Thornburg v. Mullin

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD ALFORD THORNBURG,
JR.,

Petitioner - Appellant,
v. No. 04-6086
MIKE MULLIN, Warden of the
Oklahoma State Penitentiary,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. CIV-00-1754-L)

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

Robert Whittaker, Assistant Attorney General (W. A. Drew Edmonson, Attorney
General, with him on the brief), Oklahoma City, Oklahoma, for Respondent -
Appellee.

Before KELLY , HARTZ , and McCONNELL , Circuit Judges.

HARTZ , Circuit Judge.
 Applicant Richard Allen Thornburg was convicted in Oklahoma state court

on three counts of first-degree murder and sentenced to death. After the

Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions on direct

appeal and denied his application for state postconviction relief, he filed in the

United States District Court for the Western District of Oklahoma an application

for writ of habeas corpus under 28 U.S.C. § 2254. The district court rejected his

application.

The district court and a member of this court have each granted certificates

of appealability (COA), see 28 U.S.C. § 2253(c)(1) (requiring a COA to appeal),

permitting Mr. Thornburg to raise challenges to his conviction and sentence based

on the following alleged errors: (1) the admission of testimony by a witness that

he had passed a polygraph examination; (2) the failure of the trial court to give

voluntary-intoxication and lesser-included-offense instructions; (3) the admission

of hearsay testimony; (4) the admission of photographs of the deceased; (5)

prosecutorial misconduct; (6) ineffective assistance of trial counsel; (7)

ineffective assistance of appellate counsel; (8) the presence of a carving behind

the judge’s bench that contained eye-for-an-eye language; and (9) the denial of

his request for an evidentiary hearing. We affirm.

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I. BACKGROUND

A. The Crime

Between 3:00 and 4:00 a.m. on September 28, 1996, Thornburg, along with

codefendants Glenn Anderson and Roger Embrey, went to Marvin Matheson’s

trailer. All three were armed. As they hovered over Matheson, Thornburg

accused him of being responsible for shooting Thornburg the month before. Also

suspecting Jim Poteet of a role in the shooting, they drove Matheson to Poteet’s

house, telling him on the way not to worry about locking his trailer, because he

was not coming back.

When the four men arrived at Poteet’s house, Thornburg and Embrey went

inside while Matheson and Anderson remained in the car. After hearing gun shots

from the house, Anderson took Matheson inside. As Matheson entered he saw

Terry Shepard sitting on a chair outside the bathroom door and Poteet sitting on

the bed in the back bedroom. Poteet, held at gunpoint by Thornburg, had been

shot in the foot and his forehead was bruised and bloody. Matheson saw

Thornburg shoot again at Poteet’s feet as he attempted to get Poteet to tell him

who had shot him.

Anderson then instructed Thornburg to take Matheson to Poteet’s rental

unit near the house and get Jimmy Scott. Thornburg escorted Matheson to the

rental unit with a gun to his back, but he was interrupted when Kevin Smith

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arrived at Scott’s house to retrieve his girlfriend’s purse. Thornburg instructed

Smith to knock on Scott’s door. The door was answered by Donnie Scott, the

brother of Jimmy, who was not home. Thornburg forced Scott, Smith, and

Matheson to go to Poteet’s house.

Once they were inside Poteet’s house, Anderson held the men at gunpoint

in the kitchen while Thornburg went to the back bedroom. Matheson could hear

Thornburg and Poteet arguing about drugs and money. Then Anderson instructed

Embrey to bring everyone back to the bedroom. The men injected Matheson and

Poteet with drugs, as Anderson commented that he intended to “OD” them.

Tr. III at 94. Anderson and Thornburg also injected themselves. Thornburg

continued arguing with Poteet about whether Poteet shot him. He told Poteet that

he was going to shoot him, but then said “better yet, I ain’t gonna shoot you,” and

instructed Matheson to shoot Poteet. Tr. III at 97. Embrey and Anderson pointed

their guns at Matheson, threatening to shoot him if he did not shoot Poteet. When

Matheson refused to shoot Poteet, Thornburg shot Poteet in the side.

Thornburg then told Matheson that Matheson was “going to shoot

somebody and that it had a lot to do with if [Matheson left] the house or not.”

Tr. III at 100. Matheson was told to shoot one of the men in the bathroom. He

attempted to shoot Scott in the head, but the gun did not have a bullet. Anderson

took the gun into the hallway, presumably to put a bullet in it, and returned,

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insisting that Matheson shoot Scott or he would kill Matheson. Matheson shot

Scott in the chest.

Embrey then gave his gun to Anderson, telling him that he did not want to

be involved in shooting anyone, and escorted Matheson back to the car.

Matheson heard three or four more shots coming from the house. As Matheson

was sitting in the car, Embrey opened the trunk and Matheson could smell gas as

if Embrey was siphoning gasoline. The men removed a sack of “Longneck

Budweiser” bottles from the back seat. Id. at 107. Then Matheson heard someone

throw something through a window and saw that Poteet’s bedroom window was

broken. After setting the house on fire, the men drove away.

Thornburg dropped Anderson and Embrey off by the side of the road so

that they could stash their guns. After driving further, Thornburg told Matheson

to get out of the car, hide for a bit, and keep his mouth shut or the others would

blame him for killing everyone.

Scott, still alive in the burning house, attempted to help Poteet crawl out

but was unsuccessful. He made it out himself and lay down in the grass. A man

and his son drove past the burning house shortly after 5 a.m. and saw Scott. They

took him to a convenience store and called the police. Scott survived, but Smith,

Poteet, and Shepard perished in the fire.

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 When Matheson heard that officers wanted to arrest him in connection with

the murders, he turned himself in. He gave the above account of his activities to

officers once he learned that his family was under police protection.

B. Court Proceedings

During the guilt phase of Mr. Thornburg’s trial, the prosecution presented

the above account through the testimony of Marvin Matheson and Donnie Scott.

The prosecution also called several other witnesses.

Richard Goss, a Deputy Inspector with the Oklahoma State Bureau of

Investigation (OSBI), testified that Scott had identified Thornburg in a

photographic line-up on September 28th, the day of the murders, as the “one that

was giving the orders.” Tr. III at 208.

To place the three perpetrators—Thornburg, Anderson, and

Embrey—together at the time of the murders, and to confirm the time, the state

provided four witnesses. Eric Huber was living with Anderson, who was his boss

at a trailer manufacturing company. Huber testified that he, Anderson’s wife, and

Anderson’s son joined Anderson, Thornburg, and Embrey at a bar until it closed

about 2 a.m. the morning of the 28th. They then went to the house of Dana Nath,

but left there by 3 a.m. Thornburg, Anderson, and Embrey left in Thornburg’s

car, while Huber, Mrs. Anderson, and the Andersons’ son returned home. About

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6 a.m. Huber was awakened when Thornburg dropped Anderson off at the home.

Huber also testified that Anderson moved to a hotel “right after the homicides,”

Tr. II. at 231, and that while living at the Andersons’ he discovered a box with

newspaper clippings about the murders. In addition, he testified that at the

Andersons’ instructions he had originally told the police that Anderson went

home with his family and Huber after they all went to the bar. He said that he had

not told the truth to authorities until two days before his testimony.

Dana Nath agreed with Huber that the group came to her house after 2 a.m.

the morning of the 28th, and stayed about half an hour. She thought Thornburg,

Anderson, and Embrey left together between 2:30 and 2:45 a.m.

Roy Scott, the uncle of Donnie and Jimmy Scott, testified that he drove

past the Poteet residence as he was on his way to his nephews’ house about

4:30 a.m. on the 28th to pick up Jimmy to go to Oklahoma City. He noticed a

light-colored car pulling into Poteet’s drive (Thornburg’s car was gold). At the

time of his testimony, Roy Scott was in jail on a charge of possessing a stolen

vehicle.

Jatone Kennedy, victim Smith’s girlfriend at the time, testified that she and

Jimmy Scott had been out drinking on the 27th. She passed out at the Scott

residence. Smith, angry because she had not come home, woke her around

2:00 a.m. on the 28th, and they fought as they walked back to their house. Once

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they reconciled, she told him that she had left her purse with his marijuana in it at

Scott’s house. About 4 a.m. he left to go to the Scott residence to get the purse.

He never returned. Kennedy was on probation at the time of her testimony.

The state also called Loyd Keagans, one of the passers-by who rescued

Scott. Keagans testified that he and his son left home at 5:05 a.m. on the 28th to

see a football game in College Station, Texas. Shortly before 5:30 a.m. they

passed by Poteet’s house fully ablaze. They stopped to help. While Mr. Keagans

approached the burning house, his son went to the neighboring house to use the

telephone. On the way, the son discovered Scott, who insisted they take him to a

hospital. They drove him to a nearby convenience store, where they called the

Sheriff’s Department. Although Scott’s condition worsened while he was waiting

for assistance at the convenience store, he was able to tell them that three white

men were responsible, one “big” and one with “sandy hair,” Tr. II at 112, and that

there were three other people in the burning house who had been shot. Jeff

Franklin, Chief of the Alex Police Department, testified that when he arrived at

the convenience store, Scott told him that three or four people he did not know

had shot him; one was tall, and one was a “heavy-set guy with long hair.” Id. at

192.

The state also provided expert witnesses to describe the crime scene. Elvin

Barnhill, an investigator with the State Fire Marshal’s office, described what he

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saw on the morning of the 28th. Shepard was found in the northeast bedroom,

Poteet in the hallway leading to the two bedrooms, and Smith on the bed in the

southeast bedroom. Barnhill detected evidence of the use of accelerants

(flammable substances) to promote the fire in four spots in the northeast bedroom,

and he discovered burn patterns indicating a flammable substance near Smith and

between his legs. Although the laboratory detected no accelerants in the material

samples from the bedroom, Barnhill explained that it was not uncommon for such

substances to “leach[] out” during a fire. Tr. II at 72. He also testified that the

charring of the victims’ bodies and their surroundings indicated an intense heat,

suggesting that accelerants were used in both bedrooms. The pattern of charring

indicated that the fire started in the bedrooms and headed west down the hallway.

Barnhill further explained how one could start a fire by breaking a bottle

containing gasoline and a lit wick. Finally, Barnhill testified that the fire was

likely set intentionally between 4:45 and 5:15 a.m. on the 28th.

Fred Jordan, Oklahoma’s Chief Medical Examiner, testified that each

victim had been shot and some showed signs of burning while still alive. He said

that Poteet’s fatal gunshot wound would not have caused instantaneous death, but

he would have died from loss of blood and collapsing of the lungs. Likewise, the

gunshots wounds to Shepard and Smith would not likely have caused

instantaneous death. Jordan also testified about various wounds present on the

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bodies, such as a gunshot wound on Poteet’s left great toe. Susan Hart, a

physical-evidence specialist and fingerprint examiner for the OSBI, testified that

in Thornburg’s car she found ammunition, a gallon jug, carburetor cleaner, a

lighter, and Embrey’s fingerprints. And Darwin Horman, a crime-scene

investigator for the OSBI, testified that a Budweiser bottle was found in Poteet’s

driveway.

Julie Maxon, a long-time friend of Thornburg, testified that he had

attempted to borrow her police scanner the night of the 27th, some six hours

before the murders, and that he was unusually high that evening. She also

testified to a prior incident in which Thornburg had been shot. The shooting

occurred a few minutes after Thornburg had asked Jimmy Scott to pay him back

$60 that he owed. Thornburg had told her that he thought Poteet had something

to do with the shooting. Terry Alexander, a deputy sheriff who had investigated

the September 23 shooting of Thornburg, testified that when asked about the

shooting, Thornburg had told him “not to worry about it, he’d take care of it.” Tr.

III at 200.

A particularly unusual witness was Teresa Burgess, one of five patrons at

the bar where Thornburg was arrested in the early morning of September 29. She

was new in town and had never before seen Thornburg, but was sitting next to

him. She overheard him say to himself, “[T]hree died last night and three more

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will die tomorrow.” Tr. III at 218. After Thornburg was arrested, officers

interviewed all the patrons, and Burgess told them what she had heard.

Mr. Thornburg’s sole defense was alibi. He testified that he had been out

drinking with Embrey, became extremely intoxicated, blacked out, and woke up

the morning of the murders in the back seat of his car at Embrey’s house. He also

testified that he had no recollection of making the remark overheard by Burgess.

On cross-examination he maintained that he had no recollection of the early

morning hours of the 28th, although he conceded that if witnesses said he was up

and about at the Naths’ house, then he probably was. When asked why Matheson

and Scott would say he was at the crime scene, Thornburg replied, “ I have no

idea,” continuing to maintain that he was not a participant in the murders. Tr. IV

at 73.

The defense called three witnesses to support the alibi. Embrey’s

girlfriend, Ruby Davis, testified that when Embrey came home intoxicated at

about 3 a.m., he told her that Thornburg was in his car asleep. When she left the

house some four hours later, she saw Thornburg asleep in the car. Roy

Thornburg, Mr. Thornburg’s brother, and Terry Mainka, a friend of his brother,

both testified that they were all at the bar drinking the night prior to the murders,

and that they put Thornburg in the passenger side of a car at the end of the

evening because he was incapacitated. Finally, Patricia Evans, who had known

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Thornburg for 22 years, testified that as she passed the Poteet residence about 5

a.m. the morning of the murders, she saw two vehicles on the left-hand side of the

road, and a man walking across the highway. She did not recognize the man as

Mr. Thornburg, nor did she see his car.

The state called two rebuttal witnesses. OSBI Deputy Inspector Richard

Goss impeached Ruby Davis. He testified that when he first interviewed her on

October 2, 1996, she told him that Thornburg was not at her house the morning of

September 28th. Then on October 9th she told him that she had not seen

Thornburg at her house but had seen his car in her driveway. Goss also testified

about a statement by Thornburg as he was arrested for the murders on the early

morning of the 29th. When Goss informed Thornburg that he was being charged

with three counts of first-degree murder, Thornburg replied: “[G]ood. Prove it,

mother fucker. You couldn’t get your keys if they were—you couldn’t find your

keys if they were stuck up your ass.” Tr. IV at 78.

The final witness was Teresa Embrey, Roger Embrey’s sister-in-law and

neighbor. She had never been interviewed but called the OSBI the morning of her

testimony because she “just th[ought] the truth need[ed] to come out.” Tr. IV at

88. She testified that she was up at 5 a.m. the morning of the murders to say

good-bye to her husband, who was going to work. When she looked across the

road at Roger Embrey’s house, Thornburg’s car was not there. The only cars

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were Roger’s and Ruby Davis’s. When she looked again shortly before 8 a.m.,

Thornburg’s car was there.

The jury convicted Mr. Thornburg on three counts of first-degree malice-

aforethought murder, one count of first-degree arson, one count of shooting with

intent to kill, and two counts of kidnapping.

At the penalty stage the prosecutor argued four aggravating factors in

support of the death penalty: (1) the defendant knowingly created a great risk of

death to more than one person; (2) the murder was especially heinous, atrocious,

or cruel; (3) the murder was committed for the purpose of avoiding or preventing

a lawful arrest or prosecution; and (4) the defendant was a continuing threat to

society. In mitigation Mr. Thornburg presented the testimony of his wife and a

medical expert who testified that he had organic brain damage and was subject to

blacking out whenever he drank in excess. The jury found all four aggravating

factors on each murder count and returned a death sentence. The entire trial,

including jury selection and the penalty phase, took four days.

On direct appeal to the OCCA Mr. Thornburg was represented by new

counsel. The OCCA affirmed his conviction and sentence. See Thornburg v.

State, 985 P.2d 1234 (Okla. Crim. App. 1999). Meanwhile, represented by his

present counsel, he had filed a state postconviction application. It, too, was

denied by the OCCA. After the United States Supreme Court denied certiorari

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with respect to his direct appeal on May 15, 2000, he filed his federal application

under 28 U.S.C. § 2254, setting forth 14 grounds for relief. The district court

rejected his request for an evidentiary hearing and denied relief. He appeals.

II. DISCUSSION

A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act (AEDPA) we may

not grant Mr. Thornburg relief with respect to a claim adjudicated on the merits

by the state court unless the adjudication

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d). Moreover, factual determinations by a state court are

presumed to be correct and the applicant has the burden of rebutting that

presumption by clear and convincing evidence. Id. at § 2254(e)(1).

As the Supreme Court has recently reiterated,

A state-court decision is contrary to . . . clearly established
precedents if it applies a rule that contradicts the governing law set
forth in [Supreme Court] cases, or if it confronts a set of facts that is
materially indistinguishable from a decision of [the Supreme] Court
but reaches a different result. A state-court decision involves an
unreasonable application of this Court's clearly established
precedents if the state court applies this Court's precedents to the
facts in an objectively unreasonable manner.

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Brown v. Payton, 544 U.S. __, 125 S. Ct. 1432, 1438-39 (2005) (internal citations

omitted). “Avoiding these pitfalls does not require citation of [Supreme Court]

cases—indeed, it does not even require awareness of [those] cases, so long as

neither the reasoning nor the result of the state-court decision contradicts them”

Early v. Packer, 537 U.S. 3, 8 (2002). Thus, when a state court adjudicates a

federal issue relying solely on a state standard that is at least as favorable to the

applicant as the federal standard, we presume an adjudication on the merits and

apply AEDPA deference. See Harris v. Poppel, 411 F.3d 1189, 1196 (10th Cir.

2005).

B. Admission of Polygraph Evidence

Mr. Thornburg first argues that his due-process right to a fundamentally

fair trial was violated by testimony that Matheson had passed a polygraph

examination. Our concern is not whether state rules of evidence were violated;

we must confine ourselves to “deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.

62, 68 (1991). The issue here is whether the challenged evidence “so infused the

trial with unfairness as to deny due process of law.” Id. at 75.

During his cross-examination of Matheson, Mr. Thornburg’s counsel asked,

“How long did you stay in jail?” Tr. III at 146. Matheson replied:

Like four or five days and I gave a statement to them like when they
arrested me in Alex they told me they’d give me a polygraph and if I

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 was telling the truth that they would let me out on an OR [own-
recognizance] bond.
And I sat in jail five days or longer, I don’t know, or less, I
don’t know, and I passed the polygraph and I come in front of the
Judge here and got an OR bond.

Id. Although evidence of passing a polygraph examination is inadmissible in

Oklahoma, Birdsong v. State, 649 P.2d 786, 788 (Okla. Crim App. 1982),

Mr. Thornburg’s counsel did not object to this testimony. Confining its analysis

to plain-error review, the OCCA wrote:

We find that Matheson's reference to the polygraph test was a single,
isolated response which was not solicited by defense counsel's
question. Although Matheson's response was potentially prejudicial
because he not only stated that he took the test but also that he
passed the test, this improper testimony was not unduly prejudicial
under the facts and circumstances of this particular case. This is
because Matheson was not the only witness who testified about the
events which are the subject of this case. Significant portions of
Matheson's testimony were corroborated by Donnie Scott who also
was witness to the events which occurred at Poteet's house. Given
the evidence presented against Appellant at trial, we do not find that
the improper mention of the polygraph examination rose to the level
of plain error in this case.

Thornburg, 985 P.2d at 1242 (emphasis added). In short, the OCCA found no

plain error because the improper testimony was not “unduly prejudicial.”

Oklahoma’s plain-error test is rooted in due process. Two years before its

Thornburg decision the OCCA had stated:

As the right to a fair trial flows from the Due Process Clause of the
state and federal constitutions, it forms the very foundation on which
the criminal trial must be based. See Okla. Const. Art. II, § 7; U.S.
Const. Amend. 14; Massey v. Moore, 348 U.S. 105, 106 (1954)

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 (Fourteenth Amendment requires fairness). Error which impinges on
the fundamental fairness of trial is plain error.

Cleary v. State, 942 P.2d 736, 752-53 (Okla. Crim. App. 1997). We see no

practical distinction between the formulations of plain error in Thornburg and

Cleary and the federal due-process test, which requires reversal when error “so

infused the trial with unfairness as to deny due process of law,” Estelle, 502 U.S.

at 75. Because the OCCA applied the same test we apply to determine whether

there has been a due-process violation, we must defer to its ruling unless it

“unreasonably appli[ed]” that test. 28 U.S.C. § 2254(d). It did not.

The prejudicial impact of Matheson’s statement was somewhat limited

because he did not indicate what portion of his testimony the polygraph found

truthful and the prosecution made no mention of the polygraph at any later point

in the trial. More importantly, Matheson’s testimony was strongly corroborated in

its essentials by the testimony of one of the victims, Scott (who even testified that

Matheson had shot him), and the evidence of guilt could reasonably be viewed as

overwhelming. The OCCA could reasonably have determined that Matheson’s

unsolicited, isolated comment regarding the results of his polygraph exam did not

infect the trial with such unfairness as to deny Mr. Thornburg his Fourteenth

Amendment right to due process. See United States v. Blaze, 143 F.3d 585, 594

(10th Cir. 1998) (“single unsolicited mention of a polygraph” did not merit

mistrial due to other evidence of guilt established at trial); United States v.

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Tedder, 801 F.2d 1437, 1445 (4th Cir. 1986) (“limited, inadvertent reference” to

polygraph test did not entitle defendant to mistrial when jury had the opportunity

to determine credibility through cross-examination, and other evidence supported

defendant’s guilt).

Mr. Thornburg relies on United States v. Scheffer, 523 U.S. 303 (1998), to

contend that the introduction of the polygraph evidence is a per se violation of his

constitutional right to a fundamentally fair trial. But his reliance on Scheffer is

misguided. Scheffer held that the per se exclusion of polygraph evidence was not

a constitutional violation because of the inherent unreliability of polygraph

evidence. Id. at 312. Scheffer does not stand for the proposition that the

introduction of polygraph evidence necessarily constitutes constitutional error.

C. Failure to give voluntary-intoxication and lesser-included-
offense instructions

1. Voluntary Intoxication

Evidence at trial indicated that Mr. Thornburg was intoxicated at the time

of the homicides. Marvin Matheson testified that Mr. Thornburg injected himself

with “crank” at Poteet’s house. Tr. III at 93-95. Mr. Thornburg testified that he

had been drinking heavily on the day of the murders, and two other witnesses

testified that he was extremely intoxicated or high that evening. Under Oklahoma

law voluntary intoxication may be a defense to first-degree murder if the “person

was incapable of forming [malice aforethought] because of [his] intoxication.”

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Okla. Unif. Jury Instructions-Criminal 8-36; see Crawford v. State, 840 P.2d 627,

638 (Okla. Crim. App. 1992).

Mr. Thornburg’s trial counsel failed to request a voluntary-intoxication

instruction, but he argues that the trial court should have sua sponte instructed the

jury on the matter. The OCCA reviewed the failure to give such an instruction for

plain error and affirmed. In light of Mr. Thornburg’s proffered alibi defense, it

held that “while [an] Appellant is entitled to an instruction on his theory of

defense, he is not entitled to instruction on every possible theory of defense.”

Thornburg, 985 P.2d at 1243.

Mr. Thornburg asserts that he was entitled to a voluntary-intoxication

instruction despite his alibi defense. He relies on Mathews v. United States,

485 U.S. 58, 63-64 (1988), for the proposition that a criminal defendant has a

right to raise inconsistent defenses if they are supported by the evidence. Even

accepting that proposition, however, we reject his claim.

We review the district court’s failure to give an instruction sua sponte

“only for the denial of fundamental fairness and due process.” Spears v. Mullin,

343 F.3d 1215, 1244 (10th Cir. 2003), cert. denied, 541 U.S. 909 (2004). A

voluntary-intoxication instruction was not necessary for the jury to acquit

Mr. Thornburg because of intoxication. The instruction would not alter the

elements of the offense. It would merely alert the jurors (and emphasize to them)

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that one reason he might lack the requisite intent is that he was intoxicated.

Although he claims that the trial court’s failure to instruct the jury on the

voluntary-intoxication defense relieved the state of its burden of proving specific

intent beyond a reasonable doubt, the jury was informed that it could convict him

of first-degree murder only if it found beyond a reasonable doubt that he

possessed malice aforethought. And the trial court provided the following

definition of malice aforethought:

‘Malice aforethought’ means a deliberate intention to take away the
life of a human being. As used in the Instructions, ‘malice
aforethought’ does not mean hatred, spite or ill-will. The deliberate
intent to take a human life must be formed before the act and must
exist at the time a homicidal act is committed. No particular length
of time is required for formation of this deliberate intent. The intent
may have been formed instantly before the commission of the act.

Instruction 9, St. Ct. R. Vol. III at 458. The jury was not prohibited from

evaluating Mr. Thornburg’s intent in light of his intoxication. The jury could

have heard the evidence of intoxication, decided he lacked the requisite intent,

and acquitted him. A voluntary-intoxication instruction might have helped him,

but it was by no means essential to the jury’s considering the matter. See Hill v.

Mitchell, 400 F.3d 308, 322-23 (6th Cir. 2005) (absence of intoxication

instruction does not establish that state failed to prove mental element of crime

beyond a reasonable doubt); see also Hendersen v. Kibbe, 431 U.S. 145, 153-55

(1977) (trial court’s failure to give instruction explaining causation element did

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not justify reversal); Foster v. Ward, 182 F.3d 1177, 1193-94 (10th Cir. 1999)

(trial court’s failure to give unrequested cautionary instruction on accomplice

testimony did not render trial fundamentally unfair). In short, failure to give an

unrequested voluntary-intoxication instruction did not render Mr. Thornburg’s

trial fundamentally unfair.

2. Lesser-Included-Offense Instruction

Mr. Thornburg also contends that the trial court should have sua sponte

instructed on the lesser included offense of first-degree manslaughter. See Beck

v. Alabama, 447 U.S. 625 (1980) (defendant entitled to requested lesser-included-

offense instruction when evidence warrants it). But this court has repeatedly held

that “a state prisoner seeking federal habeas relief may not prevail on a Beck

claim as to a lesser included instruction that he or she failed to request at trial.”

Hooks v. Ward, 184 F.3d 1206, 1234 (10th Cir. 1999); Spears v. Mullin, 343 F.3d

at 1245 (failure to request lesser-included-offense instruction precludes habeas

relief).

To the extent that Mr. Thornburg argues that Oklahoma’s capital-

punishment statute is unconstitutional because Beck requires a lesser-included-

offense instruction for every capital charge, we disagree. Beck says only that a

court must provide a lesser-included-offense instruction if the evidence supports

the lesser included offense. See Beck, 447 U.S. at 630. The Supreme Court

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foreclosed Mr. Thornburg’s present argument in Hopkins v. Reeves, 524 U.S. 88

(1998), when it held that Beck did not require “state trial courts to instruct juries

on offenses that are not lesser included offenses of the charged crime under state

law,” even if the jury is left with only the option of convicting or acquitting. Id.

at 90. There the defendant was convicted of felony murder, a crime for which

second-degree murder and manslaughter were not lesser included offenses under

Nebraska law. Because there was no lesser included offense that the evidence

would support, the trial court’s failure to offer a lesser-included-offense

instruction did not result in any constitutional error.

Here, the OCCA held that “[t]he evidence did not warrant instructions on

First-Degree Manslaughter as there was no evidence of adequate provocation

which is required to support a conviction for this crime.” Thornburg, 985 P.2d at

1243. Because Oklahoma’s manslaughter statute as interpreted by the OCCA on

this occasion requires evidence of provocation—evidence that was not present in

this case—the failure to give the instruction did not violate Beck.

D. Hearsay Statements

Mr. Thornburg contends that several hearsay statements by his

codefendants were elicited by the prosecutor in violation of his Sixth Amendment

right to confrontation. The state counters by asserting that (1) some of the

statements were not hearsay, and (2) those that were did not prejudice

-22-
Mr. Thornburg. Trial counsel did not object to the statements and the OCCA,

while agreeing that some of the statements were hearsay, concluded that their

admission did not rise to plain error. Thornburg v. State, 985 P.2d at 1243. The

OCCA stated, “In addition to the few hearsay comments which indicated

codefendants’ intent to kill the victims, there were numerous of

[Mr. Thornburg’s] own statements properly admitted into evidence which

indicated his same intent.” Id. As we proceed to explain, we hold that most of

the statements were properly admitted, and agree with the OCCA that any

constitutional error arising in the admission of the statements caused no harm to

Mr. Thornburg.

Mr. Thornburg asserts that the following statements, all introduced through

the testimony of Matheson, violated his right to confrontation: (1) upon leaving

his trailer, codefendant Anderson instructed Matheson “not to worry about

locking [his] trailer, [he would] never come back,” Tr. III at 73; (2) Anderson,

while arguing with Poteet, said that they were far enough in the country to settle

their score; (3) Anderson said that he was going to overdose them before giving

the victims drugs; (4) Anderson insisted that Matheson shoot Scott, or Anderson

would kill him (Matheson); (5) Embrey said that he did not want to be involved in

shooting anyone; (6) Anderson told Mr. Thornburg that he thought the house

would burn, and (7) Embrey responded that they could burn it because he had

-23-
gasoline; (8) after recognizing a silver lighter at Poteet’s house, Anderson said

that someone had stolen it from him; and (9) after setting fire to the house,

Anderson, over Mr. Thornburg’s protests, commented that he still wanted to burn

and kill Matheson.

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Fed. R. Evid. 801(c). See 12 Okla. Stat. § 2801(A)(3) (same).

With the possible exception of statements (7) and (8), each statement either was

not offered to prove the truth of the matter asserted or was admissible under an

established exception to the hearsay rule for statements offered to prove the

declarant’s state of mind. See Fed. R. Evid. 803(3) (state-of-mind exception); 12

Okla. Stat. § 2803(3) (same). The statements were probably offered just to

complete the narrative, and at most were offered to show that Thornburg was on

notice that Anderson was intent on committing violence—a use that is

independent of the truth of the statement of intent and thus is not hearsay.

Statement (1) was not offered to prove that Matheson would not come back to his

trailer (he did return); statement (2) was not offered to prove how far in the

country they were; nor was statement (3), which was admissible to prove

Anderson’s intent to overdose the victims, offered to prove that anyone was

overdosed (no one was). Statement (4) was an order. See United States v.

-24-
Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) (orders are not hearsay because

they are not offered for their truth). Statement (5) was irrelevant, and at most

could have been offered to prove Embrey’s state of mind. Similarly, statement

(6) was not offered to prove Anderson’s belief that the house would burn; and

statement (9) was not offered to prove Anderson’s murderous intent (Matheson

was not harmed). Perhaps statement (7) was offered to prove that the perpetrators

had gasoline and statement (8) was offered to prove that Poteet had stolen

Anderson’s lighter; but the statements could hardly have affected the outcome of

the trial. The OCCA’s ruling was eminently reasonable.

E. Photographic Evidence

During the testimony of its expert witnesses in the guilt phase of the jury

trial, the state introduced six photographs depicting the charred remains of the

victims’ bodies, as and where they were found. Mr. Thornburg objected to the

photographs in an in camera hearing before the trial judge, arguing that he had no

plans to dispute the manner of death and that they served solely to inflame the

jury. The trial court overruled the objection. Mr. Thornburg contends that the

introduction of these gruesome photographs deprived him of a fundamentally fair

trial and due process of law in violation of the Sixth, Eighth, and Fourteenth

Amendments. The OCCA, reviewing his claims on the merits, held that the

photographs were “probative insofar as they corroborate the medical examiner’s

-25-
testimony, depict the crime scene and establish corpus delictis.” Thornburg, 985

P.2d at 1244. Although the OCCA found the photographs “disturbing,” it held

that their prejudicial effect did not substantially outweigh their probative value.

Id.

“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). The appropriate inquiry in this

proceeding is whether the admission of the photographs rendered the proceeding

fundamentally unfair. Id. at 1275.

Mr. Thornburg pleaded not guilty. Even if he did not dispute the manner of

death, the state still bore the burden to convince the jury that its witnesses, both

eyewitnesses and experts, provided an accurate account of events. The

photographs corroborated their accounts. Indeed, Mr. Thornburg’s defense

counsel, in his guilt-phase closing argument, conceded that “to prosecute a case

like this it makes sense to show the photographs, and they’re graphic.” Tr. IV at

122.

Perhaps we would not have admitted such evidence had we been sitting on

the trial bench, but our role is a very limited one. Reviewing the record under

AEDPA’s constraints, and in light of the probative value of the pictures, the

gruesome nature of the crime, and the other evidence incriminating

-26-
Mr. Thornburg, we cannot conclude that the OCCA acted contrary to or

unreasonably applied federal law in concluding that their admission was proper.

Mr. Thornburg relies on our recent ruling in Spears v. Mullin, 343 F.3d

1215 (10th Cir. 2003), cert. denied, 541 U.S. 909 (2004), to argue that the

admission of the photographs in the guilt phase of the trial carried over to the

sentencing phase and unfairly persuaded the jury to sentence him to death. But

Spears is not apposite. In Spears photographs depicting the victim with 50 to 60

stab wounds were offered in the sentencing phase of a capital trial to prove

conscious physical suffering. We held that the photographs were not probative

for that purpose in light of the uncontradicted evidence that the victim died or lost

consciousness early in the beating. Id. at 1227-28. Unlike the situation here,

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

were offered to prove.

F. Prosecutorial Misconduct

Mr. Thornburg contends that a multitude of the prosecutor’s statements

during the guilt and sentencing phases of trial were improper and had the

cumulative effect of rendering his trial fundamentally unfair and his sentence

unreliable. His trial counsel made no objection to any prosecutorial comment,

and the OCCA reviewed the contested comments for plain error. Without

enumerating each specifically contested comment, the OCCA concluded: “We

-27-
find that many of the comments complained of fell within the prosecutors’ wide

range of permissible argument. We also find that those comments which were

inappropriate were not so egregious as to rise to the level of plain error.”

Thornburg, 985 P.2d at 1244-45. Mr. Thornburg concedes in his appellate brief

that, viewed in isolation, the comments would not have risen to constitutional

error. Instead, he asserts that their cumulative effect rendered the trial

fundamentally unfair.

We therefore do not address each comment to determine whether it alone

rendered the trial unfair. Our course will be to analyze each comment to

determine the risk of unfair prejudice and then decide whether the cumulative

impact of any errors rendered the trial unfair. We begin by distinguishing the

challenged comments that were proper from those that may have been improper

and should be included in the cumulative-error analysis. Because the OCCA did

not identify the comments it thought improper, we conduct our own independent

review of the record and federal law.

1. Comments Not Improper

a. Discussing Reasonable Doubt

During voir dire the prosecutor made the following comments:

In a criminal case we have to prove the defendant guilty beyond a
reasonable doubt. In a civil case it’s beyond a preponderance of
evidence. Do you understand the distinctions?
...

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 And we can’t tell you what reasonable doubt means. We can’t define
it for you. Defense can’t define what beyond a reasonable doubt
means. And the Court can’t define it.

The instructions won’t say beyond a shadow of a doubt or all doubt.
The Instructions say beyond a reasonable doubt.

Tr. I at 121 (emphasis added) (similar comments at 125). Although Oklahoma

law does not permit jury instructions on the meaning of “reasonable doubt,”

Al-Mosawi v. State, 929 P.2d 270, 279 (Okla. Crim. App. 1996), and an

instruction defining reasonable doubt may deny due process if it misleads the jury

about the burden the state carries, see Cage v. Louisiana, 498 U.S. 39, 41 (1990)

(instructions equating “reasonable doubt” with “grave uncertainty” and “actual

substantial doubt” violate due process), overruled on other grounds by Estelle v.

McGuire, 502 U.S. 62, 73 n.4 (1991) (clarifying that standard of review for

erroneous jury instructions is whether they had a “reasonable likelihood” of

misleading the jury), not all definitions of reasonable doubt are misleading. The

Supreme Court held in Victor v. Nebraska, 511 U.S. 1, 17 (1994), that a jury

instruction stating that a reasonable doubt “is not a mere possible doubt” did not

likely mislead the jury “because a reasonable doubt, at a minimum, is one based

upon reason. A fanciful doubt is not a reasonable doubt.” (internal citation and

quotation marks omitted). Similarly, to state that “beyond a reasonable doubt”

does not mean beyond “a shadow of a doubt or all doubt” was not a constitutional

violation.

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 b. Eliciting Evidence of Codefendant’s Attempt to
Influence Witness Huber

Mr. Thornburg contends that the prosecutors improperly elicited testimony

from state witness Eric Huber that codefendant Anderson and his wife had

attempted to get him to provide a false statement to the police. Huber testified

that Anderson, Embrey, and Thornburg left the Nath house together at 3:00 a.m.

on the 28th and that Anderson was dropped off at his house about 6 a.m. by a gold

car resembling Thornburg’s. Huber, however, had made a contrary statement to

police officers when he was first interviewed. Such a prior inconsistent statement

is often used by opposing counsel for impeachment. And to reduce the impact of

the impeachment, counsel may elicit the prior statement on direct examination and

allow the witness to explain. That is what happened here:

Q. [Prosecutor]. Sir, did you give a different statement than what
you’ve told this jury and law enforcement when you were
interviewed?
A. [Huber]: Yes, sir. I did.
Q. That was back in October 3rd of 1996?
A. Yes, sir.
Q. What statement did you give them?
A. I stated in that report that Glenn—Mr. Anderson rode home with
me, his wife and his son and that I drove, and that was a lie.
Q. So basically you gave an alibi at that time.
A. Yes, sir. I did.
Q. Who told you, sir, to tell OSBI that statement—that story?
A. Mr. and Mrs. Anderson.

Tr. II at 230-31. There is, of course, always the possibility that defense counsel

would not have tried to impeach Huber with the prior statement, in which case the

-30-
misconduct of the Andersons should have been inadmissible. But if defense

counsel wished to adopt that course, he needed to object to the direct examination

concerning the prior statement. We see no impropriety in the prosecutor’s

anticipation of likely impeachment, absent something in the record indicating that

defense counsel would forego the impeachment.

c. Prosecutorial Speculation and Inference

Mr. Thornburg also contends that the prosecutor speculated and argued

facts not in evidence when he claimed that accelerants were used in starting the

fire, that other jugs of gasoline may have been present in Mr. Thornburg’s car that

night, and that but for the two passers-by who discovered Scott, there would have

been four, not three, deaths. A prosecutor may comment on and draw reasonable

inferences from evidence presented at trial. See Hooper v. Mullin, 314 F.3d 1162,

1172 (10th Cir. 2002), cert. denied, 540 U.S. 838 (2003). Undisputedly, the

house was set on fire. The fire inspector testified that he detected four spots in

the debris showing evidence of accelerants, and a photograph admitted into

evidence showed a plastic jug in the back seat of the gold car driven by

Mr. Thornburg. It is not beyond the pale to infer from this evidence that

accelerants had been used to start the fire and that other containers of flammable

substances had been present in the car that night. It was also reasonable for the

prosecutor to imply that Scott, who was left seriously wounded in a burning

-31-
house, may not have survived if he had not been rescued by the passers-by. These

comments were not improper.

d. Demeaning Mitigation

Mr. Thornburg also argues that the prosecutor improperly demeaned his

mitigation evidence as “excuses.” Tr. IV at 199-202. We disagree. The

prosecutor used the word excuse on two occasions. The first time, the prosecutor

was merely incorporating the word excuse as employed by defense counsel in his

closing argument moments before: “Not saying the alcohol isn’t a defense in the

sense of an excuse. There is no excuse. We’re asking you for mercy . . . .” Id. at

199. In response the prosecutor said, “The State and defense counsel have one

thing in common. Defense counsel just said there are no excuses. Folks, there’s

not. There cannot be excuses for what these three men suffered.” Id. at 199-200.

Further along in his argument, the prosecutor again referred to the

mitigation evidence as excuses but this comment was equally proper because the

prosecutor was commenting on the express language of the jury instructions. The

mitigation instructions specified that the jury could consider evidence produced

by Mr. Thornburg that he “acted under circumstances which tended to justify,

excuse or reduce the crime.” St. Ct. Rec. at 503. The prosecutor said, “What facts

have you heard that justify, excuse or reduce this crime? Any? Any of the

excuses?” Tr. IV at 201. This characterization of the mitigation evidence,

-32-
invited as it was by the jury instructions and defense counsel, falls easily within

the wide latitude of argument allowed to prosecutors.

2. Possibly Improper Comments

Mr. Thornburg complains of other prosecutorial comments that are at least

arguably improper. We will address them individually before considering

whether their cumulative impact demands reversal.

a. Improper Witness Vouching

Mr. Thornburg contends that in final argument the prosecutor (1)

improperly vouched for state witnesses by claiming that Donnie Scott, Teresa

Burgess, and Teresa Embrey (codefendant Embrey’s sister-in-law) had “no reason

to lie,” Tr. IV at 105-107; and (2) accused Ruby Davis of perjury when he said:

Let’s talk about the Embreys and Ruby Davis. What motive
does she have to get up here and lie to you? When she first talks to
OSBI she never sees Richard Thornburg out there. Never at all. She
sticks to the story about Mr. Embrey coming home and falling off the
couch.
Second interview she never sees Mr. Thornburg there. . . .
Second interview she throws in he was a big boy. I told him to stay
away from those people.
What is she not saying in that statement? Yet, she comes in
here in front of you and testifies, commits perjury on the stand, lies
to you and says she never said those things. She said she was never
asked. What motive does she have to testify? Her boyfriend, Roger
Embrey, her friend Richard Thornburg.

Id. at 107-08 (emphasis added).

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 “Argument or evidence is impermissible vouching only if the jury could

reasonably believe that the prosecutor is indicating a personal belief in the

witness' credibility, either through explicit personal assurances of the witness'

veracity or by implicitly indicating that information not presented to the jury

supports the witness' testimony.” United States v. Magallanez, 408 F.3d 672, 680

(10th Cir. 2005) (internal quotation marks omitted). Likewise, an attack on a

witness’s veracity is improper only in similar circumstances. Thus, it is not

improper for a prosecutor to direct the jury’s attention to evidence that tends to

enhance or diminish a witness’s credibility.

Here, the prosecutor’s statements appeared to be based on the evidence.

Nothing at trial suggested any reason why Scott, Teresa Embrey, or Burgess

would want to injure Mr. Thornburg. Also, the attack on Ms. Davis was explicitly

based on her prior inconsistent statements to police officers.

Moreover, the prosecutor never indicated to the jury that he knew

something more about the witness’s credibility than could be deduced from the

evidence at trial. Hence, this does not appear to be a case of improper vouching.

Even if, in an (over)abundance of caution, we might say that the prosecutor

stepped over the line, see United States v. Broomfield, 201 F.3d 1270, 1276 (10th

Cir. 2000) (assuming prosecutor’s characterization of case as “case about

perjury,” defense witness’s testimony as “lies,” and argument that state witness

-34-
“[had] no reason to lie” was improper vouching but deciding that any error was

harmless), we would still be hard-pressed to find any substantial unfair prejudice.

b. Commenting on and Eliciting Evidence of
Codefendant’s Attempt to Influence Witnesses

Mr. Thornburg contends that the prosecutor improperly elicited testimony

that the Andersons tried to influence the testimony of Jatone Kennedy, victim

Smith’s girlfriend. Kennedy testified that Smith went to get her purse from

Scott’s house about 4 a.m. on the 28th and that she never saw him again. On

direct examination the prosecutor asked:

Q. Ma’am, has anybody approached you in this case about your
testimony?
A. No.
Q. Nobody has?
A. I think in the beginning there were some people that tried to
convince me to say things differently than —I mean, nobody—
Q. Nobody twisted your arm.
A. Right
Q. Who approached you, ma’am, about this case?
A. Corky [Mrs.] Anderson.

Tr. II at 216. In contrast to Huber, Kennedy had uttered no prior inconsistent

statement.

Mr. Thornburg further complains that the prosecutor stated in closing:

“[Mr. Huber] also told you Corky Anderson tries to influence his testimony,

Corky and Glenn. And first she lied and gave a story that Glenn went home with

-35-
them. . . . Why are you creating alibis? Why do you have to create a situation if

you haven’t done anything wrong?” Tr. IV at 103.

We agree with Mr. Thornburg that it may have been improper for the

prosecutor to elicit Mrs. Anderson’s attempt to influence Kennedy or to argue that

Anderson’s attempt to create an alibi was evidence of Mr. Thornburg’s guilt.

The state makes no real attempt to justify the conduct. Nevertheless, the

real damage to Mr. Thornburg’s alibi defense came from the testimony of

government witnesses regarding the events at the time of the murder, not evidence

regarding the Andersons’ apparently feeble attempts to influence witnesses.

c. Appeal to Moral and Civic Duty of Jury

Mr. Thornburg also complains that during the guilt phase the prosecutor

argued that the jury had a moral and civic duty to convict:

Justice is in your hands. Your decision here affects the lives of
not only this defendant but other people in the community. We’ve
shown you overwhelming evidence of why Mr. Thornburg would
want to kill Mr. Poteet, why maybe he would want to kill Jimmy
Scott, his motive, waited the night before, the next morning, his
statements to Richard Goss when he was arrested.
Does that sound like meek, little, mild statements the
testimony you heard from Mr. Thornburg up here? I will suggest to
you that was the true Mr. Thornburg. With all the cuss words you
can’t prove it. He didn’t say I’m innocent. What are you talking
about? He said, you can’t prove it. Folks, we have proven it. It’s
right here in front of you right now.
We talked about it in voir dire. We asked the question about
passing judgment on somebody else. And that’s a hard thing to do.
Each of you in voir dire told us you could pass judgment. We’ve
proven our case to you. We’ve shown it to you.

-36-
 We’ve woven it together. Every little piece has fallen right in
line. We’ve shown our case to you, said this is what we’ve got, this
is the evidence.
One of you just got through reading a book before you came on
here, When Justice Prevailed. Folks, justice must prevail in this
case. Like I said, you’re the ones that decide it. You are the justice
in Grady County right now. You’re the ones that make the legal
decisions.
Justice must run in this case for three victims, for Donnie
Scott. Mr. Thornburg has got to be told what he did was wrong. Not
only was it wrong, this was terrible, folks.
One of you said about mass murder. One of the problems in
our society is mass murder, violence, drugs, guns. This is a mass
murder. This is three helpless people who were gunned down,
kidnapped tortured, burned alive and left dead in a house.

Tr. IV at 112-113 (emphasis added). It is improper for a prosecutor to suggest

that a jury has a civic duty to convict. See Spears v. Mullin, 343 F.3d 1215, 1247

(10th Cir. 2003), cert. denied, 541 U.S. 909 (2004). In a decision handed down

during World War II, the Supreme Court warned that the prosecutor’s references

to the war constituted “an appeal wholly irrelevant to any facts or issues in the

case,” and could have jeopardized the verdict had the Court not reversed on

another ground. Viereck v. United States, 318 U.S. 236, 247-48 (1943). But here

the prosecutor’s comments were firmly rooted in the facts of the case. We see

little, if any, impropriety. See Spears, 343 F.3d at 1247 (statement that “justice

cries out for [conviction]” did not render trial fundamentally unfair); Le v. Mullin,

311 F.3d 1002, 1022 (10th Cir. 2002) (prosecutor’s comment that jury “could only

-37-
do justice . . by bringing in a verdict of death” did not render trial fundamentally

unfair), cert. denied, 540 U.S. 833 (2003).

d. Misstatement of the Evidence

Mr. Thornburg complains of prosecution comments about the defense’s

punishment-phase expert, Dr. Philip Murphy, a clinical psychologist. Dr. Murphy

testified that excessive drinking and other injuries caused Mr. Thornburg’s

organic brain damage that led to blackouts during which he would lose

consciousness. Dr. Murphy performed 11 tests and a clinical interview to assess

Mr. Thornburg. In his closing argument at the sentencing phase of the trial, the

prosecutor said: (1) “You heard Dr. Murphy. He spent 15 minutes looking at him

and he said he’s brain damaged?” Tr. IV at 200; and (2) “Dr. Murphy says that

Richard Thornburg, as long as he’s not drinking and in these blackouts, he’s not a

dangerous man. This is, of course, from his 15 minutes upstairs in jail.” Tr. IV

at 203-04. But nowhere in the record is there evidence about the amount of time

Dr. Murphy spent with Mr. Thornburg. A prosecutor is allowed to comment on

the evidence and draw inferences therefrom, but he may not speculate or refer to

evidence never presented to the jury. See Le v. Mullin, 311 F.3d at 1020-21

(criticizing prosecutor for mischaracterizing evidence and suggesting that

defendant had committed other murders when such facts were not in evidence).

The prosecutor’s 15-minute comments were improper.

-38-
 On the other hand, defense counsel never objected to these statements.

Also, the judge instructed the jury that it should consider only the evidence

introduced at trial, that the attorneys’ statements and arguments are not evidence,

and that the jury bore the responsibility of determining the credibility of each

witness. Such instructions may minimize the impact of a prosecutor’s

misstatements. See Darden v. Wainwright, 477 U.S. 168, 182 (1986) (jury

instructions that “their decision was to be made on the basis of the evidence

alone, and that the arguments of counsel were not evidence” helped remedy

prosecutor’s improper closing argument).

e. Comments on the Appropriate Sentence

Mr. Thornburg contends that the sentencing stage of his trial was

fundamentally unfair because in his sentencing-stage closing the prosecutor (1)

injected his personal opinion on the appropriate sentence and (2) misled the jury

about sentencing alternatives. The prosecutor said:

And you must give independent consideration to each and every one
of the murder convictions because every one of those individuals in
there was a separate life, and that is they never deserved to die in the
manner in which they died.
And we can’t change that. But I can and you can give them at
least individual consideration with the understanding that the man
who murdered them, the man who led, the man who created this and
the man who was out seeking for revenge that night, that he receive
the punishment that is just under the statutes, under the law and most
important in this case, as we discussed at the very beginning.
...

-39-
 And we told you what the law is. That’s merely the charges
we file against somebody. But that’s not easy. There’s nothing easy
about it. You know, we all try to be moral people, we think about
trying to do good for our community, our society.
When we file a piece of paper, we’re asking you to sentence
this person to death. We’re asking you to return a verdict allowing
the State to execute Mr. Thornburg. So basically we’re asking you
the State for the authority to do that. There’s nothing easy about
that. We’re talking about life and death. Nothing easy at all.
...
Justice, folks, cries for the death penalty in this case like no
other case. Justice cries for the death penalty. There is no other
reasonable verdict, nothing. Nothing can come close.
Talk about the sword of mercy. It’s above Judge Winchester.
The sword there. You live by the sword, you die by the sword, folks.
We’re asking you to return a verdict now of guilty which you already
have. The maximum punishment is on everything.
If you really don’t want Mr. Thornburg back on your streets
ever again, then the only proper punishment is death. We’re asking
you to sentence Mr. Thornburg to that. It should not be a difficult
decision. I know it is. We’re talking about killing somebody.
You’re authorizing the State to kill somebody. But there is no other
just verdict. This is justice.

Tr. IV at 195-96, 201-02, 205-06. Mr. Thornburg contends that these comments

imposed the prosecutor’s personal views upon the jury. It is improper for a

prosecutor to inject his personal opinion on the propriety of the death sentence. It

is also impermissible for a prosecutor to suggest that he “or some other authority,

not the jury, [is] the final or true arbiter of . . . punishment.” Sellers v. Ward, 135

F.3d 1333, 1343 (10th Cir. 1998) (internal quotation marks omitted). As stated in

Caldwell v. Mississippi, 472 U.S. 320, 333 (1985), “[T]he uncorrected suggestion

that the responsibility for any ultimate determination of death will rest with others

-40-
presents an intolerable danger that the jury will in fact choose to minimize the

importance of its role.” But a prosecutor is entitled to argue that under the facts

and law, capital punishment is appropriate. See United States v. Ainesworth, 716

F.2d 769, 771 (10th Cir. 1983) (distinguishing improper argument that prosecutor

believes accused is guilty of crime or stating facts not in evidence from proper

commentary that “on the basis of the evidence in the case, it is his belief that the

defendant is guilty”). Here, the prosecutor did not suggest the existence of facts

not in evidence, nor did he suggest that anyone other than the jury was

responsible for fixing the appropriate sentence. On the other hand, his comments

on the appropriateness of the death penalty could be taken as his personal view.

We will assume that the comments crossed the line.

More troubling is the prosecutor’s comment that did cross the line. In the

last quoted paragraph he said, “If you really don’t want Mr. Thornburg back on

your streets ever again, then the only proper punishment is death.” Tr. IV at 205.

This statement could mislead the jury about possible punishment alternatives,

suggesting that he could be released from jail at some point if not sentenced to

death. “The State may not create a false dilemma by advancing generalized

arguments regarding the defendant’s future dangerousness while, at the same

time, preventing the jury from learning that the defendant never will be released”

if given a sentence other than death. Simmons v. South Carolina, 512 U.S. 154,

-41-
171 (1994) (jury should have been instructed on possibility of life without

parole); see also Kelly v. South Carolina, 534 U.S. 246 (2002) (requiring

Simmons instruction when prosecution presented evidence showing defendant’s

probability of future dangerousness).

Nevertheless, the trial judge remedied this error when he instructed the

jury: “Even if you find that the aggravating circumstance outweigh(s) the

mitigating circumstance, you may impose a sentence of imprisonment for life or

imprisonment for life without parole.” Instr. 12 St. Ct. Rec. Vol. 3 at 504. Thus,

the jury knew that it could keep Mr. Thornburg off the streets without imposing

the death penalty. See Kelly, 534 U.S. at 257 n.8 (jury instruction on parole

ineligibility could cure problem raised by prosecutor’s argument).

f. Invoking Sympathy for the Victims

Most troubling is Mr. Thornburg’s contention that the prosecutor invoked

sympathy for the victims during the guilt-phase closing argument:

Look at Donnie Scott. He’s got a good job now. He’s
obviously off drugs. Who’s to say he can’t lead a very, very
productive life? Who’s to say Mr. Poteet, Mr. Shepard couldn’t have
done the exact same thing?
You know, is Mr. Thornburg today in Court, there’s no
question about that. Our legal system says this is his day in Court.
But this is also our three victims’ day in Court. This is Mr.
Shepard’s, Mr. Poteet and Mr. Smith.
....
Folks, we have three victims here who are not here today. Mr.
Shepard, Mr. Smith and Mr. Poteet, they can’t get up here and tell
you on the witness stand how Mr. Thornburg slaughtered them. Shot

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 them and left them to burn alive in the house. They can’t get up here
to tell us that. They’re never going to be here. They’re never going
to testify. They’re never going to be with their families for holidays,
Christmases.
And you’ve got families here. This is also their day in Court,
too, not just this defendant.

Tr. IV at 111-12. The prosecutor’s comments that the victims may have led

productive lives, could not testify at trial, and would never be with their families

on holidays were irrelevant to proving Mr. Thornburg guilty of their murders. See

Duckett v. Mullin, 306 F.3d 982, 991 (10th Cir. 2002) (victim-impact statements

improper in guilt stage).

Notwithstanding their clear irrelevance to Mr. Thornburg’s guilt, however,

the prosecutor’s appeal was already implicit in the evidence. The jury knew that

there were three men murdered, that they were shot and left in a burning house,

and that they could not appear in court to testify. And because the evidence had

shown all three victims to be drug and alcohol abusers, the prosecutor’s

speculation on their possible “productive” lives was most likely an attempt to

avoid any jury nullification based on the victims’ own reprehensibility. While

condemning such comments during the guilt phase, we can doubt their

inflammatory impact.

3. Cumulative Error Analysis

We now address whether the above errors entitle Mr. Thornburg to relief.

The only errors that could have affected the verdict of guilty are the prosecutor’s

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possible vouching for witness credibility or lack thereof, his argument that the

Andersons’ attempt to influence witness testimony was evidence of

Mr. Thornburg’s guilt, his suggestion of a civic duty to convict, and his

invocation of sympathy for the victims. The only errors that could have affected

the sentence are the prosecutor’s improper reference to the time Dr. Murphy spent

with Mr. Thornburg and the prosecutor’s possible expression of a personal view

that the death penalty was the only appropriate sentence. “A cumulative error

analysis aggregates all the errors that individually might be harmless, 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." United States v.

Wood, 207 F.3d 1222, 1237 (10th Cir. 2000) (internal quotation marks omitted).

We review alleged cumulative error under the same standard required for

individual error—here, whether the improper comments as a whole “so infected

the trial with unfairness as to make the resulting conviction a denial of due

process,” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974), or rendered the

sentencing “fundamentally unfair” in light of the heightened degree of reliability

demanded in a capital case. Le, 311 F.3d at 1024.

On direct appeal the OCCA reviewed the cumulative effect of all the trial

errors (not just prosecutorial misconduct) and held, “While it can be found in the

present case that there were some irregularities during the course of the trial, even

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taken together, these cannot be found to have been so great as to have denied

[Mr. Thornburg] a fair trial.” Thornburg, 985 P.2d at 1250. We must defer to

this ruling unless it constitutes an unreasonable application of the cumulative-

error doctrine. We hold that it is not.

First, the evidence against Mr. Thornburg was very strong. One forced

participant in the murders and one victim testified extensively about

Mr. Thornburg’s role in the murders, the arguments about the drugs, the

shootings, and the fire. Teresa Burgess, a totally disinterested witness, testified

that she overheard Mr. Thornburg at a bar the night after the murders say,

“[T]hree died last night and three more will die tomorrow.” Tr. II at 218. The

eyewitness testimony was corroborated by witnesses who described the activities

of these perpetrators during the night in question—leaving an unaccounted-for

gap from 3 a.m. to 6 a.m.; by the testimony indicating Thornburg’s anger at Poteet

and interest in retribution; and by the expert testimony of the fire investigator and

the medical examiner. Mr. Thornburg’s alibi defense lay in the testimony of Ruby

Davis, Roger Embrey’s girlfriend, that he was asleep in his car in their driveway

the night of the murders. But that alibi was undermined by Ms. Davis’s prior

inconsistent statements and the testimony of Huber, Nath, and Teresa Embrey.

In light of the strength of the evidence of guilt, the OCCA could reasonably

conclude that the prosecutor’s misconduct did not necessitate a new trial.

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 As for the sentencing phase, Mr. Thornburg put on only his wife and

Dr. Murphy to testify to his drinking problems, his blackouts, and his good

qualities as a father and husband. Although the prosecutor erred in referring to

the amount of time Dr. Murphy spent with Mr. Thornburg, the jury had already

rejected the blackout defense during the guilt phase, and his susceptibility to

blackouts is not a particularly compelling mitigating factor. In contrast, the state

supported the aggravating factors with evidence that the victims were likely

burned alive and consciously suffered, that Mr. Thornburg continued to disrespect

authority while in prison and was a continuing threat, and that he put the life of

more than one person in danger. The OCCA could reasonably decide that the

sentence was not the consequence of any prosecutorial misconduct.

Giving due deference to the OCCA under AEDPA, we cannot set aside the

verdict or sentence on the basis of prosecutorial misconduct.

G. Ineffective Assistance of Trial Counsel

Mr. Thornburg contends that his trial counsel was ineffective for failing to

(1) object to the polygraph evidence, (2) object to the hearsay evidence, (3) object

to the prosecutorial misconduct, (4) object to improper victim-impact testimony,

(5) obtain proper instructions on mitigation and (6) request instructions on

voluntary intoxication and first-degree manslaughter.

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 The familiar Strickland standard for ineffective-assistance-of-counsel

claims requires satisfaction of two requirements: (1) a showing that counsel’s

representation fell below an objective standard of reasonableness and (2) a

reasonable probability that, but for the errors, the result of the proceeding would

have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

The OCCA reviewed this claim and found counsel’s performance deficient, but

held that Mr. Thornburg could not succeed in showing prejudice.

The OCCA held:

In his eighth proposition, [Mr. Thornburg] contends he was denied
effective assistance of trial counsel. Appellant cites as deficient
performance trial counsel's failure to object to testimony concerning
a polygraph examination, counsel's failure to utilize the defense of
voluntary intoxication and request instructions on this defense and
the crime of First Degree Manslaughter, counsel's failure to object to
inadmissible hearsay, counsel's failure to object to the rebuttal
testimony of Teresa Embrey, counsel's failure to object to
prosecutorial misconduct, counsel's failure to object to improper
victim impact evidence, and counsel's failure to request proper
instructions on mitigation. To successfully prove ineffective
assistance of counsel, Appellant must show: (1) that defense
counsel's performance was deficient; and (2) that he was prejudiced
by the deficient performance.
The merits of all but one of the claims set forth in this
proposition as ineffective assistance of counsel have been discussed
in this opinion. We found in each proposition that error had occurred
but because the error had not been met with timely objection from
defense counsel relief was not warranted as the error did not rise to
the level of plain error. In light of our discussion of the merits of
these claims, this Court finds that defense counsel's failure to object
to testimony concerning a polygraph examination, counsel's failure to
utilize the defense of voluntary intoxication and request instructions
on this defense, counsel's failure to object to inadmissible hearsay,

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 counsel's failure to object to prosecutorial misconduct, counsel's
failure to object to improper victim impact evidence, and counsel's
failure to request proper instruction on mitigation rendered his
performance deficient. However, because we do not find that
Appellant was prejudiced by counsel's deficient performance, relief
is not warranted on the claim of ineffective assistance of counsel.

Thornburg, 985 P.2d at 1245 (internal citations omitted). In light of the

following analysis, we cannot say that the OCCA’s decision was contrary to or an

unreasonable application of federal law. With respect to the challenged

polygraph testimony, we have upheld the OCCA’s conclusion that it did not so

taint the trial as to render it fundamentally unfair. We have also concluded that

most of the challenged hearsay was not actually inadmissible hearsay and the

remainder was not so incriminating as to prejudice Mr. Thornburg. And in

reviewing the prosecutorial misconduct cumulatively in light of the entire trial,

we have upheld the OCCA’s conclusion that prosecutorial errors did not so infect

the trial as to warrant reversal.

With respect to the two failures of trial counsel that were not appealed to us

on the merits—failure to object to victim-impact testimony and failure to request

a proper mitigation instruction—Mr. Thornburg fares no better. He contends that

his counsel should have objected to the testimony of victim Terry Shepard’s

daughter and victim Keith Smith’s mother. But he does not say why his trial

attorney should have objected to the testimony. The witnesses testified only

about the effect that the loss of their loved ones had on their lives; they were

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instructed by the prosecutor not to comment on the crime, Mr. Thornburg, or

appropriate punishments. The Supreme Court has held:

[I]f the State chooses to permit the admission of victim impact
evidence and prosecutorial argument on that subject, the Eighth
Amendment erects no per se bar. A State may legitimately conclude
that evidence about the victim and about the impact of the murder on
the victim's family is relevant to the jury's decision as to whether or
not the death penalty should be imposed. There is no reason to treat
such evidence differently than other relevant evidence is treated.

Payne v. Tennessee, 501 U.S. 808, 827 (1991). The complained-of testimony

does not appear inconsistent with Payne’s limitations. The OCCA reviewed the

merits of the victim-impact claim and held, “While the victim impact testimony

complained of was speculative in nature and bordered upon impropriety, its focus

on emotion was not so overwhelming as to divert the jury from its duty to reach a

reasoned response.” Thornburg, 985 P.2d at 1246.

Turning to the failure to request proper mitigating instructions at the trial’s

sentencing phase, Mr. Thornburg’s brief to our court does not state what

instructions should have been given. We infer from his § 2254 application in

district court that he desired a specific instruction concerning his alcoholism and

organic brain damage. The OCCA ruled on direct appeal, however, that the

absence of such a specific instruction was not plain error because a mitigating

instruction encompassing intoxication and brain damage was given, Thornburg,

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985 P.2d at 1249-50, and Mr. Thornburg was not prejudiced by the failure to

request such an instruction, id. at 1245. The judge instructed the jury:

Evidence has been introduced as to the following mitigating
circumstances:
The Defendant did not have any significant history of prior criminal
activity
The Defendant’s capacity to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was impaired
The Defendant was under the influence of mental/emotional
disturbance
The Defendant acted under circumstances which tended to justify,
excuse or reduce the crime
The Defendant’s age
In addition, you may decide that other mitigating circumstances exist,
and if so, you should consider those circumstances as well.

Sentencing Instr. 11; St. Ct. Rec. at 503. In light of that instruction, the OCCA’s

ruling was not an unreasonable application of federal law.

Only one subissue of Mr. Thornburg’s ineffective-assistance-of-counsel

claim gives us pause: counsel’s failure to request a voluntary-intoxication-defense

instruction. Although the OCCA ruled on his appeal that the evidence did not

support a voluntary-manslaughter instruction because of the absence of

provocation, Oklahoma courts have on occasion said that voluntary intoxication

can reduce first-degree murder to first-degree manslaughter. See Pickens v. State,

885 P.2d 678, 682-83 (Okla. Crim. App. 1994), overruled on other grounds by

Parker v. State, 917 P.2d 980 (Okla. Crim. App. 1996). Had Mr. Thornburg

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requested a voluntary-intoxication instruction, he may have received an

instruction on a lesser included offense.

But regardless of the requirements of Oklahoma law, the decision to forego

the voluntary-intoxication instruction was not objectively unreasonable.

Mr. Thornburg relied on the alibi that he had passed out in his car parked in the

Embreys’ driveway the night of the murders. His attorney could have viewed the

voluntary-intoxication defense as a long shot requiring the jury to believe that

Mr. Thornburg was at the scene of the crime but was too intoxicated to know

what he was doing. Although the alibi defense turned out to be weak, belatedly

raising an inconsistent defense could further weaken what little there was of the

defense he had.

Moreover, there is no reasonable probability that the jury would have found

the defense persuasive. It convicted Mr. Thornburg despite a barrage of evidence

of his intoxication and an instruction on the requirement that it find malice

aforethought. Even without deference to the OCCA, we hold that counsel was not

ineffective for failing to request a voluntary-intoxication instruction.

H. The Eye-for-an-Eye Carving

Behind the judge’s bench in the courtroom in which Mr. Thornburg was

tried was a wooden carving on which appears the phrase, “An Eye for an Eye & A

Tooth for A Tooth.” Mr. Thornburg contends that the presence of this carving in

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the courtroom was structural error automatically requiring reversal. The phrase

“an eye for an eye and a tooth for a tooth,” according to Mr. Thornburg, is widely

invoked by proponents of the death penalty and has the potential to sway a jury to

impose a death sentence, not as a result of the individualized judgment that our

constitutional law requires, see Woodson v. North Carolina, 428 U.S. 280, 304

(1976), but because of religious commandment. He also contends that his trial

counsel was ineffective for not raising the issue at trial and his appellate counsel

was ineffective for failure to raise the issue (both on the merits and as a ground of

ineffective assistance of trial counsel) on appeal.

Mr. Thornburg’s merits claim and his claim of ineffective assistance of trial

counsel, however, face the hurdle of procedural bar. Mr. Thornburg failed to

advance either claim in state court until his petition to the OCCA for

postconviction relief. The OCCA refused to review the claims, applying a state

procedural bar for failing to raise an issue that could have been raised on direct

appeal. See Thornburg v. State, No. PC-99-490 at *3.

In a § 2254 proceeding a state court’s prior “adequate and independent

finding of procedural default will bar federal habeas review of the federal claim.”

Harris v. Reed, 489 U.S. 255, 262 (1989). We have had several occasions to

express concern about whether Oklahoma’s procedural bar is “adequate and

independent,” particularly with respect to ineffective-assistance claims, see, e.g.,

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Cannon v. Mullin, 383 F.3d 1152, 1172-74 (10th Cir. 2004) (for state rule of

procedural bar to be adequate to bar claim of ineffective trial counsel because of

failure to raise claim on direct appeal, state must provide procedural mechanisms

permitting defendant to develop factual basis of claim on appeal), cert. denied,

125 S. Ct. 1664 (2005); but Mr. Thornburg, who had new counsel for the direct

appeal of his conviction, does not challenge independence and adequacy here.

See Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir. 1999) (defendant bears burden

of contesting independence and adequacy of state procedural bar once state has

asserted the affirmative defense).

An adequate and independent finding of procedural default can be

overcome only if the party claiming error can establish cause for failure to raise

the issue when required and show that the failure produced actual prejudice.

Engle v. Isaac, 456 U.S. 107, 129 (1982). “While the nature of a constitutional

claim may affect the calculation of cause and actual prejudice, it does not alter

the need to make that threshold showing.” Id. Thus, even structural errors are

subject to state procedural bars. See McCraken v. Gibson, 268 F.3d 970, 976

(10th Cir. 2001) (state procedural bar applied to allegation of structural error,

although court alternatively addresses the merits and holds that error was not

structural).

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 As cause for the failure to raise the issue on direct appeal, Mr. Thornburg

claims ineffectiveness of his appellate counsel. The OCCA rejected this

ineffective-assistance-of-appellate-counsel claim in Mr. Thornburg’s

postconviction proceedings: “The brief filed in [Mr. Thornburg’s] direct appeal

reflects that appellate counsel raised eighteen non-frivolous claims at least

equally meritorious to that which was omitted and is at issue here. We cannot

find that appellate counsel’s failure to investigate and litigate the . . . issue as

fully as [Mr. Thornburg] claims he should have rendered counsel’s performance

unreasonable under prevailing professional norms.” Thornburg v. State, No.

PC-99-490, at *5 (Okla. Crim. App. Nov. 9, 1999) .

Regardless of the merits of the OCCA’s analysis, we agree that

Mr. Thornburg’s appellate counsel was not ineffective for failure to raise the

biblical-reference issue. Appellate counsel is not ineffective for failing to raise

an argument based on facts that he could not reasonably be expected to know.

Not only was the presence of the biblical reference in the courtroom not obvious

from the trial record, it was completely absent. For appellate counsel even to be

aware of the issue, he would have had to assume a duty to visit the courtroom in

which Mr. Thornburg was tried. Appellate attorneys work from a trial record, and

we will not impose on them a duty to inspect courtrooms. Mr. Thornburg’s trial

counsel did not object to the carving; that may have been poor judgment, but it

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left the record devoid of anything that could have directed appellate counsel’s

attention to the eye-for-an-eye language. The prosecutor did make a reference to

the sword in closing argument: “Talk about the sword of mercy. It’s above Judge

Winchester. The sword there. You live by the sword, you die by the sword,

folks.” Tr. IV at 205. But he did not mention the phrase engraved on the sword.

Mr. Thornburg even candidly admits as much in his brief to this court:

The error of the ever-present adage “An Eye for an Eye, A Tooth for
a Tooth,” should have been objected to by trial counsel, and should
have been asserted on direct appeal by appeal counsel. To be sure,
the error is not apparent from the record. There is nothing in the
paper record of Mr. Thornburg’s trial to indicate that the artwork
containing the Leviticus passage was in front of the jury. Trial
counsel failed to make that record. Direct appeal counsel would not
have known of the error, even investigating the case, as a reasonable
investigation would not normally take the direct appeal lawyer into
the courtroom in which the trial was conducted.

Aplt. Br. at 49. Accordingly, we reject on the merits Mr. Thornburg’s claim of

ineffective appellate counsel. As a consequence, Mr. Thornburg is procedurally

barred from raising the biblical-reference issue or the related claim of ineffective

trial counsel.

I. Denial of an Evidentiary Hearing

Finally, Mr. Thornburg appeals the district court’s denial of his request for

an evidentiary hearing on his Sixth Amendment issues. Mr. Thornburg has shown

no reason to conduct an evidentiary hearing. He does not state what he wishes to

prove at such a hearing and he argues no issues on appeal for which further

-55-
evidence would be relevant. The district court did not err in denying his

evidentiary-hearing request.

III. CONCLUSION

We AFFIRM the district court’s denial of relief under 28 U.S.C. § 2254.

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