Brown v. Sirmons

FILED
United States Court of Appeals
Tenth Circuit

February 5, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DARWIN DESMOND BROWN,

Petitioner - Appellant,

v. No. 06-5071

MARTY SIRMONS, Warden,
Oklahoma State Penitentiary,

Respondent - Appellee.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 00-CV-91-K)

James L. Hankins, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with her on the brief), for Respondent-Appellee.

Before HENRY, Chief Judge, LUCERO and HARTZ, Circuit Judges.

HENRY, Chief Judge.

An Oklahoma County district court jury convicted Darwin Brown of one

count of first-degree murder, O KLA . S TAT . tit. 21, § 701.7(A) & (B), and one

count of robbery with a dangerous weapon, O KLA . S TAT . tit. 21, § 801. As to the
murder conviction, the jury found three aggravating circumstances, and imposed

the death penalty. The jury sentenced Mr. Brown to life imprisonment for the

robbery conviction. The Oklahoma Court of Criminal Appeals (OCCA) affirmed

Mr. Brown’s convictions and sentences on direct appeal, see Brown v. State, 989

P.2d 913 (Okla. Crim. App. 1998), and also denied his motion for post-conviction

relief.

Subsequently, Mr. Brown filed a 28 U.S.C. § 2254 habeas corpus petition

in the United States District Court for the Northern District of Oklahoma,

asserting ten grounds for relief:

(1) the use of dual juries constituted structural error;
(2) the trial court conducted improper voir dire by excusing improperly
for cause six jurors whose views on the death penalty would not
substantially impair their ability to consider all punishment options;
(3) the introduction of evidence arising out of Mr. Brown’s warrantless
arrest violated his 4th, 8th, and 14th Amendment rights;
(4) Mr. Brown’s convictions and death sentence were the product of a
fundamentally unfair adjudicatory process infused with prosecutorial
misconduct and unfairly prejudicial photographic evidence in violation
of the 8th and 14th Amendments;
(5) the trial court committed constitutional error in denying his
requested jury instructions on non-capital offenses;
(6) the State introduced insufficient evidence to support the “especially
heinous, atrocious, or cruel” aggravating factor in violation of his rights
under the 8th and 14th Amendments, and the aggravator itself is
unconstitutional;
(7) the “continuing threat” aggravating circumstance is unconstitutional
and was not supported by the evidence;
(8) the “avoid arrest” aggravating circumstance was applied in an
unconstitutional manner;
(9) victim impact evidence violated his 8th and 14th Amendment rights; and
(10) cumulative error.

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 The district court denied Mr. Brown’s petition, but, pursuant to 28 U.S.C. §

2253(c)(1)(A), granted a certificate of appealability on each of his claims.

Upon thorough review of the record and the applicable law, and under the

standard of review imposed by Congress, we conclude that Mr. Brown is not

entitled to relief on any of his claims. We therefore affirm the district court’s

denial of his § 2254 petition.

I. FACTUAL BACKGROUND

The following facts are largely taken from the direct appeal opinion of the

OCCA. See Brown, 989 P.2d at 919-20. One of Mr. Brown’s three codefendants,

Michael Wilson, was employed at the QuikTrip convenience store located at 215

North Garnett Road in Tulsa, Oklahoma, where Richard Yost also worked. Mr.

Brown, Mr. Wilson, Billy Alverson, and Richard Harjo came into the store during

the early morning hours of February 26, 1995, and waited for the most opportune

time to accost Mr. Yost. The QuikTrip surveillance camera captured the events as

they unfolded.

Mr. Yost was cleaning the windows on the coolers when all of the

defendants surrounded him, attacked him, and dragged him to the back room. Mr.

Alverson came back out and picked up some items that were knocked from the

shelves. He also kept watch for customers. A few moments later, Mr. Alverson

and Mr. Harjo walked out the front door of the store. While they were going out,

Mr. Yost was yelling and screaming for help, possibly thinking that a customer

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had entered the store. Mr. Alverson and Mr. Harjo re-entered the store and

returned to the back room with Mr. Harjo carrying a black aluminum baseball bat.

The surveillance camera picked up the sounds of what appeared to be the bat

striking Mr. Yost. Circumstantial evidence showed that the bat struck the

handcuffs on Mr. Yost’s wrists, which he was holding above his head to ward off

the blows.

During this time, Mr. Wilson walked from the back room, checked his

hands, put on a QuikTrip jacket, got behind the counter, and tried to move the

safe. While Mr. Wilson was behind the counter, several customers came in. Mr.

Wilson greeted them, sold them merchandise, then said “thank you, come again”

or “have a nice day.” 989 P.2d at 920.

All this time, Mr. Wilson continued to try to pull the safe from underneath

the counter. He took money from the cash drawer and the currency change

machine. At some point after this, Mr. Wilson left the counter area, and the video

went blank as the tape was taken from the recorder. Mr. Brown was never seen

exiting the back room from the time that Mr. Yost was dragged into the room

until the video recorder was stopped. The defendants then loaded two safes into

Mr. Wilson’s car using a dolly from QuikTrip.

At about 6:00 a.m., Larry Wiseman, a customer, discovered Mr. Yost’s

body lying on the floor in a pool of blood, milk, and beer. Duct tape bound Mr.

Yost’s ankles. There was one handcuff near his body.

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 Detectives learned that Mr. Wilson was at the store between the hours of

4:00 a.m. and 6:00 a.m. Mr. Wilson failed to show up for work at the scheduled

time of 3:00 p.m. on the same day. Officer Allen set up surveillance on Mr.

Wilson’s house, and at about 4:00 p.m., he saw Mr. Wilson get into a gray

vehicle. The officers stopped the vehicle and took the four defendants into

custody. The officers recovered a large number of five dollar bills from Mr.

Harjo at the site of the stop. Later, at the police station, the authorities recovered

money from all of the defendants except Mr. Wilson.

The officers searched Mr. Alverson’s home, where they discovered the drop

safe, the dolly, QuikTrip glass cleaner, money tubes, and the store surveillance

videotape. The officers searched Mr. Wilson’s house but found nothing of value.

The next day Mr. Wilson’s mother called Officer Makinson to come to her

house. Once there, the detectives found several items of evidence on the front

porch, including the baseball bat, a bloody QuikTrip jacket with Mr. Yost’s name

on it, Mr. Wilson’s Nike jacket matching the one worn in the store video, and the

other cuff of the set of handcuffs.

II. STANDARD OF REVIEW

The majority of Mr. Brown’s claims were adjudicated by the OCCA.

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Mr. Brown

may only obtain federal habeas relief on these claims if the OCCA’s decision is

“contrary to, or involved an unreasonable application of, clearly established

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Federal law,” or is “based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d);

see also Williams v. Taylor, 529 U.S. 362, 402 (2000); Maynard v. Boone, 468

F.3d 665, 669 (10th Cir. 2006), cert. denied, 127 S. Ct. 1819 (2007). As to the

claims that the OCCA has already adjudicated on direct appeal, we apply this

standard from § 2254(d).

In conducting this inquiry, we presume the factual findings of the state trial

and appellate courts are correct, and we place the burden of rebutting this

presumption by clear and convincing evidence on the petitioner. 28 U.S.C. §

2254(e)(1). “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 v. Abbott, 337 F.3d 1193, 1197 (10th Cir. 2003). “Rather, we must be

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

As to claims that the OCCA did not decide on the merits and that are not

procedurally barred, we may exercise our independent judgment. See LaFevers v.

Gibson, 182 F.3d 705, 711 (10th Cir. 1999). Because § 2254’s deferential

standard of review does not apply, we review the district court’s legal conclusions

de novo and its factual findings for clear error. Mitchell v. Gibson, 262 F.3d 1036,

1045 (10th Cir. 2001). If the district court’s factual findings depend entirely on

the state court record, we independently review that record. Walker v. Gibson, 228

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F.3d 1217, 1225 (10th Cir. 2000).

III. DISCUSSION

A. Dual Juries

The Oklahoma County District Court tried Mr. Brown and Mr. Wilson

together, but submitted the charges to two different juries. Mr. Brown contends

that the use of this dual jury approach is structural error. In the alternative, he

contends that the use of dual juries prejudiced his defense in this case.

Under Oklahoma’s Guidelines Governing Juries in Criminal Trials, when

using this dual-jury procedure,

Both juries will be seated in the jury box and the evidence pertaining to
both defendants will be presented to both juries simultaneously.
Evidence admissible as to one co-defendant shall be presented to that
defendant’s jury only.

See Cohee v. State, 942 P.2d 211, 213 (Okla. Crim. App. 1997) (quoting the

Guidelines).

We consider Mr. Brown’s structural error argument first, because if we find

such error, it is not amenable to harmless error review. Brecht v. Abrahamson,

507 U.S. 619, 629-30 (1993) (“The existence of such defects . . . requires

automatic reversal of the conviction because they infect the entire trial process.”).

1. The use of dual juries is not structural error

Mr. Brown argues that the use of the dual jury approach constitutes

structural error because it is experimental, citing the now reversed Ninth Circuit

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opinion in Lambright v. Stewart, 167 F.3d 477, 484 (9th Cir.) (“Nothing Justice

Brandeis ever said about the virtue of states as laboratories comes close to

sanctioning this type of unguided experiment.”), rev’d, 191 F.3d 1181, 1186 (9th

Cir. 1999) (en banc) (“We are satisfied that the use of dual juries can actually

palliate, rather than exacerbate, the risks of a joint trial.”). As Mr. Brown

concedes, every federal appellate court that has considered a dual jury system has

finally concluded that its use is not structural error, and we conclude the same.

See, e.g., Lambright, 191 F.3d at 1186 (finding no violation of due process or any

other trial right in the use of dual juries in a capital case); Smith v. DeRobertis,

758 F.2d 1151, 1152 (7th Cir. 1985) (“A defendant is more likely to be prejudiced

in the eyes of the jury by being tried with another defendant than by being tried in

the presence of a second jury concerned with the other defendant; indeed, the

double-jury procedure may reduce the prejudice from being tried jointly with

another-a form of prejudice usually held outweighed by the economies of joint

trials.”); United States v. Lewis, 716 F.2d 16, 19 (D.C. Cir. 1983) (“We accept the

dual jury procedure so long as it comports with the ethos of due process

commanded by our stringent rules of due process.”); United States v. Hayes, 676

F.2d 1359, 1366 (11th Cir. 1982) (rejecting a challenge to the use of multiple

juries and noting that “neither [defendant] has alleged any more than a possibility

of generalized harm”).

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 2. Dual juries and cross-examination

Mr. Brown next argues that the implementation of the dual jury mechanism

prejudiced his defense by stifling effective cross-examination and creating a

conflict of interest in defense counsel’s representation of him at trial. For

example, to the extent Mr. Brown and Mr. Wilson maintained antagonistic

defenses, his counsel had to seek permission to remove Mr. Wilson’s jury from the

courtroom. Similarly, in his questioning, Mr. Brown’s counsel was required to

take extra precautions not imposed upon most defendants. He needed to prepare

his case jointly and thus presented Mr. Brown’s defense with a potentially less

effective strategy, so as to avoid the courtroom disruptions that would have

resulted from the removal of Mr. Wilson’s jury. There is little doubt, he argues,

that the physical uprooting of the jury at too many turns would only impress upon

the exiting jury that something was amiss.

The trial court recognized that counsel “would have to work a little harder.”

Brown, 989 P.2d at 921. It instructed the juries that each would at times leave the

courtroom, and that they could “not attempt to draw any inference, or come to any

conclusions, or guess at what evidence may be presented or is being presented at

the time when [it was] outside of the courtroom.” Id. at 921-22. Based largely on

these cautionary instructions, the OCCA concluded that the dual system did not

prejudice Mr. Brown.

In our view, the OCCA’s rejection of Mr. Brown’s challenge to the use of

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dual juries was not an unreasonable application of federal law. The trial court was

careful and meticulous in its instructions. The OCCA plausibly reasoned that the

trial court’s instructions to the juries about leaving the courtroom adequately

resolved concerns about the prejudicial effects of the practice.

Similarly, as the OCCA reasoned, counsel could diffuse any conflict of

interest he encountered by informing the judge when his questions might lead to

answers that would not be admissible in the codefendant’s trial. And, in the end,

counsel could object. We acknowledge that counsel had to be more prepared,

anticipating the impact of certain lines of questioning. Thus, the dual jury system

may well impose unique burdens upon defense counsel not typically present in a

criminal jury trial. Here, however, Mr. Brown does not point to specific instances

where he was prejudiced, nor has our review of the record revealed any.

B. Voir dire

“A defendant’s right to an impartial jury includes the right to an adequate

voir dire to identify unqualified jurors.” Sallahdin v. Gibson, 275 F.3d 1211,

1222-23 (10th Cir. 2002). Mr. Brown maintains that the trial court’s exclusion of

six veniremen violated the standard set forth in Wainwright v. Witt, 469 U.S. 412

(1985). In Witt, the Supreme Court explained that a prospective juror may be

excluded for cause because of his or her views on capital punishment when “the

juror’s views would prevent or substantially impair the performance of his duties

as a juror in accordance with his instructions and his oath.” 469 U.S. at 424

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(internal quotation marks omitted). The OCCA correctly stated that the Witt test is

the “proper inquiry.” 989 P.2d at 922.

In conducting this inquiry, the trial court must determine “whether the

venireman could follow the court’s instructions and obey his oath, notwithstanding

his views on capital punishment.” United States v. Chanthadara, 230 F.3d 1237,

1270 (10th Cir. 2000) (internal quotation marks omitted). “The trial court,

however, retains great latitude in conducting voir dire, and the Constitution does

not require an additional opportunity to make a searching inquiry.” Sallahdin, 275

F.3d at 1223 (citing Mu’Min v. Virginia, 500 U.S. 415, 424 (1991) and Moore v.

Gibson, 195 F.3d 1152, 1170 (10th Cir. 1999)). “A trial judge’s determination of

a potential juror’s bias under this standard is a factual finding entitled to a

presumption of correctness.” Moore, 195 F.3d at 1168 (internal citations omitted).

Here, the OCCA summarized the voir dire as follows:

THE COURT: . . . Mr. Monroe, . . . if convicted, . . . it is the duty of the
jury to impose punishment. . . . [The punishment options] are, number
one, life in the penitentiary; number two, life in the penitentiary without
the possibility of parole, and number three, the death penalty. Mr.
Monroe, are you opposed to or in favor of the death penalty?

MR. MONROE: I am opposed to the death penalty.

THE COURT: . . . Would your opposition to the death penalty prevent
or substantially impair your ability to find the defendant guilty if the law
and the evidence so warrants, because the death penalty could be
imposed?

MR. MONROE: No.

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 THE COURT: . . . If this case should reach the penalty phase, would you
automatically vote against the death penalty, regardless of the evidence
and the law, that is presented to you while this Court is in session?

MR. MONROE: Yes, I would, sir.

Thereupon, [the court determined that] the juror would be excused for
cause without any further inquiry. . . . Jurors Akers, LaPage and Ross
answered the questions just as Monroe answered, and they too were
excused for cause.

Juror Borens first stated that she was opposed to the death penalty but
would not automatically vote against it. On further voir dire from the
State and the trial court, Borens was asked if she would consider the
death penalty. She stated that she would not consider the death penalty.
Juror Sicks initially indicated that she was opposed to the death penalty
and she “would have to vote not in favor of the death penalty.” Under
further inquiry by the trial court wherein the trial court asked, “you
would not consider all three of the penalty options, or you would
consider all three of the penalty options?” Sicks said “I do not think I
could consider the death penalty.” The trial court further inquired by
asking “Are you telling me that in no circumstances could you impose
the death penalty?” Sicks responded, “it would be very hard. I don’t
know that I could morally do that.” In an attempt to clarify Sicks
position, the trial court asked, “Are you telling me that under no
circumstances could you impose the death penalty? . . . . [I]f we came
to the sentencing stage you would have three options. Are you telling me
you would not consider the third option?” Sicks replied, “I would not
consider it.” Sicks was then excused.

Of all the jurors Brown complains about, only Sicks was asked
specifically if she would impose the death penalty. Even in voir dire the
trial court corrected itself and correctly asked if she could consider the
death penalty.

989 P.2d at 922-23.

In reviewing the trial court’s voir dire, the OCCA also observed that

The potential jurors Brown complains were improperly removed clearly
stated that they would not consider the death penalty or would

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 automatically vote against the death penalty. Although the trial court’s
voir dire was not a model of perfection, the jurors were properly
removed.

Id. at 923. The OCCA encouraged trial courts to follow the preferred approach,

utilizing the voir dire questions set forth in OUJI-CR 2d, 1-5 (1996). 1

1
OUJI-CR 2d, 1-5 provides the following instructions regarding voir dire
in capital cases:
Alternate 2 (Death Penalty)

The defendant is charged with murder in the first degree. It will be the
duty of the jury to determine whether the defendant is guilty or not
guilty after considering the evidence and instructions of law presented
in court.

If the jury finds beyond a reasonable doubt that the defendant is guilty
of murder in the first degree, the jury will then have the duty to assess
punishment. The punishment for murder in the first degree is death,
imprisonment for life without parole or imprisonment for life.

If you find the defendant guilty of murder in the first degree, can you
consider all three of these legal punishments—death, imprisonment for
life without parole or imprisonment for life—and impose the one
warranted by the law and evidence?

[If the answer to the preceding question is negative]

If you found beyond a reasonable doubt that the defendant was guilty
of murder in the first degree and if under the evidence, facts and
circumstances of the case the law would permit you to consider a
sentence of death/(imprisonment for life without parole)/(imprisonment
for life), are your reservations about the penalty of death/(imprisonment
for life without parole)/(imprisonment for life) so strong that regardless
of the law, the facts and circumstances of the case, you would not
impose the penalty of death/(imprisonment for life without
parole)/(imprisonment for life)?

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 In reviewing the trial court’s questioning, we defer to its findings regarding

whether a juror is biased and whether her answers can be believed. Witt, 469 U.S.

at 424-26. The Supreme Court has recently emphasized the import of this

deferential approach, noting that a federal court reviewing a habeas petition

“owe[s] deference to the trial court, which is in a superior position to determine

the demeanor and qualifications of a potential juror.” Uttecht v. Brown, 127 S. Ct.

2218, 2231 (2007). Further,

The need to defer to the trial court’s ability to perceive jurors’ demeanor
does not foreclose the possibility that a reviewing court may reverse the
trial court’s decision where the record discloses no basis for a finding of
substantial impairment. But where, as here, there is lengthy questioning
of a prospective juror and the trial court has supervised a diligent and
thoughtful voir dire, the trial court has broad discretion.

Id. at 2230 (emphasis added).

Mr. Brown contends that “the six veniremen . . . expressed ambiguous views

concerning the issue of capital punishment in [Mr.] Brown’s case.” Aplt’s Br. at 28.

“[W]hen there is ambiguity in the prospective juror’s statements, ‘the trial court,

aided as it undoubtedly [is] by its assessment of [the venireman’s] demeanor, [is]

entitled to resolve it in favor of [a party].’” Uttecht, 127 S. Ct. at 2223 (last

alteration added) (quoting Witt, 469 U.S. at 434). “This is because the deeply

rooted nature of juror bias often precludes discovering it through general fairness

and ‘follow the law’ type questions.” Nicklasson v. Roper, 491 F.3d 830, 837 (8th

Cir. 2007) (quoting Morgan v. Illinois, 504 U.S. 719, 734-36 (1992)); see Witt,

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469 U.S. at 424 (observing that “determinations of juror bias cannot be reduced to

question-and-answer sessions which obtain results in the manner of a catechism”).

Given our restricted ability to review the trial court’s actions, the OCCA’s

deferring to the judgment of the trial court judge was not an unreasonable and

inconsistent application of federal law.

Mr. Brown also argues that, given that this is a capital case, defense counsel

should have been given the opportunity to rehabilitate potential jurors. Mr. Brown

concedes there is no constitutional right to rehabilitate, and here, we hold that the

OCCA did not unreasonably apply federal law when it determined the trial court

acted well within its discretion in its handling of this part of the voir dire. Moore,

195 F.3d at 1170 (some citations omitted) (holding that “the trial court was not

constitutionally required to grant defense counsel an opportunity to conduct a

searching inquiry” and noting that “the trial court’s decision not to permit further

questioning by defense counsel did not exceed the bounds of that court’s

considerable discretion”).

C. The introduction of Mr. Brown’s warrantless arrest

Mr. Brown filed a motion to suppress his statements regarding his

involvement in the murder arguing they were the product of an illegal arrest.

After the authorities confronted Mr. Brown with evidence that his codefendant Mr.

Wilson confessed to the crime and implicated Mr. Brown, he too confessed

involvement in the crimes.

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 The OCCA did determine that Mr. Brown’s four-hour detention and

subsequent interview were illegal. It concluded that

it was the intention of the officers to first obtain a confession from [a
codefendant] while the other [codefendants] were in custody and then
use Wilson’s confession to prod the others into making incriminating
statements. We find that this purposeful and flagrant violation of
Brown’s basic constitutional rights tainted his statement to police.

989 P.2d at 926.

After the OCCA determined that the illegal arrest tainted the confession, it

considered whether the error was harmless. The OCCA examined whether the

State shouldered its heavy burden “to demonstrate beyond a reasonable doubt that

the illegally obtained statement did not contribute to the conviction.” Id. at 927.

However, rather than shouldering, the State shrugged: it refused to concede that

the arrest was illegal, and made no argument as to harmless error.

As the OCCA stated, Mr. Brown’s statement revealed the following:

First, he stated that he was at his girlfriend’s house at the time the crime
occurred. Then, after being confronted with Wilson’s confession, he
confessed to being involved in the crime. Brown stated that he and the
other codefendants attacked Yost while he was near the freezer area.
They took Yost to the back room where he held Yost’s arm down while
Harjo beat him to death with a baseball bat, striking him fifteen to
twenty times. Brown stated that he stayed in the back room the whole
time so that no one would enter the back room. Brown stated that Wilson
and Alverson planned the robbery two weeks in advance.

989 P.2d at 927.

Despite the State’s failure to argue harmless error, the OCCA undertook a

sua sponte harmless error analysis and determined that the remainder of the

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evidence regarding Mr. Brown’s involvement was “substantial.” Id.

The State presented the video surveillance tape which captured the
defendants attacking Yost and dragging him into the back room. Brown
was positively identified on the video surveillance tape and on a thermal
image made from the tape. Brown, in the video, is seen dragging Yost
into the back room and not coming out during the time the video is
running. The diagrams indicate that there is no other way in or out of the
back room other than the door shown in the surveillance video. The State
presented evidence that Brown was with Wilson and the other two
defendants within twelve hours of the crime when officers stopped
Alverson’s vehicle.

Id. The OCCA then held:

The video alone was sufficient to show, beyond a reasonable doubt, that
Brown was an accomplice in the first degree murder of Yost. When
viewing all of the evidence, excepting Brown’s confession, we can
honestly say that the introduction of the confession during the first stage
of trial was harmless beyond a reasonable doubt. Therefore, Brown’s
convictions must not be disturbed based on this proposition.

Id. (emphasis added).

Although we note Judge Chapel’s observation that the illegal arrest was “a

very serious constitutional violation,” id. at 936 (Chapel, J., dissenting), Supreme

Court precedent precludes us from addressing this contention directly. Although

in general our habeas jurisdiction addresses violations of the United States

Constitution, we may not overturn a state criminal conviction because of a

violation of the Fourth Amendment if the petitioner had a full and fair opportunity

to litigate this claim. Stone v. Powell, 428 U.S. 465, 496 (1976) (“[W]e conclude

that where the State has provided an opportunity for full and fair litigation of a

Fourth Amendment Claim, a state prisoner may not be granted federal habeas

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corpus relief on the ground that evidence obtained in an unconstitutional search or

seizure was introduced at his trial.” (footnote omitted)); Gilmore v. Marks, 799

F.2d 51, 55 (3d Cir. 1986) (“[F]or purposes of the Stone v. Powell rule, a habeas

petitioner’s claim that a state appellate court improperly found a Fourth

Amendment violation to be harmless does not have a separate identity and may not

be raised in a habeas petition in federal court.”).

Mr. Brown does not contend that he did not have such an opportunity.

Instead he pointlessly seeks a ruling that Stone does not apply to capital cases,

although we have previously applied it in such cases. See, e.g., Cannon v. Gibson,

259 F.3d 1253, 1260-62 (10th Cir. 1999); Smallwood v. Gibson, 191 F.3d 1257,

1265 (10th Cir. 1999). Because the OCCA “thoughtfully considered the facts

underlying [Mr. Brown’s] Fourth Amendment claim and rejected the claim on its

merits, applying the appropriate Supreme Court precedent,” we agree with the

district court that Stone bars us from considering this clam. Smallwood, 191 F.3d

at 1265.

D. Prosecutorial misconduct

1. Sixty-eight instances alleged

Mr. Brown raised multiple (sixty-eight) instances of alleged prosecutorial

misconduct involving the State’s introduction of gruesome autopsy photographs,

race-baiting, the injection of gang evidence into the trial, as well as a litany of

other purportedly improper statements and arguments that the prosecutor made.

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Applying AEDPA’s deferential standard of review, we note that “[g]enerally, a

prosecutor’s improper remarks require reversal of a state conviction only if the

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

denial of due process.’” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002)

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “Alternatively, if

the alleged prosecutorial misconduct denied the petitioner a specific constitutional

right (rather than the general due process right to a fair trial), a valid habeas

corpus claim may be established without proof that the entire trial was rendered

fundamentally unfair.” Id.

2. The OCCA’s resolution of the prosecutorial misconduct contentions

In rejecting Mr. Brown’s challenge to the prosecution’s behavior, the OCCA

observed:

Brown cites sixty-eight instances of alleged prosecutorial misconduct.
The misconduct alleged includes comments made during voir dire,
comments made during first and second stage opening statements and
closing arguments, improper questioning of witnesses, and improper
presentation of evidence [gruesome photographs] which was not
relevant, or the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice, or needless presentation
of cumulative evidence.

989 P.2d at 933 (emphasis added). Because defense counsel did not object to most

of the prosecution’s comments, the OCCA engaged in plain error review of those,

and rejected Mr. Brown’s contentions. As to those to which defense counsel

objected, the trial court did sustain objections to some comments, and the OCCA

19
held that the sustaining of the objections “cured” any error. 989 P.2d at 934. The

OCCA also rejected Mr. Brown’s argument that introduction of both diagrams of

injuries and of videos of the crime scene was duplicative and cumulative. It

concluded that “[t]he information was relevant to prove the aggravating

circumstances alleged by the State.” Id. at 934-35.

As to photographs of the crime scene that the prosecution introduced during

the first stage, the OCCA held they were relevant (showing the cause of death and

the intent of the attacker). They were “properly introduced, and thus there can be

no prosecutorial misconduct.” Id. at 934. As to the photographs of the crime

scene and of the deceased that the prosecution introduced during the second stage,

the OCCA determined that, without exception, “the probative value is not

substantially outweighed by the danger of unfair prejudice.” Id.

The OCCA did hold that the introduction of one post-autopsy photograph of

the interior of the victim’s skull was error. Such photos “generally are found to be

inadmissible” and the “prejudicial value is great.” Id. “The probative value is

outweighed by the danger of unfair prejudice.” Id. However, in light of the

strength of so much properly admitted evidence, the OCCA found that error to be

“harmless.” Id.

3. The district court’s resolution of the claims

The district court carefully examined the many challenges Mr. Brown

alleged. The district court determined that the trial court’s instructions and/or

20
admonishments to the jury cured many of the purported errors. Overall, the

district court concluded that these statements did not deprive Mr. Brown of the

“fundamental fairness to which he is entitled.” Dist. Ct. Rec. doc. 28, at 34. As

to the trial court’s acknowledged error of admission of the gruesome autopsy

photos during the sentencing stage, the district court also determined that this error

did not deny Mr. Brown a fundamentally fair trial.

The district court also addressed certain troubling contentions that the

OCCA did not specifically mention in its resolution of the multitude of claims.

For example, Mr. Brown maintained the prosecutor played the “race card” in

offering an audiotape of Mr. Brown’s statement. When asked, who did you kill,

Mr. Brown responded “Just a white dude.” Feb. 20, 1997, Tr. trans. at 75.

Defense counsel objected. The trial court overruled the objection but admonished

the jury. The district court found, and we agree, that Mr. Brown did not show that

the statement rendered the sentencing proceeding unfair.

4. The OCCA’s resolution of the prosecutorial misconduct contentions was
not an unreasonable application of federal law

As to the bulk of Mr. Brown’s claims, we agree with the district court’s

thorough assessment and conclude that the OCCA did not unreasonably apply

federal law in rejecting them. As to the autopsy photograph the trial court

erroneously admitted during the sentencing stage, we note that the Supreme Court

has reiterated the proper standard federal courts must apply in habeas proceedings

21
when considering the effect of a trial court’s error. See Fry v. Pliler, --- U.S. ----,

127 S. Ct. 2321 (2007). In Fry, the Supreme Court held that:

in § 2254 proceedings a court must assess the prejudicial impact of
constitutional error in a state-court criminal trial under the “substantial
and injurious effect” standard set forth in Brecht [v. Abrahamson], 507
U.S. 619 [ (1993) ], whether or not the state appellate court recognized
the error . . . .

Id. at 2328. Thus, unless the error “had substantial and injurious effect or

influence in determining the jury’s verdict,” the error is harmless. Brecht, 507

U.S. at 631 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

In attacking the OCCA’s determination, Mr. Brown relies in part on Spears

v. Mullin, 343 F.3d 1215 (10th Cir. 2003), where we granted relief to the petitioner

under the AEDPA standard of review. In Spears, photographs depicting the victim

with fifty to sixty stab wounds were offered in the sentencing phase of a capital

trial to prove conscious physical suffering. The OCCA held that the photographs

were not probative for that purpose in light of the uncontradicted evidence that the

victim died or lost consciousness early in the beating. Id. at 1226-28. Thus, there

was no logical connection between the photographs and the proposition they were

offered to prove. “[T]he gruesome photographs potentially misled the jury, as

they necessarily had a strong impact on the jurors’ minds.” Id. at 1228.

Accordingly, the photographs rendered the sentencing stage fundamentally unfair.

Id.

Here, there is little doubt that the OCCA was correct to hold the admission

22
of the autopsy photograph to be error. In contrast to Spears, however, there is

more than “minimal evidence” that Mr. Yost was conscious during the beating,

fought back to the extent he could, and endured conscious suffering. 343 F.3d at

1228; see infra § III.F.2. As we explain more fully below, even absent this

evidence, the prosecution presented sufficient evidence in the sentencing phase to

support the statutory aggravating factors. See infra § III.F thru III.H. Considering

the entirety of the second stage evidence as a whole, and given our “very limited”

role, we conclude that the erroneous admission of one gruesome photograph did

not have a substantial and injurious effect or influence in determining the jury’s

verdict. Thornburg v. Mullin, 422 F.3d 1113, 1129 (10th Cir. 2005).

E. Trial court’s refusal to give jury instructions on second degree murder

Mr. Brown next argues that the trial court violated Beck v. Alabama, 447

U.S. 625 (1980), when it refused to instruct on the lesser included offenses of

second-degree felony murder and second-degree murder involving imminently

dangerous conduct. Under Beck, “a sentence of death [may not] constitutionally

be imposed after a jury verdict of guilt of a capital offense, when the jury was not

permitted to consider a verdict of guilt of a lesser included non-capital offense,

and when the evidence would have supported such a verdict.” Id. at 627. In order

to prevail on Beck claim, the petitioner must establish that the trial court denied a

lesser included offense instruction, and that “he presented sufficient evidence to

warrant such an instruction.” Hogan v. Gibson, 197 F.3d 1297, 1306 (10th Cir.

23
1999). In addition, a “petitioner must show that the evidence presented at trial

would permit a rational jury to find him guilty of the lesser included offense and

acquit him of first degree murder.” Young v. Sirmons, 486 F.3d 655, 670 (10th

Cir. 2007); Hooks v. Ward, 184 F.3d 1206, 1223-29 (10th Cir. 1999) (discussing

Beck).

The OCCA only addressed the refusal to instruct on the lesser included

offense of second-degree felony murder. Before the district court, Mr. Brown

emphasized that he also sought an instruction on a second lesser included offense:

second-degree murder involving imminently dangerous conduct. The district court

found that, in the OCCA proceedings, he had challenged the failure to instruct on

both offenses. We will address each in turn.

1. Second degree felony murder instruction

Under Oklahoma law, there are two degrees of felony murder: “A person . .

. commits the crime of murder in the first degree, regardless of malice, when that

person or any other person takes the life of a human being during, or if the death

of a human being results from, the commission or attempted commission of

[certain listed felonies, including] . . . robbery with a dangerous weapon . . . .”

O KLA . S TAT . tit. 21, § 701.7. Homicide is murder in the second degree if

perpetrated during the course of a felony not listed in § 701.7, such as robbery by

force or fear. Id.

Mr. Brown maintains that the murder occurred during the course of robbery

24
by force or fear. Because robbery by force or fear is a lesser included offense of

robbery with a dangerous weapon, he contends that the trial court should have

instructed the jury on second-degree felony murder.

The OCCA rejected this claim, stating

In this case, the evidence clearly showed that the victim was beaten to
death with a baseball bat, a dangerous weapon which was used to
complete the robbery. Where there is no evidence to support a lesser
included offense the court has no right to ask the jury to consider the
issue. Boyd v. State, 1992 OK CR 40, ¶ 9, 839 P.2d 1363, 1367-68.
There was no evidence other than the evidence that a dangerous weapon
was used to commit the robbery. Accordingly, we find no error.

989 P.2d at 930.

We agree with the district court that the OCCA’s decision is not an

unreasonable application of federal law. Because the baseball bat was used to

complete the robbery, Mr. Brown was not entitled to a second-degree murder

instruction based on robbery by force or fear.

2. Second degree imminent danger murder instruction

Under Oklahoma law, “[h]omicide is murder in the second degree . . .

[w]hen perpetrated by an act imminently dangerous to another person and evincing

a depraved mind, regardless of human life, although without any premeditated

design to effect the death of any particular individual.” O KLA . S TAT . tit. 21, §

701.8. Although Mr. Brown now argues that the trial court erred in refusing to

instruct the jury on this offense, the State insists that Mr. Brown did not present

this contention to the OCCA. In his direct appeal to the OCCA, Mr. Brown

25
argued:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
REFUSING THE APPELLANT’S REQUEST THAT THE JURY
BE INSTRUCTED ON THE OFFENSE OF SECOND DEGREE
MURDER

At the end of the trial’s first stage, the Appellant asked the trial
court to instruct the jury on the lesser offense of second degree
felony murder, submitting certain instructions which were denied.
(OR 394-398). As a result, the jury received no instructions on
any lesser offenses.

....

The jury’s inability to consider any offense other than first degree
murder thus violated the Appellant’s rights under the Eighth and
Fourteenth Amendments of the United States Constitution and
Article II, §§ 7 and 9 of the Oklahoma Constitution.

Aplt’s Br. to OCCA, at 58-60.

The district court determined that although the bulk of the argument was

about the second-degree felony murder instruction, Mr. Brown did fairly present

the second-degree imminent danger claim to the OCCA by citing the appropriate

record pages with the proffered instruction and arguing generally about the lack of

instruction as to any lesser included offenses. Because the OCCA did not examine

the claim, the district court decided to engage in an “independent review of the

record and pertinent federal law” to determine whether the OCCA’s denial of

relief was contrary to, or an unreasonable application of, clearly established

federal law. Dist. Ct. Rec. doc. 28, at 20-21 (citing Aycox v. Lytle, 196 F.3d 1174,

1177-78 (10th Cir. 1999)). The district court then rejected this claim.

26
 We can assume, without deciding, that Mr. Brown presented his argument to

the OCCA, because he loses on the merits in any event. In reaching our

conclusion on the merits, however, we do not apply Aycox as the district court did.

In Aycox, this court concluded that when a state court issues a summary decision

“which does not articulate a reasoned application of federal law to determined

facts,” we should defer “to the state court’s result even if its reasoning is not

expressly stated.” 196 F.3d at 1177 (emphasis in original). The district court

seems to have applied this standard, noting that, after its independent review of the

record and federal law, it would determine whether the OCCA’s denial of relief

was contrary to, or involved an unreasonable application of, clearly established

federal law.

However, we hold this case distinguishable from Aycox. Here, rather than

issuing a summary decision that resolved all of the petitioner’s claims, the OCCA

only addressed one of Mr. Brown’s two distinct Beck arguments. The entirety of

the OCCA’s analysis indicates that it read proposition nine of Mr. Brown’s brief

as challenging only the refusal to instruct on second degree felony murder.

Accordingly, our review of the unaddressed Beck challenge is governed by the

standard of review explained in Harris v. Poppell, 411 F.3d 1189, 1196 (10th Cir.

2005): “If the state court did not decide Mr. Harris’s federal claim on the merits,

and the claim is not otherwise procedurally barred, we address the claim de novo

and AEDPA deference does not apply.” (emphasis supplied).

27
 As we have noted, under Beck, Mr. Brown was entitled to an instruction on

a lesser included non-capital offense if the evidence would have supported a

verdict of guilty as to that lesser offense. 447 U.S. at 635. We must look to

Oklahoma law to determine what constitutes a lesser included offense. See Walker

v. Attorney Gen. for State of Okla., 167 F.3d 1339, 1349 (10th Cir. 1999).

(stating that, under Beck, “[a] capital defendant is constitutionally entitled to

instructions on offenses that state law recognizes as lesser included offenses of the

charged crime . . . when such instructions are supported by the evidence”)

(emphasis added).

Although Mr. Brown argues that second degree murder by imminently

dangerous conduct is a lesser included offense of first degree felony murder, we

conclude that the identification of lesser included offenses is not without

difficulty. The OCCA “initially applied a strict statutory elements approach which

required all of the elements of the lesser included offense to be contained in the

greater offense so that it would be impossible to commit the greater offense

without also committing the lesser.” Shrum v. State, 991 P.2d 1032, 1035 (Okla.

Crim. App. 1999); see, e.g., Jennings v. State, 643 P.2d 643, 645 (Okl. Crim.

App. 1982) (stating that “[t]he elements of a lesser included offense must

necessarily be included in the offense charged”). The OCCA later applied looser

variations of the elements test, which fell into three categories: “the pleadings

approach, the evidence approach and a hybrid of the pleadings and evidence

28
approach.” Shrum, 991 P.2 at 1035. However, post-Shrum, the OCCA applies

only the very flexible “evidence test,” which “considers not only the elements but

looks to the crimes the trial evidence tends to prove.” Shrum, 991 P.2d at 1036.

Because the required application of the evidence test is prospective only to those

cases on pending on direct review, Mr. Brown was not entitled to the Shrum

evidence test. But, because the trial court may very well have applied it, we

consider its relevance here.

“[T]he proper test of sufficient evidence for instructions on a lesser included

offense is whether prima facie evidence of the lesser offense has been presented.”

Ball v. State, 173 P.3d 81, ¶ 32 (Okla. Crim. App. 2007). Under the “evidence

test,” the court considers “whether the evidence might allow the jury to acquit the

defendant of the greater offense and convict him of the lesser.” Jackson v. State,

146 P.3d 1149, 1159 (Okla. Crim. App. 2006); Frederick v. State, 37 P.3d 908,

945 (Okla. Crim. App. 2001) (quoting Beck, 447 U.S. at 635 (“In the federal

courts, it has long been beyond dispute that the defendant is entitled to an

instruction on a lesser included offense if the evidence would permit a jury

rationally to find him guilty of the lesser offense and acquit him of the greater.”))

(internal quotation marks omitted).

Under the Oklahoma felony murder statute, the death may occur “regardless

of malice,” O KLA . S TAT . tit. 21, § 701.7(B), and, as a result, felony murder is a

general intent crime. Pickens v. State, 19 P.3d 866, 879 (Okla. Crim. App. 2001)

29
(stating that “[f]elony murder, with robbery with a dangerous weapon as the

underlying predicate crime, is a general intent crime.”). Thus, “[t]he defendant’s

state of mind with respect to the death is irrelevant.” Franks v. Alford, 820 F.2d

345, 347 (10th Cir. 1987).

In contrast, “the second degree murder [offense] at issue requires ‘an act

imminently dangerous to another person and evincing a depraved mind.’” Id.

(quoting O KLA . S TAT . tit. 21, § 701.8(1)). Thus, “depraved mind” murder

“requires proof of a mental state that felony murder does not.” Id.

Here, the jury found Mr. Brown guilty of robbery with a dangerous weapon.

Because felony murder requires no evidence of an intent to cause the death of a

victim, we hold that, in this case, instructing the jury on second degree imminent

danger/depraved mind murder would not have allowed the jury to acquit Mr.

Brown of the greater offense (first degree felony murder) by finding him guilty of

the lesser one. Cf. Jackson, 146 P.3d at 1159 (applying Shrum). We therefore

conclude that the trial court did not err in refusing to instruct the jury on imminent

danger/depraved mind second-degree murder, and that Mr. Brown is not entitled to

habeas relief on this claim.

F. Heinous, Atrocious or Cruel Aggravator

Mr. Brown next challenges whether there was sufficient evidence to support

the jury’s finding that the murder was especially heinous, atrocious, or cruel

(“HAC”), and that he was a major participant in the infliction of such suffering.

30
Mr. Brown also challenges the constitutionality of the aggravator.

1. Sufficiency of evidence that Mr. Yost suffered extreme mental anguish

When we consider the sufficiency of the evidence on a habeas corpus

petition, “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.” Jackson v. Virginia,

443 U.S. 307, 319 (1979). We note that our review under this standard is

“‘sharply limited[,]’ and a court ‘faced with a record of historical facts that

supports conflicting inferences must presume-even if it does not affirmatively

appear in the record-that the trier of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution.’” Messer v. Roberts, 74 F.3d 1009,

1013 (10th Cir. 1996) (quoting Wright v. West, 505 U.S. 277, 296-97 (1992)).

Sufficiency of the evidence on a habeas petition is a mixed question of law

and fact. Maynard v. Boone, 468 F.3d 665, 673 (10th Cir. 2006). We ask whether

the facts are correct and whether the law was properly applied to the facts, “which

is why we apply both 28 U.S.C. § 2254(d)(1) and (d)(2) when reviewing

sufficiency of the evidence on habeas.” Id. In light of the presumption of

correctness afforded by 28 U.S.C. § 2254(e), we must defer to any determination

of a factual issue by the state court. Id

Here, we must consider whether the OCCA’s conclusion that the evidence

was sufficient to support a finding of extreme mental anguish constituted an

31
unreasonable application of the Jackson standard. See Diestel v. Hines, 506 F.3d

1249, 1267 (10th Cir. 2007) (assessing the OCCA’s application of Jackson). On

that question, the OCCA held that

The medical examiner testified that the first blow by the baseball bat
could have rendered him unconscious. However, before the baseball bat
was ever introduced into the attack, Yost was attacked and dragged into
the back room by his four assailants. Yost screamed for help while
Alverson and Harjo retrieved the bat. Obviously he was being restrained
at that time by Brown and Wilson. Yost suffered injuries to his hands,
arguably coming from the blow from the bat, indicating defensive
wounds. There was a piece of metal from the handcuff imbedded in
Yost’s head indicating that he had his hands between his head and the
bat. In the surveillance tape noises can be heard during the attack after
the baseball bat was taken to the cooler where Yost was being held.
Once the bat arrived, it is possible that Yost was struck and rendered
unconscious with one blow. However, we find that before the bat was
brought into the attack, Yost had suffered the extreme mental anguish of
being held captive, knowing that his ultimate fate rested in the hands of
his attackers whom he could identify if left to live.

....

There is ample evidence of the extreme mental anguish suffered by Yost
prior to his death. This evidence illustrates the realization by Yost that
he was going to be harmed and even killed by the gang of robbers who
had overpowered him and dragged him into a back room.

989 P.2d at 930-31.

In our application of Jackson, we look to Oklahoma law to determine the

substantive elements of the “heinous, atrocious, or cruel” aggravating

circumstance. See Valdez v. Bravo, 373 F.3d 1093, 1097 (10th Cir. 2004). Under

Oklahoma law this aggravating factor “requires proof that the death was preceded

by torture or serious physical abuse.” Turrentine v. State, 965 P.2d 955, 976

32
(Okla. Crim. App. 1998). The OCCA has determined that the “torture” element of

this aggravating factor “may take any of several forms”:

Torture may include the infliction of either great physical anguish or
extreme mental cruelty. . . . [It] must be the result of intentional acts by
the defendant . . . [and] must produce mental anguish in addition to that
which of necessity accompanies the underlying killing. Analysis must
focus on the acts of the defendant toward the victim and the level of
tension created. The length of time which the victim suffers mental
anguish is irrelevant.

Berget v. State, 824 P.2d 364, 373 (Okla. Crim. App. 1991). The OCCA has also

stated that there are no “specific, uniform criteria, applicable to all murder cases,

which would make the application of the ‘heinous, atrocious or cruel’ aggravator a

mechanical procedure.” Robinson v. State, 900 P.2d 389, 401 (Okla. Crim. App.

1995). “Rather, the examination of the facts of each and every case is necessary in

determining whether the aggravator was proved.” Id.

Thus, our inquiry is case by case. Id. Here, we agree with the district

court’s assessment that there was ample evidence that Mr. Yost suffered physical

and emotional abuse while conscious. Mr. Yost had defensive wounds on his

hands, fingers, and wrist; the videotape revealed that struggle ensued; the autopsy

revealed a hinge from handcuffs was embedded in his skull, which indicated that

Mr. Yost put his hands in defensive posture; he was bound prior to death, which

indicate he was conscious during at least part of the attack. Dist. Ct. Rec. doc. 28,

at 50. Mindful of the “Oklahoma test for conscious suffering we have found to

satisfy the requirements of the Eighth Amendment,” we hold that the OCCA’s

33
conclusion that there is sufficient evidence that Mr. Yost suffered serious abuse

before becoming unconscious is not an unreasonable application of federal law.

Medlock v. Ward, 200 F.3d.1314, 1324 (10th Cir. 2000) (Lucero, J., concurring).

2. Sufficiency of evidence that Mr. Brown caused injury

Mr. Brown next argues that, even if the evidence supports the application of

the HAC aggravator, there is insufficient evidence to indicate that he actually

physically participated in the beating of Mr. Yost, or that he attempted to kill him,

or that he even intended to kill him. The OCCA took little time to dispose of this

argument:

As we stated before, we will presume that the jury convicted Brown
under the felony murder theory, so that Brown will be provided the
benefit of the prohibition against double jeopardy. We make the same
presumption here.

The evidence was clear that Brown substantially participated in the
killing. Brown was involved in the initial subduing of Yost. He was
present in the back room when the bat was brought in by Harjo. He was
present when sounds of the first blow can be heard on the
audio/videotape and he remained in the back room until the beating
ceased. He had to know that a beating with a baseball bat would cause
serious conscious physical suffering and death. Therefore, we find that
Brown “was a major participant in the felony committed, who displayed
reckless indifference to human life;” therefore, he was “sufficiently
culpable to receive the death penalty.”

989 P.2d at 931 (citations omitted).

Mr. Brown maintains that under the Supreme Court’s holdings in Enmund v.

Florida, 458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S. 137 (1988), the

OCCA’s rejection of his claim is an unreasonable application of federal law. In

34
Enmund, the petitioner, convicted of felony murder, was the getaway driver for a

robbery, and was in the car on the side of the road at the time of the killings. The

Supreme Court held that he did not act with the culpability required to receive the

death penalty. In Tison, there was no evidence the petitioner, also convicted of

felony murder, took any act intended to kill. However, the “reckless disregard for

human life” shown by Mr. Tison, in addition to his presence during the entire

sequence of criminal activity, constituted sufficient culpability for the imposition

of the death penalty. 481 U.S. at 151.

Here, the district court found the Tison analysis to apply to Mr. Brown: he

was “actively involved” in the underlying felony of robbery, and was “present

during the entire sequence of criminal activity culminating in the murder of Yost.”

Dist. Ct. Rec. doc. 28, at 52.

Before us, Mr. Brown argues that he was not a major participant in the

felony and that he did not act with reckless disregard for human life. Although he

was physically present, he contends that he did not inflict any blows and did not

have any intent to kill Mr. Yost. Finally, Mr. Brown reminds us that Mr. Harjo,

who did inflict the blows, did not receive the death penalty. Nevertheless, our

precedents do not consider different results among defendants when analyzing

sufficiency of the evidence matters. The OCCA’s analysis was amply supported

by sufficient evidence and not an unreasonable application of federal law.

35
 3. Constitutionality of the HAC aggravator

The OCCA concluded that “[t]he heinous, atrocious or cruel” aggravator has

been analyzed thoroughly and, when properly limited by the conditions precedent

of torture or serious physical abuse, found to be consistent with the mandates of

the Eighth and Fourteenth Amendments. Brown, 989 P.2d at 931 (quoting Toles v.

State, 947 P.2d 180, 192 (Okla. Crim. App. 1997)). We decline the invitation to

deviate from our previous holdings. See Workman v. Mullin, 342 F.3d 1100, 1115-

16 (10th Cir. 2003).

Before us, Mr. Brown acknowledges that our precedent forecloses this

challenge, but raises this issue only to preserve it for possible en banc or Supreme

Court review.

G. Application and constitutionality of the continuing threat aggravator

Next, Mr. Brown challenges the sufficiency of evidence supporting the

imposition of the continuing threat aggravator, arguing that its application violated

his Eighth and Fourteenth Amendment rights. The OCCA held that:

the evidence was sufficient from which the jury could find the
possibility that Brown would commit future acts of violence which
would constitute a continuing threat to society. The State introduced
evidence that Brown, in three different instances, had illegally in his
possession loaded firearms. The State also introduced evidence that
Brown had been involved in the beating of a female. These prior
criminal activities provided sufficient competent evidence to support the
continuing threat aggravating circumstance.

989 P.2d at 932.

Mr. Brown argues that the offenses the OCCA relied on were unadjudicated

36
and thus not constitutionally sufficient evidence to support the aggravator. Mr.

Brown recognizes that our precedent does not preclude a sentencing body in a

capital case from considered unadjudicated bad acts. Hatch v. Oklahoma, 58 F.3d

1447, 1465 (10th Cir. 1995) (holding that “the admission of evidence of

unadjudicated offenses at a sentencing proceeding does not violate due process”).

He urges this court to conclude that the unadjudicated offenses were relatively

minor (mere possession of a firearm and one fist fight by an 18-year-old) and thus

do not constitute sufficient evidence to support the aggravator. He argues that

there is no evidence the possession of the firearm was illegal, which he says is

required before a court may even consider the act. However, our precedent does

not limit the consideration of prior bad acts in this manner. See Smith v. Gibson,

197 F.3d 454, 460 (10th Cir. 1999) (holding that the “admission of unadjudicated

bad acts during a capital sentencing proceeding does not violate due process”).

Thus, the OCCA’s decision was not contrary to or an unreasonable application of

federal law.

Similarly, circuit precedent forecloses Mr. Brown’s challenge to the

constitutionality of the continuing threat aggravator, which he raises to preserve

the claim for Supreme Court review. Under Oklahoma law, the continuing threat

factor requires “[t]he existence of a probability that the defendant would commit

criminal acts of violence that would constitute a continuing threat to society.”

O KLA . S TAT . A NN . tit. 21, § 701.12(7). We have repeatedly upheld the

37
constitutionality of this aggravating factor, finding it neither unconstitutionally

vague nor overbroad. See Ross v. Ward, 165 F.3d 793, 800 (10th Cir. 1999);

Castro v. Ward, 138 F.3d 810, 816-817 (10th Cir. 1998); Nguyen v. Reynolds, 131

F.3d 1340, 1353-54 (10th Cir. 1997).

H. Application of the killing to avoid arrest aggravator

Mr. Brown next challenges the application of the killing to avoid arrest

aggravator. During post-conviction proceedings, the OCCA determined that this

contention was not raised on direct appeal: “Brown has not shown that the facts or

law supporting this claim were unavailable to direct appeal counsel.” Unpublished

Op. Denying Relief, filed Nov. 8, 1999, in Case No. PC-98-1251, at 3. Thus, the

OCCA held Mr. Brown waived this contention. Id.; see O KLA . S TAT . A NN . tit. 22,

§§ 1080-1089. 2

The district court noted the procedural bar imposed by Okla. Stat. Ann. tit.

22, § 1086, 1089. Section 1089(C) provides that only matters which were not and

could not have been raised in direct appeal can be raised during post-conviction

review. See O KLA . S TAT A NN . tit. 22, § 1089(C)(1); Rule 9.7(B)(1) and (2), Rules

of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1996);

2
Oklahoma’s Post-Conviction Procedure Act, Okla. Stat. Ann. tit. 22, §§
1080-1089, “embodies the principles of res judicata and precludes state collateral
review of issues actually raised on direct appeal, as well as those issues that could
have been raised on direct appeal, but were not.” Brecheen v. Reynolds, 41 F.3d
1343, 1349 n.4 (10th Cir. 1994).

38
Coleman v. Thompson, 501 U.S. 722, 754 (1991) (“[T]he petitioner . . . must bear

the burden of a failure to follow state procedural rules.”). “On habeas review, this

court will not consider issues that have been defaulted in state court on an

independent and adequate state procedural ground, unless the petitioner can

demonstrate cause and prejudice or a fundamental miscarriage of justice.”

Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998). Like the district court,

then, we typically cannot review the claim without Mr. Brown’s establishing either

(a) cause and prejudice from his failure to raise the claim on direct review or (b) a

fundamental miscarriage of justice resulting from this court’s failure to review.

Coleman, 501 U.S. at 750. However, in the interest of efficiency, we have held

that “[w]e can avoid deciding procedural bar questions where claims can readily

be dismissed on the merits.” Snow v. Sirmons, 474 F.3d 693, 717 (10th Cir. 2007).

This exception applies here.

The avoid arrest aggravator requires the State to prove beyond a reasonable
doubt:

(1) there was another crime separate and distinct from the murder; and
(2) that Mr. Brown committed the murder with the intent to avoid being
arrested or prosecuted for that other crime.

O KLA . S TAT . A NN . tit 21, § 701.12(5); Mitchell v. State, 136 P.3d 671, 677 (Okla.

Crim. App. 2006).

Here, the State proceeded with two theories of first-degree murder – felony

murder during the commission of the crime of robbery with a dangerous weapon,

and first-degree malice murder. The jury was allowed to find him guilty under

39
either theory. Additionally, the State charged and the jury found Mr. Brown guilty

of robbery with a dangerous weapon. Under Alverson v. State, 983 P.2d 498, 521

(Okla. Crim. App. 1999), if the jury did not specify which of these two offenses it

found, then the verdict will be interpreted as felony murder. Thus, under Mr.

Brown’s theory, there is no “separate and distinct” predicate crime for the jury to

find this aggravator. See id. at 520 (listing “requirements” of avoid arrest

aggravator as “(a) a predicate crime existed, apart from the murder, from which

the defendant sought to avoid arrest/prosecution; and (b) the State presented

evidence establishing the defendant’s intent to kill in order to avoid

arrest/prosecution”).

But, the OCCA has held that in such instances the underlying felony can be

the basis for the avoid arrest aggravator.

In most cases in which the avoid arrest aggravator is found by the jury,
the “predicate crime” is also charged as a separate crime and results in
a separate conviction. Such cases typically involve first-degree malice
murder convictions, with separate convictions for robbery, burglary,
rape, kidnaping, or one or more other murders. This separate crime (or
crimes) then also constitutes the predicate crime for the avoid arrest
aggravator in the second stage of the capital trial. Similarly, in cases in
which the capital defendant is charged with first-degree felony murder,
the crime that serves as the underlying felony for the murder conviction
can also serve as the predicate crime for the avoid arrest aggravator in
the second stage.

Mitchell, 136 P.3d at 677-78 (emphasis added) (footnotes omitted); see also

Wackerly v. State, 12 P.3d 1, 14 (Okla. Crim. App. 2000) (reasoning that robbery

and murder can be contemporaneous and that evidence may be sufficient to

40
support a finding that a murder was committed to avoid arrest or prosecution). In

light of the OCCA’s interpretation of what constitutes a “separate and distinct”

crime, we conclude that the trial court properly instructed the jury on the avoiding

arrest aggravator, and thus that Mr. Brown’s claim is without merit.

I. Victim Impact Evidence

In his ninth contention, Mr. Brown maintains that the admission of

irrelevant victim impact evidence from the victim’s wife, Angela Yost, and

mother, Alma Dorn, rendered the sentencing proceeding of his trial fundamentally

unfair. See Payne v. Tennessee, 501 U.S. 808 (1991). He also argues that the

victim impact evidence acted as an improper “super-aggravator” and is thus

unconstitutional.

1. Irrelevant victim impact evidence

In rejecting Mr. Brown’s assertions, the OCCA held:

In this case, Brown complains about statements from the victim’s wife
stating she enjoyed cooking and ironing for the victim. This evidence is
relevant to show the psychological, emotional and physical impact of the
victim’s death. Brown complains about the victim’s mother’s statements
about Yost’s long term plans for the future. The victim’s mother also
stated that the victim told her that he would take care of her in her old
age and for her not to worry about the future. These statements were
relevant to show the financial and emotional impact of the crime itself
on the victim’s survivors. Brown claims that the mother’s statement was
hearsay. Arguably the statement was not offered for the truth of the
matter asserted, thus not hearsay. The statement was only offered to
show that the victim’s mother believed that the victim would take care
of her financially in the future.

The victim’s wife testified that the victim was especially fond of
Christmas holidays because he was raised in a family that did not

41
 celebrate Christmas. The victim’s Mother testified that she didn’t have
any problems with the victim as a child. Statements about a victim’s
childhood have no relevance in victim impact evidence. We find that
these comments amounted to error, but they do not rise to the level of
plain error, because they did not go to the foundation of the case, or
take from Brown a right essential to his defense.

989 P.2d at 933 (emphasis added) (citations omitted).

The district court carefully considered each of the challenged statements, in

particular, the erroneously admitted testimony. Interestingly, we note that Mrs.

Yost’s testimony followed that of State expert Dr. Ronald F. DiStefano, who

testified in part about the erroneously admitted post-autopsy photograph. After

Mrs. Yost, the victim’s wife, read her statement, defense counsel called to the

court’s attention that a member of the Victim Witness Center was crying in the

courtroom. The judge asked defense counsel to ask the weeping person to leave

the courtroom. The victim impact testimony from Mrs. Dorn, the victim’s mother

immediately followed. In the end, the district court determined that the

erroneously admitted remarks from both the victim’s mother and wife did not so

infect the sentencing proceeding as to render it fundamentally unfair.

After reviewing the OCCA’s conclusions, we agree with the district court’s

analysis. Much of the challenged victim impact testimony was apparently

available to counsel before trial, although we acknowledge that counsel could

likely not foresee the emotional outburst from courtroom observers. We have

rejected such an objection in a similar context:

[Counsel] did not challenge its admission until after the entire statement

42
 was read to the jury. The absence of a contemporaneous objection
deprived the trial court of the ability to curtail any troubling portions of
the statement. Counsel’s argument that he could not foresee the extreme
emotional impact of the victim impact statement is particularly
unconvincing when there is but one impact statement to be read by a
family member.

Short v. Sirmons, 472 F.3d 1177, 1193 (10th Cir. 2006), cert. denied, 128 S. Ct.

103 (2007). Moreover, even if we accept Mr. Brown’s contention that the jury

inappropriately considered portions of Mrs. Yost’s and Mrs. Dorn’s testimony, any

error was harmless. The irrelevant testimony regarding Mrs. Yost’s enjoyment of

cooking and ironing for the victim and involving Mr. Yost’s childhood could not

have influenced the jury’s finding as to two of the three statutory aggravating

factors:

(1) that Mr. Brown constituted a continuing threat to society, or

(2) that he committed the murder for the purpose of avoiding or preventing a

lawful arrest or prosecution. Thus, the OCCA’s rejection of Mr. Brown’s

contention was not an unreasonable application of federal law.

2. Victim Impact Evidence as a “superaggravator”

Mr. Brown next argues that the victim impact evidence was essentially a

“superaggravator,” in that it unconstitutionally skewed the weighing process in

favor of finding the statutory aggravating factors.

In the sentencing phase, the prosecution incorporated all of the first stage

evidence in support of aggravating factors. In addition to the above-described

victim-impact testimony from Dr. DiStefano, Mrs. Dorn, and Mrs. Yost, the State

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presented the following evidence in support of the statutory aggravators:

(1) Officer Herbert Hardman of the Tulsa police department testified that on

October 15, 1992, during a traffic stop (where Mr. Wilson was the driver and Mr.

Brown the passenger), he observed a handgun lying in the front seat of the

suspects’ vehicle. Both Mr. Wilson and Mr. Brown claimed ownership of the

weapon.

(2) Officer Timothy J. Pike of the Tulsa police department testified that on

June 1, 1993, after responding to a call and observing open container of alcohol in

a vehicle, he asked Mr. Brown, seated in the passenger’s seat of a car, to step out

of the car. Officer Pike recovered two semiautomatic weapons from the vehicle.

(3) Anita Kaiser testified that on the evening of September 25, 1993, she

was attacked by about sixty African-American men when approaching her

boyfriend’s apartment in Tulsa, and that the crowd also attacked and injured her

boyfriend, Ronald Kirkpatrick, who tried to rescue her.

(4) Officer Roy C. Johnson of the Tulsa police department testified that on

the evening of September 25, 1993, he responded to the call involving Ms. Kaiser,

where in excess of twenty men were “running and fighting all over the place.” Tr.

dated Feb. 18, 1997, at 61. He testified that he observed Mr. Brown “kicking and

stomping” Ronald Kirkpatrick.

(5) Sergeant Samuel McCullough of the Tulsa Police Department testified

that on February 16, 1995, he pulled over Mr. Wilson for speeding. Mr. Brown

44
was a passenger in the car. Sergeant McCullough observed a black aluminum

baseball bat consistent with the one used to kill Mr. Yost lying between the two

front seats. Sergeant McCullough testified he retrieved a .25 caliber automatic

pistol under the passenger’s (Mr. Brown’s) seat.

(6) Sergeant Victor Regalto, also of the Tulsa Police Department testified

that he assisted Sergeant McCullough on the February 16, 1995 stop, transported

and booked Mr. Brown, and turned the weapon into the property room at the

station.

The defense presenting the following witnesses in support of mitigating

circumstances:

(1) Santanya Hill, with whom Mr. Brown was romantically involved, had

known Mr. Brown since he was eight-years-old. She testified that he took care of

her two-year-old daughter, and treated her as though she were his own.

(2) Carl Tarver, who was an Assistant Principal at Mr. Brown’s middle

school, testified that as a young teenager, Mr. Brown was not aggressive, and was

appreciative of Mr. Tarver’s advice and guidance. Mr. Brown expressed his

ambitions and goals, and successfully got a job after graduation.

(3) Harry Cooper, a long-time family friend, testified that Mr. Brown was a

normal, non-aggressive teenager.

(4) Roberta Brown, Mr. Brown’s aunt, testified Mr. Brown was respectful,

caring, sensitive, and non-violent.

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 (5) Sandra Glover, who knew Mr. Brown’s family for about five years,

testified that Mr. Brown and her three children were part of a good group of

neighborhood kids, who were not troublemakers. She also testified that Mr.

Brown loved his father, respected his opinion, and cared for his brother very

much.

(6) Mollie Miller, Mr. Brown’s great-aunt who works as an elementary

teacher, testified that throughout his life Mr. Brown had never been violent in her

presence, and demonstrated good manners and obedience. She had seen him often

at his mother’s house, where he helped her sister, his grandmother, who was a very

ill invalid. He helped take care of her, and fed her, and did so in a gentle manner.

She testified that his life retained value.

(7) Jerald Brown, Mr. Brown’s uncle who works as a youth guidance

specialist, knew Mr. Brown to be a non-aggressive, non-violent person. He

testified that Mr. Brown’s life still had value.

(8) Papallia Brown, testified that Mr. Brown, her only child, was a passive,

sensitive, meek, and mild child whose life still had value.

(9) Dunbar Brown testified that he was close to his son. He testified Mr.

Brown was kind and easygoing, and never showed violence or aggression, and that

he still had value in his life.

(10) Rev. Pollie Ragsdale, Mr. Brown’s great aunt, testified that he was

never disrespectful. She asked the jury to show mercy and to spare his life.

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 (11) Fran St. Peter, a clinical social worker, testified that, after reviewing

the case file, including the videotapes, autopsy reports, and defendants’

statements, she believed that Mr. Brown still could be helped. He may have

suffered from alienation – his parents divorced when he was young, his grades

slipped precipitously and no one took notice, he helped care for a child that was

not his, and his mild demeanor made him a follower of sorts – which might help

explain his involvement in the murder. She noted that Mr. Brown had never

received any professional treatment, thus its rehabilitative likelihood had not been

measured. She noted that Mr. Brown’s very supportive family lent support to her

theory that Mr. Brown might be helped in the future.

Considering the entirety of evidence presenting during the sentencing stage,

the OCCA rejected Mr. Brown’s contention that the victim impact testimony

served as an unconstitutional “superaggravator.” Specifically, the

OCCA held:

We have previously held that victim impact evidence is very different
and serves a different purpose than aggravation evidence. The State is
still required to prove at least one aggravator beyond a reasonable doubt
before the death penalty may be imposed.

In this case, the jury was specifically instructed that they could only
consider the aggravating circumstances set forth in the instructions.
Brown has not convinced us that the jury would not have found the
aggravating circumstance but for the victim impact evidence.

989 P.2d at 933 (citations omitted).

The district court found that jury properly instructed on aggravating

47
circumstances and that the use of victim impact evidence in general under

Oklahoma law and specifically in Mr. Brown’s trial did not deprive him of his

Eighth Amendment rights. We agree that the OCCA’s decision withstands

AEDPA deference.

States may choose to allow victim impact testimony, see Payne, 501 U.S. at

827, and Oklahoma allows testimony about a crime’s impact on the victims

provided the testimony does not violate due process. See Cargle v. Oklahoma, 909

P.2d 806, 826 (Okla. Crim. App. 1995). As such, we hold that the OCCA’s

decision was not an unreasonable application of federal law. See 28 U.S.C. §

2254(d)(1).

J. Cumulative error

In Mr. Brown’s final contention, he maintains that the cumulative effect of

the guilt and sentencing stage errors is manifest and clearly resulted in a

fundamentally unfair trial and a denial of constitutional due process. The OCCA

rejected this claim because it determined that any errors were harmless, even in the

aggregate. 989 P.2d at 935 (“In viewing the cumulative effect of these errors we

also find they do not require reversal of this case.”).

“A cumulative-error analysis aggregates all errors found to be harmless and

analyzes whether their cumulative effect on the outcome of the trial is such that

collectively they can no longer be determined to be harmless.” United States v.

Toles, 297 F.3d 959, 972 (10th Cir. 2002) (quotation omitted). We have found no

48
additional constitutional errors, and thus we only review the OCCA’s decision

under our deferential AEDPA standard. See Cargle, 317 F.3d at 1206. Given this

level of deference, we cannot determine that the OCCA’s evaluation of the

cumulative impact of the trial court errors was contrary to or an unreasonable

application of clearly established federal law.

IV. CONCLUSION

Accordingly, we AFFIRM the judgment of the district court denying Mr.

Brown’s 28 U.S.C. § 2254 petition.

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