Spears v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 12 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

BRIAN SPEARS,

Petitioner-Appellee/
Cross-Appellant,

v. Nos. 01-6258
&
MIKE MULLIN *, Warden, 01-6267
Oklahoma State Penitentiary,

Respondent-Appellant/
Cross-Appellee.

DUDLEY ALLEN POWELL,

Petitioner-Appellee/
Cross-Appellant,
Nos. 01-6349
v. &
01-6354
MIKE MULLIN, Warden,
Oklahoma State Penitentiary,

Respondent-Appellant/
Cross-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

*
Mike Mullin replaced Gary Gibson as Warden of the Oklahoma State
Penitentiary effective March 25, 2002.
 FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. Nos. CIV-96-1862-M & CIV-97-516-M)

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

Randy A. Bauman, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for Petitioner-Appellee/Cross-Appellant Brian Spears.

Mark Henricksen (Lanita Henricksen with him on the briefs) of Henricksen
& Henricksen Lawyers, Inc., El Reno, Oklahoma, for
Petitioner-Appellee/Cross-Appellant Dudley Allen Powell.

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

LUCERO , Circuit Judge.

Convicted in the Oklahoma courts of the first-degree murder of Jimmy

DeWayne Thompson and sentenced to death, Brian Spears and Dudley Powell

each filed a 28 U.S.C. § 2254 petition seeking relief from their convictions and

sentences. 1 After concluding that photographs introduced during the second stage

of trial rendered the sentencing stage fundamentally unfair, the federal district

court granted relief from both Spears’ and Powell’s death sentences, but denied

1
Another co-defendant Claiborne Johnson III, pled guilty to first-degree murder
and received a life sentence without possibility of parole in exchange for his
testimony against Spears and Powell.

2
relief on numerous other claims challenging both defendants’ convictions. We

now consider four appeals: the State appeals the district court’s grant of habeas

relief from the death sentences, and Spears and Powell cross-appeal the denial of

relief on the other claims. Because all four appeals arise out of the same set of

facts and present similar issues, we join them for disposition. Exercising

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we take the district court’s

view of the issues and affirm. 2

I

On the evening of September 21, 1990, the day Thompson died, Thompson,

age twenty-two, Spears, age twenty, and Spears’ then girlfriend, Vickie Hensley,

were cruising around Pauls Valley, Oklahoma, in Thompson’s truck. At Spears’

request, Thompson purchased alcohol and the three began drinking. During the

evening, they drank a cocktail of Kool Aid and Everclear from a gallon milk jug,

as well as whiskey and beer. They were joined at various times by Powell, age

eighteen, Claiborne Johnson III, age twenty-two, and Mickey Daniels, none of

whom had met Thompson before that evening. Sometime after Powell joined the

group, Spears began driving the truck because Thompson was intoxicated. During

2
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
petitioners cannot appeal the denial of habeas relief under 28 U.S.C. § 2254
unless a certificate of appealability is granted (“COA”). In the instant case, a
COA was granted on all issues discussed in this opinion.

3
the course of the evening, they stopped at several places to refresh their supply of

alcoholic beverages. Later, they decided to continue imbibing at the Klondike

Cemetery, a popular drinking spot.

On the way to the cemetery, Powell and Spears discussed beating

Thompson and taking his truck. At the cemetery, all exited the truck. Powell told

Spears, Johnson, and Daniels that he was going to “jump” Thompson and that

they should join the beating. (3 Tr. at 712.) As the group walked along the

cemetery road, Powell hit Thompson in the head with his fist. With the first

blow, Thompson fell to the ground, where he lay “moaning” and “hollering.” (4

id. at 942.) Johnson began kicking Thompson, while Powell kicked and jumped

on Thompson’s head and chest. At some point, Johnson and Powell began hitting

Thompson with their fists. Spears also joined the beating and began jumping on

and kicking Thompson on the chest and possibly his head. The beating lasted

from three to ten minutes. Neither Daniels nor Hensley participated; after

observing the attack for sometime, they returned to the truck.

After the beating, Spears grabbed Powell and Johnson by their arms,

produced a knife, and said that they had to kill Thompson because he could testify

against them. Each stabbed Thompson several times. Sometime during the

stabbing attack, Powell momentarily returned to Thompson’s truck, where

Hensley and Daniels had retreated, and told them Johnson had stabbed Thompson

4
in the throat. Powell told them that Johnson intended to take Thompson’s truck to

Tulsa and sell it, and that Spears agreed with this plan. Powell then returned to

the crime scene.

Powell, Spears, and Johnson subsequently left Thompson’s body and

returned to the truck. Spears told everyone to listen to Johnson, who directed

them not to say anything about what had happened. Spears then told Hensley and

Daniels that if anyone asked them if they had seen Thompson that evening, they

should say that Thompson had taken them to a football game and dropped them

off after the game.

Upon leaving the cemetery, the group first took Hensley home. The

remaining four then went to the home of Johnson’s girlfriend, Lashonda Austin,

where Johnson told Austin that they had killed a man that night in self-defense

and where Spears confirmed the killing. After leaving Austin’s house, Powell

and Johnson dropped off Spears and Daniels. Much later, Johnson took Powell

home and eventually parked Thompson’s truck at an apartment building. The

following day, Johnson was arrested in a neighboring town while in possession of

Thompson’s truck and wallet. Spears and Powell were arrested soon thereafter. 3

At trial, the medical examiner, Dr. Larry Balding, testified that Thompson

3
Hensley and Daniels were held on a material-witness bond of twenty-five
thousand dollars.

5
died from blunt-force injury to the head, resulting in a skull fracture and bleeding

into and on the brain. According to Dr. Balding, a single blow could have caused

the head injury or death. While he did not know the actual number of blows to

Thompson’s head, he was certain Thompson sustained more than one blunt-force

blow to the body. However, Dr. Balding did not believe that any of the blows to

the body would have caused death, either individually or in combination.

Dr. Balding further testified that Thompson received fifty to sixty knife

wounds to his head, neck, chest, abdomen, and back. As a result of the stabbing,

six to eight inches of Thompson’s small intestine protruded. Parts of other

internal organs were visible through the chest. Apart from what were referred to

as two possible peri-mortem knife wounds, all other knife wounds were inflicted

post-mortem. 4
Any potentially fatal stab wounds were delivered post-mortem.

Neither Spears nor Powell testified or presented any evidence at the trial’s

first stage. Based on the State’s evidence, the jury found both guilty of first-

degree murder.

The State’s second-stage presentation was brief. After incorporating all

first-stage evidence, the State presented six photographs of Thompson’s body

4
Dr. Balding was uncertain whether a large cut on Thompson’s chest where there
was some hemorrhage was peri-mortem, because Thompson had received several
blows to the chest region which also caused hemorrhage. Likewise, because there
was massive head trauma with bleeding, Dr. Balding was uncertain whether the
stab wound to the right side of Thompson’s head was peri-mortem.

6
taken at the crime scene. Spears presented two mitigation witnesses. His sister,

Sharlene Flannery, testified that Spears dropped out of school in the tenth grade,

that he babysat her children, that he has one child, that she never saw him fight or

be so angry that he would hurt or kill someone, and that he regularly attended

church. Reverend John Stiger testified that he had ministered to Spears’ family

and had watched Spears grow up. He stated that Spears was a normal young man

with no prior convictions, who had positively influenced the lives of people in the

county jail. Other mitigation evidence emphasized Spears’ youth and his

intoxication at the time of the crime.

Powell also presented two mitigation witnesses. His mother, Connie Walls,

testified that Powell grew up without a father, experienced rejection from his

family, adored his three step-siblings and helped care for them, generally stopped

caring when his step-sibling twins’ father kidnapped them, regularly attended

church, stopped attending school in seventh grade after being held back due to his

learning disabilities, loved music, and has mechanical ability. Rachel Smith, who

had known Powell since he was six or seven, testified that she acted as a

surrogate grandmother to him, and he minded her when asked to do so. Other

mitigating factors included Powell’s youth, likelihood of rehabilitation, and

intoxication at the time of the crime.

Based on all of the evidence, the jury found, with respect to both Spears

7
and Powell, that Thompson’s murder was especially heinous, atrocious, or cruel

and that the two committed the murder to avoid arrest or prosecution. The jury,

however, did not find that either would be a continuing threat to society. After

weighing the two aggravators against the mitigating evidence, the jury delivered

death sentences for both Spears and Powell.

The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Spears’

conviction and sentence on direct appeal and denied his first application for

post-conviction relief. Spears v. State , 900 P.2d 431 (Okla. Crim. App.),

cert. denied , 516 U.S. 1031 (1995); Spears v. State , 924 P.2d 778 (Okla. Crim.

App. 1996). Spears then filed a petition for a writ of habeas corpus in federal

district court. Identifying several issues as unexhausted, the district court abated

federal proceedings and directed Spears to return to state court to exhaust these

issues. He did so, and the OCCA denied relief on a second application for

post-conviction relief. Spears v. State , No. PC-99-1099 (Okla. Crim. App.

Oct. 13, 1999). Federal habeas proceedings then resumed. Granting Spears

habeas relief from his death sentence, the district court held that the introduction

of the crime-scene photographs at the trial’s second stage deprived him of a

fundamentally fair sentencing proceeding. However, the district court rejected all

other second-stage arguments and denied relief from Spears’ conviction.

Powell’s conviction and sentence were also upheld by the OCCA, and his

8
application for post-conviction relief was similarly denied. Powell v. State , 906

P.2d 765 (Okla. Crim. App. 1995), cert. denied , 517 U.S. 1144 (1996); Powell v.

State , 935 P.2d 378 (Okla. Crim. App. 1997). As with Spears, on federal habeas

review, the district court granted Powell relief from his death sentence due to the

constitutional error arising from admission of the photographs, but rejected all

other second-stage arguments and denied relief from Powell’s conviction.

The district court stayed enforcement of Spears’ and Powell’s judgments

pending appeals. The State, Spears, and Powell all appeal.

II

Because Spears and Powell filed their petitions for habeas relief after April

24, 1996, the effective date of AEDPA, AEDPA’s provisions apply to both

appeals. See Lindh v. Murphy, 521 U.S. 320, 326–27 (1997). Under AEDPA, if

a claim is adjudicated on the merits in state court, we will grant habeas relief to a

petitioner 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,” or “was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceedings.” 28 U.S.C. § 2254(d)(1), (2). AEDPA requires us to

presume that state court factual findings are correct, and places the burden on the

petitioner to rebut this presumption by clear and convincing evidence.

9
§ 2254(e)(1).

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 and its factual findings, if any, for clear error. See Hooker v. Mullin,

293 F.3d 1232, 1237 (10th Cir. 2002), cert. denied, 123 S. Ct. 975 (2003). When,

however, “the district court’s findings of fact are based merely on a review of the

state record, we do not give them the benefit of the clearly erroneous standard but

instead conduct an independent review.” Morris v. Burnett, 319 F.3d 1254, 1268

(10th Cir. 2003) (quotation and brackets omitted). We apply these standards to

determine whether the district court correctly assessed each issue before us on

appeal. See Darks v. Mullin, 327 F.3d 1001 (10th Cir. 2003).

III

A. State’s Appeals

The federal district court held that the State’s penalty-phase introduction of

crime-scene photographs showing Thompson’s mutilated body deprived Spears

and Powell of a fundamentally fair sentencing proceeding as guaranteed by the

Eighth and Fourteenth Amendments. On appeal, the State argues that these

admittedly gruesome photographs were relevant to both the heinous, atrocious, or

cruel and continuing-threat aggravators, that their relevance outweighed any

danger of unfair prejudice, and that the photographs were therefore properly

10
admitted in evidence.

“Federal habeas review is not available to correct state law evidentiary

errors; rather it is limited to violations of constitutional rights.” Smallwood v.

Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999) (citing Estelle v. McGuire,

502 U.S. 62, 67–68 (1991)); see also Willingham v. Mullin, 296 F.3d 917, 928

(10th Cir. 2000). When, as here, habeas petitioners challenge the admission of

photographic evidence as violative of the Constitution, this court considers

“whether the admission of evidence . . . so infected the sentencing proceeding

with unfairness as to render the jury’s imposition of the death penalty a denial of

due process.” Romano v. Oklahoma, 512 U.S. 1, 12 (1994); see also Bruton v.

United States, 391 U.S. 123, 131 n.6 (1968) (“An important element of a fair trial

is that a jury consider only relevant and competent evidence bearing on the issue

of [sentencing].”); Smallwood, 191 F.3d at 1275 (examining “whether the

admission of the photographs rendered the proceedings fundamentally unfair”);

Willingham, 296 F.3d at 928 (addressing whether admission of photographs was

“so grossly prejudicial that it fatally infected the trial and denied the fundamental

fairness that is the essence of due process” (quotation omitted)). “[B]ecause

a fundamental-fairness analysis is not subject to clearly definable legal elements,

when engaged in such an endeavor a federal court must tread gingerly and

exercise considerable self-restraint.” Duckett v. Mullin, 306 F.3d 982, 999

11
(10th Cir. 2002) (quotations omitted); see also Bullock v. Carver, 297 F.3d 1036,

1055 (10th Cir.) (recognizing that only a narrow category of infractions violates

fundamental fairness), cert. denied, 123 S. Ct. 703 (2002); Jackson v. Shanks,

143 F.3d 1313, 1322 (10th Cir. 1998) (approaching fundamental-fairness analysis

with “considerable self-restraint” (quotation omitted)).

Although there are no clearly defined legal elements, the

fundamental-fairness inquiry requires us to look at the effect of the admission

of the photographs within the context of the entire second stage. See Duckett ,

306 F.3d at 988. We consider the relevance of the photographs and the strength

of the aggravating evidence against Spears and Powell as compared to the

mitigating evidence in their favor and decide whether admission of the

photographs could have given the State an unfair advantage. Ultimately, we

consider whether the jury could judge the evidence fairly in light of the admission

of the photographs. See id. at 989. Applying this fundamental-fairness standard

and mindful of the standards of review set forth by AEDPA, we conclude that the

federal district court appropriately granted habeas relief.

In Oklahoma, a murder is especially heinous, atrocious, or cruel if it was

“preceded by torture or serious physical abuse. Torture includes the infliction of

either great physical anguish or extreme mental cruelty, while physical abuse

requires evidence of conscious physical suffering.” Romano v. Gibson, 239 F.3d

12
1156, 1176 (10th Cir. 2001) (quotation omitted); see also Powell, 906 P.2d

at 779–80 (recognizing that it is critical for the State to prove the victim’s

conscious physical suffering before death); Spears, 900 P.2d at 443, 449 (same).

According to the State, because Thompson was alive for part of the

stabbing and three of the photographs depict his extensive head injuries, all six

photographs were relevant to prove he suffered serious physical abuse prior to

death. The OCCA decided the photographs were relevant and properly admitted

to prove Thompson suffered serious physical abuse prior to his death, in light of

testimony that Thompson moaned and suffered two peri-mortem stab wounds.

Powell, 906 P.2d at 780; Spears, 900 P.2d at 443.

That Thompson suffered serious physical abuse in the common sense of the

term is not in doubt. Rather, the question under Oklahoma law is whether the

photographs were relevant to show conscious physical suffering. See

Willingham , 296 F.3d at 929 (noting that when a “victim dies or loses

consciousness early on in an assault, photographs of all of [his] injuries might

involve irrelevant and/or unduly prejudicial material at the penalty phase, since

the [heinous, atrocious or cruel] aggravator focuses on the conscious suffering of

the victim” (citing Powell , 906 P.2d at 780)). On this point, the OCCA

questioned the relevance of the photographs to the jury’s finding of the heinous,

atrocious, or cruel aggravator:

13
 These photographs are not . . . probative of whether Thompson was
conscious during the beating which is the critical inquiry in
determining whether a murder was especially heinous, atrocious or
cruel. The probative value of these photographs is very slight
especially in light of their gruesome nature. Their probative value
scarcely exceeds their prejudicial effect. We note the introduction of
the six photographs came very close to causing a second sentencing
hearing given the paucity of evidence supporting the aggravator
especially heinous, atrocious or cruel. Because such photographs
were not admitted in first stage, they were more shocking seen for
the first time in the punishment stage.

Spears, 900 P.2d at 443 (emphasis added); see Powell, 906 P.2d at 780 (setting

forth identical reasoning). Despite concerns about the photographs, however, the

OCCA decided that their probative value outweighed their prejudicial effect.

Powell, 906 P.2d at 780; Spears, 900 P.2d at 443.

Contrary to the OCCA, the federal district court held that the photographs

denied Spears and Powell a fundamentally fair sentencing proceeding because the

photographs’ prejudicial effect outweighed their probative value:

None of the stab wounds focused on in the photographs can be
considered probative of the question of conscious physical suffering,
the only injuries arguably being relevant to such a determination
being those from the beating. While the jury was not instructed that
it had to find “conscious physical suffering,” it was instructed it had
to find the victim’s death was preceded by torture or serious physical
abuse. . . . Because none of the stab wounds occurred while the
victim was conscious or preceded his death, such injuries cannot be
considered relevant to the question before the jury.

Spears v. Gibson , No. CIV-96-1862-M, slip op. at 44–45 (W.D. Okla. Oct. 15,

2001); Powell v. Ward , No. CIV-97-516-M, slip op. at 63 (W.D. Okla, Aug. 22,

14
2001). This improper evidence, along with the lack of evidence of conscious

physical suffering during the beating, caused the district court to conclude that the

second-stage proceedings were unconstitutionally infirm. 5

Having viewed the photographs and reviewed the entire record, we agree

with the district court that the introduction into evidence of the photographs

depicting Thompson’s numerous post-mortem stab wounds, large gash wounds,

exposed intestines and swollen face and black eye rendered the second stage

fundamentally unfair. Because the heinous, atrocious, or cruel aggravator focuses

on Thompson’s conscious suffering, and the evidence showed Thompson died or

lost consciousness early on in the beating, the photographs of all of his injuries

were unduly prejudicial at the second phase. See Willingham , 296 F.3d at 928–29

(citing Powell , 906 P.2d at 780). Instead, the gruesome photographs potentially

misled the jury, as they necessarily had a strong impact on the jurors’ minds.

Minimal evidence suggested Thompson was conscious or even alive during the

stabbing. 6
At most, two of the fifty to sixty stab wounds were peri-mortem.

5
The federal district court did find exhibit 50, showing Thompson’s black eye
and swollen face, to be probative of whether he endured physical abuse before
death, if he was conscious during the beating. However, even if this one
photograph did not render the trial fundamentally unfair, we conclude the others
did.
6
We note that the OCCA stated that there was a “plethora of evidence Thompson
endured serious physical anguish prior to death.” Spears, 900 P.2d at 449; Powell,
906 P.2d at 782. In the next sentence, however, the court states, “Further, there
(continued...)

15
Neither the peri-mortem stab wounds nor conscious suffering were connected to

the specific photographs. The photographs do not show any defensive wounds,

nor do they support, clarify, or illustrate any testimony indicating Thompson

consciously suffered physical abuse before his death. See Jackson , 143 F.3d at

1322; Hoxsie v. Kerby , 108 F.3d 1239, 1243 (10th Cir. 1997).

Even if the photographs were minimally relevant to the heinous, atrocious,

or cruel aggravator, the photographs’ prejudicial effect outweighed their

probative value. Important to this conclusion is the fact that the State waited

until the second stage to introduce the photographs. By contrast, the State

introduced comparatively innocuous photographs at the first stage, seeming to

deliberately await the second stage to present the more gruesome photographs

solely for their shock value. Because the photographs were the primary

aggravating evidence specifically presented at the second stage, they constitute a

major part of the State’s second-stage case.

6
(...continued)
was evidence Thompson was conscious during the beating,” suggesting that the
previous sentence was not meant to describe the evidence of conscious suffering.
Spears, 900 P.2d at 449; Powell; 906 P.2d at 782. Earlier, the court stated that
there was a “paucity of evidence supporting the [heinous, atrocious, or cruel]
aggravator.” Spears, 900 P.2d at 443; Powell, 906 P.2d at 780. In any event, had
the OCCA determined there was a plethora of evidence of conscious suffering,
our review of the record leads us to conclude that such a finding would be
unreasonable. We agree with the district court that the evidence offered to show
conscious suffering was weak.

16
 As the OCCA observed, and as set forth above, a paucity of evidence

supported the heinous, atrocious, or cruel aggravator. See Powell , 906 P.2d

at 780; Spears , 900 P.2d at 443. As to the “avoid arrest or prosecution

aggravator” found by the jury, while there was some evidence to support the

aggravator, we agree with the district court that such evidence was not

particularly strong. 7
When viewed together with the mitigation evidence

presented by Spears’ and Powell’s respective trial counsel, including evidence of

Spears’ and Powell’s youth, intoxication at the time of the crime and their lack of

prior criminal history, we conclude that such evidence was not sufficiently strong

standing alone such that the jury would have returned a sentence of death. 8

7
As the district court noted:

While Hensley and Daniels did testify that a conversation occurred
on the way to the cemetery regarding taking the victim’s truck, a full
reading of the record also supports [Spear’s] theory that the motive
for the killing was Powell’s anger towards the victim on the evening
of the murder. Furthermore, the evidence that Johnson was the one
primary interested in disposing of the truck and selling it after the
murder lends some support to [Spears’] theory as to the motive for
the killing.

Spears v. Gibson, No. CIV-96-1862-M, slip op. at 47–48 (W.D. Okla. Oct.
15, 2001); Powell v. Ward, No. CIV-97-516-M, slip op. at 66 (W.D. Okla.
Aug. 22, 2001).
8
As noted above, the State argues that the six photographs were relevant to both
the heinous, atrocious, or cruel and continuing-threat aggravators. The OCCA did
not consider the relevance of the photographs to the continuing-threat aggravator.
See Powell, 906 P.2d at 779–80; Spears, 900 P.2d at 443. Our review of the
(continued...)

17
 This highly inflammatory evidence fatally infected the trial and deprived

Spears and Powell of their constitutional rights to a fundamentally fair sentencing

proceeding. The OCCA’s decision that the photographs’ relevance exceeded their

prejudice was objectively unreasonable, see 28 U.S.C. § 2254(d); see also

Woodford v. Visciotti , 123 S. Ct. 357, 360 (2002) (requiring a habeas applicant to

show that the state court applied Supreme Court law to the facts in an objectively

unreasonable manner and distinguishing unreasonable and incorrect applications

of law), and we conclude that the district court correctly decided that the

photographs rendered the second stage of trial fundamentally unfair. 9
To the

8
(...continued)
record shows that while the primary focus of the prosecution’s arguments during
the second stage was the relevance of the photographs to the heinous, atrocious,
or cruel aggravator, the prosecution did implicitly link the contents of the
photographs with its argument on the continuing-threat aggravator. However,
even assuming that the photographs were relevant to the continuing threat
aggravator, we conclude that the prejudicial effect of the photographs, as
described above, outweighs the probative value of this evidence.
9
After determining that the photographs caused the trial to be fundamentally
unfair, the federal district court then proceeded to conduct a harmless-error
analysis. This was unnecessary. The “substantive prejudice component[]”
inherent in fundamental-fairness review “essentially duplicate[s] the function of
harmless-error review.” Cargle, 317 F.3d at 1207. Thus, once a showing of
fundamental unfairness is made, a petitioner is entitled to habeas relief without an
assessment of harmless error. Id.; see, e.g., Wainwright v. Greenfield, 474 U.S.
284, 285, 289, 295 (1986) (holding that the use of defendant’s silence was
fundamentally unfair and warranted a new trial); Gonzales v. Lytle, 167 F.3d
1318, 1321 (10th Cir. 1999) (holding that a failure to permit the jury to consider
recanted testimony rendered the trial fundamentally unfair, warranting habeas
relief).

18
extent that the OCCA implicitly determined that the admission of the photographs

did not render the second stage fundamentally unfair, we conclude that this was

an unreasonable application of clearly established Supreme Court precedent. 10

10
Spears and Powell also argue that (1) the heinous, atrocious, or cruel
aggravator is not constitutionally valid, because the jury did not receive
instruction on the conscious suffering requirement; (2) insufficient evidence
supported a finding of the heinous, atrocious, or cruel aggravator; and (3)
insufficient evidence supported the avoid-arrest aggravator. Because we affirm
the district court’s grant of habeas relief with respect to the unconstitutional
admission of the photographs, we need not reach the first argument. As to the
second and third arguments, we need not reach the question of whether there was
sufficient evidence to support every aggravator. However, in order to allay any
Double Jeopardy concerns, we must determine whether there was sufficient
evidence to support at least one aggravator. See Poland v. Arizona, 476 U.S. 147,
156 (1986) (holding that only a finding “that no aggravating circumstance is
present is an acquittal barring a second death sentence proceeding” (quotation
omitted)); see also Cargle v. Mullin, 317 F.3d 1196, 1225 (10th Cir. 2003)
(applying Poland to the Oklahoma death-penalty scheme).
In reviewing petitioners’ claims, the OCCA concluded that there was
sufficient evidence to support the avoid arrest or prosecution aggravator. In
regard to Spears, the OCCA reasoned that
In the instant case the evidence showed Spears and Powell discussed
beating Thompson and taking his truck before they arrived at the
cemetery. At the cemetery Powell told Spears he would initiate the
beating and advised Spears and Johnson to join in. Spears and
Powell then carried out their plan to beat and rob Thompson. After
administering the severe beating, Spears grabbed Powell and Johnson
by the arm, produced a knife and said they had to kill Thompson
because he could testify against them. After stabbing Thompson,
Spears, Powell and Johnson took Thompson’s truck and wallet and
made plans to dispose of them along with Spears’ knife. Spears told
Hensley she better tell the alibi story he concocted or they would all
“get in trouble for all this.” From this evidence a rational jury could
find Spears had motive to rob Thompson, stopped at the cemetery to
commit the robbery, voluntarily joined in the beating and stabbing of
(continued...)

19
See, e.g. , Romano, 512 U.S. at 12; Donnelly v. DeChristoforo , 416 U.S. 637, 643

(1974); Bruton, 391 U.S. at 131 n.6.

B. Spears’ and Powell’s Cross-Appeals:

1. Bruton Error and Failure to Sever

Both Spears and Powell argue that the trial court improperly admitted out-

of-court statements that each of them made implicating the other, in violation of

10
(...continued)
Thompson to avoid arrest for the theft of Thompson’s truck, took
Thompson’s truck and wallet and directed disposal of the
incriminating evidence.
Spears, 900 P.2d at 447–48. In regard to Powell, the OCCA reasoned that
In the instant case the evidence showed Powell and Spears discussed
beating Thompson and taking his pickup truck before they arrived at
the cemetery. At the cemetery Powell told Spears, Johnson and
Daniels he would initiate the beating and then they should join in.
Powell then carried out his plan and struck Thompson. Powell
confessed “they” decided to steal Thompson’s pickup and to kill him.
After the murder Powell participated in discussions about selling
Thompson’s pickup in Tulsa and disposing of Thompson’s wallet and
the knife. From this evidence a rational jury could find Powell had
motive to rob Thompson, stopped at the cemetery to commit the
robbery, initiated the beating, killed Thompson to avoid arrest for the
theft of the truck, took Thompson’s truck and wallet and helped
dispose of incriminating evidence.
Powell, 906 P.2d at 781.
We agree with the district court that the OCCA’s determination that there
was sufficient evidence to support the avoid-arrest-or-prosecution aggravator was
not an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979).
Thus, we need not consider whether there was sufficient evidence to support the
remaining two aggravators. See Cargle, 317 F.3d at 1225.

20
their constitutional rights to a fair trial and to confrontation. See Bruton v.

United States , 391 U.S. 123 (1968). Additionally, both argue that introduction of

these statements resulted in a constitutionally unfair trial, and, therefore, the trial

court should have severed their trials. 11
Because Spears and Powell base their

severance claims on the Bruton errors, we first address the Bruton claims and then

the severance claims.

a. Bruton

In Bruton , the Supreme Court held that

a defendant is deprived of his rights under the Confrontation Clause
when his nontestifying codefendant’s confession naming him as a
participant in the crime is introduced at their joint trial, even if the
jury is instructed to consider that confession only against the
codefendant.

Richardson v. Marsh , 481 U.S. 200, 201–02 (1987); see also id. at 207; Cruz v.

New York , 481 U.S. 186, 187–88 (1987). Bruton applies, however, only if the

statement expressly implicates the defendant. See Richardson , 481 U.S. at 208.

“Richardson allows a court, despite the Confrontation Clause, to admit the

confession of a non-testifying co-defendant [that does not expressly implicate the

defendant]. The confession must be (i) redacted to eliminate any reference to the

non-confessing defendant, and (ii) accompanied by an appropriate limiting

11
Powell raised the severance and Bruton claims as separate issues, whereas
Spears treated them as a single issue. Nonetheless, both make similar claims,
thereby making it appropriate for us to consider their arguments together.

21
instruction that the confession is to be considered only against the confessor.”

Fowler v. Ward , 200 F.3d 1302, 1307 (10th Cir. 2000) (citing Richardson ,

481 U.S. at 211), overruled on other grounds by Moore v. Marr , 254 F.3d 1235,

1239 (10th Cir. 2001). “This is clearly a two-pronged requirement; a redaction,

no matter how perfect, nevertheless requires an appropriate limiting instruction

immediately following the admission of the confession.” Id.

i. Spears

Under Bruton , Spears first challenges Officer Wigley’s testimony

concerning Powell’s statement. Officer Wigley testified as follows:

A [Powell 12 ] said that he had been riding around Pauls Valley
drinking with some others.

Q Did he name those others?

A Yes, he did.

Q Okay. That’s fine.

A And they had been riding around Pauls Valley drinking, and they
had picked up various riders at different locations. And that they
ended up at the Klondike Cemetery at the cattle guard and gate area,
at the road leading up to the cemetery.
***
A He said that they got out of the pickup at the gate and stood
around drinking there for a little while. Then they proceeded to walk
up the road which leads to the cemetery. After they had traveled
some distance, he decided that he would whip [Thompson’s] ass or

12
In his testimony, Officer Wigley referred to Powell, Thompson, and Johnson
by their first names.

22
 kick . . . [Thompson’s] ass.
***
A At which time [Powell] then struck [Thompson] in the face. And
[Thompson] went to the ground, at which time he began to kick and
stomp [Thompson] along with the others. They–they beat him for
sometime. I’m not sure of the time that they were there beating
on him.

Then they walked away from the body. And [Powell] said that it was
decided they would steal the pickup, and that they were going to have
to kill [Thompson]. They returned to the body, at which time a knife
had been produced, and that [Johnson] took the knife and began
stabbing [Thompson].

(4 Tr. at 1113–14.) Thus, in paraphrasing Powell’s out-of-court statement,

Officer Wigley made general reference to the group involved in the murder but

did not mention Spears by name.

Spears argues that given that: (1) both Hensley and Daniels had testified

and identified Spears as one of those persons who participated in the crime prior

to Officer Wigley’s testimony, and (2) Johnson testified immediately after Officer

Wigley and named Spears as part of the group, Officer Wigley’s references to

“others” and “they” were transparent, making it obvious that Officer Wigley was

referring to him.

Because Powell’s statement, as presented by Officer Wigley, was not

incriminating on its face, and became incriminating only after it was linked to

evidence introduced before and after Officer Wigley’s testimony, see Richardson ,

481 U.S. at 208, admitting Powell’s statement did not violate Bruton principles if

23
the statement was properly modified to eliminate any reference to Spears and the

trial court gave an appropriate limiting instruction. See Fowler , 200 F.3d at 1307

(citing Richardson , 481 U.S. at 211).

As the above-quoted testimony shows, Officer Wigley paraphrased Powell’s

statement to eliminate any reference to Spears by using the neutral pronouns

“others” and “they.” Although the Supreme Court has “express[ed] no opinion on

the admissibility of a confession in which the defendant’s name has been replaced

with a . . . neutral pronoun[,]” Richardson , 481 U.S. at 211 n.3, this court has held

that neutral pronouns are proper, if a defendant’s incrimination is by reference to

evidence other than the modified statement and the jury receives a proper limiting

instruction. See United States v. Verduzco-Martinez , 186 F.3d 1208, 1214 (10th

Cir. 1999); United States v. Green , 115 F.3d 1479, 1484–85 (10th Cir. 1997); see

also Gray v. Maryland , 523 U.S. 185,194-96 (1998) ( recognizing that proper

modification incriminates inferentially and does not point directly to defendant).

Because Officer Wigley did not mention Spears by name or description, any

inference connecting Spears to the statement could be made only after considering

additional evidence. See Verduzco-Martinez , 186 F.3d at 1214. Thus,

Powell’s statement was properly modified by Officer Wigley.

Despite the proper modification, however, Spears correctly argues that the

trial court failed to give a proper limiting instruction after admitting Officer

24
Wigley’s paraphrase of Powell’s confession. We agree that this failure resulted in

constitutional error. See Fowler , 200 F.3d at 1307. The general instruction given

at the end of the trial charging the jury to give separate consideration to each

defendant was insufficient to satisfy Richardson . Id. at 1307. “The Richardson

limiting instruction must be given immediately following the introduction of the

co-defendant’s confession to safeguard against inappropriate use of the

confession against the non-confessing co-defendant.” Id.

When faced with a Bruton error, harmless-error analysis applies to decide

entitlement to relief. Harmless error is assessed “in the context of the entire

case.” Lee v. Illinois , 476 U.S. 530, 547 (1986); cf. Fowler , 200 F.3d at 1307

(pre-AEDPA) (assessing harmless error under Brecht v. Abrahamson , 507 U.S.

619, 637 (1993)). The OCCA decided that any Bruton error was harmless, 13
and

we conclude that this holding was not contrary to or an unreasonable application

of Chapman v. California , 386 U.S. 18, 24 (1967). 14
See Spears , 900 P.2d at 444

13
Although the OCCA decided that Powell’s statement, as modified, did not
incriminate Spears, it did not address whether the trial court gave an appropriate
limiting instruction. See Spears, 900 P.2d at 444. Instead, assuming the
statement was incriminating, the OCCA proceeded to consider harmless error.
See id.
14
The federal district court relied on Brecht in assessing harmless error. We have
held that federal courts do not review based on Brecht when the OCCA has
applied the harmless-beyond-a-reasonable-doubt standard set forth in Chapman.
See Willingham, 296 F.3d at 927 n.4. Here, there is a state-court-Chapman
determination to defer to under 28 U.S.C. § 2254(d). Thus, we must decide
(continued...)

25
(applying without citing Chapman ); 28 U.S.C. § 2254(d)(1). Our review of the

record reveals nothing that would demonstrate actual prejudice. Officer Wigley

made no reference to Spears in restating Powell’s confession. More importantly,

Powell’s statement was not vitally important to the State’s case against Spears.

Rather, other independent evidence pointed to Spears’ involvement in the murder.

Three eye-witnesses—Hensley, Daniels and Johnson—testified about Spears’

participation in beating Thompson. Johnson testified about Spears’ participation

in the later stabbing. Therefore, the erroneously admitted statement was merely

cumulative to other uncontroverted evidence that was properly before the jury.

See Brown v. United States , 411 U.S. 223, 231 (1973). Furthermore, this case

was not so complex that the jury could not fairly evaluate the evidence against

each co-defendant. Nor would the jury have found the State’s case significantly

less persuasive had Officer Wigley’s testimony been excluded. See Schneble v.

Florida , 405 U.S. 427, 432 (1972).

Spears also argues that the testimony of Hensley and Daniels, implicating

him in the murder, violated Bruton . Specifically, he objects to Hensley’s

testimony that Powell asked the group, including Spears, who was going to hit

Thompson, and to Daniels’ testimony concerning a conversation about the

(...continued)
14

whether the state court’s finding of harmless error was contrary to or an
unreasonable application of Chapman.

26
stabbing that Daniels had with Powell while the two were in jail. Daniels’

testimony, according to Spears, was the only evidence corroborating Johnson’s

testimony concerning the stabbing.

Recognizing that Hensley’s and Daniels’ testimony relating Powell’s

statements, which inculpated Spears, should not have been admitted, the OCCA

nonetheless concluded that any error was harmless beyond a reasonable doubt

because “other evidence” showed Spears’ participation in the crime. Spears , 900

P.2d at 444 (applying without citing Chapman ). Assuming these statements

violated Bruton , we conclude that the OCCA’s harmless-error determination was

not contrary to or an unreasonable application of Chapman . 15 See 28 U.S.C.

§ 2254(d)(1).

Spears argues that admission of these statements was not harmless error

because the “other evidence” to which the OCCA refers came from Hensley and

Johnson, and was not credible. Specifically, Spears contends Johnson had a deal

with the prosecutor and Hensley’s preliminary-hearing testimony differed from

her trial testimony because she and the prosecutor reached a deal resulting in her

release from jail. On this point, we note that the jury received sufficient

information to evaluate the credibility of both Hensley’s and Johnson’s testimony.

15
Again, we note that the district court incorrectly assessed harmless error under
the Brecht standard.

27
Hensley informed the jury that she had been required to post a material-witness

bond, and that the bond had been drastically reduced. She testified that the State

had given her no incentive to testify and that she had lied in her prior written

statements and during her preliminary-hearing testimony to cover up for her then-

boyfriend Spears. She knew she could yet be charged with perjury for giving

false statements. Moreover, she admitted at trial that she had just remembered

that Spears and Powell had talked in the truck on the way to the cemetery about

beating Thompson and taking his truck. Lastly, she informed the jury of her

confinement and later release from jail. Similarly, Johnson fully informed the

jury about the plea agreement, enabling the jury to evaluate the credibility of his

testimony. In sum, when taken in the context of the entire trial, any agreement

that Johnson and Hensley may have had with the prosecution does not establish

that any assumed Bruton error was harmful. Hensley, Daniels and Johnson all

testified consistently about the murder, and their testimony was uncontroverted.

As a final argument, Spears contends that the cumulative effect of the

Bruton errors identified by the OCCA deprived him of a fair trial. 16
Spears did

not raise this claim in state court. However, because the State does not contend

that this claim is procedurally barred, we consider Spears’ argument on its merits.

16
Because we affirm the grant of habeas relief from Spears’ sentence, we need
not decide Spears’ argument that failure to sever affected the trial’s second stage.

28
See Hooks v. Ward , 184 F.3d 1206, 1216–17 (10th Cir. 1999) (recognizing that

the State bears the burden of asserting procedural default). We may deny relief

on the merits of a claim even if that claim has not been exhausted in state court.

See 28 U.S.C. § 2254(b)(2).

Although each of the individual Bruton errors was harmless, “the

cumulative effect of two or more individually harmless errors has the potential to

prejudice a defendant to the same extent as a single reversible error.” Duckett ,

306 F.3d at 992 (quotation omitted). “A cumulative-error analysis merely

aggregates all the errors that individually have been found to be harmless, and

therefore not reversible, and it analyzes whether their cumulative effect on the

outcome of the trial is such that collectively they can no longer be determined to

be harmless.” Id. (quotation omitted). We conclude that the Bruton errors, even

when accumulated, did not have a sufficiently prejudicial effect to deny Spears a

fair trial. Strong, consistent evidence supported his conviction.

ii. Powell

Powell argues that he was deprived of his right to a fair trial and his right

to confront witnesses by the State’s introduction of Spears’ out-of-court

statement. See Bruton, 391 U.S. at 126. Specifically, Powell objects to

Johnson’s testimony that Spears told Johnson and Powell that they had to kill

29
Thompson because he could testify against them. 17

Concluding that the statement should not have been admitted as it violated

Bruton, 18 the OCCA nevertheless held that any error was harmless beyond a

reasonable doubt because the properly admitted evidence was overwhelming and

the prejudicial effect of the statement was insignificant. Powell, 906 P.2d at

772–73 (citing, e.g., Cruz, 481 U.S. 186). In reaching this conclusion, the court

noted:

Powell admitted he had decided to “kick [Thompson’s] ass.” He
admitted he beat, kicked and stomped Thompson with the others.
Powell admitted after the beating it was decided that they would have
to kill Thompson. Given Powell’s confession and the testimony of
the other witnesses, it is inconceivable the admission of Spears’
statement contributed to the verdict.

Id. at 773. Assuming a Bruton error, we conclude, in light of the substantial other

evidence presented, that the OCCA’s harmlessness determination was not contrary

17
In light of our affirmance of the district court’s grant of habeas relief, we need
not address Powell’s contention that the State improperly relied on this challenged
statement to prove he committed the murder to avoid arrest and prosecution. Nor
do we reach Powell’s argument that the failure to sever also affected the trial’s
second stage.
18
The OCCA noted Johnson’s testimony that Spears told him and Powell that
they had to kill Thompson so that Thompson could not testify against them was
“an atypical Bruton problem because the statement was made to two other
co-defendants rather than the police and does not directly implicate Powell.”
Powell, 906 P.2d at 772. Recognizing the statement is circumstantial evidence of
intent to murder, the court decided the statement fell within the parameters of
Bruton. Id. at 772–73.

30
to or an unreasonable application of Chapman. 19 See 28 U.S.C. § 2254(d)(1).

b. Severance

Spears and Powell both argue that the trial court violated their

constitutional right to a fair trial by failing to sever their trials. As evidence of

the prejudice resulting from the failure to sever, both point to the Bruton errors

discussed above. In reviewing these claims, we are mindful that “[w]hether the

trial court erred in denying severance is generally a question of state law that is

not cognizable on federal habeas appeal, . . . for a criminal defendant has no

constitutional right to severance unless there is a strong showing of prejudice

caused by the joint trial.” Cummings v. Evans, 161 F.3d 610, 619 (10th Cir.

1998). “Evidence that is probative of a defendant’s guilt but technically

admissible only against a codefendant . . . might present a risk of prejudice.”

Zafiro v. United States, 506 U.S. 534, 539 (1993) (citing Bruton). A Bruton

problem alone, however, is insufficient to require severance. See United States v.

Hill, 901 F.2d 880, 883 (10th Cir. 1990).

Because, as discussed above, any Bruton error was harmless, the joint trial

did not prejudice Powell or Spears. Even if there were a risk of prejudice, the

trial court properly instructed the jury that: (1) the State had the burden of

19
As previously noted, the federal district court incorrectly relied on Brecht in
assessing harmless error.

31
proving beyond a reasonable doubt that both Spears and Powell committed

first-degree murder; (2) the jury must give separate consideration to each

individual defendant; and (3) the jury should draw no inferences from Powell’s

and Spears’ decision not to testify. “These instructions sufficed to cure any

possibility of prejudice.” Zafiro, 506 U.S. at 541 (considering severance under

Fed. R. Crim. P. 14). Thus, neither Powell nor Spears can establish prejudice so

severe that they were denied their right to a fair trial. Accordingly, the OCCA’s

decisions upholding the joint trial were not unreasonable. See Powell , 906 P.2d

at 773; Spears , 900 P.2d at 444; see also 28 U.S.C. § 2254(d)(1).

2. Unanimous Guilty Verdict and Sufficiency of the Evidence

Spears and Powell argue that they were denied their constitutional right to a

unanimous jury verdict. The Bindover Information alternatively charged them

with two counts: first-degree malice murder and first-degree felony murder.

Although the trial court instructed the jury on the need for a unanimous verdict,

the court did not instruct the jury that its verdict must be unanimous on one count

or the other. Furthermore, the verdict form did not distinguish between the two

alternative counts and therefore did not indicate whether the jury believed Spears

and Powell committed first-degree-malice or felony murder or both. Thus, Spears

and Powell both contend that there was no unanimous verdict on either malice or

felony murder, and because insufficient evidence supported both murder theories,

32
the lack-of-a-unanimous-verdict problem remained.

a. Unanimous Guilty Verdict

While Spears and Powell acknowledge that the Supreme Court has held that

a non-unanimous first-degree-murder verdict under similar circumstances does

not violate the Constitution, Schad v. Arizona , 501 U.S. 624, 627, 645 (1991)

(plurality opinion), they nonetheless argue that their cases present extreme

examples not covered by Schad . Further, they contend Schad does not square

with the Supreme Court’s holdings in Apprendi v. New Jersey , 530 U.S. 466

(2000), that a jury must find all elements of a crime, or In re Winship , 397 U.S.

358, 364 (1970), that proof must be beyond a reasonable doubt. 20

Despite wishful thinking to the contrary, Schad is controlling. This court

has explained that “Oklahoma statutes have long defined the offense of ‘murder’

or ‘first degree murder’ as encompassing both malice aforethought murder and

felony murder. Consistent therewith, the OCCA has characterized malice

20
We need not consider Spears’ and Powell’s argument that Apprendi changes
this result because Apprendi does not apply retroactively. See United States v.
Mora, 293 F.3d 1213, 1219 (10th Cir.), cert. denied, 123 S. Ct. 388 (2002). Even
were we to consider this argument on its merits, we would conclude that Apprendi
does not change the result. Apprendi held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490. Here, the State charged Spears and Powell with, and the
jury found them guilty of, first-degree murder, after finding that the State proved
that crime beyond a reasonable doubt. Apprendi does not indicate in any way that
it overrules Schad.

33
aforethought murder and felony murder as different theories for the same general

offense of first degree murder.” Hain v. Gibson , 287 F.3d 1224, 1232 & n.5 (10th

Cir. 2002) (recognizing this is consistent with Schad ) (footnote and citation

omitted), cert. denied , 123 S. Ct. 993 (2003); see Williamson v. Ward , 110 F.3d

1508, 1523 (10th Cir. 1997) (citing Schad and holding that there was no

deprivation of a constitutional right under similar factual circumstances).

Accordingly, we conclude that the OCCA reasonably decided that although “the

jury was not instructed to find unanimously that [they] had committed first degree

murder either with malice aforethought or during the course of armed robbery,”

Powell , 906 P.2d at 775; Spears , 900 P.2d at 441, Spears and Powell were not

denied due process. 21

Spears and Powell next challenge the OCCA’s determination that the

instructions actually required proof of both first-degree-murder alternatives.

21
The OCCA decided that Spears and Powell had waived all but plain-error
review and therefore the due process issue was not properly preserved for review.
Powell, 906 P.2d at 775; Spears, 900 P.2d at 441. Even if the issue had been
properly preserved, the court held that there was no due process violation when
the verdict did not indicate whether the jury found first-degree malice murder or
first-degree felony murder because the indictment charged a single crime of
first-degree murder and also because the State proved both malice and felony
murder. Powell, 906 P.2d at 775–76; Spears, 900 P.2d at 442. Because the state
court denied relief on the merits of the federal claim on plain-error review,
procedural-bar principles do not apply. See Cargle, 317 F.3d at 1206. Thus, the
state-court disposition is entitled to deference under AEDPA due to this “form of
merits review.” Id.

34
Powell , 906 P.2d at 775 n.11; Spears , 900 P.2d at 441 n.11; see also Romano v.

State , 909 P.2d 92, 121 (Okla. Crim. App. 1995) (presuming that the jury found

evidence sufficient to support both malice and felony murder where defendant

was charged alternatively with malice and felony murder and there were no

separate verdict forms for each type of murder). We need not address this

challenge to the jury instructions, because, as discussed below, sufficient

evidence supported a finding of each type of first-degree murder.

Lastly, Powell adds to this argument the claim that he was never charged

with an underlying felony and therefore there is no proof he was guilty of robbery

with a dangerous weapon. 22
According to Powell, this precludes a conviction for

felony murder. Although Powell did not raise this issue on direct appeal, we

consider and reject this claim on its merits. See 28 U.S.C. § 2254(b)(2)

(permitting denial of relief on merits of unexhausted claim); Hooks , 184 F.3d at

1216–17 (requiring State to argue procedural bar).

Powell fails to cite Oklahoma authority, and we find none, establishing that

he must be charged with an underlying felony in order to be charged with or

22
Powell argues that his death sentence was constitutionally impermissible
because the jury could have convicted him of felony murder as merely an
accomplice to the robbery with a dangerous weapon, citing Tison v. Arizona,
481 U.S. 137 (1987), and Enmund v. Florida, 458 U.S. 782, 797 (1982). Because
we affirm the district court’s grant of habeas relief from Powell’s sentence, we
need not address this argument.

35
found guilty of felony murder. Although the Bindover Information did not charge

Powell with an underlying felony, in charging felony murder, it did clearly allege

robbery and provided relevant facts. ( See O.R. at 1.) Specifically, it alleged that

Powell was “engaged in committing the crime of Robbery by Force” “by

wrongfully taking and carrying away” the victim’s truck and billfold, which were

in the victim’s possession and immediate presence, “without [the victim’s]

consent and against his will” “by means of force and violence” at the time Powell,

Spears and Johnson killed the victim. ( Id. ; see also id. at 118 (indicating that the

underlying felony is “Robbery With A Dangerous Weapon” in first stage

Instructions 14 and 15)) . We conclude that this gave Powell sufficient notice of

the underlying felony.

b. Sufficiency of the Evidence

Spears and Powell argue that insufficient evidence existed to support a

finding of either malice murder or felony murder. It is settled that habeas

petitioners may challenge the sufficiency of the evidence in federal habeas corpus

proceedings. See Torres v. Mullin , 317 F.3d 1145, 1151 (10th Cir. 2003); see

also Jackson v. Virginia , 443 U.S. 307, 322 (1979) (“A challenge to a state

conviction brought on the ground that the evidence cannot fairly be deemed

sufficient to have established guilt beyond a reasonable doubt states a federal

constitutional claim.”). “[V]iewing the evidence in the light most favorable to the

36
[State],” we will grant habeas relief only if “no rational trier of fact could have

found proof of guilt beyond a reasonable doubt.” Jackson , 443 U.S. at 319, 324.

The Jackson standard “gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Id. at 319.

We review sufficiency of the evidence as a question of law. See Griffin v.

United States , 502 U.S. 46, 58–59 (1991) (indicating that insufficiency of proof is

legal error); see also Torres , 317 F.3d at 1151–52 (viewing, under circumstances

of that case, sufficiency of evidence as a legal question). Under AEDPA, our

review is limited to deciding whether the OCCA’s decisions that there was

sufficient evidence to support a jury’s finding of both malice murder and felony

murder for both Spears and Powell were contrary to or an unreasonable

application of Jackson . See 28 U.S.C. § 2254(d)(1); Powell , 906 P.2d at 773–75;

Spears , 900 P.2d at 438–40.

Oklahoma law provides the substantive elements of malice and felony

murder applicable to the sufficiency of the evidence standard. Torres , 317 F.3d

at 1152; see also Jackson , 443 U.S. at 324 n.16. In relevant part, the Oklahoma

first-degree murder statute provides:

A person commits murder in the first degree when that person
unlawfully and with malice aforethought causes the death of another
human being. Malice is that deliberate intention unlawfully to take
away the life of a human being, which is manifested by external

37
 circumstances capable of proof.

A person also 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 of . . . robbery with a dangerous weapon . . . .

Okla. Stat. tit. 21, § 701.7A & B.

Additionally, Oklahoma designates as principals persons who aid and abet

the commission of a murder. Id. § 172.

The Oklahoma Court of Criminal Appeals has specified that in order
to convict an aider and abetter as a principal in a first degree murder
prosecution, the prosecution must prove: (1) that the defendant
personally intended the death of the victim; and (2) that the
defendant aided and abetted with full knowledge of the perpetrator’s
intent. [A]iding and abetting involves acts, words or gestures
encouraging the commission of the offense, either before or at the
time of the offense. [M]ere mental assent to or acquiescence in the
commission of a crime by one who did not procure or advise its
perpetration, who takes no part therein, gives no counsel and utters
no word of encouragement to the perpetrator, however wrong
morally, does not in law constitute such person a participant in the
crime.

Wingfield v. Massie , 122 F.3d 1329, 1332 (10th Cir. 1997) (quotations and

citations to OCCA cases omitted); see also Torres , 317 F.3d at 1152–53. In

assessing intent on sufficiency of the evidence review, this court recognizes,

[f]irst, a jury is permitted to draw inferences of subjective intent
from a defendant’s objective acts. Thus, even when a defendant . . .
denies having the requisite intent, a jury may disbelieve the
defendant if [the defendant’s] words and acts in the light of all the
circumstances make [the defendant’s] explanation seem improbable.
Second, a jury is permitted to find that a defendant intends those
consequences which he announces a desire to accomplish.

38
Wingfield , 122 F.3d at 1333 (quotation and citations omitted); see also Torres ,

317 F.3d at 1153.

i. Spears and Malice Murder

Spears argues that there was insufficient evidence to support a

malice-murder conviction because all of the direct evidence of his intent to kill

came after Thompson was already dead. Applying the Jackson standard, the

OCCA concluded that the evidence was sufficient to support the jury’s finding

that Spears aided and abetted Powell in the commission of malice murder.

Spears, 900 P.2d at 438–39 (applying but not citing Jackson); see also Woodford,

123 S. Ct. at 360 (presuming that state courts know and follow the law and giving

the state-court decision the benefit of the doubt under AEDPA); Torres, 317 F.3d

at 1152 n.3 (assuming that the OCCA applied Jackson even though the court did

not cite it). In light of evidence that Spears believed Thompson was alive at the

time he said that he, Powell, and Johnson needed to kill Thompson, and both

Powell and Daniels heard noises coming from Thompson during the beating, the

OCCA concluded that the jury could have found that Thompson was still alive at

the time Spears entered the attack and Spears’ blows therefore contributed to

Thompson’s death. Spears, 900 P.2d at 438–39. The OCCA stated that

there was evidence Spears knew Powell was going to beat
Thompson and was present when Powell told Johnson and
Daniels to join in after he landed the initial blow. According
to Hensley, Daniels and Johnson, Spears willingly joined in the

39
 attack on Thompson and beat, stomped and kicked him with
Johnson and Powell. Spears’ actions belie his assertion that he
did not aid and abet in the murder of Thompson. As we said in
Dumire v. State, 758 P.2d 829, 830-31 (Okla. [Crim. App.]
1988), “[i]t is irrelevant that the defendant may not have
actually struck the fatal blow. His voluntary participation and
cooperation in the attack established [his] guilt as an equally
culpable principal.”

Id. at 439.

Our review of the trial record supports the OCCA’s decision. Spears

anticipated and participated in a sustained attack against a helpless victim, who

did not provoke the fatal attack. Spears, Powell and Johnson repeatedly jumped

on and kicked Thompson’s head and body for at least three minutes, leaving

Thompson’s body next to the road at the cemetery. Johnson testified that,

although they did not start beating Thompson with the intent to kill, at some point

they developed the intent to kill and knew what they were doing. Moreover,

Spears was aware that they risked killing Thompson, and Daniels testified that he

thought at some point Thompson would die from the beating. See Hooks v. State ,

862 P.2d 1273, 1280 (Okla. Crim. App. 1993) (holding that where the victim was

a target of a sustained and relentless attack, and the victim received multiple

injuries, circumstantial evidence was sufficient to prove that the defendant, at

some point during the attack, formed the intent to kill the victim).

After the beating took place, Spears’ intent to kill became yet more

apparent. Spears said that they had to kill Thompson, because he could testify

40
against them. Spears provided the knife to stab Thompson, and there was

evidence that Thompson was alive at the time the stabbing began. Johnson

testified that when he first stabbed Thompson, blood squirted and hit him in the

eye, suggesting the presence of blood pressure. Powell verified that Thompson

was breathing right before Spears, Johnson and Powell stabbed him. Furthermore,

the medical examiner testified that two of the stab wounds may have been

peri-mortem. Additional evidence showed that Spears provided Hensley and

Daniels with an alibi story, and Spears never expressed remorse after the killing.

See Wingfield , 122 F.3d at 1333.

Viewing the evidence in its totality, we conclude that there was

considerable evidence of Spears’ involvement in Thompson’s murder. Given this

evidence, we cannot conclude that the OCCA’s application of Jackson was

objectively unreasonable. 23
See Torres , 317 F.3d at 1156; see 28 U.S.C.

23
Spears asserts that the OCCA altered the requirements for aider-and-abetter
liability in his case. At the time of Spears’ appeal, Oklahoma law required that
the aider and abettor (1) personally intended the death of the victim; and (2) aided
and abetted with full knowledge of the intent of the perpetrator. In denying
Spears post-conviction relief, the OCCA provided the following definition of
aiding and abetting:

Aiding and abetting in a crime requires the State to show that the accused
procured the crime to be done, or aided, assisted, abetted, advised or
encouraged the commission of the crime. While we have held mere
presence or acquiescence, without participation, does not constitute a
crime, only slight participation is needed to change a person’s status from
(continued...)

41
§ 2254(d)(1).

ii. Spears and Felony Murder

Spears argues that, because the evidence supporting the underlying felony

of robbery with a dangerous weapon was weak, the evidence supporting felony

murder was necessarily weak as well. The OCCA held that “a rational jury

viewing the evidence in the light most favorable to the State could find the State

proved beyond a reasonable doubt that Spears participated in taking Thompson’s

pickup.” Spears, 900 P.2d at 439 (applying without citing Jackson). The OCCA

pointed to the following evidence to support Spears’ taking of the truck:

During the evening of September 21, 1990, Spears proposed the
group drive out to the Klondike Cemetery. Hensley and Johnson
testified as they drove out to the cemetery Powell and Spears
discussed beating Thompson and taking his pickup. When they
arrived at the cemetery, Powell told Spears, Johnson and Daniels he
would strike Thompson as they walked towards the cemetery and
advised the others to join in. The group started towards the cemetery
and Powell struck Thompson in the head. Johnson and then Spears
joined Powell in kicking, stomping and beating Thompson. When
Powell, Spears and Johnson returned to the pickup, they took the
pickup and Thompson’s wallet. Spears directed Johnson to take the
truck to Tulsa and sell it. While Spears may not have driven
Thompson’s pickup from the cemetery or taken it to Tulsa, we find

23
(...continued)
mere spectator into an aider and abettor.

Spears, 900 P.2d at 438 (citations omitted); cf. Wingfield, 122 F.3d at 1332. We
are not convinced that the OCCA altered the aider-and-abetter requirements, and a
state court may interpret its own laws. See Garner v. Louisiana, 368 U.S. 157,
166 (1961); see also Willingham, 296 F.3d at 923.

42
 directing its disposition certainly constitutes aiding and abetting. . . .
[This] evidence sufficiently proves Spears wrongfully took
Thompson’s pickup from him by force using his hands and feet as
dangerous weapons.

Id. (footnote omitted).

Recognizing that “killing may precede, coincide with or follow the robbery

and still be done in the commission of robbery with a dangerous weapon,” the

OCCA found that there was sufficient evidence to prove that Spears killed

Thompson during the commission of a robbery with a dangerous weapon:

Hensley and Johnson testified they heard Spears and Powell talking
about beating Thompson and taking his pickup. Spears and Powell
then carried out their plan by beating and later stabbing Thompson
and taking his truck. Spears directed Johnson to take Thompson’s
pickup to Tulsa and sell it. This evidence sufficiently established a
plan to rob and beat Thompson which was then carried out. Clearly,
Thompson was killed during the course of the robbery.

Id. at 440. Spears clearly participated in the beating and stabbing and in the plan

to dispose of the truck. Even though Spears did not personally take the truck, his

participation established his guilt under Oklahoma law. This leads to our

conclusion that the OCCA’s determination was not an unreasonable application of

Jackson. See 28 U.S.C. § 2254(d)(1).

iii. Powell and Felony Murder

Powell argues that there was insufficient evidence to show that robbery was

the motive for the murder or that he had the intent to commit robbery with a

dangerous weapon. According to Powell, the evidence showed that he intended to

43
beat Thompson, but did not intend to kill him or steal his truck or wallet. As

succor, Powell points to evidence that Thompson permitted others to drive his

pickup the night of the murder and that Johnson bought beer because Thompson

had no money. Powell also points to evidence indicating that, after the beating,

Daniels suggested taking Thompson’s wallet, and Powell did not want any of the

proceeds of the truck after Johnson sold it. Finally, Powell asserts that he was not

informed of a meeting between the prosecutor and Hensley held after the

preliminary hearing, during which Hensley, for the first time, remembered the on-

the-way-to-the-cemetery discussion between Powell and Spears about taking

Thompson’s pickup, and after which she was released from jail.

Considering the testimony of Hensley and Johnson, that they heard Powell

and Spears talking about beating Thompson and taking his truck before the attack,

the OCCA found that there was sufficient evidence to show that Powell intended

to rob Thompson. Powell , 906 P.2d at 773–74. We agree that this evidence,

viewed in the light most favorable to the State, is sufficient to show that robbery

was the motive for the homicide, and conclude that the OCCA’s decision

therefore was not an unreasonable application of Jackson . See 28 U.S.C.

§ 2254(d)(1).

Further, Powell argues that there was insufficient evidence to show that the

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

44
because the group had permission to drive Thompson’s truck and Thompson was

killed before anyone suggested taking his wallet. Powell also argues that, because

Thompson was dead before the robbery, there was no relationship between the

killing and the robbery.

Recognizing that in Oklahoma a “killing may precede, coincide with or

follow the robbery and still be done in the commission of robbery with a

dangerous weapon,” the OCCA decided that “a rational jury viewing the evidence

in the light most favorable to the State could find the State proved beyond a

reasonable doubt all of the essential elements of First Degree Felony Murder with

the underlying felony of Robbery with a Dangerous Weapon.” Powell , 906 P.2d

at 774 (applying without citing Jackson ). The court pointed to evidence

establishing a plan to rob and beat Thompson, which was then carried out:

Hensley and Johnson testified that as they drove out to the cemetery
Powell and Spears talked about beating Thompson and taking his
pickup. Hensley testified she heard Powell ask “[w]ho is going to hit
him first” as the group walked towards the cemetery. Powell, Spears
and Johnson then attacked Thompson. When Powell, Spears and
Johnson returned to the pickup, they took Thompson’s pickup and
retrieved his wallet. . . .

Additionally, Powell admitted he struck, stomped and kicked
Thompson. He confessed that after the initial beating he, Spears and
Johnson decided to steal Thompson’s pickup and kill Thompson.
They went back to where Thompson was lying and all three stabbed
him. Because two of the stab wounds were perimortem establishing
Thompson was not dead when the stabbing began, Powell’s
admission they decided to kill Thompson and steal his pickup is
sufficient to show they killed Thompson during their robbery plan.

45
Id. Based upon the totality of the evidence , we conclude that the OCCA’s

determination was a reasonable application of Jackson. See 28 U.S.C.

§ 2254(d)(1).

Finally, Powell argues that there was no evidence that Thompson was killed

with Powell’s tennis shoes or a knife. Notably, on direct appeal and in his habeas

petition, Powell argued solely that there was no evidence that a knife was the

dangerous weapon. Indeed, on direct appeal, Powell argued that it was “arguably

supportable” that the shoes were a dangerous weapon. (Powell’s Direct Appeal

Br. at 34.)

The OCCA’s conclusion that Powell took the pickup by use of a dangerous

weapon, either by Powell’s hands or feet, or the knife, was reasonable. 24 See

Powell, 906 P.2d at 774–75; 28 U.S.C. § 2254(d)(1). Evidence at trial showed

that Thompson was alive when the stabbing began, as two of the stab wounds

were peri-mortem, and Johnson testified that with his first stab, blood squirted

into his eyes. Even if Thompson was not alive at the time of the stabbing, it is

undisputed that Powell used his hands and feet to inflict a beating.

iv. Powell and Malice Murder

24
Even assuming he had the intent to rob Thompson, Powell argues that the
robbery was merely a robbery by fear or force and his conviction therefore should
be modified to second-degree felony murder. The record does not support this
assertion.

46
 Powell argues that the evidence was insufficient to show that he killed

Thompson with malice aforethought. Rather, he contends that the evidence shows

only that he had the intent to beat Thompson, but was forced to stab him. Powell

further argues that it was undisputed that Thompson was already dead when he

stabbed Thompson and that any intent Spears had to kill Thompson could not be

imputed to Powell. Lastly, Powell asserts that he could not form the specific

intent to kill because he was under the influence of alcohol at the time of the

incident.

Recognizing that a design to commit murder can be formed instantly, the

OCCA rejected Powell’s argument, deciding that a rational jury could find Powell

guilty of malice murder:

Powell told Hensley and Daniels he wanted to assault Thompson.
Powell admitted he repeatedly beat, stomped and kicked Thompson.
After the initial beating, Powell, Spears and Johnson decided to steal
Thompson’s truck and to kill him. They went back to Thompson’s
body and repeatedly stabbed him. Johnson testified they did not
initially intend to kill Thompson, but at some point they changed
their minds and intended to kill him. Both Daniels and Johnson
testified Powell instigated the beating of Thompson. Powell’s own
admissions support his conviction for First Degree Malice Murder.

Powell, 906 P.2d at 775.

We conclude that this determination constituted a reasonable application of

Jackson. See 28 U.S.C. § 2254(d)(1). In Oklahoma, external circumstances are

evidence of an intent to commit murder. See Okla. Stat. tit. 21, § 701.7(A); see

47
also O.R. at 118, Instruction No. 13 (indicating that “words, conduct, demeanor,

motive, and all other [external] circumstances” may be considered in determining

whether a defendant had intent to kill). Circumstantial evidence of Powell’s

intent to commit murder is compelling—most probative of his intent is the

duration and violence of the beating. Powell forcefully hit, jumped on and kicked

Thompson’s head and body for three to ten minutes, the beating continued after

Thompson was helpless, and the attackers left the body at the remote cemetery

site. After the beating and before he stabbed Thompson, Powell checked on

Thompson’s breathing and heartbeat. As the district court decided, a reasonable

interpretation of this evidence is that Powell formed an intent to kill during the

beating and, when under the impression that Thompson was still alive, Powell and

his co-defendants stabbed Thompson to ensure his death. See Okla. Stat. tit. 21, §

702 (“A design to effect death is inferred from the fact of killing, unless the

circumstances raise a reasonable doubt whether such design existed.”); id. § 703

(“A design to effect death sufficient to constitute murder may be formed instantly

before committing the act by which it is carried into execution.”). Regardless

whether Powell voluntarily stabbed Thompson and whether Thompson was dead

by the time Powell stabbed him, the jury reasonably could infer an intent to kill

from this beating. Furthermore, as discussed below, see infra Section III.B.3.,

Powell was not sufficiently intoxicated to preclude him from forming the intent to

48
murder.

3. Failure to Instruct on Voluntary Intoxication and Manslaughter

Powell contends that the trial court should have instructed the jury on

voluntary intoxication and first-degree diminished-capacity manslaughter—that

the evidence raises a reasonable doubt about his ability to form the specific intent

to commit malice murder due to the quantity of alcohol he consumed on the

evening of the homicide.

As to this allegation, the OCCA held that there was insufficient evidence to

support voluntary intoxication and first-degree manslaughter instructions because

there was no evidence that Powell was so intoxicated that he was unable to form

the necessary intent to commit first-degree malice murder. Powell, 906 P.2d at

778. To the contrary, the court found that the evidence showed that “Powell was

in control of his mental faculties and not in an advanced state of intoxication.”

Id. In so deciding, the court noted the following evidence:

Hensley, Daniels and Johnson described Powell as “feeling good” but
not drunk, half drunk and half sober, and having a “pretty good buzz
on.” Johnson testified he knew what he was doing and the risks of
his conduct and that at some point he, Spears and Powell intended to
kill Thompson. Further, Powell never told Officer Wigley during his
confession that he was drunk and did not intend to kill Thompson.

Id.

49
 a. Voluntary Intoxication

There is no Supreme Court precedent establishing a constitutional right to

instructions regarding the defendant’s intoxication at the time of the crime. See

generally Montana v. Egelhoff, 518 U.S. 37, 39–40, 43, 51, 56 (1996) (holding

that a Montana statute precluding consideration of voluntary intoxication in

determining existence of a mental state that is an element of the criminal offense

does not violate the Due Process Clause). Under Oklahoma law, however, juries

may consider voluntary intoxication to determine if a defendant had the intent to

commit first-degree murder. See, e.g., Bland v. State, 4 P.3d 702, 715

(Okla. Crim. App. 2000); Fitzgerald v. State, 972 P.2d 1157, 1174 (Okla. Crim.

App. 1998); Lamb v. State, 767 P.2d 887, 889–90 (Okla. Crim. App. 1988).

“[A] defense of voluntary intoxication requires that a defendant, first, be

intoxicated and, second, be so utterly intoxicated, that his mental powers are

overcome, rendering it impossible for a defendant to form the specific criminal

intent or special mental element of the crime.” Toles v. Gibson, 269 F.3d 1167,

1177 (10th Cir. 2001) (quoting Jackson v. State, 964 P.2d 875, 892 (Okla. Crim.

App. 1998)), cert. denied, 123 S. Ct. 1623 (2003).

On federal habeas review, we review the alleged error in failing to instruct

on voluntary intoxication in the context of the entire trial, only for the denial of

fundamental fairness and due process. See Henderson v. Kibbe, 431 U.S. 145,

50
156–57 (1977) (pre-AEDPA) (addressing the omission of a jury instruction on

causation); Foster v. Ward, 182 F.3d 1177, 1193–94 (10th Cir. 1999) (post-

AEDPA) (addressing the omission of an instruction on accomplice testimony,

which was required under state law but not mandated by federal Constitution).

“An omission, or an incomplete instruction, is less likely to be prejudicial than

a misstatement of the law.” Henderson, 431 U.S. at 155.

Illuminated by the high standards of review imposed by AEDPA, the trial

court’s failure to give voluntary-intoxication instructions did not render Powell’s

trial fundamentally unfair. 25 As the OCCA noted, little evidence supported a

voluntary-intoxication defense. Powell’s statement to Officer Wigley recounting

the details of the murder further belies his claim of voluntary intoxication. See

Toles , 269 F.3d at 1177. Although the evidence indicated that Powell consumed

alcohol before the murder, no evidence established that his judgment was so

impaired at the time of the murder such that it was impossible for him to form

malice aforethought. Accordingly, the OCCA’s decision that there was

insufficient evidence to support a voluntary-intoxication instruction

was reasonable. See 28 U.S.C. § 2254(d)(1).

25
Powell further suggests that failure to instruct on voluntary intoxication took
away the jury’s ability to consider a non-capital third option that was supported
by the law and the evidence. Schad, 501 U.S. 624; Beck v. Alabama, 447 U.S.
625 (1980). However, the trial court did instruct on second-degree murder,
thereby giving the jury a third sentencing option. See Schad, 501 U.S. at 647–48.

51
 b. Diminished-Capacity Manslaughter

Powell maintains that the trial court’s failure to instruct on first-degree

diminished-capacity manslaughter violated the mandates of Beck v. Alabama ,

447 U.S. 625 (1980). As recognized by the OCCA, Powell did not request a

first-degree manslaughter instruction. Powell , 906 P.2d at 777. Under our

precedent, this failure precludes Powell from prevailing on his Beck claim. See

Hogan v. Gibson , 197 F.3d 1297, 1303 n.3 (10th Cir. 1999); Hooks , 184 F.3d at

1234.

Furthermore, the State correctly asserts that because the trial court

instructed the jury on the lesser included offense of second-degree murder, Beck

is satisfied. Although, under Beck , the trial court need only instruct on one lesser

included offense, see Schad , 501 U.S. at 647–48, and the trial court did instruct

on second-degree murder, Oklahoma law requires instruction on all lesser degrees

of homicide, even when such instruction was not expressly requested, see James

v. Gibson , 211 F.3d 543, 555 (10th Cir. 2000). We may not issue the writ of

habeas corpus, however, on the basis of a perceived error of state law, “absent a

determination that the state law violation rendered the trial fundamentally unfair.”

Id. (citations omitted). Evidence presented at trial did not establish that Powell

was so intoxicated that his mental abilities were overcome or that the intoxication

prevented him from acting with malice. See Powell , 906 P.2d at 778. Under the

52
circumstances of this case, it was not fundamentally unfair for the trial court to

conclude that an instruction on first-degree diminished-capacity manslaughter was

unwarranted. See id.
4. Prosecutorial Comments

Powell challenges several comments that the prosecutor made during his

first-stage closing argument. 26 Because none of these challenged remarks

implicates a specific constitutional right, a prosecutor’s misconduct will require

reversal of a state court conviction only where the remark “so infected the trial

with unfairness as to make the resulting conviction a denial of due process.”

Donnelly, 416 U.S. at 643; see also Duckett, 306 F.3d at 988. We address each of

the challenged comments in turn.

a. Evoking Sympathy for the Victim

During his opening argument, the prosecutor told the jury that “[t]he one

voice you will not hear is that of Jimmy Dewayne Thompson. A week from next

Monday, Jimmy Dewayne—he went by Dewayne—would have been 23 years old.

He was a young man just as these two [defendants] are young.” (3 Tr. at 486.)

This statement, Powell tells us, improperly sought to evoke sympathy for the

victim.

26
Powell also challenges several second-stage remarks. We need not address
those comments in light of our decision to grant Powell habeas relief from his
death sentence.

53
 Powell also challenges the State’s presentation of victim-impact testimony

during the first stage, specifically when the victim’s mother testified about her

son. Judith Thompson testified that her son was a high school graduate; had

started vocational training; was a slow learner and attended special education

classes in high school; went to church every Sunday and Wednesday, as well as

special church functions; did not have many friends; and had recently broken up

with his girlfriend. In addition, Mrs. Thompson testified that her son was neat,

very obedient, and well mannered, never in trouble with the law. He did not make

friends easily, and was bashful, withdrawn, and easily led by others.

In his first-stage closing argument, the prosecutor further argued that the

victim

was a young man. . . . He was shy. . . . He wanted to belong.

He was susceptible to peer pressure. He was a good, decent kid. He was
out of his element with [the defendants] and that group. He represented no
threat socially or physically to these two [defendants]. He put up no fight
when the incident occurred, couldn’t defend himself.

Perhaps, he was socially awkward, but he was not deviant or delinquent in
any way. He gave no evidence of a depraved mind. He was the one that
used his vehicle to take everybody riding around.

. . . [T]here’s a kid that ain’t bad. . . . [H]e wanted to get along. He was
susceptible to peer pressure, and he did this drinking number with these
guys. But he wasn’t part of their group.

54
(5 id. at 1390–91.) The prosecutor emphasized what a “good kid” the victim was,

compared with the defendants, noting that the victim agreed to take the group

“riding around. . . . But I got to go by the hospital to see my grandmother. That

tells you a lot about the kid, right there,” id. at 1338; “[w]e’re trying to paint a

picture of a good kid,” id. at 1391–92; “[y]ou can’t tell whether he was a good kid

from looking at him laying dead on the side of the road,” id. at 1393.

Holding that the prosecutor’s remarks were in error, the OCCA stated that

“it is improper for the prosecution to ask jurors to have sympathy for victims” and

“it is error to introduce victim impact evidence in the guilt/innocence phase.”

Powell, 906 P.2d at 777. Nonetheless, the court determined that this error did not

deny Powell a fundamentally fair trial. See id. We conclude that the OCCA’s

decision on this issue was a reasonable application of established Supreme Court

precedent. See 28 U.S.C. § 2254(d). We note that Mrs. Thompson’s personal

remarks about her son constituted but a brief portion of her otherwise relevant

testimony, during which she identified the clothing her son had worn the night he

was murdered, his personal effects, and his stolen truck, as well as detailing her

son’s activities preceding the murder, her search for him when he did not return

home that night, and her discovering his stolen truck the next morning. Any

improper comments, interspersed with this relevant evidence, did not affect the

jury’s verdict or deny Powell a fair trial. See, e.g., Duckett, 306 F.3d at 991–92

55
(rejecting habeas challenge to State’s first-stage victim-impact argument);

Hawkins v. Mullin, 291 F.3d 658, 677 (10th Cir. 2002) (rejecting a habeas claim

challenging the State’s first-stage evidence concerning the victim’s personal

history and her attributes as a mother), cert. denied, 123 S. Ct. 1012 (2003).

Powell also contends that the prosecutor improperly dehumanized Powell

by indicating to the jury that, while the victim was a good kid, Powell and Spears

were bad people. Powell points us to these allegedly improper statements made

by the prosecutor:

These are things I think of when they administer a three-and-a-half to
five minute brutal beating of a man who is already defenseless.
Now, was he dead? Why does Mickey Daniels tell you that there was
screaming? Why was he screaming? He wasn’t saying words like:
Help me. Save me. Stop this. He’s screaming. His voice is gurgling
quite a little bit. This man is in misery. This man is dying a
gruesome, painful, lengthy death.

(5 Tr. at 1398–99.)

Without specifically addressing these remarks, the OCCA denied

Powell relief. See Powell, 906 P.2d at 776. We concur. The prosecutor’s

remarks were appropriate commentary on the evidence presented at trial. See

Hooper v. Mullin, 314 F.3d 1162, 1172 (10th Cir. 2002). Prosecution comments

as to the brutality of the beating were arguably in response to the defense

argument that this incident was a fight, rather than a sadistic beating.

56
 b. Telling Jurors They Had a Moral Duty to Convict Powell

Powell challenges the prosecutor’s following statements to the jury, telling

them that they could

opt for Murder in the Second Degree. You can take an easy way out,
if that’s what you do. But you have told us in your voir dire
examination that you are willing to make the tough decisions.

It’s like Robert Kennedy once said, “If not us, who? If not now, when?”
Somebody has got to make these tough decisions. And we ask that you do
that.

(5 Tr. at 1340–41.) Along the same lines, the prosecutor later argued that

[w]e ask you find [Spears and Powell] guilty of Murder in the First
Degree. We don’t tiptoe up to the rail and ask daintily. We think
that justice cries out for it. If extremism in the defense of liberty is
no vice, as Barry Goldwater said, “Moderation in the pursuit of
justice is no virtue; let us not moderate.”

This is not a moderate crime, and these people aren’t moderately
guilty. They are guilty of the crime of Murder in the First Degree.
And we ask simply that you not let sympathy, sentiment, or
prejudice, interfere with that. Let not the consideration that you
might have to confront the death penalty keep you from your
appointed rounds, and find the defendants guilty of Murder in the
First Degree.

(5 id. at 1404–05.)

We hold that the OCCA’s decision denying Powell relief on this claim, see

Powell, 906 P.2d at 776, was not an unreasonable application of established

57
Supreme Court precedent, see 28 U.S.C. § 2254(d). Although “it is error for a

prosecutor to exhort a jury” to reach a guilty verdict based “on the grounds of

civic duty,” Viereck v. United States, 318 U.S. 236, 247–48 (1943), we cannot

say that these challenged remarks resulted in a fundamentally unfair trial. See

Le v. Mullin, 311 F.3d 1002, 1022 (10th Cir. 2002).

c. Cumulative Effect of Challenged Prosecutorial Comments

Cumulatively, Powell argues, the effect of these challenged prosecutorial

remarks resulted in a fundamentally unfair trial. Because the OCCA never

considered these remarks cumulatively, we consider this argument de novo.

Hooker, 293 F.3d at 1237. Even considering these remarks in the aggregate, we

cannot conclude that they resulted in a fundamentally unfair proceeding. See Le,

311 F.3d at 1023–24.

5. Ineffective Trial Representation

Spears and Powell assert that their attorneys’ first-stage trial representation

was ineffective. 27 To establish ineffective assistance of counsel, they must

establish both that their attorneys’ performance was constitutionally deficient and

27
Because we affirm the district court’s grant of habeas relief from Spears’ and
Powell’s capital sentences, we need not address their claims challenging their trial
attorneys’ second-stage representation, including Spears’ assertion that his trial
attorneys were ineffective for failing to obtain a mental-health expert for
sentencing purposes and Powell’s claim that his attorney should have requested a
second-stage instruction requiring the jury to determine his individual culpability.

58
that this deficient performance prejudiced their defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is deficient if it

falls below an objective standard of reasonableness. Id. at 687–88. The prejudice

prong is established if there is a reasonable probability that, but for counsel’s

unprofessional errors, the jury would have had a reasonable doubt concerning

their guilt. Id. at 694–95. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694.

In denying Spears relief on his ineffective-assistance claims, the OCCA

applied Strickland, but as further restricted by Lockhart v. Fretwell, 506 U.S. 364

(1993): “A mere showing that a conviction would have been different but for

counsel’s errors would not suffice to sustain a Sixth Amendment claim,” without

an additional inquiry into the fairness of the proceeding. Spears, 900 P.2d at 445.

Application of this more onerous standard was contrary to the Supreme Court’s

clearly established precedent in Strickland. See Williams, 529 U.S. at 391–95.

Under AEDPA, we therefore do not afford any deference to the OCCA’s

determination and, instead, review Spears’ ineffective-assistance-of-counsel

claims de novo. See Revilla v. Gibson, 283 F.3d 1203, 1220 n.14 (10th Cir.),

cert. denied, 123 S. Ct. 541 (2002).

By contrast, in reviewing Powell’s claims, the OCCA properly applied

Strickland. See Powell, 906 P.2d at 780. We therefore proceed to review the

59
OCCA’s decision in Powell’s case to determine whether or not it applied

Strickland in an objectively reasonable manner. See 28 U.S.C. § 2254(d); see

also Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843, 1852 (2002).

a. Trial Counsel Failed to Object to First-Stage Victim-Impact
Testimony

Spears and Powell challenge their attorneys’ failure to object to both the

victim-impact evidence presented during the trial’s first stage and the

prosecutor’s comments on this evidence throughout his first-stage argument. 28

Assuming attorney deficiency on this basis, 29 however, neither Spears nor Powell

can establish prejudice. We are unable to conclude that a reasonable probability

exists that, had their respective counsel timely and successfully objected to this

testimony and commentary, thus precluding it from going to the jury, the jury

would have acquitted the defendants of first-degree murder. As discussed above,

the victim’s mother’s testimony relating her son’s personal attributes was only a

small portion of her otherwise relevant first-stage testimony. Additionally, the

28
Because we affirm the district court’s granting Spears and Powell habeas relief
from their death sentences, we need not further address petitioners’ arguments
that prejudice from the State’s first-stage victim-impact evidence and comment
also tainted their capital sentences.
29
We recognize that some of the prosecutor’s remarks explaining how the victim
came to be in this group’s company were, in fact, relevant to the State’s case and
proper comment on admitted evidence.

60
State’s evidence overwhelmingly establishes that both Spears and Powell were

involved in the beating that resulted in the victim’s death and none of the

challenged comments and testimony went to the primary contested issue at trial,

intent to kill.

Under our de novo review, we conclude that Spears has not satisfied both

prongs of Strickland, and thus he is not entitled to habeas relief. On this same

basis, we conclude that the OCCA’s decision to deny Powell relief on this claim

was a reasonable application of Strickland. See Powell, 906 P.2d at 780-81.

b. Trial Counsel Failed to Object to Other Instances of
Prosecutorial Misconduct

Spears further asserts that his trial attorney was deficient for failing to

object when the prosecutor expressed his personal opinion about Spears’ guilt by

telling jurors that “justice cries out” for a guilty verdict and that convicting

Spears of only second-degree murder would be taking the easy way out. Even

assuming defense counsel was deficient in failing to make these objections,

Spears again cannot establish that, had the prosecutor not made these comments,

there is a reasonable probability that the jury would have acquitted him of

first-degree murder.

c. Trial Counsel Failed to Object to Flight Instruction

Spears argues that his counsel was deficient for failing to object to the

61
flight instruction given to the jury. Jurors were instructed that, if they found

beyond a reasonable doubt that Spears had taken flight soon after the crime, then

they could consider that fact in determining whether Spears was guilty of

first-degree murder. The jury instruction defined “flight” as a departure, with

consciousness of guilt, in order to avoid arrest. Id. Spears first asserts that his

attorney should have objected to this instruction because there was insufficient

evidence that he took flight after the murder. The OCCA, however, reasonably

determined that the State had presented sufficient evidence to support giving the

flight instruction. See Spears, 900 P.2d at 446. Spears’ counsel, therefore, was

not deficient in failing to object on that basis.

Spears further argues that trial counsel should have objected to this

instruction based upon Mitchell v. State, 876 P.2d 682 (Okla. Crim. App. 1993),

corrected by 887 P.2d 335 (Okla. Crim. App. 1994). Mitchell, decided after

Spears’ trial, held that the trial court should give this flight instruction only

“where the evidence [of flight] is controverted.” Id. at 685. On Spears’ direct

appeal, the OCCA acknowledged that “[b]ecause Spears did not testify at trial or

offer any explanation of his departure, giving the flight instruction under the

Mitchell rule would appear to be error.” Spears, 900 P.2d at 446. Nonetheless,

the OCCA denied Spears relief on this claim because Mitchell, interpreting state

law, applies only prospectively. See Rivers v. State, 889 P.2d 288, 291–92 (Okla.

62
Crim. App. 1995).

Spears asserts that his trial counsel was ineffective for failing to make the

same objection to the flight instruction that later succeeded in Mitchell.

“Generally, [however,] counsel is not ineffective for failing to anticipate

arguments or appellate issues that only blossomed after defendant’s trial . . . .”

Sherrill v. Hargett, 184 F.3d 1172, 1175 (10th Cir. 1999). This principle applies

in the instant case as well. See Nguyen v. Reynolds, 131 F.3d 1340, 1356–57

(10th Cir. 1997) (holding trial and appellate counsel were not ineffective for

failing to raise a Mitchell claim before the OCCA decided Mitchell).

Mitchell had reversed “decades of [Oklahoma] jurisprudence dealing with the

flight instruction.” Pickens v. State, 910 P.2d 1063, 1070 (Okla. Crim. App.

1996); see also id. (noting that, “[a]s Mitchell points out,” the OCCA “had upheld

the flight instruction against numerous attacks” prior to Mitchell); Paxton v.

State, 867 P.2d 1309, 1317 (Okla. Crim. App. 1993) (“Evidence of a defendant’s

flight has long been held admissible as tending to show consciousness of guilt.”).

Therefore, trial counsel’s failure to foresee the OCCA’s Mitchell decision did not

fall below an objective standard of reasonableness. See Nguyen, 131 F.3d at

1357; see also, e.g., Ellis v. Hargett, 302 F.3d 1182, 1187–89 (10th Cir. 2002)

(holding appellate counsel was not objectively unreasonable in failing to raise a

claim where cases “on the books” at the time of direct appeal indicated that the

63
OCCA would not have been receptive to a contrary argument), cert. denied, 123

S. Ct. 1361 (2003); Bullock, 297 F.3d at 1051–52 (rejecting a claim that the trial

attorney should have objected to the victims’ hearsay testimony, based on a case

the state appellate court decided after the petitioner’s trial and noting that

effective representation does not require clairvoyance). For the foregoing

reasons, Spears is not entitled to habeas relief on this claim.

d. Trial Counsel Failed to Object to Spears’ Out-of-Court
Statement Implicating Powell

Given our conclusion above that the OCCA reasonably determined that any

Bruton error was harmless, we hold that the OCCA’s decision denying Powell

relief on his contention that his trial attorney should have objected to the State’s

introduction of Spears’ out-of-court statement implicating him was also a

reasonable application of established federal law. See supra Section III.B.1.a;

Powell, 906 P.2d at 780.

64
 e. Trial Counsel Failed to Request Jury Instructions on
Voluntary Intoxication and Diminished-Capacity
Manslaughter

This same fate falls upon Powell’s claim that his trial counsel should have

requested instructions on a voluntary-intoxication defense and the lesser offense

of diminished-capacity manslaughter. We have already concluded that the state

appellate court reasonably held that the evidence did not support giving these

instructions. See supra Section III.B.3. For the same reasons, the OCCA

reasonably denied relief on these ineffective-assistance claims. See Powell, 906

P.2d at 780; see also id. at 777–78; cf. Le, 311 F.3d at 1026–27 (holding that

defense counsel was not ineffective for failing to request a self-defense

instruction, where the evidence did not permit such instruction under Oklahoma

law).

f. Cumulative Prejudice

Because the sum of various zeroes remains zero, the claimed prejudicial

effect of their trial attorneys’ cumulative errors does not warrant habeas relief.

See, e.g., Hawkins v. Hannigan, 185 F.3d 1146, 1158 (10th Cir. 1999)

(considering prejudice resulting from several instances of deficient performance).

As to Spears, we have concluded above that his trial attorney was not deficient in

failing to object to the flight instruction. Moreover, even assuming that his

65
attorney was deficient in not objecting to the victim-impact testimony and to the

prosecutor’s argument generally, the cumulative effect of those presumed errors

was insufficient to create a reasonable probability that, but for those errors, the

jury would not have convicted Spears of first-degree murder. Similarly, Powell

has failed to establish that the cumulative effect of any prejudice he may have

suffered as a result of his attorney’s allegedly deficient performance warrants

habeas relief.

6. Powell’s Ineffective-Assistance Claims Defaulted in State Court

Powell raised additional ineffective-trial-counsel claims in his first state

post-conviction application, claiming that his defense attorney (1) inadequately

advised him concerning the State’s plea offer, (2) failed to object to

victim-impact evidence, (3) failed to impeach Officer Wigley’s testimony that

Powell admitted to him that the group, including Powell, had intended to steal the

victim’s truck and that is why they had to kill Thompson, and (4) should have

obtained an expert who could have testified to Powell’s level of intoxication at

the time of the murder. 30 Because Powell failed to raise these particular claims on

direct appeal, however, the OCCA, relying on 1995 amendments to Oklahoma’s

30
Because we affirm the district court’s decision granting Powell habeas relief
from his capital sentence, we need not consider here his claims challenging his
trial attorney’s preparation for the capital sentencing proceeding, failure to
present additional mitigating evidence at that proceeding, and failure to object to
second-stage victim evidence.

66
post-conviction statute, deemed the claims procedurally defaulted. See Powell,

935 P.2d at 381–82 & 381 n.7.

To preclude federal habeas review, a state procedural bar must be adequate,

as well as independent from federal law. See, e.g., Lee v. Kemna, 534 U.S. 362,

375 (2002). In the case at bar, the district court held that Oklahoma’s procedural

bar was inadequate because the OCCA applied the 1995 post-conviction

amendments, even though they were not yet in effect at the time Powell’s

purported default occurred. “In determining whether a state procedural bar is an

adequate and independent ground to bar federal review of a constitutional claim, a

federal habeas court must [instead] apply the state’s rule in effect at the time of

the purported procedural default.” Barnett v. Hargett, 174 F.3d 1128, 1134

(10th Cir. 1999). After all, “a defendant cannot be expected to comply with a

procedural rule that does not exist at the time of the purported default.” Rogers v.

Gibson, 173 F.3d 1278, 1290 (10th Cir. 1999) (quotation omitted). Before

Oklahoma enacted the relevant 1995 amendments, however, Oklahoma courts

regularly and consistently barred claims a criminal defendant could have raised,

but failed to assert, on direct appeal. See, e.g., Neill v. Gibson, 278 F.3d 1044,

1054, 1057 (10th Cir. 2001), cert. denied, 123 S. Ct. 145 (2002); McCracken v.

Gibson, 268 F.3d 970, 976 (10th Cir. 2001), cert. denied, 123 S. Ct. 165 (2002).

The 1995 amendments, therefore, did not change that aspect of Oklahoma’s

67
procedural-default rule. See Cargle, 317 F.3d at 1201.

Nonetheless, Oklahoma’s procedural rules requiring a criminal defendant to

raise ineffective-trial-counsel claims on direct appeal are not adequate unless that

defendant is represented at trial and on appeal by different attorneys, and either

the defendant’s ineffective-trial-counsel claim could be resolved solely on the

trial record before the direct-appeal court or the defendant could have expanded

the direct-appeal record to present his ineffective-assistance claim adequately.

See English v. Cody, 146 F.3d 1257, 1263, 1264–65 (10th Cir. 1998); Hooks, 184

F.3d at 1214–15, 1216–17; see also, e.g., James, 211 F.3d at 556. Powell was

represented on appeal by a different attorney, and the State asserts that, in fact,

Powell could have adequately expanded and developed the direct-appeal record

sufficiently to permit him to raise these ineffective-trial-counsel claims on direct

appeal. Cf. Romano, 239 F.3d at 1180 (holding that the same procedural-bar rule

was inadequate without addressing whether the petitioner could have adequately

expanded the direct-appeal record). While we are mindful that the State bears the

ultimate burden of proving that its procedural mechanism was adequate, the

habeas petitioner must also allege with specificity why the state procedural rules

were inadequate to have permitted him to raise the omitted claim on direct appeal.

See Smallwood, 191 F.3d at 1268; Hooks, 184 F.3d at 1216–17. However,

because Powell does not address his alleged procedural default, let alone

68
challenge the adequacy of Oklahoma’s procedural rules, we conclude that

Oklahoma’s procedural bar is adequate to preclude our habeas review of these

particular ineffective-trial-representation claims. 31 Furthermore, Powell fails to

allege either cause excusing this default and prejudice, or that this court’s refusal

to consider the defaulted claims will result in a fundamental miscarriage of

justice. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750 (1991). We

therefore decline to address the merits of these barred claims. See, e.g.,Cannon v.

Gibson, 259 F.3d 1253, 1265–66 (10th Cir. 2001) (declining to review

procedurally defaulted habeas claim, even though the district court had addressed

the merits of the claim), cert. denied, 535 U.S. 1080 (2002). Even were we to

address the merits of Powell’s defaulted claims, we are confident they do not

warrant habeas relief.

31
Hooks set forth the habeas petitioner’s burden to challenge the adequacy of a
state procedural bar. In Smallwood, we declined to presume an unchallenged
state procedural bar was adequate to preclude habeas review where the habeas
petitioner filed his § 2254 petition prior to this court’s Hooks decision, in July
1999. See Smallwood, 191 F.3d at 1268. Although, like the petitioner in
Smallwood, Powell filed his § 2254 petition prior to Hooks, Powell has failed to
assert before this court any challenge to the adequacy of Oklahoma’s
procedural-default rule. Under these circumstances, we conclude that he has
waived such a challenge.

69
 7. Spears’ Procedurally Defaulted Ineffective-Trial-Counsel Claims

In his § 2254 petition, Spears asserted for the first time several additional

ineffective-trial-counsel claims, claiming that his attorney (1) failed to advise him

adequately concerning the State’s plea offer, (2) failed to obtain an expert witness

to testify that Spears was so intoxicated at the time the murder occurred that he

could not have formed the intent required for first-degree murder, and (3) failed

to introduce evidence that Spears did not have any blood on his clothes after the

murder. 32 To permit Spears to exhaust his state-court remedies as to those

particular ineffective-assistance claims, see 28 U.S.C. § 2254(b)(1), the district

court abated Spears’ federal habeas petition. Accordingly, Spears asserted these

claims to the OCCA in a second state post-conviction application. Determining

that Spears defaulted these claims because he had failed to raise them in his first

post-conviction application, the OCCA denied Spears relief.

Spears now argues that the district court erred in requiring him to exhaust

his state-court remedies on these claims because Oklahoma’s state post-conviction

procedures are ineffective to safeguard his constitutional rights. See id.

§ 2254(b)(1)(B). Because Spears complied with, and did not appeal, the district

court’s directive to exhaust state-court remedies, however, this argument is moot

32
We need not address an additional claim, challenging Spears’ attorney’s
preparation for the capital sentencing proceeding.

70
as all previously unexhausted claims are now exhausted. See Odum v. Boone, 62

F.3d 327, 332–33 (10th Cir. 1995). We have previously rejected a similar

argument—that it is futile to require a petitioner to present unexhausted claims in

a post-conviction petition when the OCCA routinely deems such claims

procedurally barred if not presented first on direct appeal—on the basis that this

court already upheld the adequacy of this particular Oklahoma procedural bar.

See Cargle, 317 F.3d at 1212 n.15.

Spears contends, however, that the OCCA declined to review these

ineffective-trial-counsel claims, not because it deemed them barred, but because

it mistakenly believed Spears had previously raised these same claims in his first

state post-conviction application. In reviewing the OCCA’s decision, it is

apparent that the OCCA “clearly and expressly” applied the state

procedural-default rule, Harris v. Reed, 489 U.S. 255, 263 (1989) (quotation

omitted), to Spears’ additional ineffective-trial-counsel claims. Spears’

contention is without merit.

In challenging Oklahoma’s procedural rule that claims not raised in a first

post-conviction petition are defaulted, Spears contends that Oklahoma’s

post-conviction proceedings do not provide sufficient review of his ineffective-

trial-counsel claims. While a state procedural bar will be inadequate if it deprives

a defendant of any meaningful review of his claims, see, e.g., Brecheen v.

71
Reynolds, 41 F.3d 1343, 1364 (10th Cir. 1994), we have previously upheld the

adequacy of this particular Oklahoma procedural rule. See, e.g., Cannon,

259 F.3d at 1266 (citing other cases).

Despite this authority, Spears argues that this particular procedural-default

rule is inadequate to preclude federal habeas review because the OCCA has, on

occasion, chosen to review the merits of a defaulted claim to prevent any

miscarriage of justice. A state procedural-default rule will be adequate if the

state courts apply it regularly and consistently. See, e.g., Johnson v. Mississippi,

486 U.S. 578, 587 (1988). Pivotal to our analysis “is whether the [state] courts’

actual application of the particular procedural default rule to all similar claims

has been evenhanded in the vast majority of cases.” Maes v. Thomas, 46 F.3d

979, 986 (10th Cir. 1995) (quotation omitted). To support his argument, Spears

relies on Valdez v. State, 46 P.3d 703, 704–05, 710–11 (Okla. Crim. App. 2002),

and unpublished decisions in Hawkins v. State, No. PC 96-1271 (Okla. Crim.

App. Mar. 18, 1998), Clayton v. State, No. PCD-2000-1618 (Okla. Crim. App.

Dec. 28, 2000), and Brown v. State, No. PCD-2002-781 (Okla. Crim. App. Aug.

22, 2002); see generally Revilla, 283 F.3d at 1210 n.3 (noting that Hawkins and

Clayton, unpublished opinions that may not be binding authority, “at the very

least . . . reflect that Oklahoma does not now invariably apply its default rules to

bar death-ineligibility issues”).

72
 Hawkins, however, is not sufficiently analogous to Spears’ case because the

OCCA in that case reviewed the merits of Hawkins’ claim asserting that he was

legally ineligible for a death sentence, raised for the first time in his first state

post-conviction application. See Hawkins, No. PC 96-1271, slip op. at 1, 3–4; cf.

Steele v. Young, 11 F.3d 1518, 1521–22, 1222 n.5 (10th Cir. 1993) (recognizing

that, while Oklahoma courts have made clear that fundamental-error review is

available on direct appeal to review claims not raised in the trial court, such

fundamental-error review is not available where the defendant has not raised the

issue until his state post-conviction application). In Brown, the OCCA did stay

the petitioner’s execution and remand for a hearing on claims raised for the first

time in a second post-conviction application. Brown, however, appears to have

been based primarily on newly discovered evidence. See Brown, No.

PCD-2002-781, slip op. at 2–3, 2 n.4. We thus conclude that these two

unpublished decisions are not sufficiently analogous to inform our determination

of whether the OCCA regularly and consistently applies the specific procedural

bar it applied in Spears’ case.

In Valdez, however, the OCCA did “exercise its power to grant relief when

an error complained of has resulted in a miscarriage of justice, or constitutes a

substantial violation of a constitutional or statutory right” and did review the

merits of a procedurally defaulted claim asserted for the first time in a second

73
post-conviction application. 46 P.3d at 704–05, 710–11. Similarly, in Clayton,

the OCCA reviewed, for a fundamental miscarriage of justice, a procedurally

barred claim raised for the first time in a second post-conviction application. See

Clayton, No. PCD-2000-1618, slip op. at 2–5. Nonetheless, these cases appear to

be the only instances where the OCCA overlooked an analogous procedural

default in a second or successive state post-conviction application, and, standing

alone, these cases are insufficient to overcome Oklahoma’s regular and consistent

application of this procedural-bar rule in the “vast majority of cases.” Maes, 46

F.3d at 986 (quotation omitted); see also Andrews v. Deland, 943 F.2d 1162, 1190

(10th Cir. 1991).

Oklahoma’s procedural bar, therefore, remains adequate to preclude federal

habeas review unless Spears can establish cause excusing his default, and

resulting prejudice, or that this court’s refusal to review these claims will result in

a fundamental miscarriage of justice. 33 See Coleman, 501 U.S. at 750. Cause

excusing a procedural default must be some objective factor external to the

33
Spears does assert that this court’s refusal to consider the merits of his
defaulted claims will result in a fundamental miscarriage of justice, but
apparently only as to his death sentence. Because we affirm the district court’s
decision granting Spears habeas relief from his sentence, we need not address
further his assertion of a fundamental miscarriage of justice as it relates to that
sentence. Even were Spears to allege that the fundamental-miscarriage-of-justice
exception applies to his defaulted first-stage ineffective-assistance claims, he has
not shown he is actually innocent of first-degree murder, as that exception would
require. See Schlup v. Delo, 513 U.S. 298, 321 (1995).

74
habeas petitioner, not fairly attributable to him, that impeded his efforts to

comply with the procedural rule in question. See id. at 753.

As cause for his default, Spears reprises his argument that Oklahoma’s state

post-conviction procedures are insufficient. Further, in conclusory fashion,

Spears asserts that “a conflicted defender organization selected and paid an

inadequate sum for Mr. Spears’s [first] post-conviction counsel.” (Spears Second

Br. at 70.) Spears fails to explain how better compensation for his attorney would

have led to a different result, and, in any event, ineffective representation in state

post-conviction proceedings is inadequate to excuse a procedural default. See

28 U.S.C. § 2254(i); see also Coleman, 501 U.S. at 752–53; Smallwood, 191 F.3d

at 1269. Just as Spears is unable to establish cause excusing his procedural

default, we are precluded from reviewing Spears’ defaulted ineffective-assistance

claims.

8. Evidentiary Hearing

Spears asserts that the district court should have conducted an evidentiary

hearing prior to denying relief on his ineffective-trial-representation claims. We

reject this argument. As discussed above, four of Spears’

ineffective-trial-counsel claims were defaulted, and Spears never requested an

evidentiary hearing in state court on his four remaining ineffective-assistance

claims. Having defaulted these claims, he must now meet 28 U.S.C. § 2254(e)(2)

75
requirements before he will be entitled to an evidentiary hearing. Spears fails to

assert how he meets those requirements, and we deny Spears relief on this claim.

See, e.g. , Torres , 317 F.3d at 1161.

9. Spears’ Appellate Representation

Spears contends that his appellate counsel was ineffective for failing to

raise his defaulted ineffective-trial-counsel claims on direct appeal. 34 He asserts

ineffective appellate representation both as a substantive claim and as additional

cause excusing his default of those ineffective-trial-counsel claims. Because

Spears failed to challenge his appellate representation until his second state

post-conviction proceeding, however, the state appellate court also deemed Spears

to have procedurally defaulted these claims. For the reasons discussed in Section

III.B.7. above, we are precluded from reviewing his substantive

ineffective-appellate-counsel claim. See generally Thomas v. Gibson, 218 F.3d

1213, 1221 (10th Cir. 2000) (recognizing this procedural bar’s adequacy).

Furthermore, Spears cannot rely on his procedurally defaulted

ineffective-appellate-counsel claim to provide cause excusing his barred

ineffective-trial-counsel claims, unless he can also establish cause excusing his

default of the ineffective-appellate-counsel claim. See Edwards v. Carpenter, 529

34
Again, we need not address this claim to the extent it concerns the capital
sentencing proceeding.

76
U.S. 446, 451–52 (2000). Spears has failed to do that here. 35

10. State’s Failure to Turn Over Exculpatory Material as Required
Under Brady v. Maryland 36

Finally, Powell contends that the State failed to turn over to his defense

counsel a typewritten summary of an audiotaped custodial statement Powell made

to authorities. The State responds that, because Powell did not raise this Brady

claim until he applied for state post-conviction relief, the OCCA deemed him to

have procedurally defaulted this claim. For efficiency, we address the merits of

Powell’s Brady claim. See, e.g., Romero v. Furlong, 215 F.3d 1107, 1111 (10th

Cir. 2000) (declining to address Colorado’s procedural bar to petitioner’s claims

“because the case may be more easily and succinctly affirmed on the merits”).

To succeed on a Brady claim, Powell must establish that the evidence at

issue is favorable to him; that the State suppressed this favorable evidence, either

willfully or inadvertently; and that prejudice ensued. See Strickler v. Greene,

527 U.S. 263, 281–82 (1999). By acknowledging that his defense counsel was

aware of and had listened to this audiotaped statement prior to trial, Powell

defeats his own claim. We have held that there can “be no suppression by the

35
Further, because Spears has defaulted this ineffective-appellate-assistance
claim, an evidentiary hearing is not warranted.
36
373 U.S. 83 (1963).

77
state of evidence already known by and available to [the defendant] prior to trial.”

United States v. Hernandez-Muniz, 170 F.3d 1007, 1011 (10th Cir. 1999)

(quotation omitted). Furthermore, while “[t]he government violates a

defendant’s due process rights when it fails to provide him with exculpatory

information, . . . due process does not necessarily require disclosure in

a specific form or manner.” Id. Powell’s Brady claim does not warrant habeas

relief.

IV

For the foregoing reasons, we AFFIRM the district court’s grant of habeas

relief as to both death sentences and AFFIRM the denial of any further habeas

relief.

78
Nos. 01-6258, 01-6267 - Spears v. Mullin
Nos. 01-6349, 01-6354 - Powell v. Mullin

HARTZ, Circuit Judge, concurring:

I concur in the result and join all of Judge Lucero’s opinion except part III

(A), which relates to the State’s appeals. Rather than grant relief because of the

photographs admitted into evidence during the penalty phase, I would set aside

the death penalties because no state decisionmaker—jury or judge—has found that

the victim consciously suffered while being murdered. Under Oklahoma law the

death penalty should not be imposed in this case unless the victim consciously

suffered. The evidence on the matter was hardly uncontroverted; indeed, one of

the government’s principal witnesses testified that the victim was rendered

unconscious by the first blows. Yet, remarkably, the jury was not instructed that

it had to find conscious suffering, nor did any court make the necessary finding.

First, Oklahoma law is clear that conscious suffering had to be proved. The

Oklahoma Court of Criminal Appeals (OCCA) recognized as much in its decision

resolving Mr. Spears’s appeal. The court wrote:

[T]he State bears the burden of proving beyond a reasonable doubt
the aggravating circumstances it elects to charge. We must now
determine whether there was any competent evidence to support the
jury's finding the murder was especially heinous, atrocious or cruel.

In order for a jury to find that a murder was especially heinous,
atrocious or cruel, the State must introduce competent evidence
indicating the victim's death was preceded by torture or serious
 physical abuse, which may include the infliction of either great
physical suffering or extreme mental cruelty. Serious physical abuse
requires evidence of conscious physical suffering. As we stated in
Perry [v. State, 893 P.2d [521,] 534 [Okla. Crim. App. 1995], it is
critical the State prove the victim consciously suffered prior to death.
Prosecutors have proved this aggravator [in other cases] by
introducing evidence the victim suffered numerous defensive wounds
indicating that the victim was conscious and attempted to fight off
her attacker; statements from the defendant indicating the victim
consciously suffered serious physical abuse or extreme mental cruelty
prior to death; witness testimony that the victim was alive and
conscious at the time the physical abuse was inflicted; or medical
evidence that the victim was conscious during the infliction of
serious physical injury.

Spears v. State, 900 P.2d 431, 448-49 (Okla. Crim. App. 1995) (citations omitted;

second emphasis added).

Second, there was a real factual dispute concerning whether the victim had

consciously suffered. Claiborne Johnson, a participant in the murder who reached

a plea agreement with the prosecution, testified that the victim, Dewayne

Thompson, was knocked unconscious immediately after Mr. Powell struck the

first blows:

Q: All right. Now, did you ever see, at the time when you first
saw [Mr. Thompson] go down, did you ever see him assume
any kind of a defensive posture? That is to say, put his arms
up in this fashion (indicating) to defend himself?

A: No, I didn’t.

Q: Did you ever see him, at any time, whether it be standing up or
laying on the ground, take any defensive posture at all?

-2-
 A: No I didn’t. Because the time that he hit the ground, he was
knocked out.

xvii. Okay. Now that is your supposition. You’re not a medical
doctor. You don’t know whether he was out or not, do you?

A: No, I don’t know whether or not for sure he was out or not. It
looked like it.

Q: All right.

A: The way from how I was looking at him, it looked like he was
out.

....

Q: Okay. Let me ask you a question here, okay? You thought
this guy was out; is that correct?

A: Yes, he wasn’t moving.

Trial Tr., Vol. 4, at 1165-66. Another eyewitness, Vickie Hensley, similarly

testified that Mr. Thompson fell directly to the ground after suffering the first

blows. Additionally, no evidence indicated that Mr. Thompson resisted the

beating: He had no defensive wounds, and none of the witnesses testified that he

tried to protect himself or that he called for assistance from bystanders.

Moreover, the medical examiner testified that the cause of death was trauma to

the brain that could have resulted from a single blow to the head. Indeed, the

-3-
OCCA spoke of “the paucity of evidence supporting the aggravator especially

heinous, atrocious or cruel.” Spears, 900 P.2d at 443.

To be sure, there was also contrary evidence; and I do not dispute the

determination by the OCCA that there was “testimony sufficient to allow a

rational jury to conclude Thompson was conscious during the beating which

preceded his death.” Id. at 449. My concern, rather, is that no one actually made

the finding that Thompson experienced conscious physical suffering.

The function of a criminal trial is not simply for the prosecution to put on

enough evidence that a jury could find the defendant guilty. The jury has a role to

play. The prosecution’s evidence counts for naught unless the jury is convinced

by it. People do not go to jail because the prosecution presented enough

evidence. They go to jail because their juries, after reviewing the evidence, find

guilt beyond a reasonable doubt. Likewise, people are not executed simply

because the prosecution put on enough evidence to justify the death penalty.

They can be executed only if the appropriate decisionmaker finds the necessary

factual predicates for the death penalty. The only significant difference in this

regard between the determination of guilt and the decision to execute is that, at

least prior to Ring v. Arizona, 536 U.S. 584 (2002), there was no right to have a

jury make the death-penalty finding, so the finding could be made by the trial

judge or even an appellate court. See Clemons v. Mississippi, 494 U.S. 738, 747-

-4-
50 (1990).

Here, we cannot say that the jury found conscious suffering. The term

“conscious suffering” appears nowhere in the jury instructions. With respect to

the “especially heinous, atrocious, or cruel” aggravator, the jury was instructed

only that the “phrase especially heinous, atrocious, or cruel is directed to those

crimes where death of the victim was preceded by torture or serious physical

abuse.” If we knew that the jury had found that the victim had been subjected to

torture, we could readily infer a finding of conscious suffering. But the jury was

instructed it need only find either torture or serious physical abuse. And the jury

might well have found serious physical abuse yet not found conscious suffering.

The evidence at trial could readily support the conclusion that the victim suffered

serious physical abuse (a severe beating and possibly some stab wounds) before

death (as required by the instruction) but after having lost consciousness. Thus,

in light of the instructions given here, a verdict that the crime was “especially

heinous, atrocious, or cruel” does not necessarily imply a finding of conscious

suffering.

The failure to instruct the jury on conscious suffering does not, however,

end the matter. Under pre-Ring law it was not necessary for a jury to find the

aggravating circumstance necessary for imposition of the death penalty. A judge,

even an appellate court, could make the finding. See Clemons, 494 U.S. at 747-

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50. But that was not done here. As previously noted, the OCCA in Spears’s case

determined only that there was sufficient evidence for a jury to find conscious

suffering. 900 P.2d at 449. It did not state what its own fact finding would

be—whether the court itself was convinced that Thompson had consciously

suffered. The OCCA made a similar determination in Powell’s appeal, see Powell

v. State, 906 P.2d 765, 781-82 (Okla. Crim. App. 1995), and similarly failed to

make a fact finding of its own.

I recognize that in Lewis v. Jeffers, 497 U.S. 764, 783 (1990), the Supreme

Court affirmed an Arizona death penalty on the ground that “a rational factfinder

could have found that respondent both relished the crime and inflicted gratuitous

violence on the victim”—apparently the same standard of review applied by the

OCCA in the Spears and Powell appeals. But there is a critical difference

between Lewis and the cases now on appeal. In Lewis the Court was reviewing

“the Arizona Supreme Court’s finding that respondent had relished the killing

[and] . . . . that respondent had inflicted gratuitous violence.” Id. at 783-84

(emphasis added). Thus, an appropriate decisionmaker in that case had already

made the requisite fact findings, something not done here.

This circuit’s decision in Moore v. Gibson, 195 F.3d 1152 (10th Cir. 1999),

upon which the State relies, does nothing more than follow the proposition in

Lewis that “‘federal habeas review of a state court’s application of a

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constitutionally narrowed aggravating circumstance is limited, at most, to

determining whether the state court’s finding was so arbitrary or capricious as to

constitute an independent due process or Eighth Amendment violation.’” 195

F.3d at 1176 (quoting Lewis, 497 U.S. at 780) (emphasis added). It further quotes

Lewis for the proposition that “‘[a] state court’s finding of an aggravating

circumstance in a particular case . . . is arbitrary or capricious if and only if no

reasonable sentencer could have so concluded,’” id. at 1176 (quoting Lewis, 497

U.S. at 783), and then continues, “[a]s discussed more fully below, that is not the

case here,” id. In other words, Moore started from the assumption that the state

court had found the factual predicates for the aggravating circumstance, thereby

limiting the circuit court’s role to determining whether the factfinding was

rational.

Likewise, Romano v. State, 909 P.2d 92 (Okla. Crim. App. 1995), cannot

support the State’s view, because in that case the court noted that the jury had

been instructed on conscious suffering, id. at 121 n.18.

The issue here is not a technicality. Nothing is more central to our system

of justice than having a factfinder decide the facts. It is not for this court to

decide whether Spears and Powell deserve the death penalty. But we must reverse

their sentences when no one has made the findings required by Oklahoma law.

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