her several weeks prior to the murder and told her about being

scared by a cable television repairman who visited her house. Welch asserts that Roberts

failed to mention this telephone conversation when she was interviewed by the police

-45-
following Talley Cooper’s murder, and argues that his trial counsel should have cross-

examined Roberts about this issue. Welch asserted the same arguments on direct appeal,

and the OCCA rejected them, stating as follows:

[Welch] also attacks counsel’s failure . . . to impeach [Katherine]
Roberts’ . . . . Counsel did lodge a hearsay objection to Roberts’ testimony
concerning her telephone call with Cooper which was overruled. As
discussed in proposition three, a portion of Roberts’ testimony was
admissible and the remainder, though error, was harmless beyond a
reasonable doubt. Although defense counsel did not cross-examine Roberts
about why she had not mentioned Cooper’s telephone call to her about the
cableman during the initial investigation, defense counsel did ask questions
to illustrate that Roberts did not know as much as she believed about
Cooper. Asking questions to imply Roberts was making up her testimony
about the telephone call could easily backfire and counsel was not
ineffective for choosing to avoid that pitfall.

Welch, 2 P.3d at 375-76.

The OCCA’s conclusion is neither contrary to, nor an unreasonable application of,

Strickland. Although Welch contends that Roberts’ failure to tell the police about the

phone call immediately following the murder would have constituted “powerful

impeachment” evidence, Aplt. Br. at 83, he readily acknowledges that he does not know

what Roberts’ explanation would have been. Thus, as noted by the OCCA, the

questioning now proposed by Welch could have “backfired” on his counsel, by placing

his counsel in a negative light by attempting to suggest that the victim’s best friend was a

liar. Moreover, even assuming that Welch’s trial counsel should have cross-examined

Roberts as now suggested by Welch, it appears clear after reviewing the trial transcript

that such cross-examination would have had little, if any, effect on the outcome of the

first stage proceedings. Although Welch suggests that Roberts’ rebuttal testimony was

-46-
“very damaging” to him, we are persuaded that the jury would have convicted Welch

even absent Roberts’ testimony. Thus, in sum, we conclude Welch was not prejudiced by

trial counsel’s alleged failure to cross-examine Roberts.

c) Failure to list adaptability to prison life as a mitigating circumstance

Welch next complains that his trial counsel “failed [during the second-stage

proceedings] to list as a mitigating circumstance the probability that Welch could adapt to

prison life.” Aplt. Br. at 83. The OCCA rejected this same argument in affirming

Welch’s conviction and sentence:

[Welch] complains about counsel’s failure to list adaptability to the
structured environment of prison life as a mitigating circumstance in
[second-stage] Instruction 13. [Welch] contends the failure to specifically
list this mitigating circumstance allowed the jury to disregard this
mitigating evidence. With this contention, we cannot agree. The jury was
instructed that “mitigating circumstances are those which, in fairness,
sympathy, and mercy, may extenuate or reduce the degree of moral
culpability or blame. The determination of what circumstances are
mitigating is for you to resolve under the facts and circumstances of this
case.” Instruction 13, listing several specific mitigating circumstances, also
provided that the jury could “decide that other mitigating circumstances
exist, and if so, [could] consider those circumstances as well.” While
adaptability to prison life was not specifically listed, the jury was instructed
it could consider the evidence presented and determine what evidence was
mitigating. The majority of [Welch]’s second stage defense focused on his
adaptability to a structured prison environment which defense counsel
vigorously argued during closing argument to rebut the State’s continuing
threat contention. Given this record, we find the administered instructions
adequately allowed the jury to consider the evidence of adaptability to
prison life and [Welch] was not prejudiced by counsel’s failure to include it
in Instruction 13. (citation omitted)

Welch, 2 P.3d at 376.

Although Welch disagrees with the OCCA’s analysis, we conclude, after

-47-
reviewing the transcript of the second-stage proceedings, that it is neither contrary to, nor

an unreasonable application of, Strickland. As noted by the OCCA, the second-stage

instructions clearly informed the jury that they could consider whatever mitigating

circumstances they believed to be appropriate. That instruction, together with defense

counsel’s clear focus on establishing that Welch was highly adaptable to the prison

environment and was non-violent while incarcerated, would have allowed the jury to give

weight to this mitigating circumstance, even though it was not specifically listed in the

second-stage instructions. Moreover, given the strength of the two aggravating

circumstances, there is not a reasonable likelihood that the outcome of the second-stage

proceedings would have been different had adaptability to prison been specifically listed

as a mitigating circumstance in the second-stage jury instructions.

d) Failure to request recusal of the trial judge

Welch contends his counsel “inexplicably chose to not seek recusal of the trial

judge when it became known that the lead detective for the State was the trial judge’s

son.” Aplt. Br. at 85. According to Welch, “[t]here is no strategic, or even rational,

reason why a trial lawyer in a capital case would choose a trial judge knowing that the

State’s case agent and star witness [wa]s the judge’s own son.” Id. The OCCA rejected

these same arguments, stating:

[Welch] also attacks counsel’s . . . failure to request recusal of the trial
judge. * * * [Defense] counsel was not ineffective in failing to ask the trial
judge to recuse. As discussed in propositions two and five, [Welch] waived
his right to have the trial judge disqualified and he was not prejudiced by
the trial court’s rulings during Detective Lucas’s testimony. As such, he
cannot show prejudice and th[is] claim must fail.

-48-
Welch, 2 P.3d at 375-76.

For the reasons already discussed above in connection with the “failure to recuse”

issue, the OCCA reasonably concluded that Welch was not prejudiced by his trial

counsel’s failure to request the trial judge’s recusal. Thus, the OCCA’s decision was

neither contrary to, nor an unreasonable application of, Strickland.

e) Failure to advise Welch regarding the decision to testify

Welch contends that his trial counsel “did not properly advise [him] concerning the

risks of testifying prior to [him] taking the stand.” Aplt. Br. at 86. As a result, Welch

contends, he “was not properly prepared or ready to testify . . . .” Id. The OCCA

considered and rejected this same claim in disposing of Welch’s direct appeal:

[Welch] claims counsel failed to adequately advise him and provide him
with sufficient information on which to base an intelligent decision on
whether or not to testify. Alternatively, [Welch] asserts a claim of state
induced ineffective assistance of counsel by arguing counsel was forced to
present [Welch]’s testimony after the State was allowed to introduce
evidence of the Stevens homicide. As discussed in proposition one,
evidence from the Stevens homicide was properly admitted to prove
identity and absence of mistake or accident. As such [Welch]’s state
induced ineffective assistance of counsel claim must fail. Furthermore,
there is no evidence to support [Welch]’s claim that he was inadequately
advised about the risks of testifying. Defense counsel noted on the record
following the close of the State’s evidence that he had spoken to his client
and that [Welch] wished to testify. Defense counsel did not mention calling
[Welch] as a witness during opening statement thereby leaving the option
open so an intelligent decision could be made following the state’s
case-in-chief. Following the compelling evidence that demonstrated his
guilt, [Welch] elected to testify to tell his version of what happened.
Counsel attempted to guide his client and bolster his credibility throughout
the presentation of [Welch]’s testimony. Based on this record, we cannot
find [Welch] was inadequately advised or that counsel was ineffective.
Accordingly, this claim must fail.

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Welch, 2 P.3d at 376.

Again, the OCCA’s conclusion is neither contrary to, nor an unreasonable

application of, Strickland. As noted by the OCCA, the trial transcript indicates that,

following the conclusion of the prosecution’s case-in-chief, defense counsel informed the

trial judge: “Judge, at this time, from talking to Mr. Welch, he wishes to take the stand.”

Trial Tr., Vol. V at 1109. Further, as also noted by the OCCA, the trial transcript

indicates that Welch’s trial counsel “attempted to guide [Welch] and bolster his

credibility throughout” his direct and redirect examination. What defense counsel

obviously could not control was the substance of Welch’s testimony regarding how

Talley Cooper and Debra Stevens died. In any event, even assuming that defense counsel

erred in either failing to urge Welch not to testify or in failing to properly prepare him to

testify, it is clear that, given the strength of the prosecution’s evidence, the error was not

prejudicial.

f) Failure to investigate and present mitigating evidence

In his final claim of ineffective assistance, Welch contends that his trial counsel

failed to adequately investigate and present mitigating evidence available from his

relatives. Welch asserted this identical claim on direct appeal, and the OCCA rejected it,

stating:

More troubling is the complaint raised in [Welch]’s application for an
evidentiary hearing alleging counsel failed to investigate and use available
mitigating evidence. [Welch] argues counsel was deficient by failing to
investigate and present the testimony of his family members to mitigate
punishment especially in light of the victim impact evidence. Pursuant to
Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals,

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 Title 22, Ch. 18, App. (1998), [Welch] has filed an application for an
evidentiary hearing and to supplement the record. [Welch] includes, among
other things, affidavits from family members who were willing to testify
about their relationship with [Welch] and request mercy, but who were not
contacted by defense counsel. (citation omitted). Defense counsel did
speak with [Welch]’s sister briefly before trial began. Counsel initially
asked her to testify, but advised her she would not be needed after she told
him that [Welch] had touched her inappropriately when they were
adolescents. (citation omitted). At first glance, counsel’s failure to call
[Welch]’s family members to testify seems attributable to sound strategy
since the family knew of the inappropriate touching incident and one could
see how counsel would not want this information before the jury. However,
counsel elicited this information from his expert psychiatrist thereby
eliminating that strategy argument.

It is all too tempting to second guess counsel and wonder why he did not
use these family members given the compelling victim impact evidence and
the resulting death sentence. However, that is precisely the pitfall we are to
avoid. This Court will not second-guess trial strategy through the distorting
effects of hindsight. (citation omitted). The record shows defense counsel
did elicit much of the family members’ proposed testimony concerning
[Welch]’s background through Dr. Lindsey, the defense’s psychiatric
expert. It appears counsel chose not to call family members because he
feared the jurors’ reactions to the cross-examination of the family members
about the improper touching incident. Instead, he chose to present a more
clinical defense. The record further shows counsel mounted a
well-reasoned defense to the aggravating factors and chose to focus on
[Welch]’s adaptability to prison life with references to [Welch]’s mitigating
background as a sub-theme. Because the evidence in aggravation was so
strong and counsel’s decision could be considered sound trial strategy, we
find that an evidentiary hearing is not warranted because the application and
supplemental materials do not contain sufficient information to show this
Court by clear and convincing evidence there is a strong possibility trial
counsel was deficient for failing to utilize the complained-of evidence in
second stage.

Welch, 2 P.3d at 376-77.

In our view, the OCCA’s conclusion on this claim is neither contrary to, nor an

unreasonable application of, Strickland. As noted by the OCCA, Welch’s trial counsel

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presented a single witness, psychiatrist Ethan Lindsey, in Welch’s defense. Lindsey

testified at length about his psychiatric assessment of Welch 10 and, in doing so, recounted

what he believed were certain key and/or troubling aspects of Welch’s childhood (e.g., a

severe illness when he was an infant; the observation of unusual sexual acts as an

adolescent; fairly significant alcohol abuse as an adolescent) that lead to the development

of the psychiatric problems diagnosed by Lindsey. Those aspects, Lindsey noted in his

testimony, were taken from not only Welch’s own statements, but also from Lindsey’s

discussions with Welch’s mother and sister. In other words, Lindsey provided the jury

with a summary of the key events that may have led Welch to commit the acts of sexual

violence against Cooper and Stevens. Although Welch now contends that his relatives

could have provided additional mitigating information, he fails to specify in his appellate

brief precisely what information he believes would have made a difference in the

outcome of the second-stage proceedings. In any event, as noted by the OCCA, the

aggravating evidence was so strong as to foreclose any reasonable probability that the

presentation of additional testimony from Welch’s relatives would have produced a

different outcome.

Cumulative error

In his final issue, Welch contends his trial was rendered fundamentally unfair by

what he refers to as “the accumulation of constitutional errors.” Aplt. Br. at 89. Welch

10
Lindsey concluded that, as a result of a severe medical condition when Welch
was an infant, Welch developed severe attachment problems that ultimately led to an
antisocial personality disorder.

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asserted a similar claim on direct appeal and the OCCA rejected it:

In his final proposition of error, [Welch] contends that, even if no
individual error merits reversal, the cumulative effect of the errors in his
case necessitates either reversal of his conviction or a modification of his
sentence. We have thoroughly reviewed [Welch]’s claims and the record in
this case which reveals no error which, singly or in combination, would
justify either modification or reversal. Any irregularities or errors were
harmless beyond a reasonable doubt. Because we find no error that
warrants relief, this claim is denied. (citation omitted).

Welch, 2 P.3d at 377.

We, like the district court, found additional constitutional error in the admission of

the victim impact testimony from five witnesses. Because we have identified additional

error, and because the OCCA could not have considered the aggregate prejudicial impact

of the individual errors, we must review Mr. Welch’s cumulative error claim de novo.

See Malicoat, 426 F.3d at 1263 (“the OCCA’s opinion does not clearly indicate that it

considered, in the aggregate, the prejudicial effect of the individual errors[;] [a]ccordingly

. . . we afford [the defendant] the benefit of the doubt and review his cumulative error

claim de novo”); Cargle v. Mullin, 317 F.3d 1196, 1207 (10th Cir. 2003) (explaining that

“to deny cumulative-error consideration of claims unless they have first satisfied their

individual substantive standards for actionable prejudice would render the cumulative

error inquiry meaningless, since it would be predicated only upon individual error already

requiring reversal”) (internal quotation marks and citations omitted).

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

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be determined to be harmless.” Hamilton v. Mullin, 436 F.3d 1181, 1196 (10th Cir.

2006) (internal quotation marks omitted). Even under the de novo standard, we conclude

that, in light of the overwhelming evidence against Welch, the cumulative effect of such

errors did not “‘ha[ve] a substantial and injurious effect or influence in determining the

jury’s verdict,’” Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776), or deprive

him of his right to a fair trial.

AFFIRMED.

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