Johnson v. Mullin

FILED
United States Court of Appeals
Tenth Circuit

October 26, 2007
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT GRADY JOHNSON,

Petitioner-Appellant,
v. No. 06-6260
MIKE MULLIN, Warden,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-04-1602-L)

Michael J. Barta and Benjamin E. Kringer, Baker & Botts L.L.P., Washington, D.C., for
Petitioner-Appellant.

Keeley L. Harris, Assistant Attorney General, State of Oklahoma (W. A. Drew
Edmondson, Attorney General, with her on the briefs), Oklahoma City, Oklahoma, for
Respondent-Appellee.

Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Robert Grady Johnson, an Oklahoma state prisoner convicted of

murdering four people during the course of a bank robbery and sentenced to consecutive
terms of life imprisonment without parole, appeals from the district court’s denial of his

28 U.S.C. § 2254 petition for federal habeas relief. We exercise jurisdiction pursuant to

28 U.S.C. § 1291 and affirm.

I.

Factual background

On the afternoon of December 14, 1984, a robbery occurred at the First Bank of

Chattanooga in Geronimo, Oklahoma. During the course of the robbery, three bank

employees were forced into a back room and stabbed to death. Five bank customers,

including a married couple and their infant daughter, entered the bank during the robbery

and were forced into the same back room. There, they were ordered to lie face down on

the floor and all, except for the infant, were shot in the back of the head. One of the

customers died from the gunshot wounds.

Three days later, Johnson and Jay Wesley Neill, who shared an apartment in

Lawton, Oklahoma, were arrested in a hotel in San Francisco, California, in connection

with the bank robbery and murders. At the time of their arrest, Johnson and Neill were

found to be in possession of numerous marked bills taken from the bank during the

robbery. Law enforcement authorities also discovered that Johnson and Neill had used

other marked bills to pay for hotel rooms, limousine rides, and shopping excursions in

San Francisco.

Procedural background

Johnson and Neill were charged in the District Court of Comanche County

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(Oklahoma) with four counts of first degree murder, three counts of shooting with intent

to kill, and one count of attempted shooting with intent to kill. The two men were

originally tried together and convicted of all the crimes as charged. In accordance with

the jury’s recommendation, the trial court sentenced both men to death on each of the first

degree murder charges, and twenty years’ imprisonment on each of the remaining

charges. On direct appeal, the OCCA reversed the convictions and sentences and

remanded the cases for new trials, concluding that Johnson and Neill were improperly

tried together because their defenses were mutually antagonistic, i.e., each defendant

asserted the other was solely responsible for commission of the offenses. Neill v. State,

827 P.2d 884, 887-88 (Okla. Crim. App. 1992).

Johnson was separately retried in 1993 and convicted of the same eight crimes. He

was sentenced to four life sentences without parole on the murder counts, three

twenty-year sentences on the shooting with intent to kill counts, and a ten-year sentence

on the attempted shooting count, with all sentences to be served consecutively. The trial

court entered judgment on July 28, 1993.

Johnson thereafter began what would ultimately prove to be a long and tortuous

attempt to obtain a direct appeal of his convictions and sentences. See Johnson v.

Champion, 288 F.3d 1215, 1218-23, 1230 (10th Cir. 2002) (recounting Johnson’s efforts

to obtain appellate review of his convictions and sentences by the OCCA and directing

federal district court to grant a writ of habeas corpus ordering Johnson’s release unless

state authorities afforded him a direct appeal out of time). The OCCA eventually granted

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Johnson an appeal out of time and, on December 2, 2003, affirmed his convictions and

sentences in an unpublished opinion. Johnson v. State, No. F-2002-918 (Okla. Crim.

App. Dec. 2, 2003) (this opinion will hereinafter be referred to as the “OCCA Op.”).

On November 23, 2004, Johnson filed a petition for writ of habeas corpus in

federal district court. On March 29, 2006, the magistrate judge assigned to the case

issued a lengthy report and recommendation recommending that Johnson’s petition be

denied. On June 28, 2006, the district court adopted the report and recommendation and

denied Johnson’s petition. Johnson filed a timely notice of appeal, which the district

court construed as an application for certificate of appealability (COA) and denied. On

January 18, 2007, this court granted Johnson a certificate of appealability with respect to

eight general issues.

II.

Standard of review

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

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA’s

provisions apply to this appeal. See McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.

2003). “Under AEDPA, the appropriate standard of review depends on whether a claim

was decided on the merits in state court.” Id. “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 novo and its findings of

fact, if any, for clear error.” Id. (internal quotations omitted). If, however, the claim was

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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. “This standard does not require our abject deference,

. . . but nonetheless prohibits us from substituting our own judgment for that of the state

court.” Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir. 2007) (internal quotation marks

omitted).

Propriety of Johnson’s murder convictions

In his direct appeal, Johnson asserted a two-fold attack on the propriety of his

murder convictions, arguing that he was not present at the scene of the crime and thus

could not be convicted as a principal, and that, even if he could be found to have aided

and abetted Neill, Oklahoma’s “aider and abettor rule c[ould not] be aggregated with the

felony-murder rule to allow a conviction for felony murder when [he] was not present

during the commission of the underlying felony.” OCCA Op. at 9. The OCCA rejected

both of these arguments on the merits. Johnson now renews those arguments in these

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federal habeas proceedings.

A) Sufficiency of evidence – Johnson’s involvement as a principal in the
felony murders

Johnson first contends that the OCCA’s rejection of his insufficiency of evidence

argument was contrary to or an unreasonable application of clearly established federal

law. The controlling standard for insufficient evidence claims asserted by state habeas

petitioners was established by the Supreme Court in Jackson v. Virginia, 443 U.S. 307

(1979). Therein, the Supreme Court noted “that a state prisoner who alleges that the

evidence in support of his state conviction cannot be fairly characterized as sufficient to

have led a rational trier of fact to find guilt beyond a reasonable doubt has stated a federal

constitutional claim.” Id. at 321. The standard applicable to such a claim, the Court

indicated, is as follows:

[T]he critical inquiry on review of the sufficiency of the evidence to support
a criminal conviction must be not simply to determine whether the jury was
properly instructed, but to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt. But this
inquiry does not require a court to “ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt.” (citation
omitted). Instead, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt. (citation omitted).

Id. at 318-19.

The OCCA, in affirming Johnson’s convictions on direct appeal, did not cite to the

Supreme Court’s decision in Jackson. The OCCA did, however, effectively acknowledge

the Jackson standard in reviewing Johnson’s sufficiency of the evidence challenge, noting

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that the question at issue was whether, “review[ing] the evidence in the light most

favorable to the State, . . . a rational trier of fact could have found [Johnson] guilty of first

degree felony murder.” OCCA Op. at 3. In resolving that question, the OCCA began, as

it indicated it would, by reviewing the evidence presented at trial in the light most

favorable to the State:

The State’s evidence showed that in mid-November 1984, co-defendant
Neill, with [Johnson] standing next to him, told a friend they were going to
rob the Bank because it did not have any security cameras or guards.

Prior to December 1984, [Johnson] told several friends of the severe
financial problems he and Neill were experiencing. The week before the
crimes, [Johnson] appeared to his neighbors to be nervous and upset. On
Sunday December 9, [Johnson] and Neill purchased over $900.00 worth of
clothes and jewelry. The next night, [Johnson] and Neill went to dinner at a
local restaurant. Neill again mentioned robbing the Bank as a way to solve
their financial problems.

On Wednesday, two days before the robbery/homicides were committed,
Neill visited a local pawnshop and inquired about the purchase of a gun.
He indicated to the clerk that he needed the gun for protection as he had
received threatening phone calls. Different types of guns were described to
him and he was told that he must have a gun permit from the police
department in order to purchase a gun. However, at nineteen years old,
Neill was too young to apply for the permit.

The next morning, Neill talked with a travel agent at the Lawton
Municipal Airport. He originally wanted a flight to Nassau leaving after
6:00 p.m. Friday, December 14th. When told there was not a flight
available, he requested one to San Francisco leaving after 5:00 p.m. that
Friday. Neill also inquired into hotel accommodations, specifically
executive suites and limousine services. When asked for payment, Neill
said he would pay cash on Friday.

That same morning, the twenty-one year old [Johnson] applied for a gun
permit at the Lawton Police Department. He volunteered that he lived
alone and needed the gun for protection. He was told he would have to wait

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twenty-four hours before he could pick up the permit.

At approximately 1:15 p.m. that afternoon, [Johnson] and Neill walked
into the Bank. They stayed only a few minutes, talking only with each
other and looking around the Bank. Approximately 45 minutes later,
[Johnson] and Neill purchased two hunting knives at a local discount store.
They initially looked at purchasing a gun, but when informed the guns in
that store were not real, they both looked at the selection of knives. After
discussion among themselves, they selected two knives, each with a six-
inch blade. Neill wrote a check for the knives from the checking account he
shared with [Johnson]. Both Neill and [Johnson] provided identification for
the check.

On the day of the robbery/homicides, Friday, December 14, 1984, at
approximately 10:00 a.m., [Johnson] and Neill returned to the pawnshop
and asked for a revolver seen on a previous visit. Neill asked what type of
ammunition was needed for the gun, and [Johnson] asked where they could
purchase that type of ammunition. Both men were shown how to load and
fire the gun, and both men held the gun. They told the clerk they were to
get the gun permit by 2:30 p.m. that afternoon and would be back then to
purchase the gun.

At approximately 11:30 a.m., December 14, [Johnson] returned to the
police department and picked up the gun permit. At approximately 12:25
p.m., both men returned to the pawnshop to purchase the gun. They
hurriedly filled out the appropriate forms. Instead of listing his apartment
as his address, [Johnson] wrote down a false post office box number.
[Johnson] started to write the check to pay for the gun, but Neill insisted on
filling out the check. The gun was handed to [Johnson] and he and Neill
left the store.

[Johnson] and Neill then went to a local discount store to purchase
ammunition. While Neill was asking about ammunition, [Johnson] went to
find masking tape to purchase. Once again, Neill was too young to
purchase the ammunition, so he waited for [Johnson]’s return. Within 30
minutes of purchasing the ammunition and leaving the store, [Johnson] and
Neill returned to the store to exchange the shells. The gun they had
purchased had been mistakenly marked as a .38 caliber when it was actually
a .32 caliber. So, the .38 caliber shells purchased had to be exchanged for
.32 caliber shells.

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 At approximately 12:45 p.m., [Johnson] went to a neighbor’s apartment
to use the telephone. He rescheduled the travel plans for an earlier flight,
leaving at approximately 2:30 p.m. that afternoon.

Shortly after 1:00 p.m., [Johnson] and Neill entered the Bank. Bank
employees Kay Bruno, Jerry Bowles and Joyce Mullenix were herded to a
back room, forced to lie face down on the floor and stabbed to death. At the
front of the Bank, Bellen Robles had entered in order to deposit a check.
Finding the teller windows empty, she looked down the hallway to the back
room. There she saw the back of a man as he bent over something. She
went outside to tell her waiting husband, R[uben], that she thought the Bank
was being robbed. He doubted this, and went inside the Bank with his wife
and their fourteen (14) month old daughter. Entering the Bank just behind
them was local farmer, Ralph Zeller. Barely inside the front door, they
were greeted with a gun pointed at them and told to go to the back room if
they wanted to live. Once in the back room they were directed to lie down
on the floor.

The Robles and Mr. Zell[er] were left in the back room while Neill went
up to the front of the Bank to sack up the money. While he was doing so,
another customer, Marilyn Roach, entered the Bank. Neill pointed the gun
at her and forced her to the back room. She was barely able to lie down
inside the small, now crowded room. Moments later the gunshots rang out.
Ms. Roach was shot twice in the head[, as was Mr. Zeller, who died from
his injuries]. Bellen and Ruben Robles were each shot once in the head.
Turning his head to keep the blood out of his eyes, Ruben Robles saw the
gun pointed at his baby daughter and heard it click. But no shots were
fired; the gun was empty.

One of the first people in the bank after the robbery/homicides was
Calvin Bowles. As Bowles checked the status of the bodies lying on the
floor, R[uben] Robles rose up and said they had been shot in the head. His
wife, Bellen, then rose up and said to her husband, “I told you they were
robbing the bank.” Paul Franklin, who was also one of the first people on
the scene after the shootings, testified to helping emergency medical
personnel carry out Marilyn Roach. Mr. Franklin testified Ms. Roach
asked, “Are they gone?”

Marilyn Roach later told investigators that after the shooting stopped,
she heard two distinct voices in the bank. One voice, which sounded,
“upset” said, “I told you not to shoot anybody.” The other voice, which

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 sounded “casual,” responded, “well, they moved.”

At approximately 2:00 p.m. that day, Dara Pope arrived at her apartment
across the hall from the apartment shared by [Johnson] and Neill. She
knocked on [Johnson]’s door but no one responded.

[Johnson] and Neill arrived at the Lawton Airport at approximately 2:30
p.m. They paid one thousand two hundred dollars ($1,200.00) in cash for
their tickets and boarded the plane; carrying only a tote bag. After arriving
in San Francisco, [Johnson] and Neill embarked on a spending spree,
traveling by limousine to various clubs and stores. They were arrested in
their San Francisco hotel, Monday, December 17, 1984.

That same day, [Johnson] was interviewed by Federal Bureau of
Investigation (FBI) Agent Dave Knowlton. In response to the agent’s
questions, [Johnson] said Neill had told him on December 13 of his plan to
rob the Bank, and that Neill asked [Johnson]’s help in obtaining a gun.
[Johnson] said he did help Neill acquire the gun and that after the robbery,
he threw the gun in a pond. [Johnson] also told Agent Knowlton that Neill
had a hunting knife with him when he left the apartment to go to the Bank.

Sometime after December 14, 1984, the apartment shared by [Johnson]
and Neill was cleaned by the apartment complex’s maintenance man. The
scabbards belonging to the knives [Johnson] and Neill had purchased were
found hidden behind sheetrock up close to the ceiling in the hall closet
where the furnace was located.

Id. at 3-8. The OCCA then concluded that “[t]his evidence showed [Johnson] fully

participated in the planning and execution of the robbery/homicides.” Id. at 8.

“Although,” the OCCA noted, “[Johnson] was not identified by any witnesses as being

inside the Bank with Neill, his conduct leading up to the robbery/homicides, and his

conduct after the crimes, creates a reasonable inference that his was the other voice heard

by Marilyn Roach inside the bank.” Id. at 8-9. Thus, the OCCA concluded, the

“evidence [wa]s sufficient to find [Johnson] guilty as a principal to felony-murder.” Id. at

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9.

Johnson contends the OCCA’s conclusion represents an unreasonable application

of the Jackson standard because, in his view, no rational jury could have found that he

was present at the bank and actively participating in the robbery. In support of this

general contention, Johnson offers four specific arguments:

1) “[t]hree competent adults with a full view of the bank all saw only one
robber, positively identified as [co-defendant] Jay Wesley Neill,” Aplt.
Supp. Br. at 19;

2) “[d]espite a full forensic processing, no physical evidence even suggests
that Mr. Johnson was at the crime scene,” id.;

3) “the alibi evidence, even [viewed] in the light most favorable to the
State, left no time for Mr. Johnson to have been at the bank, unless he had
access to a car that was already gone and traveled 16 miles in, at most, 17
minutes,” id.; and

4) “[e]ven the FBI agents investigating the case concluded that Mr. Neill
committed the robbery by himself,” id. at 19-20.

Johnson’s first two arguments are historically accurate. None of the three

surviving victims of the bank robbery (Bellen Robles, Ruben Robles, and Marilyn Roach)

visually observed a second robber. Further, no physical evidence, such as fingerprints,

hair samples, or clothing fibers, found at the crime scene positively implicated Johnson as

having been present during the robbery. That, however, is not the end of the story.

Marilyn Roach, one of the surviving victims, clearly and unequivocally testified that,

after she and three other bank customers (the Robles and Ralph Zeller) were shot, she

heard a voice say, “I thought I told you not to shoot anybody,” and a second, distinct

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voice respond, “[W]ell they moved.” App. at 1834; id. at 1843 (“The tone and the voices

were different.”). Consistent with having heard two voices, Roach asked at the time of

her rescue from the bank, “[A]re they gone?” Id. at 1835 (emphasis added). In addition

to Roach’s testimony, the evidence strongly suggests, as the State argued during the first

stage proceedings, that the murders of the three bank employees could not have been

committed in the manner that they were unless both Neill and Johnson were present at the

bank. Immediately following the crime, the three bank employees (Kay Bruno, Joyce

Mullenix, and Jerri Bowles) were found dead in a back room, laying on their stomachs,

touching or nearly touching each other. Id. at 1791. Richard Boatsman, the medical

examiner for Comanche County, Oklahoma, who performed the autopsies on the three

bank employees, testified that each victim suffered multiple stab wounds (Bruno suffered

thirty-four stab wounds, Mullenix suffered twenty-seven stab wounds, and Bowles

suffered fourteen stab wounds), including large, gaping, “back and forth sawing type of

incisional wound[s]” to their necks, id. at 2214, each of which would have taken

considerable work and effort, id. at 2203. Despite the quantity and severity of these

wounds, Boatsman found no defensive wounds on any of the three victims, except for

perhaps one defensive wound on the finger of Ms. Bowles. As the prosecutor emphasized

during first-stage closing arguments, it is unlikely that one perpetrator could have

physically controlled all three women in a manner that would have allowed him to carry

out the relatively lengthy attacks without any of the women attempting to fight back or

flee. Id. at 2954 (“Can you alone keep those people there long enough for you to kill

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them with the knife? You cannot do it. They’re not gonna hold still while you’re knifing

them. Somebody’s gonna get up and run. Somebody’s gonna fight you.”). In other

words, as the prosecutor argued, the more likely scenario is that both Neill and Johnson

were present at the scene, and one of them performed the actual killings while the other

controlled the victims by use of a gun or otherwise. Id. at 2955 (“I’ll tell you why nobody

fought. While they was being stabbed someone else had a gun to their head. What’s your

choices? Either fight this knife or be shot.”). Finally, the State presented evidence of a

jailhouse confession that Johnson made while confined in the Comanche County Jail in

August 1988. According to witness Herman Williams, Johnson told Williams that he

(Johnson) and Neill “planned it [the bank robbery] together and that they planned it in a

way in which there would be no survivors.” Id. at 2134. Williams further testified that

Johnson told him “that the situation inside the bank got so gross until he [Johnson] had to

leave” the bank and go sit in their automobile that was parked near the bank. Id. In light

of all this evidence, we conclude that a jury could reasonably have found that Johnson

was present at the bank during the robbery and murders.

Turning to Johnson’s third argument, he suggests that his “alibi evidence” would

have prevented a jury from reasonably finding that he was present at the bank during the

robbery and murders. The “alibi evidence” that Johnson refers to is primarily his own

testimony that on the day of the robbery and murders, he remained at his own apartment

while Neill, allegedly unbeknownst to Johnson, carried out the crimes. In particular,

Johnson testified that he visited a neighbor’s (Debbie Ward’s) apartment to use her

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telephone shortly before 1:00 p.m. that day, did not leave Ward’s apartment until 2 or 3

minutes after 1:00 p.m., and did not see Neill until shortly before 2 p.m. when he (Neill)

returned to the apartment. In an attempt to bolster his testimony, Johnson elicited

testimony from Debbie Ward that when she left her apartment that day to return to work,

she did not observe Neill’s car (the only vehicle owned by Neill and Johnson) in the

apartment complex parking lot. Johnson also presented evidence suggesting that it would

have taken a person, at an absolute minimum, more than seventeen minutes to drive from

his apartment complex to the bank. In light of this evidence, Johnson asserted, it would

have been impossible for him to have been at the bank at the time the crimes were

committed.

What Johnson fails to note, however, is that his “alibi evidence” was far from

uncontroverted. To begin with, the evidence overwhelmingly established that Johnson

and Neill were together in the hours prior to the robbery, first picking up a gun permit

from the Lawton Police Department (which Johnson had applied for the day before), then

visiting a pawn shop at approximately 12:20 p.m. to purchase a handgun, and finally

making back-to-back visits to a local department store to purchase ammunition for the

handgun (during their first visit to the store, Neill and Johnson purchased the wrong

ammunition and thus had to return shortly thereafter to exchange it). Testimony from

Johnson’s neighbor, Debbie Ward, suggests that Johnson and Neill returned to their

apartment following their purchase of the gun and ammunition (presumably, the jury

could reasonably infer, to prepare themselves for the robbery and finalize preparations for

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their post-robbery trip). Specifically, Ward testified that she came home for lunch on the

day of the robbery, and that at approximately 12:45 p.m., Johnson came to her door and

asked to use her telephone. According to Ward, she overheard Johnson on the telephone

saying he needed to change his flight schedule. Ward further testified that Johnson

completed his telephone call and the two left her apartment shortly before 1 p.m., she to

return to work and Johnson presumably to return to his own apartment. Although Ward

testified under cross-examination by defense counsel that she did not observe Neill’s car

in the apartment parking lot when she left that afternoon, she acknowledged on redirect

that during the preliminary hearing in 1985, she testified that she “did not particularly

notice” if Neill’s car was there or not. Id. at 1921. Brent Howard, Ward’s boyfriend at

the time of the crime, testified that he was also at Ward’s apartment during the noon hour

on the day of the robbery. Similar to Ward, Howard testified that Johnson came to

Ward’s apartment and proceeded to make a telephone call in which he asked to move his

reservations up to as close to 2:30 p.m. as he could get them. Howard also testified that

he and Ward left her apartment at approximately 12:50 p.m., and that he proceeded to

drive her back to work for a 1:00 p.m. appointment. In addition to the testimony of Ward

and Howard, the State presented evidence indicating that it took approximately twenty

minutes to drive at the established speed limits from Johnson’s apartment complex to the

bank, but that it was possible, if exceeding the speed limits, to complete the trip in as little

as ten to twelve minutes. The State also presented evidence indicating that a telephone

call occurred between Kay Bruno, the branch manager, and the Glendale Savings & Loan

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Association in Tampa, Florida, and that the call ended at approximately 1:16 p.m. on the

day of the robbery. Finally, the State presented evidence that Dara Pope, who shared an

apartment with Debbie Ward, knocked on the door of Johnson’s apartment at 2 p.m., and

again at 2:30 p.m., and that on neither occasion did anyone answer. Considering all of

this evidence together, we conclude a rational jury could reasonably have found that,

notwithstanding Johnson’s “alibi evidence,” it was not only possible for him to have been

at the Bank at the time of the robbery and murders, but that he was present and actively

participating. More specifically, the jury could reasonably have found that Johnson left

Ward’s apartment shortly before 1 p.m., and that he and Neill proceeded soon thereafter

to the Bank, arriving at some point between approximately 1:10 and 1:15 p.m.

In his final argument in support of his insufficiency claim, Johnson asserts that

“[e]ven the FBI agents investigating the case concluded that Mr. Neill committed the

robbery by himself.” Aplt. Supp. Br. at 19-20. Presumably, Johnson is referring to two

reports from Federal Bureau of Investigation agent Granville Long, one dated April 15,

1985, and the other one undated. App. at 3279-81. In the April 15th report, Long gives a

narrative of the offense, stating, in pertinent part: “At approximately 1:15 p.m. on Friday,

December 14, 1984, an individual, subsequently identified as JAY WESLEY NEILL,

entered the FIRST BANK OF CHATTANOOGA, Geronimo Branch, Geronimo,

Oklahoma, apparently alone, to commit a robbery.” Id. at 3279 (emphasis added). In the

undated report, Long states that, “[o]n the basis of [his] investigation,” “it seems apparent

. . . that JAY WESLEY NEILL entered the bank and perpetrated the murders and robbery

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by himself although he was assisted in the planning, preparation, and purchase of the

instruments utilized in the crime by JOHNSON.” Id. at 3281.

The problem for Johnson is three-fold. First, there is no indication in the record on

appeal that these reports were admitted into evidence at trial. Second, even assuming

they were admitted, they amount to nothing more than one person’s opinion as to the

probable chain of events. Lastly, at the time Long prepared these two reports, he did not

have access to all of the evidence that was ultimately presented by the State at trial (for

example, Long clearly would not have had access to the testimony of Herman Williams,

who described the jailhouse confession of Johnson in August 1988). Thus, the

conclusions tentatively reached by Long in his two reports do nothing to undercut the

conclusion, outlined above, that the evidence presented by the State was sufficient for a

rational jury to reasonably find that Johnson was present at the Bank during, and actively

participating in, the robbery and murders.

In summary, we conclude that the OCCA reasonably applied the Jackson standard

in rejecting Johnson’s argument that the evidence presented at trial was insufficient to

allow the jury to find him guilty as a principal in the felony murders. Thus, Johnson is

not entitled to federal habeas relief on this claim.

B) OCCA’s application of felony murder doctrine

In affirming Johnson’s murder convictions on direct appeal, the OCCA also

concluded that, “[a]ssuming arguendo, the evidence showed [Johnson] was not in the

Bank with Neill at the time of the robbery/homicides, evidence of [his] participation in

17
the planning and his active involvement in the steps necessary to ensure completion of the

plan [wa]s sufficient to find him guilty as a principal to felony-murder.” OCCA Op. at

12. In particular, the OCCA noted that it “ha[d] specifically applied the aider and abettor

rule to felony-murder cases,” id. at 10, and that doing so “[wa]s consistent with the

[Oklahoma] Legislature’s definition of felony-murder” because it “‘[wa]s a reflection of

the policy that one who, by his willful criminal conduct, sets in motion a chain of events

so perilous to the sanctity of human life that death results therefrom must bear the

ultimate responsibility for his actions.’” Id. at 11 (quoting Hatch v. State, 662 P.2d 1377,

1384 (Okla. Crim. App. 1983)). In turn, the OCCA noted that Johnson’s “participation in

acquiring the gun permit and the weapons, ‘casing’ the Bank the day before the crimes,

rescheduling travel arrangements to leave town immediately after the crimes, and taking

the stolen money to and spending it in San Francisco [wa]s clear evidence that [Johnson]

aided and abetted Neill in the commission of the robbery/homicides . . . .” Id. at 13.

Because, the OCCA concluded, “[Johnson] and Neill together created a situation

inherently dangerous to human life,” Johnson “[could not] disclaim responsibility for his

acts,” and was thus liable “as a principal for felony-murder.” Id.

In these federal habeas proceedings, Johnson attempts to challenge the OCCA’s

conclusion that, even assuming he only aided and abetted Neill, he was still subject to

conviction for felony-murder. Johnson offers six arguments in support of this challenge.

First, he contends that “the jury expressly rejected the theory that [he] aided [and] abetted

18
the murders.”1 Aplt. Supp. Br. at 23. Second, he argues that Oklahoma’s “aider/abettor

statute cannot be aggregated with [Oklahoma’s] felony murder statute to broaden the

scope of the felony murder statute.” Id. Third, he argues that “the Oklahoma legislature

itself recognized that the felony murder statute was not broadened by the aiders/abettors

statute.” Id. at 24. Fourth, he contends that “the aider/abettor statute only means that a

defendant who aids and abets in a crime is guilty as a principal of that crime, not of

felony murder.” Id. at 25. Fifth, he argues that “even if the aider and abettor statute

could be combined with the felony murder statute, a person is not guilty as an aider and

abettor simply because they helped someone acquire a gun before a robbery.” Id. at 25-

26. Sixth, and finally, he argues that “the OCCA’s decision to retroactively define the

scope of the felony murder statute implicates not only state-law questions, but also

violates [his due process] rights under the constitution.” Id. at 27.

The problem with Johnson’s first five arguments is that they all focus exclusively

on the proper interpretation of Oklahoma state law. As the Supreme Court emphasized in

Estelle v. McGuire, 502 U.S. 62 (1991), “it is not the province of a federal habeas court to

reexamine state court determinations on state-law questions.” Id. at 67-68. Rather, the

Court stated, “[i]n conducting habeas review, a federal court is limited to deciding

whether a conviction violated the Constitution, laws, or treaties of the United States.” Id.

1
It is unclear what Johnson is basing this assertion on. Nothing in the record on
appeal indicates that the jury found that he did not aid and abet Neill. Moreover, a review
of the trial transcript indicates that the State’s evidence overwhelmingly established that
he actively participated in the planning and execution of the robbery, regardless of
whether or not he was actually present at the bank at the time of the robbery.

19
at 68.

Thus, that leaves only Johnson’s sixth and final argument, i.e., that the OCCA’s

application of both the aider and abettor and the felony-murder doctrines to his case

violated his federal due process rights. The initial problem with this argument is that

there is no indication in the record on appeal that Johnson ever presented this argument to

the OCCA.2 As a result, it appears the claim is unexhausted and, ultimately, procedurally

barred, since it is too late for Johnson to file an application for state post-conviction relief

raising the claim. See Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007)

(“Anticipatory procedural bar occurs when the federal courts apply procedural bar to an

unexhausted claim that would be procedurally barred under state law if the petitioner

returned to state court to exhaust it.”) (internal quotation marks omitted).

Even assuming, for purposes of argument, that Johnson properly exhausted his due

process claim, we conclude there is no merit to it. Although Johnson argues that the

OCCA’s decision in his case represents “the first time in Oklahoma history” that the

OCCA held “that a defendant can be convicted of felony murder without proof that he

was actively engaged in the commission of the underlying felony,” Aplt. Supp. Br. at 27,

he is mistaken. As the OCCA noted in affirming Johnson’s murder convictions on direct

appeal, it previously applied the aider and abettor rule in the felony-murder context in the

case of Lewis v. State, 451 P.2d 399 (Okla. Crim. App. 1967). In Lewis, the defendant

2
Johnson’s appendix does not include the direct appeal briefs he filed with the
OCCA.

20
and two co-defendants planned the robbery of a gas station, but in carrying out that plan

the defendant merely drove “the get-away car and did not enter the premises nor

participate in the assault made upon [the gas station operator] who was robbed, shot and

beaten by” the two co-defendants. Id. at 400. The defendant was convicted of murder

and sentenced to death. In disposing of the defendant’s direct appeal, the OCCA

concluded “that the evidence amply support[ed] the defendant’s conviction for the crime

of Murder as a principal under the felony murder rule . . . .”3 Id. Thus, the Lewis case

clearly placed Johnson on notice that he could be held liable as a principal for felony-

murder, even if he “merely” aided and abetted Neill in the commission of the bank

robbery.

Even ignoring the Lewis decision, we note, as the State has pointed out in response

to Johnson’s habeas petition and appeal, that in 1984 this court, in the context of a federal

habeas proceeding initiated by an Oklahoma state prisoner, held that a first degree murder

conviction under Oklahoma law could be upheld by application of “the aider and abettor

statute, together with the Oklahoma felony murder statute . . . .” Chaney v. Brown, 730

F.2d 1334, 1350 (10th Cir. 1984). In reaching this holding, this court effectively rejected

3
Apparently, the victim in Lewis, after being robbed, shot and beaten, was forced
into the get-away car, where he was shot several additional times, and then his body was
disposed of. Tilford v. State, 437 P.2d 261, 264 (Okla. Crim. App. 1968) (affirming
conviction of Lewis’s co-defendant). Although it could be argued that these facts
distinguish Lewis from the instant case (i.e., that the defendant in Lewis actively
participated in the get-away and thus was present when the additional shots were fired at
the victim), the important point is that the felony-murder charge arose out of the
commission of the robbery, and not out of any potential kidnapping or other charge.

21
the construction of Oklahoma’s then-existing felony-murder statute that is now urged by

Johnson in these proceedings.

Finally, it is important to emphasize that Johnson’s attack on the OCCA’s dual

application of the aider and abettor and felony-murder rules hinges, in substantial part, on

his assertion that all he did in assisting Neill was to “acquire [the] gun before [the]

robbery.” Aplt. Supp. Br. at 26. A review of the state trial transcript, however,

overwhelmingly establishes that Johnson played a far greater role in the planning and

execution of the robbery. Even assuming, for purposes of argument, that Johnson was not

present at the bank during the actual robbery, it is clear that he helped Neill purchase the

gun and knives used during the crime, helped Neill “scout” out the bank on the day prior

to the robbery, actively participated in making and executing the getaway plans, and

assisted Neill in spending the robbery proceeds.

In sum, we conclude that Johnson is not entitled to federal habeas relief arising out

of the OCCA’s dual application of the aider and abettor and felony-murder rules under

Oklahoma state law.

Denial of right to fair trial

Johnson contends that the separate and cumulative effect of trial court errors and

prosecutorial misconduct deprived him of a fair trial and due process of law. As

discussed below, however, there is no merit to any of the individual claims asserted by

Johnson. Moreover, we note that there is no indication in the record on appeal that

Johnson asserted any type of cumulative error argument on direct appeal, and thus his

22
current references to the “cumulative effect” of the trial court errors and prosecutorial

misconduct are unexhausted and, in turn, subject to anticipatory procedural bar.

A) Trial court’s instructions - felony murder

Johnson first contends the trial court gave incomplete and misleading instructions

on the crime of felony murder. More specifically, Johnson contends the jury in his case

“should have been instructed that [he] could not be convicted of felony murder if [they]

found . . . that he was not present and participating in the Geronimo Bank robbery.” Aplt.

Supp. Br. at 30. Johnson raised this claim in his direct appeal, and the OCCA rejected it,

stating as follows:

In his second assignment of error, [Johnson] contends the trial court
erred in failing to instruct the jury that in order to find him guilty of first
degree felony-murder, the jury must initially find he was present when the
deaths occurred.

The determination of which instructions shall be given to the jury is a
matter within the discretion of the trial court. (citation omitted). Absent an
abuse of that discretion, this Court will not interfere with the trial court’s
judgment if the instructions as a whole, accurately state the applicable law.
(citation omitted).

As discussed above, this Court has upheld convictions for felony-murder
where the defendant was not present at the time of death. (citations
omitted). Therefore, [Johnson]’s requested instruction was properly refused
by the trial court as it was not an accurate statement of the law.

A review of the instructions given to the jury in the present case shows a
proper and accurate statement of the law. The jury was instructed on the
elements of felony-murder and the elements of the underlying offense of
robbery with a dangerous weapon. (citation omitted). The jury was also
instructed that the State must prove each element of the charged offense
beyond a reasonable doubt. (citations omitted). The instructions in this
case clearly stated that in order for [Johnson] to be found guilty of first
degree felony-murder, the State must prove beyond a reasonable doubt that

23
 [Johnson]’s conduct caused the death of the persons killed. These
instructions adequately set forth the applicable law. Finding no error, this
assignment of error is denied.

OCCA Op. at 14-15.

For the reasons noted above, we conclude that the OCCA’s resolution of this issue

was neither contrary to, nor an unreasonable application of, clearly established federal

law.

B) Trial court’s ruling regarding cross-examination of Debbie Ward

Johnson contends the trial court violated his right to a fair trial when it refused to

allow defense counsel to refresh prosecution witness Debbie Ward’s recollection with her

prior sworn testimony from the trial of co-defendant Neill. Johnson first raised this issue

on direct appeal. The OCCA rejected it on the merits:

In his fifth assignment of error, [Johnson] contends the trial court erred
in denying defense counsel the opportunity to refresh Debbie Ward’s
recollection of her testimony given in Neill’s re-trial. The record shows
that during cross-examination, the following occurred:
Q. (defense counsel) Ms. Ward, you’ve testified in this case in the
past, have you not?
A. Yes.
Q. Do you recall that you testified in the retrial of Jay Wesley
Neill?
A. Yes.
***
Q. And do you recall that Mr. Schulte asked you this referring
to the afternoon of Friday, December 14, 1984. “What time
did you leave to go back to work, as best you can recall?” Do
you recall that he asked you that?
A. Yes.
Q. Do you recall that you responded I probably left the
apartment about two or three minutes after 1:00 o’clock. Do
you recall that you said that?
A. No, I don’t recall saying that.

24
 Q. You don’t recall that you said that?
A. No, I don’t.
Q. Okay. Would it refresh your recollection if I showed you
the transcript?
A. Sure.
Q. Okay.

Mr. Barta (defense counsel): Your Honor, may I approach?

Mr. Schulte (prosecutor): Your Honor, it’s improper. He just
quoted from the transcript and she said she didn’t recall.

The Court: Sustained.

(Tr. Vol. V., pgs. 1434-35).

Pursuant to 12 O.S. 1981, § 2613(B), defense counsel should have been
permitted to refresh the witnesses’ [sic] recollection with the transcript of
her previous testimony. In Rogers v. State, 721 P.2d 805, 808
(Okl.Cr.1986) this Court stated:

Title 12 O.S. 1981, § 2613(B) clearly governs this issue:
Extrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless the witness is afforded an
opportunity to explain or deny the same and the opposite
party is afforded an opportunity to interrogate them thereon.

This rule requires counsel, normally the cross-examiner, to
first ask the witness about the prior inconsistency, and then
given [sic] the witness the opportunity to deny, affirm, or
explain the earlier statement. Also imposed upon counsel is
the duty of identifying the subject matter of the statement, the
time and place of its utterance, and the person to whom it was
made.
721 P.2d at 807-808. See also Neal v. State, 837 P.2d 919,
921 (Okl.Cr.1992).

Here, Ms. Ward did not recall her previous testimony and responded that
her recollection would be refreshed if she could see the transcript of her
testimony. While the record is not clear, it appears defense counsel had a
copy of the transcript in his possession and was prepared to show it to the
witness.

25
 [Johnson] asserts this error warrants reversing his conviction as the time
he left Ms. Ward’s apartment “was a key fact in establishing that he could
not have been at the bank at the time Jay Neill committed the crimes.” A
good deal of [Johnson]’s defense at trial was spent trying to show that he
could not have physically traveled the distance between his apartment and
the Bank within the estimated time frame of the robbery/homicides.
However, on appeal, we have found [Johnson] can legally be held
criminally liable for the robbery/homicides even if he had not been in the
Bank at the actual time of the robbery/homicides. Therefore, [Johnson] has
failed to show any prejudice as a result of the trial court’s ruling. (citation
omitted). Accordingly, the error was harmless and this assignment of error
is denied.

OCCA Op. at 19-21.

The question we now face is whether the OCCA’s resolution of Johnson’s claim

was contrary to, or an unreasonable application of, clearly established federal law. The

“clearly established federal law” applicable to this claim is the Supreme Court’s decision

in Chambers v. Mississippi, 410 U.S. 284 (1973). Therein, the Court held that “[t]he

right of an accused in a criminal trial to due process is, in essence, the right to a fair

opportunity to defend against the State’s accusations.” Id. at 294. More specifically, the

Court held an accused has, at a minimum, “a right to examine the witnesses against him”

and “to offer testimony” in his defense. Id. “In order to establish a violation of his due

process right to present evidence, a defendant must show that the evidence excluded by

the trial court’s ruling might have affected the trial’s outcome; in other words, he must

show that the evidence, if admitted, would have created reasonable doubt that did not

exist without the evidence.” Patton v. Mullin, 425 F.3d 788, 797 (10th Cir. 2005) (citing

United States v. Valenzuela-Bernal, 458 U.S. 858, 868 (1982)).

We are not persuaded that the OCCA’s decision was contrary to, or an

26
unreasonable application of, these principles. As the OCCA explained, the evidence

presented by the State at trial overwhelmingly established that Johnson aided and abetted

Neill in carrying out the robbery and homicides. Thus, regardless of whether or not

Johnson was present at the Bank during the robbery, he was, as already discussed,

responsible for the robbery and homicides under a combination of Oklahoma’s aiding and

abetting statute and its felony murder statute. In other words, because of the application

of these two rules, it is beyond dispute that, had the trial court allowed defense counsel to

refresh Debra Ward’s testimony, it would not have altered the outcome of trial.

Even reviewing the issue de novo and ignoring application of the aiding and

abetting statute, we conclude the trial court’s error did not affect the outcome of the trial.

As noted, Debra Ward’s boyfriend, Brent Howard, testified as part of the State’s case-in-

chief that he and Ward left her apartment at approximately 12:50 p.m. on the day of the

robbery (or at least sometime before 1 p.m.), and that he drove Ward back to her place of

business for a 1:00 p.m. appointment. In light of Howard’s testimony, the jury could

reasonably have found that Johnson likewise left Ward’s apartment at approximately

12:50, and that he and Neill then proceeded soon thereafter to drive to the Bank. In other

words, even if defense counsel had been allowed to refresh Ward’s testimony, the jury

could still reasonably have concluded that Howard’s time estimate was more accurate

than Ward’s (or that the actual time was somewhere between the two estimates), that

Ward and Johnson actually left Ward’s apartment before 1:00 p.m. that day, and that

Johnson in turn was able to drive to the Bank with Neill and participate in the commission

27
of the robbery and murders.

C) Admission into evidence of second bloody knife

Johnson contends the trial court violated his right to a fair trial by admitting into

evidence what he refers to as the “second bloody knife,” i.e., a knife that was recovered

from the floor of the bank following the crime and that was determined to have the blood

of a victim on the handle but not the blade. Johnson contends, as he did at trial, that the

“second bloody knife” was used by the medical examiner during the autopsy of one of the

victims and thus was contaminated with that victim’s blood. Johnson raised this issue on

direct appeal, and it was rejected on the merits by the OCCA:

[Johnson] argues in his twelfth assignment of error that the introduction
of a second, bloody knife denied him a fair trial, as the State did not
establish a sufficient chain of custody.

“The purpose of the chain of custody rule is to guard against substitution
of or tampering with the evidence between the time it is found and the time
it is analyzed.” (citation omitted). While it is the State’s responsibility to
show the evidence offered is in substantially the same condition at the time
of offering as when the crime was committed, it is not necessary that all
possibility of alteration be negated. (citation omitted). If there is only
speculation that tampering or alteration occurred, it is proper to admit
evidence and let what doubt there may be go to its weight rather than render
the evidence completely inadmissible. (citation omitted).

Arnold Bentz [an OSBI chemist] testified he found a knife at the scene
of the murders that had some blood on the handle but none on its blade.
Bentz stated he placed the knife in a sealed envelope and initialed the
envelope. The sealed envelope was taken to the Lawton regional laboratory
and later transferred to the FBI in Washington D.C., for testing. On cross-
examination, defense counsel tried to establish that before the envelope was
transferred to the FBI it had been unsealed. Bentz testified that the
envelope was sealed when it was sent to the FBI and he had no knowledge
of what happened to it after its transfer.

28
 Agent William Eubanks, FBI, testified he received a package containing
a knife, which was identified as having been found at the Bank. Agent
Eubanks said he tested the knife for the presence of human blood. Eubanks
had no other recollection concerning the container the knife[] arrived in.

When the prosecutor attempted to admit the knife, marked as State’s
Exhibit 12, into evidence, the defense objected. The prosecutor admitted he
had been “lax” on the chain of custody, but he understood there was an
agreement that the chain of custody of the physical evidence would not be
an issue. The prosecutor admitted the original containers holding the
evidence ha[d] been discarded long ago, but he had presented testimony
from the FBI agents, which handled the evidence, and which he believed
sufficiently established the trial [sic] the evidence followed.

In a bench conference, defense counsel argued that the evidence would
show that before the envelope containing the knife was sent to the FBI, the
envelope was unsealed, the knife taken out and used at the autopsy of Kay
Bruno where it was inserted into one of her wounds. Defense counsel
argued that evidence raised serious questions as to the integrity of the
testing of the knife and any blood on the knife was relevant on the issue of
whether the knife was actually used in the murders or simply fell out of a
pocket. The trial court overruled the defense objections and admitted into
evidence State’s Exhibit 12.

Subsequently, OSBI Agent Richard Goss testified he and Bentz were
present at the autopsies. Agent Goss testified the Medical Examiner, Dr.
Boat[s]man, had a question about the knife that was found at the scene.
Goss said Bentz retrieved the knife he had collected from the Bank,
removed it from its envelope, and held it up. Goss said Dr. Boat[s]man,
who was standing across the room, looked at the knife and Bentz placed the
knife back in its envelope and removed it from the room. Goss said neither
he nor Dr. Boat[s]man handled the knife, that only Bentz handled it.

Dr. Boat[s]man acknowledged he had testified a number of times in this
case. The prosecutor went over a transcript where there was some
indication that a knife or something similar to a knife had been inserted into
a wound during an autopsy. Dr. Boat[s]man said he recalled the passage
but said the prosecutor’s description was not an accurate interpretation. Dr.
Boat[s]man testified it was a metal probe that had been inserted into the
wounds. He said that was standard procedure in an autopsy and was used to
determine the direction and depth of the wound. Dr. Boat[s]man said that
never in his long career, having done approximately 100 autopsies, had he

29
 ever inserted a knife into a victim.

On cross-examination, defense counsel reviewed with Dr. Boat[s]man
his previous testimony where he indicated a knife had been placed into a
wound. Dr. Boat[s]man admitted his response had been poorly worded and
it did sound as if a knife had been inserted. He explained that it had not
been a knife but a metal probe that had been used during the autopsy.

Here, the State’s evidence showed the knife was substantially in the
same condition at the time of offering as when it was found in the Bank. At
best, the record offers only speculation that the knife might have been
tampered with prior to its examination by the FBI. Therefore, the trial court
properly admitted the evidence with any doubts going to the weight to be
given the evidence by the jury. Accordingly, this assignment of error is
denied.

OCCA Op. at 33-36.

In determining whether the OCCA’s resolution of this issue was contrary to, or an

unreasonable application of, clearly established federal law, the threshold determination

that must be made is identifying what, if any, “clearly established federal law” applies to

the issue. In his opening appellate brief, Johnson cites to only one Supreme Court

decision, Miller v. Pate, 386 U.S. 1 (1967). Aplt. Supp. Br. at 39. Miller, however, held

only “that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained

by the knowing use of false evidence.”4 Because there is simply no indication in the

record on appeal that the prosecution in Johnson’s case knowingly used false evidence

(let alone that there was any false evidence at all), Miller is inapplicable. That, in turn,

leaves, at most, only the general due process right to a fair trial that has been identified by

4
In Miller, the state prosecutor deliberately misrepresented at trial that a pair of
men’s undershorts were stained with blood from the victim of a brutal sex attack, when in
fact the undershorts were stained with paint. 386 U.S. at 6-7.

30
the Supreme Court in other contexts. E.g. Medina v. California, 505 U.S. 437, 449

(1992) (referring to due process right to a fair trial in the context of a defendant’s

competency to stand trial); but see Anderson v. Mullin, 327 F.3d 1148, 1153 (10th Cir.

2003) (noting that “our inquiry is tightly constrained by the AEDPA’s requirement that

there be clearly established federal law on point”).

After reviewing the record on appeal, we conclude that the OCCA’s decision was

neither contrary to, nor an unreasonable application of, the general due process right to a

fair trial. Dr. Boatsman, the medical examiner who performed the autopsies on all four

victims, testified on direct examination by the prosecution that he recalled testifying

several times previously in Johnson’s case and acknowledged that his prior testimony on

one of those occasions “could be interpreted” as indicating that he put a knife in a wound

of one of the victims. App. at 2228. However, Dr. Boatsman characterized his prior

testimony as “poorly worded,” id. at 2229, and testified that he had not, in fact, inserted a

knife in a victim’s wound. Id. at 2228. Dr. Boatsman explained that, in accordance with

“standard procedure,” he had inserted “a metal probe,” i.e., “a glorified piece of stiff wire

that has no cutting surfaces,” in order “to determine [the] direction and depth of wounds .

. . .” Id. at 2229. Further, Dr. Boatsman unequivocally denied ever inserting a knife in a

victim’s wound during any autopsy performed in his career. Id. On cross-examination,

Dr. Boatsman reiterated that it was “standard procedure in investigating gunshot wounds

or knife wounds to probe them with something,” but he denied using a knife to do so, and

instead again testified that he had in fact utilized a stiff wire “probe.” Id. at 2233. In light

31
of Dr. Boatsman’s unequivocal testimony, it was entirely reasonable for the OCCA to

have concluded that the trial court’s admission of the second knife did not violate

Johnson’s due process right to a fair trial.

D) Admission of statements made by Johnson to Paul Dunn

Johnson contends the trial court violated his right to a fair trial by admitting into

evidence statements that he made in various post-arrest letters to an individual named

Paul Dunn. According to Johnson, these statements “were inflammatory, prejudicial, and

not even arguably probative of any legitimate issue in the case.” App. Supp. Br. at 41.

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

[Johnson] argues in his ninth assignment of error that he was denied a
fair trial by the admission of his statements in letters to Paul Dunn. Mr.
Dunn had contacted [Johnson] in prison and told him he wanted to write a
book about [Johnson] and Neill’s story. [Johnson] now complains the
prosecutor repeatedly questioned him regarding his statements to Dunn in
which [Johnson] indicated he thought he could make money by turning the
story of the Geronimo Bank robbery into a book or movie. [Johnson] also
complains the prosecutor improperly questioned him concerning statements
he made insulting Oklahomans, statements made wherein he used profanity
and statements regarding his sexual orientation. [Johnson] asserts the
prosecutor’s questioning had no bearing on his guilt or innocence and was
completely irrelevant and inflammatory so that any possible probative value
was outweighed by unfair prejudice.

[Johnson]’s defense was that he did not participate in the
robbery/homicides and was unaware of Neill’s plans to rob the Bank.
[Johnson] also testified that he had a “horrible” childhood, that he was
abused by his stepfather, and that he watched his stepfather abuse his
mother, which resulted in his passive nature.

To rebut that defense, the prosecutor introduced statements [Johnson]
had made in his letters to Mr. Dunn. In these letters, [Johnson] attempted to
elicit money for his accounting of the robbery/homicides. [Johnson] said in
part, “I know I have a good story and I know it will make a great

32
 book/movie. I’m just waiting for a reasonable financial opportunity. I feel
it’s only fair. I’m eager and ready.” Defense counsel’s objections on the
grounds of relevance were overruled. [Johnson] admitted to signing a
contract with Dunn with any money he would receive going to his mother.

[Johnson] also admitted to writing to Mr. Dunn that he enjoyed growing
up, and loved school. No objection was raised by defense counsel.
[Johnson] wrote in another letter of his experiences with school counselors
in regards to people calling him names, but never in regards to problems
with his stepfather. In one letter, [Johnson] even stated, “I would complain
to the counselors just to make them aware how immature these dumb
Oklahoma hicks were.” Again, the prosecutor’s inquiry was not met with
an objection.

While certain of the above prosecutorial inquiries [Johnson] now
challenges were met with timely objections at trial, others were not.
Reviewing the challenged comments for reversible error, plain or timely
preserved, we find the comments did not deny [Johnson] a fair trial. As a
general rule, any matter is a proper subject of cross-examination which is
responsive to testimony given on direct examination or which is material or
relevant thereto and which tends to elucidate, modify, explain, contradict or
rebut testimony given in chief by the witness. (citation omitted). It has
long been a rule of the Court that when a defendant opens up a field of
inquiry on direct examination, he may not complain of subsequent cross-
examination. (citation omitted). The extent of cross-examination rests in
the discretion of the trial court and reversal is only warranted where there is
an abuse of discretion resulting in prejudice to the defendant. (citation
omitted).

The prosecutor’s inquiry into [Johnson]’s letters to Paul Dunn was not
beyond the scope of direct examination in this case. While the letters
themselves were not raised on direct examination, their content directly
rebutted [Johnson]’s claims of innocence and ignorance. The letters also
rebutted his pleas for sympathy based upon an unfortunate childhood.
Accordingly, we find the trial court did not abuse its discretion in allowing
the inquiries into [Johnson]’s letters to Paul Dunn. This assignment of error
is denied.

OCCA Op. at 28-30.

The OCCA’s resolution of this claim was neither contrary to, nor an unreasonable

33
application of, clearly established federal law. As with his previous claim of error

concerning the admission of the second knife, Johnson has failed to identify a Supreme

Court case precisely on point.5 Thus, the “clearly established federal law” applicable to

this claim is, at best, simply the general due process right to a fair trial. In turn, a review

of the trial transcript substantiates, as indicated by the OCCA, that Johnson testified in his

own defense that he (a) suffered a “horrible” childhood, App. at 2357, in large part due to

verbal and physical abuse from his stepfather, (b) suffered similar abuse at the hands of

Neill, (c) was in fact scared of Neill, particularly after the robbery and murders, (d) was

completely ignorant, and thus innocent, of the planning and commission of the robbery

and murders, and (e) that numerous prosecution witnesses who testified contrary to him

had lied. In light of Johnson’s testimony, we agree with the OCCA that the contents of

Johnson’s letters to Dunn were relevant for purposes of rebutting Johnson’s testimony

and challenging his credibility in general.6 Accordingly, the OCCA’s decision affirming

the trial court’s admission of this evidence was neither contrary to, nor an unreasonable

application of, the general due process right to a fair trial that has been identified by the

5
The only Supreme Court case cited by Johnson in support of this claim, Old
Chief v. United States, 519 U.S. 172 (1997), is inapposite. Old Chief, which involved a
federal prosecution, discussed only the admission of evidence under the Federal Rules of
Evidence, and did not make any pronouncements regarding the interplay of the admission
of evidence and the due process right to a fair trial.
6
Under cross-examination by the prosecutor regarding his letters to Dunn, Johnson
acknowledged (a) telling Dunn that he knew he “ha[d] a good story” that would “make a
great book/movie,” App. at 2441, (b) entering into a contract with Dunn, id. at 2443, (c)
trying to frighten Dunn via letter, id. at 2453-54, and (d) telling Dunn that he “enjoyed
growing up,” id. at 2454.

34
Supreme Court.

E) Prosecutor’s comments regarding Johnson’s sexual orientation

Johnson complains that the prosecutor made repeated, gratuitous, and prejudicial

comments regarding Johnson’s sexual orientation. In particular, Johnson complains that

the prosecutor:

• indicated in his first-stage opening statement that Johnson accompanied
Neill to a “gay area” of San Francisco;

• asked a witness about Johnson and Neill visiting “gay bars” in San
Francisco; and

• asked Johnson, during cross-examination, if he knew that the hotel he
originally booked in San Francisco was a “noted gay hotel.”

Johnson also complains that the prosecutor at times questioned witnesses about Johnson’s

sexual orientation. According to Johnson, the prosecutor’s references “preyed on the

public’s fear, distrust, and dislike of an especially disfavored group” in order “[t]o obtain

a conviction . . . .” Aplt. Supp. Br. at 44.

Johnson first raised this issue on direct appeal. The OCCA rejected it on the

merits:

In his seventh assignment of error, [Johnson] complains he was denied a
fair trial by the prosecutor’s comments on his sexual orientation. * * *

***

[Johnson] asserts he was improperly questioned by the prosecutor on
cross-examination concerning his relationship with Neill. The record shows
the prosecutor was well within the scope of cross-examination as [Johnson]
specifically testified to his relationship with Neill. [Johnson] admitted that
he was in a homosexual relationship with Neill. [Johnson] portrayed Neill
as the dominant member of the relationship and himself as the passive

35
 member. [Johnson]’s defense to his participation in any aspect of the
crimes was that he was under Neill’s domination and acted as he did
because of his relationship with Neill. This Court has repeatedly held that
prosecutorial remarks are not grounds for reversal where they are invited,
provoked or occasioned by defense counsel (citations omitted). Here, the
prosecutor’s comments were invited by [Johnson]’s direct examination.

[Johnson] further argues the prosecutor repeatedly made comments
regarding his homosexual activities that had nothing to do with his
relationship with Neill, and were clearly irrelevant and prejudicial.
Specifically, he refers to comments and questioning by the prosecutor that
while in San Francisco, [Johnson] visited “gay areas” and “gay bars” and
that he and Neill stayed in a “gay hotel.”

Certain information concerning [Johnson]’s activities in San Francisco
were relevant in showing [Johnson]’s conduct leading up to his arrest and
apprehension. (citation omitted). To use [Johnson]’s description, any
“gratuitous” comments, or comments which improperly emphasized
[Johnson]’s homosexuality is not cause for reversal. Allegations of
prosecutorial misconduct should not cause a reversal of judgment or
modification of sentence unless their cumulative effect is such as to deprive
the defendant of a fair trial and fair sentencing proceeding. (citation
omitted). In considering whether the prosecutor’s comments rendered the
trial fundamentally unfair, we review the comments in context, considering
the evidence and whether the remarks can be said to have influenced the
verdict against [Johnson]. (citation omitted). Here, we are not persuaded
that any improper remarks seriously affected the fairness of the trial.
Although [Johnson] disputed much of the State’s evidence, the evidence of
guilt was substantial. Considering also the jury instructions given in this
case, we find the prosecutor’s comments did not improperly influence the
jury’s consideration of the evidence. (footnote omitted). Accordingly,
[Johnson] was not denied a fair trial by the prosecutor’s comments on his
sexual orientation.

OCCA Op. at 24-26.

The controlling standard for this claim, under the AEDPA standard of review, was

set forth by the Supreme Court in Darden v. Wainwright, 477 U.S. 168 (1986). “The

relevant question,” the Supreme Court held in Darden, “is whether the prosecutors’

36
comments ‘so infected the trial with unfairness as to make the resulting conviction a

denial of due process.’” Id. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974)).

After examining the entire trial transcript, we conclude that the OCCA’s decision

was neither contrary to, nor an unreasonable application of, Darden. To begin with, it is

important to note that the defense made no attempt to hide, and indeed expressly

acknowledged the homosexual relationship between Johnson and Neill. For example,

during the first-stage opening arguments, defense counsel stated:

The evidence will show that at that time Jay Wesley Neill and Robby
Johnson were involved in an intimate relationship. They lived together.
They were homosexuals. Whatever your feelings are about that, ladies and
gentlemen, and I know a lot of us have a hard time understanding it, but
that’s what the evidence in this case will show and you have promised not
to judge my client for his relationship with Jay Neill but only for the crimes
with which he has been charged.

App. at 1499. Consistent with this opening statement, Johnson testified in his own

defense that he had been a “practicing homosexual” all of his life, id. at 2352, that his life

essentially “centered around” his sexual orientation, id., and that he met Neill at “a gay

bar . . . in Lawton.” Id. at 2358. Moreover, it is clear from the record that Johnson

attempted to bolster his “complete innocence” defense by eliciting evidence regarding his

own passive and effeminate characteristics, as well as evidence that he was allegedly

dominated, and at times abused, by Neill. For example, during the cross-examination of

Rhonda Neff, a woman who lived with Johnson and Neill during the fall of 1984, defense

counsel was able to elicit testimony that Johnson was very passive and friendly, and that

37
Neill dominated and was verbally abusive towards Johnson. Likewise, Johnson himself

testified that he was abused by his stepfather because he was a “sissy,” id. at 2353, that

Neill was the dominant person in their relationship, id. at 2366, and that he was in fact

frightened by Neill when Neill returned from the bank following the crime. Id. at 2404.

Finally, in the first-stage closing arguments, defense counsel again acknowledged

Johnson’s “homosexual lifestyle with Jay Neill,” id. at 2879, and argued that Johnson was

a “passive, shy effeminate person who was not capable of going in the Geronimo Bank

and engaging in the carvings . . . .” Id. at 2926. In light of these defense tactics, we agree

with the OCCA that the prosecutor’s relatively limited references to Johnson’s

homosexuality in no way rendered Johnson’s trial unfair or a violation of due process.

F) Prosecutor’s introduction of testimony from Herman Williams

Johnson contends that the prosecutor violated his due process right to a fair trial by

introducing the testimony of Herman Williams, who, as previously noted, testified that,

while both he and Johnson were confined in the Comanche County Jail in August 1988,

Johnson admitted to him that he was present at the Bank during the robbery and murders.

Johnson characterizes Williams as a “serial perjurer who was looking to curry favor with

anyone who would support his attempts to obtain parole . . . .” Aplt. Supp. Br. at 49-50.

Johnson further argues that “Williams’ testimony was incredible on its face.” Id. at 50.

In sum, Johnson argues that the prosecutor knowingly introduced false evidence.

Johnson asserted this same claim on direct appeal. The OCCA rejected it on the

merits:

38
 In his thirteenth assignment of error, [Johnson] asserts he was denied a
fair trial by the prosecution’s knowing use of false evidence in the form of
testimony by jailhouse snitch Herman Williams. [Johnson] relies on
Omalza v. State, 911 P.2d 286, 307 (Okl.Cr.1995) to argue the knowing use
of false or misleading evidence important to the prosecution’s case in chief
violates the Due Process Clause of the Fourteenth Amendment. In Omalza
we stated, “[t]o prove the claim on appeal the appellant bears the burden to
establish (1) certain testimony was misleading, (2) the prosecution
knowingly used the testimony and (3) the testimony was material to guilt or
innocence. Id.

In response to a defense objection concerning William’s [sic] testimony,
an in-camera hearing was held to determine the admissibility of the
testimony. In that hearing it was established that Williams was then
incarcerated at Joseph Harp Correctional Center and had been so for
approximately the past five years. Williams said he was serving a life
sentence for possession of cocaine with intent to distribute. He admitted to
pleading guilty to “three assaults and battery with a dangerous weapon” for
which he received three ten year sentences to run concurrently with his life
sentence. He also admitted to having been convicted of and serving time
for intimidation of a State’s witness, “subordination” of perjury, and
conspiracy to commit perjury. Williams testified that [Johnson] approached
him while in jail and told him he was involved in the Geronimo Bank
robbery and murders.

Williams also testified that [Johnson]’s trial was the second time he had
provided information to law enforcement since he had received his life
sentence, and that previously he had provided information on several
occasions in drug cases. Williams said he was aware the District Attorney
had made a request on his behalf to the Pardon and Parole Board for
leniency. He said he did not expect to receive any further requests for
leniency from the State and was testifying because of a religious experience
he had experienced since being incarcerated. Williams admitted he had
waited four years before he told the authorities about his conversation with
[Johnson].

At the conclusion of his examination of Williams, defense counsel
renewed his objection to the testimony. After hearing argument from both
sides, the trial court ruled the testimony admissible and its weight and
credibility for the jury’s determination.

[Johnson] has failed to show the State knowingly used false testimony.

39
 Merely because Williams’ testimony was contradicted by [Johnson]’s
testimony does not make it false. Further, if anything had been left out
during the State’s direct examination about Williams’ criminal history or
his decision to tell law enforcement about [Johnson]’s statements, it was
certainly brought out by the defense on cross-examination. Cross-
examination was very thorough and Williams’ criminal history and reason
for testifying was fully presented to the jury. Further, Williams’ credibility
to a certain extent was impeached on cross-examination. Having reviewed
the record, we find [Johnson] has failed to demonstrate the State knowingly
used false evidence. This assignment of error is denied.

OCCA Op. at 37-38.

The question we must decide is whether the OCCA’s resolution of this issue was

contrary to, or an unreasonable application of, clearly established federal law. In Napue

v. Illinois, 360 U.S. 264 (1959), the Supreme Court reversed a conviction obtained

through the use of false evidence that was known to be false by representatives of the

State. “Since Napue,” the Supreme Court “has adhered to the principle that a conviction

obtained by the knowing use of false evidence is fundamentally unfair.” Evans v.

Virginia, 471 U.S. 1025, 1027-28 (1985).

After reviewing the record on appeal in this case, we conclude that the OCCA’s

decision was neither contrary to, nor an unreasonable application of, Napue and its

progeny. Importantly, nothing in the record substantiates Johnson’s assertion that

Williams’ testimony was false, let alone that the prosecution knew the testimony was

false. Although Williams’ credibility was certainly in question, given his past convictions

and his admitted interest in obtaining parole, his testimony was not, as asserted by

Johnson, “incredible on its face.” To the contrary, Williams’ testimony was entirely

plausible. Moreover, as pointed out by the OCCA, the record establishes that Williams

40
was subjected to strenuous cross-examination by defense counsel, and the issue of

Williams’ credibility was ultimately, and properly, left for the jury to determine.

G) Prosecutor’s introduction of “mathematically impossible” time trials

Johnson contends that the prosecutor also knowingly introduced false testimony in

the form of what Johnson refers to as “mathematically impossible time trials supposedly

conducted by the FBI.” Aplt. Supp. Br. at 51. In support of his contention, Johnson

argues that FBI “Agent [Leroy] Foreman’s testimony that he drove the route [from

Johnson’s apartment to the Bank], without speeding, in 18 minutes and 52 seconds is

wrong as a matter of mathematic certainty,” and “[t]he State was well aware of this.” Id.

Further, Johnson argues the defense provided the prosecution with an expert report prior

to trial that indicated, “given the distances involved and the speed limits, an individual

could not complete the route in the time claimed by the FBI without speeding,” yet “[t]he

State has not and cannot point to any errors in the [defense] expert’s analysis.” Id.

The threshold question we must address is what standard of review to apply to this

issue. According to the parties, the issue was raised by Johnson in his direct appeal brief

(although, as noted by respondent, the magistrate judge in this case concluded it “was

presented as what appears to [have] be[en] an afterthought”).7 Notably, however, there is

no mention of the issue in the OCCA’s opinion disposing of Johnson’s direct appeal.

Thus, the issue could be considered (a) unexhausted (as the district court in this case did)

7
We again note that Johnson’s direct appeal brief is not included in the appendix
he filed with this court.

41
and procedurally barred, (b) having been implicitly rejected on the merits by the OCCA

and thus subject to the normal AEDPA standards of review, or (c) having been

overlooked by the OCCA and thus subject to de novo review by this court. See Young v.

Sirmons, 486 F.3d 655, 663 (10th Cir. 2007) (“If the state court did not decide a claim on

the merits, and it is not otherwise procedurally barred, we review the district court’s legal

conclusions de novo”). Out of an abundance of caution, we will treat the issue as having

been overlooked by the OCCA and review the issue de novo.

Foreman, an FBI agent, was involved in the investigation of the robbery and

murders. As part of his investigation, he performed what the prosecution referred to “as

time trials from the Tanglewood Apartments [where Johnson and Neill lived] to the

Geronimo Bank.” App. at 2025. More specifically, Foreman drove “several times” back

and forth between the two locations. Id. According to Foreman, when he “deliberately

went . . . the speed limit and obeyed all the traffic signs,” “the fastest time” he was able to

drive it was “eighteen minutes, fifty-two seconds, and the slowest time was about twenty-

three minutes.” Id. Foreman also testified that he could have driven the route faster had

he not observed all traffic laws. Id. at 2026. On cross-examination, defense counsel

questioned Foreman about the precise route he drove between the two locations, and

Foreman reaffirmed the time results he had obtained.

Upon completion of the State’s case-in-chief, Johnson presented several witnesses

in his own defense, including Brad Davis, an assistant professor of mathematics at a local

university. Davis opined, based solely on mathematics, that the fastest a person could

42
drive between the two locations while observing all traffic laws would be eighteen

minutes and fifty-nine seconds. Although it is not clear from the record on appeal, the

defense apparently provided the prosecution, prior to trial, with a report prepared by

Davis outlining his conclusions.

Apparently, Johnson would have us characterize Foreman’s testimony as false

simply because it contradicted, ever so slightly, the conclusions reached by Davis.

Johnson would also, apparently, have us find that the prosecution knew that Foreman’s

testimony was false simply because, after having received Davis’s report, it proceeded to

introduce Foreman’s testimony during its case-in-chief. Johnson is clearly mistaken in

both regards. The fact that Foreman was able to drive the route in a slightly faster time

than estimated by Davis could be attributed to (a) Foreman failing to completely observe

all traffic laws, (b) Davis having miscalculated the possible driving times, or (c) a

combination of the two. Importantly, none of these possible circumstances necessarily

render Foreman’s testimony false. Nor could a court reasonably find, based on these

circumstances, that the prosecution acted wrongly in proceeding to present Foreman’s

testimony at trial. Thus, there is clearly no merit to Johnson’s assertions that his due

process right to a fair trial was violated by the admission of Foreman’s testimony.

H) Prosecutor’s introduction of testimony from Marilyn Roach

Johnson contends the prosecutor knowingly introduced a third piece of allegedly

false evidence, i.e., the testimony of surviving victim Marilyn Roach that she heard the

voices of two robbers. Johnson claims Roach’s testimony in this regard was “clearly

43
false” because “Roach admit[ted] that the alleged conversation between the two robbers

took place after she had been shot twice in the head and lost consciousness.” Aplt. Supp.

Br. at 53. Johnson further notes that the two other surviving victims, Bellen and Ruben

Robles, “were lying right beside Ms. Roach,” but “did not lose consciousness” and later

“told the FBI that they did not hear the conversation Roach claims to have heard, and that

the only conversation in the bank at that time was a conversation between the two of

them.” Id. Thus, Johnson argues, “[t]he only reasonable inference is the conclusion

reached by the FBI: The voices Ms. Roach believed she heard were in fact the voices of

the other survivors.” Id. In turn, Johnson argues that “[t]he prosecutor knew that Ms.

Roach’s testimony was not true” because the chief FBI investigator concluded at one

point in a report that Roach’s testimony was the product of a hallucination. Id.

Johnson asserted a similar claim on direct appeal. The OCCA rejected the claim

on the merits:

[Johnson] next argues he was denied a fair trial by the admission of
Marilyn Roach’s testimony. Ms. Roach was the only victim to testify she
heard two different voices in the Bank at the time of the robbery. [Johnson]
asserts her testimony was not trustworthy as it was based in part on her
belief that God spoke to her and referred to the perpetrator of the crime in
the plural form. Further, he contends the testimony is not trustworthy
because Ms. Roach admitted she heard the conversation between the two
robbers after she had been shot twice in the head and had lost
consciousness. Citing to an FBI report included in the original record, but
not introduced at trial, the FBI agent in charge of the investigation into the
robbery/murders concluded Ms. Roach had been “hallucinating” when she
thought she heard the conversation between two people in the bank.
[Johnson] argues that under these circumstances, the trial court should not
have allowed Ms. Roach to testify about her “hallucinations” which lacked
even the most basic indicia of reliability.

44
 [Johnson] fails to cite any legal authority to support his allegations.
Absent plain error we will not address assertions unsupported by legal
authority. (citation omitted).

Every person is competent to be a witness except as otherwise provided
in the Oklahoma Evidence Code. (citation omitted). A witness may not
testify to a matter unless evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. (citation
omitted). Evidence to prove personal knowledge may consist of the
witness’s own testimony. (citation omitted).

Marilyn Roach testified to matters of which she had personal knowledge.
The weight and credibility of her testimony was exclusively for the jury’s
determination. (citation omitted). As we stated in Martinez v. State, 984
P.2d 813, 824 (Okl.Cr.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840,
146 L.Ed.2d 782 (2000):

Determining the weight and credibility of witness testimony,
therefore, has long been held to be the “part of every case
[that] belongs to the jury, who are presumed to be fitted for it
by their natural intelligence and their practical knowledge of
men and the ways of men.” Scheffer, 523 U.S. at —, 118
S.Ct. at 1266, quoting Aetna Life Ins. Co. v. Ward, 140 U.S.
76, 88, 11 S.Ct. 720, 724-25, 35 L.Ed. 371 (1891).

Accordingly, we find no plain error in the trial court’s admission of
Marilyn Roach’s testimony. This assignment of error is denied.

OCCA Op. at 39-40.

The OCCA’s analysis, though lacking any citations to Supreme Court precedent, is

neither contrary to, nor an unreasonable application of, Napue and its progeny. On direct

examination, Roach described entering the bank, encountering a robber (whose facial

features she could not remember), and being forced at gun-point to walk to the back room

of the bank. Roach in turn testified that, while laying face-down on the floor of the back

room, she was shot twice in the back of the head and may have lost consciousness. After

45
the shooting stopped, Roach testified, she heard someone say, in an “upset” manner, “I

thought I told you not to shoot anybody,” and a second, distinct voice answer, “Well they

moved.” App. at 1834. On cross-examination by Johnson’s counsel, Roach stated that

“[t]he tone and the voices [she heard] were different.” Id. at 1843. Roach further

testified that, due to the brain damage she suffered initially following the gun shot wound

and her recovery therefrom, she was able to remember the events more clearly at the time

of trial than immediately following the crime. Id. at 1844-45. On redirect, Roach

testified that every time she has been interviewed or questioned about the crime, she has

provided the same information regarding the voices she heard. Id. at 1848. Roach’s

credibility was bolstered by the testimony of prosecution witness Charles Ingalls, an

Oklahoma City-based neurosurgeon who treated Roach in the emergency room following

the shooting. Ingalls testified that there was no damage to Roach’s left ear or to any

portion of her brain that would have affected the hearing in her left ear. Id. at 2244.

Ingalls further testified that there was nothing in his examination of Roach that indicated

she could not have heard or recalled voices in the bank following the shooting. Id. at

2245.

To be sure, Roach’s credibility was subject to reasonable challenge. As noted, the

voices she testified hearing occurred after she was shot twice in the back of the head and

possibly lost consciousness. Further, neither of the other two surviving witnesses (i.e.,

the Robles) heard any other voices, and in fact the Robles testified that they briefly

conversed with each other following the shooting. Finally, as noted by Johnson, FBI

46
agent Granville Long, the chief investigator on the case, prepared a report at some point

(the precise date of the report is unclear from the record, and the report was not presented

at trial) opining:

It is believed highly probable that ROACH was hallucinating somewhat
after her injury and that certain things she recalled as being said were, in
fact, said in general but they are variations of things she overheard the
ROBLES’ [sic] saying to each other as they lay on the floor feigning death
mixed in with statements made by witnesses who were arriving on the scene
very shortly after the departure of the robber. The basic point to be
observed is that ROACH, while having almost total view of the bank, saw
only one individual in the bank. Also, all of the information which she
provided which would indicate that two persons were in the bank is
contradictory to that previously provided by the ROBLES’ [sic] whose
other information, for the most, has been corroborated.

Id. at 3281. Nevertheless, we agree with the OCCA that this evidence did not necessarily

render Roach’s testimony false, and that the question of Roach’s credibility was

ultimately for the jury to decide.8

I) Prosecutor’s second-stage arguments

In his final issue on appeal, Johnson contends that the prosecutor violated his due

process right to a fair sentencing proceeding when, during second-stage closing

arguments, he stated:

Any time you have a death, four deaths, four additional people shot, of this
magnitude, and the individuals for what reason so that [they] can take
the money, hit the gay bars, party and do cocaine and go on a shopping
spree in San Francisco. * * * And I pray that you’re strong enough –
there is only one verdict – to get up, go in that deliberation room, render
your decision, make it unanimous. Those of you that are strong on this

8
For essentially the same reasons, we conclude that Johnson has failed to establish
any knowing misconduct on the part of the prosecution in presenting Roach’s testimony.

47
 jury work on the weak. * * * [Defense] [c]ounsel wants one of you that
is not strong enough to assess the death penalty and if he is able to get that
then he saves this man’s life. * * * I pray you, I beseech you stay strong.
* * * Make sure you check the aggravating circumstances that apply, hold
your head up high, you follow the law. You were committed to your
oath.

App. at 3263-64 (emphasis added as suggested in Johnson’s opening appellate brief).

“Taken together,” Johnson asserts, these statements by the prosecutor “add up to an

argument that was intentionally designed to prey upon the passions and prejudices of the

jury to obtain a sentence on improper grounds.” Aplt. Supp. Br. at 58. In other words,

Johnson asserts, the prosecutor’s “closing was profoundly unfair and corrupted the

sentence.” Id.

Johnson challenged some, but not all, of these prosecutorial arguments on direct

appeal to the OCCA. The OCCA rejected the arguments actually raised by Johnson:

In his seventeenth and final assignment of error, [Johnson] asserts he
was denied a fair sentencing proceeding by comments of the prosecutor
during second stage closing argument. [Johnson] argues the prosecutor’s
repeated admonitions for the jurors to be strong and do their duty influenced
their decision and resulted in a harsher sentence than he might have
otherwise received.

Initially, [Johnson] directs us to the following comment:

Bring your common sense to this case. Any time you have a death,
four deaths, four additional people shot, of this magnitude, and the
individuals for what reason so that [they] can take the money, hit the
gay bars, party and do cocaine and go on a shopping spree in San
Francisco . . . I pray that you’re strong enough – there is only one
verdict – to get up, go in that deliberation room, render your
decision, make it unanimous. Those of you that are strong on this
jury work on the weak.

(Tr. Vol. IX, pg. 2777).

48
 Defense counsel objected only to the reference to the weak, and not any
other part of the comment reprinted above. (Tr. Vol. IX, pg. 2778).
Accordingly, [Johnson]’s complaints on appeal concerning ‘yet another
gratuitous reference to [his] homosexuality’ have been waived for all but
plain error. (citation omitted). A prosecutor has the right to discuss
evidence during the second stage in arguing for an appropriate punishment.
(citation omitted). The comment in the present case was based on the
evidence. Therefore, we find no plain error.

Further, it is not error for the prosecutor to focus on the jury’s duty to
serve and render a verdict based upon the evidence or acknowledge to the
jury the difficulty of their task and ask them seriously to consider the
punishment options available. (citation omitted). The comments here are
not equivalent to those in other cases that we have held to be improper and
prejudicial as playing on societal alarm or as inflaming the passions or
prejudices of the jury. (citation omitted). The comments focused on the
duty of the jurors to serve and render a verdict based upon the evidence.

[Johnson] next argues the prosecutor improperly asked the jury to have
sympathy for the victims and not to show any mercy or pity for the
defendant. The citation to the record for this comment shows defense
counsel’s objection was to a part of the argument, which referred to what
had been done by “jurors before you.” No objection was made to the
comments now challenged on appeal. Therefore, we review those
comments only for plain error.

It is improper for the prosecution to ask jurors to have sympathy for
victims. (citation omitted). However, the prosecution, as well as the
defense, has the right to discuss fully from their standpoint the evidence,
and the inferences and deductions arising therefrom. (citation omitted).
The prosecutor’s reference to the “horrible, horrible death” that four people
in this case experienced was based on the evidence and not merely an
appeal for sympathy.

Allegations of prosecutorial misconduct do not warrant reversal of a
conviction unless the cumulative effect was such [as] to deprive the
defendant of a fair trial. (citation omitted). Because we do not find that any
comments deprived [Johnson] of a fair sentencing proceeding, this
assignment of error is denied.

OCCA Op. at 47-49.

49
 The “clearly established Federal law” applicable under AEDPA to this claim is the

Supreme Court’s decision in Darden v. Wainwright, 477 U.S. 168 (1986). In Darden, a

state habeas petitioner sentenced to death argued that the prosecutors in his case made

improper remarks during second-stage closing arguments that deprived him of his right to

a fair trial. The Supreme Court held that “[t]he relevant question” in addressing such

claims “is whether the prosecutors’ comments ‘so infected the trial with unfairness as to

make the resulting conviction a denial of due process.’” Id. at 181 (quoting Donnelly,

416 U.S. at 643). Notably, the Supreme Court emphasized that “it is not enough,” to

establish a due process violation, “that the prosecutors’ remarks were undesirable or even

universally condemned.” 477 U.S. at 181 (internal quotation remarks omitted).

Similarly, this court, in applying the Darden standard, has held that “not every improper

or unfair remark made by a prosecutor will amount to a federal constitutional

deprivation.” Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir. 2000).

After reviewing the record, we readily conclude that the OCCA’s resolution of this

claim was neither contrary to, nor an unreasonable application of, the standard outlined in

Darden. To begin with, the prosecutor’s reference to the post-crime behavior of Johnson

and Neill (i.e., visiting gay bars, etc.), was nothing more than a comment on the evidence

properly admitted at trial (and it is not entirely clear from the record that this precise

claim was ever presented to the OCCA on direct appeal). Although the remaining

statements made by the prosecutor, essentially asking the jury to remain “strong,” were

perhaps improper, they were not sufficiently egregious to render the second-stage

50
proceedings unfair. In this regard, it is important to note that the trial court instructed the

jury that it was their responsibility to render a verdict based on the evidence, App. at

3286, and that “[n]o statement or argument of the attorneys [wa]s evidence.” Id. at 3287;

see Darden, 477 U.S. at 182 (noting, in concluding that prosecutors’ improper comments

did not result in a denial of due process, that “[t]he trial court instructed the jurors several

times that their decision was to be made on the basis of the evidence alone, and that the

arguments of counsel were not evidence.”). Moreover, a review of the second-stage

verdicts indicates that, notwithstanding the prosecutor’s arguments, the jury was able to

make nuanced determinations with respect to each count of conviction (for example, the

jury found the existence of three aggravating factors with respect to the convictions

pertaining to the murders of the three bank employees, but found the existence of only

two aggravating factors with respect to the murder of a bank customer), and ultimately

chose not to impose the death penalty on Johnson. In sum, we agree with the OCCA that

the challenged prosecutorial comments did not render the second-stage proceedings

fundamentally unfair.

The judgment of the district court is AFFIRMED.

51