Hamilton v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 24, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

COREY DUANE HAMILTON,

Petitioner-Appellant,
v. No. 04-5067
MIKE MULLIN, Warden, Oklahoma
State Penitentiary,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. CV-99-885-H(C))

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

Jennifer J. Dickson, Assistant Attorney General (W.A. Drew Edmondson,
Attorney General of Oklahoma, with her on the brief),Office of the Attorney
General, Oklahoma City, Oklahoma, for Appellee.

Before TACHA, Chief Judge, O’BRIEN, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

This death penalty appeal arises out of the 1992 killings of four employees

of Lee’s Famous Recipe Chicken Restaurant in Tulsa, Oklahoma. In the course of
a robbery in which Corey Hamilton participated, the employees were placed in a

food locker and forced to kneel at gunpoint. Hamilton shot each in the head. A

jury convicted Hamilton of four counts of first-degree murder and one count of

robbery with a firearm.

At sentencing, the jury found four aggravating circumstances as to each

murder. Accordingly, upon the jury’s recommendation, the trial court imposed

the death penalty. The Oklahoma Court of Criminal Appeals (OCCA) affirmed

the murder convictions and death sentence on direct appeal but reversed the

robbery conviction. See Hamilton v. State, 937 P.2d 1001 (Okla. Crim. App.

1997). The United States Supreme Court denied certiorari, Hamilton v.

Oklahoma, 522 U.S. 1059 (1998), and the OCCA denied state post-conviction

relief in an unpublished opinion. Subsequently, Hamilton filed a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District

Court for the Northern District of Oklahoma. The district court denied the

petition but granted a certificate of appealability, see 28 U.S.C. § 2253(c)(1)(A).

On appeal, Hamilton argues five issues merit habeas relief: (1)

prosecutorial misconduct during closing argument violated his right to a fair trial;

(2) the state trial court’s exclusion of testimony and jury instructions defining the

life without parole sentencing option violated due process; (3) the trial court’s

failure to instruct the jury on use of victim impact evidence violated due process;

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(4) the state presented insufficient evidence to support the heinous, atrocious or

cruel aggravating circumstances; and (5) the individual errors at the guilt and

sentencing phases together warrant reversal.

Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253. Having

thoroughly reviewed the record and applicable law, we conclude Hamilton is not

entitled to habeas relief. Accordingly, we affirm the district court’s denial of the

petition.

I. Background

The background facts are not in dispute and are set forth in the OCCA’s

opinion on direct appeal. See Hamilton, 937 P.2d 1001. We only briefly

summarize them here. On August 17, 1992, the bodies of Lee’s employees Joseph

Gooch, Theodore Kindley, Senaida Lara and Steven Williams were found in the

restaurant’s walk-in cooler. All four died of a close-range gunshot wound to the

back of the head. On the evening of the murders, Hamilton and his accomplices

discussed robbing the restaurant. They arrived at the restaurant near its scheduled

closing time. Upon entering, Hamilton pulled a gun and told one employee to

lock the doors. The other three employees were ordered to enter the cooler and

kneel. A few minutes later, after Hamilton retrieved money from the restaurant

safe, he placed the fourth employee in the cooler. Hamilton later stated to his

accomplices that he shot the employees.

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 An Oklahoma jury convicted Hamilton of four counts of first-degree

murder and recommended that the trial court impose the death penalty. The jury

made its sentencing recommendation after finding four aggravating circumstances

as to each murder: (1) Hamilton had knowingly created a great risk of death to

more than one person; (2) each murder was especially heinous, atrocious or cruel;

(3) Hamilton committed each murder for the purpose of avoiding or preventing a

lawful arrest or prosecution; and (4) Hamilton would constitute a continuing

threat to society.

II. AEDPA Standard of Review

We begin our analysis by discussing the applicable standard of review

under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28

U.S.C. § 2254(d). We then proceed to the merits of Hamilton’s claims.

Because Hamilton filed his § 2254 petition after AEDPA’s 1996 effective

date, its provisions apply to this appeal. See Smallwood v. Gibson, 191 F.3d

1257, 1264 (10th Cir. 1999). Under AEDPA, a federal court may grant habeas

relief on a claim adjudicated on the merits by a state court only if the state court

proceedings “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal Law, as determined by

the Supreme Court,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was

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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)(2).

A state court decision is “contrary to” Supreme Court precedent in two

circumstances: (1) when “the state court applies a rule that contradicts the

governing law set forth in [the Court’s] cases”; or (2) when “the state court

confronts a set of facts that are materially indistinguishable from a decision of

[the] Court and nevertheless arrives at a result different from” that reached by the

Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision

constitutes an “unreasonable application” of Supreme Court precedent if “the

state court identifies the correct governing legal principle from [the] Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s

case.” Id. at 413. Thus, “[u]nder § 2254(d)(1)’s ‘unreasonable application’

clause, . . . a federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Id. at 411; see also Thomas v. Gibson,

218 F.3d 1213, 1219-20 (10th Cir. 2000) (discussing Williams).

Finally, a state prisoner seeking habeas relief based on alleged erroneous

factual determinations must overcome by clear and convincing evidence the

presumption of correctness afforded state court factual findings. See 28 U.S.C. §

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2254(e)(1); Smith v. Mullin, 379 F.3d 919, 924-25 (10th Cir. 2004). With these

standards in mind, we address each of Hamilton’s claims of error.

III. Discussion

Hamilton’s death penalty trial was divided into two stages. The first stage

required the jury to determine his guilt or innocence. The second stage required

the jury to recommend a penalty. Hamilton argues the trial court committed error

at both stages of his trial.

A. Prosecutorial Misconduct

Hamilton makes one claim of error arising from the guilt phase of his trial.

He argues that the government engaged in prosecutorial misconduct, citing a

number of comments by the lead prosecutor during closing argument. Hamilton

argues one statement disparaged his Fifth Amendment right to remain silent, and

two additional statements wrongfully stripped him of the presumption of

innocence. While two of the prosecutor’s comments crossed the line of

permissible closing argument, we agree with the OCCA that the statements as a

whole did not undercut the fundamental fairness of Hamilton’s trial.

When a defendant asserts claims of prosecutorial misconduct in a habeas

petition, those claims are reviewed for a violation of due process. See Patton v.

Mullin, 425 F.3d 788, 811 (10th Cir. 2005) (citing Darden v. Wainwright, 477

U.S. 168 (1986)). “[N]ot every trial error or infirmity which might call for

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application of supervisory powers correspondingly constitutes a failure to observe

that fundamental fairness essential to the very concept of justice.” Patton, 425

F.3d at 811 (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). To be

entitled to relief, a defendant must establish that the prosecution’s conduct or

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

a denial of due process.” Patton, 425 F.3d at 811 (citing Donnelly, 416 U.S. at

643). Such a determination may be made only after “tak[ing] notice of all the

surrounding circumstances, including the strength of the state's case.” Coleman v.

Brown, 802 F.2d 1227, 1237 (10th Cir. 1986).

In some circumstances, however, when “prosecutorial misconduct directly

affects a specific constitutional right,” as is alleged here, “a habeas petitioner

need not establish that the entire trial was rendered unfair, but rather that the

[specific] constitutional guarantee was so prejudiced that it effectively amounted

to a denial of that right.” Torres v. Mullin, 317 F.3d 1145, 1158 (10th Cir. 2003)

(emphasis added). With this guidance, we turn to the individual instances of

misconduct alleged by Mr. Hamilton.

1. The Right to Remain Silent

The evidence at trial disclosed that a short time after the murders, Hamilton

received a ride in a friend’s car from his girlfriend’s house to a motel. The motel

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was next door. Discussing this evidence during his closing argument, the

prosecutor rhetorically raised the following questions:

[W]e ask you to use your common sense about people’s behavior. What
are they doing? What’s he doing? What is the explanation for calling
someone to take you across the street?

Tr. at 1202. Hamilton argues this statement was a comment on his Fifth

Amendment right to remain silent, because the proffered questions could be

answered only by Hamilton himself, and he had chosen not to testify.

Our precedent holds that “[t]he state may not use a defendant’s exercise of

his right to remain silent to obtain his conviction.” Jones v. Stotts, 59 F.3d 143,

146 (10th Cir. 1995). See also Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th

Cir. 2001). Where a prosecutor’s remarks “‘concern matters that could have been

explained only by the accused, . . . [they] give rise to an innuendo that the matters

were not explained because [petitioner] did not testify’ and, thus, amount to

indirect comment on the defendant’s failure to testify.” Battenfield, 236 F.3d at

1225. (quoting Pickens v. Gibson, 206 F.3d 988, 999 (10th Cir. 2000)). Simply

put, the question is “whether the language used [by the prosecutor] was

manifestly intended or was of such character that the jury would naturally and

necessarily take it to be a comment on the defendant’s right to remain silent.” Id.

at 1225 (quoting Pickens, 206 F.3d at 998). Nonetheless, any error in permitting

the prosecutor to comment upon the defendant’s right to silence is subject to a

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harmless error analysis. See Brecht v. Abrahamson, 507 U.S. 619, 628-29 (1993).

We agree with the district court that the statement was permissible. A

review of the context in which the prosecutor made the statements reveals he was

discussing a particular jury instruction and was asking the jury to use their

“common sense” regarding the defendant’s flight. Following the statement to

which Hamilton objects, the prosecutor continued, “The explanation is an obvious

one. You don’t want to be seen. Somehow or another you need to get a very

short distance without anyone seeing you. And the police, as you know, were

everywhere.” Tr. at 1202. We further agree with the district court and the OCCA

that the prosecutor’s queries were entirely rhetorical and not, in essence, remarks

“of such character that the jury would naturally and necessarily take it to be a

comment on the defendant’s right to remain silent.” United States v. Toro-Pelaez,

107 F.3d 819, 826-27 (10th Cir. 1997) (quoting United States v. May, 52 F.3d

885, 890 (10th Cir. 1995)). Even if the comments crossed the line, our

independent review of the record convinces us any prejudice arising from the

statement was harmless, see Brecht, 507 U.S. at 628-29, and that the OCCA’s

resolution of the issue was not contrary to, or an unreasonable application of,

clearly established federal law.

2. The Presumption of Innocence

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 During closing argument, the prosecutor also made two statements

regarding Hamilton’s right to a presumption of innocence. In the first instance he

said:

When we started with this case, the defendant was presumed to be not
guilty. You said you could do that. This evidence now strips the cloak
of innocence from him.

Tr. at 1139. Counsel’s objection to this statement was overruled. Id. Following

these remarks, the prosecutor argued:

Have we proved what we said we could prove? Yes. I submit to you,
as I said a few minutes ago, the cloak of innocence is stripped away.

Tr. at 1168. Counsel’s objection to this statement was also overruled. Id.

Hamilton argues that in Miller v. State, 843 P.2d 389, 390 (Okla. Crim.

App. 1992), a previous case with similar prosecutorial remarks, the OCCA

reversed the defendant’s conviction. In Miller, the prosecutor stated, “[t]he dust

is settled . . . and that cloak [of innocence] is gone. It's been ripped away from

him by the testimony of three men—four men, actually. He stands guilty as

charged.” Id. Likewise, in one of our circuit cases, Mahorney v. Wallman, 917

F.2d 469 (10th Cir. 1990), the prosecutor stated, “I submit to you . . . under the

law and under the evidence, that [the presumption of innocence] has been

removed, that that presumption no longer exists, that that presumption has been

removed by evidence and he is standing before you now guilty. That presumption

is not there any more.” Id. at 471.

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 In Mahorney, we held the comments violated the defendant’s constitutional

rights and were not harmless error. “[T]he jury,” we explained, “was basically

presented with two relatively credible, competing stories related by the

complaining witness and the accused, neither of which was conclusively

confirmed or disproportionately discredited by extrinsic evidence . . . [and] we

cannot say that the constitutional infirmity in petitioner’s criminal trial was

harmless.” Id. at 474.

Recognizing the objectionable nature of the remarks in light of its own

precedent, the OCCA acknowledged in Hamilton’s state appeal it had reversed

other cases with similar commentary. The court went on to explain, however, “in

light of the overwhelming uncontradicted evidence of guilt in this case,” any error

was harmless beyond a reasonable doubt. Hamilton, 937 P.2d at 1010 (citing

Chapman v. California, 386 U.S. 18, 24 (1967)). The OCCA further noted that

the “jury was given specific instructions regarding the presumption of innocence.”

Id.

We recently had occasion to examine prosecutorial comments that were

strikingly similar to the ones made here. In Patton v. Mullin, 425 F.3d 788 (10th

Cir. 2005), the prosecutor said during the guilt phase:

The Defendant is presumed innocent. He is presumed innocent until you
consider all of the evidence in this case and you make the decision to
strip that presumption away from him and leave him with what he is,
which is guilty. What has to be proved to you before you can strip that

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 cloak of innocence from him is proof beyond a reasonable doubt of each
and every material element of the crime charged and we talked about
that. The State of Oklahoma always has the burden of proof. But we
have the burden of proof to show you beyond a reasonable doubt each
and every element of the crimes charged.

Id. at 812 (emphasis added). During the closing argument of the sentencing

phase, the prosecutor also stated:

Mr. Patton is to be presumed innocent unless and until the State proves
to you beyond a reasonable doubt one or more of the aggravating
circumstances. And at that time you are authorized to strip that cloak
away and punish this Defendant as he is worthy of being punished.

Id. In context, we found the prosecutor’s comments plainly reminded the jury that

it was the state’s burden to prove its case beyond a reasonable doubt. In light of

the prosecutor’s recognition of that burden, and in light of the entire record in

that case, “the OCCA did not unreasonably apply federal law in ruling that these

comments did not deprive [defendant] of a fair trial.” Id.

We have some similar contextual statements here. During the closing

argument in Hamilton’s trial, for example, the prosecutor stated:

Question, have we proved it? Counsel said you’ll want to be able to
walk up there and put your finger on it. I agree. Have we done that,
though? Have I proved what I said we could prove? Has the evidence
convinced you beyond a reasonable doubt that the man is guilty of these
crimes? Yes.

Tr. at 1145.

The prosecutor also said:

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 I have no problem telling you this evidence is more than enough. It’s
beyond a reasonable doubt that this man is involved in the killing of
these four people.

Tr. at 1169. Finally, we have the following instruction to the jury regarding the

presumption of innocence:

The defendant is presumed innocent of the crime charged, and the
presumption continues unless, after consideration of all of the evidence,
you are convinced of his guilt beyond a reasonable doubt. The State has
the burden of presenting the evidence that establishes guilt beyond a
reasonable doubt. The defendant must be found not guilty unless the
State produces evidence which convinces you beyond a reasonable
doubt of each element of the crime.

Jury Instruction 1, ROA Vol. V at 711.

Even with these clarifications, the prosecutor’s statements regarding

presumption of innocence test the bounds of permissibility. This case is unlike

Patton, where the prosecutor made abundantly clear the State of Oklahoma bore

the burden of proof beyond a reasonable doubt. The statements here are closer to

the facts of Mahorney, where we considered whether the presence of a jury

instruction on the presumption of innocence mitigated the prejudice of improper

prosecutorial comments. There, we determined that prejudice persisted despite

the instruction because “the trial court’s overall charge on the presumption of

innocence and burden of proof was not sufficiently specific to preserve that

presumption in light of the prosecutor’s specific statement that it had been

extinguished from the case.” Mahorney, 917 F.2d at 473-74.

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 We need not reach the same conclusion in this context, however. Even if

there were a due process violation, as with any constitutional error, we must still

review for harmlessness. See Pickens, 206 F.3d at 998. The OCCA considered

the circumstances at trial and determined that any error was harmless beyond a

reasonable doubt due to the “overwhelming uncontradicted evidence of guilt[.]”

Hamilton, 937 P.2d at 1010. We agree. On this record, the evidence against

Hamilton is substantial. A number of eyewitnesses placed Hamilton in the

getaway car. A co-conspirator identified Hamilton as the shooter. The car and

murder weapon were recovered next to Hamilton’s apartment. Accordingly, we

cannot conclude the OCCA misapplied federal law in determining that the error

was harmless beyond a reasonable doubt. See Spears v. Mullin, 343 F.3d 1215,

1232-33 n.14 (10th Cir. 2003) (In a federal habeas proceeding where a state court

applied the harmless-beyond-a-reasonable-doubt standard set forth in Chapman,

386 U.S. at 24, “we must decide whether the state court’s finding of harmless

error was contrary to or an unreasonable application of Chapman”).

In sum, Hamilton is not entitled to habeas relief based on statements made

during the prosecutor’s closing argument.

B. Life Without Parole

Under Oklahoma law, a prisoner sentenced to life without parole is not

entitled to be released from prison. Hamilton argues the state trial court violated

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his right to due process at sentencing by denying his requests (1) to allow witness

testimony, and (2) to submit an instruction explaining to the jury that he would

not be parole-eligible. The OCCA rejected the claim on direct appeal.

Interpreting the Supreme Court’s holding in Simmons v. South Carolina, 512 U.S.

154 (1994), which requires juries to be informed about the option of life without

parole, the OCCA concluded that defendants have no constitutional right to

witness testimony or a jury instruction containing such information. See

Hamilton v. State, 937 P.2d at 1011-12 (citing Trice v. State, 912 P.2d 349, 352

(Okla. Crim. App. 1996)). Hamilton claims the OCCA’s conclusion is contrary to

or represents an unreasonable application of Simmons and more recent Supreme

Court cases explaining its holding. 1 We disagree.

The Supreme Court in Simmons addressed whether due process required a

state trial court “to instruct the jury in the penalty phase of a capital trial that

under state law the defendant was ineligible for parole.” Simmons, 512 U.S. at

156 (plurality opinion). The Court concluded that due process required such an

instruction, but only under narrow circumstances: “[w]here the State puts the

defendant’s future dangerousness in issue, and the only available alternative

1
At oral argument, Hamilton’s counsel stated that the excluded evidence
also violated his right to present mitigating circumstances under the Supreme
Court’s holding allowing such evidence. See Skipper v. South Carolina, 476 U.S.
1, (1986). This claim fails for the same reasons as Hamilton’s life without parol
argument.

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sentence to death is life imprisonment without possibility of parole, due process

entitles the defendant to inform the capital sentencing jury – by either argument

or instruction – that he is parole ineligible.” Id. at 178 (O’Connor, J., concurring

in the judgment). The Supreme Court has reinforced this holding in subsequent

cases. See Shafer v. South Carolina, 532 U.S. 36, 51 (2001) (holding that

whenever future dangerousness is at issue in a capital sentencing proceeding, due

process requires the jury be informed a life sentence carries no possibility of

parole); Kelly v. South Carolina, 534 U.S. 246 (2002) (where the state places a

defendant’s future dangerousness at issue in seeking the death penalty, the jury

must be properly instructed as to the possibility of life without parole).

We have already examined Oklahoma’s capital sentencing scheme in the

wake of Simmons and subsequent Supreme Court authority. In Mayes v. Gibson,

210 F.3d 1284 (10th Cir. 2000), we held that Oklahoma’s three-option sentencing

scheme—(1) death, (2) life imprisonment without the possibility of parole, or (3)

life imprisonment—are consistent with the Supreme Court’s rulings since the

options do not create a “false choice between sentencing petitioner to death and

sentencing him to a limited period of incarceration.” Id. at 1294. It is enough that

the jury is provided the three choices. Providing further explanation, in Mollett v.

Mullin, 348 F.3d 902, 909-10 (10th Cir. 2003), we held that due process concerns

arise under Simmons only when four factors are met: “(1) the prosecution seeks

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the death penalty; (2) the prosecution places the defendant’s future dangerousness

at issue; (3) the jury asks for clarification of the meaning of “life imprisonment,”

or a synonymous statutory term; and (4) the judge’s response threatens to cause a

jury’s misunderstanding so the jury will perceive a false choice of incarceration

when future dangerousness is at issue.” Mollett, 348 F.3d at 914 (internal

citations and quotations omitted).

Recognizing he can meet only the first two of these factors, Hamilton

acknowledges his claim does not satisfy Mollett. Instead, he asserts our cases

misconstrue the Supreme Court’s holding in Kelly v. South Carolina, supra, and

should be revisited. In Kelly (construing South Carolina law), the Supreme Court

reversed a death sentence where the trial court did not adequately explain parole

eligibility when the prosecutor raised the defendant’s future dangerousness. We

disagree with Hamilton’s argument for two reasons. First, the Mollett court in

fact examined Oklahoma’s three-option sentencing scheme in light of Kelly and

found it inapplicable. Mollett, 348 F.3d at 912 n.3, 914-15, 917, 921 n.6.

Importantly, unlike in Kelly, Oklahoma’s jury instructions provide a “without

parole” option for the jury’s consideration. Second, Hamilton points to nothing in

the record on appeal that would suggest jury confusion. Without some reason to

believe the jury actually was misled, Hamilton suggests a nearly per se

presumption of confusion. Our prior cases foreclose that result.

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 Two final considerations influence our conclusion. First, our review of the

record shows that Hamilton’s counsel never sought to argue the implications of

the life without parole option during closing argument. The court’s earlier

preclusion of witness testimony did not necessarily preclude comment at the

argument stage. Additionally, the record discloses that Hamilton’s counsel made

a variation of this argument by stating, “Cory Hamilton is going to die in the

penitentiary.” This could only suggest to the jury that the life without parole

option would keep him in prison until death.

In the end, Hamilton’s argument is, at best, a matter for our en banc review

or certiorari review by the Supreme Court. Under existing precedent, capital

defendants must show that the jury asked for clarification of the meaning of life

imprisonment or the judge’s instructions created the possibility of jury

misunderstanding. Since Hamilton cannot establish either element, the OCCA’s

decision does not unreasonably apply Supreme Court law. He is therefore not

entitled to habeas relief on this issue.

C. Victim Impact Evidence

Hamilton next argues that the failure of the trial court to instruct the jury

on how to use victim impact evidence during its sentencing deliberations violated

due process. At trial, Hamilton did not request such an instruction. Nor did he

object to the trial court’s failure to give such an instruction. On direct appeal to

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the OCCA, Hamilton argued the absence of the jury instruction constituted

structural error—an error so fundamental to the trial process that a retrial is

required. See Hamilton v. State, 937 P.2d at 1011. Rejecting the structural error

argument, but agreeing that the instruction was nonetheless “trial error,” the

OCCA concluded “the fact that the jury found four aggravating circumstances is

sufficient to find the error harmless beyond a reasonable doubt.” Id.

Abandoning the structural error argument on appeal, Hamilton argues that

the OCCA’s harmless error determination was unreasonable as a matter of federal

law. He claims the absence of an instruction allowed the jury to rely on the

victim impact evidence to bolster its findings of four aggravating circumstances.

In support of this argument, Hamilton points to the fact the OCCA in a

subsequent case established that jury instructions are necessary to clarify the

difference between victim impact evidence and evidence of aggravating

circumstances. See Cargle v. State, 909 P.2d 806, 828-29 (Okla. Crim. App.

1995). Under the new requirement, jurors must consider

victim impact evidence in determining the appropriateness of the death
penalty only if you first find that the existence of one or more
aggravating circumstance has been proven beyond a reasonable doubt
by evidence independent from the victim impact evidence, and find that
the aggravating circumstance(s) found outweigh the finding of one or
more mitigating circumstances.

Id. at 829.

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 In sum, Hamilton argues the victim impact evidence improperly prejudiced

the jury’s weighing of the evidence as to each of the four aggravating

circumstances. Since the OCCA rejected Hamilton’s arguments on the merits,

our review is directed to whether its decision was inconsistent with federal law. 2

The Supreme Court has made clear that “[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). In the majority of cases, such evidence “serves entirely legitimate

purposes.” Id. at 825. But in some cases, victim impact evidence could be “so

2
At the federal district court level, Hamilton argued that the inflammatory
nature of the victim impact testimony violated his due process rights under Payne
v. Tennessee, 501 U.S. 808 (1991). The district court found (1) the claim was
procedurally barred, and (2) Hamilton had not asserted sufficient grounds to
excuse that bar. On appeal, Hamilton does not challenge the district court’s
determinations concerning the applicability of the procedural bar. Instead he
simply reasserts the claim that the substance of the evidence violated the
Constitution. To the extent Hamilton seeks to have us review the constitutionality
of the substance of the admitted evidence, we are precluded from doing so. See
Turrentine v. Mullin, 390 F.3d 1181, 1206 (10th Cir. 2004) (“Generally, where a
state prisoner has defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can show either cause for the default and
actual prejudice, or, alternatively, that failure to consider the claims will result in
a fundamental miscarriage of justice.” (internal quotations and citation omitted)).
We will, however, look to the substance of the evidence to the extent it is
necessary to assess the OCCA’s harmless error analysis.

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unduly prejudicial that it renders the trial fundamentally unfair” in violation of

the due process clause of the Fourteenth Amendment. Id. Hamilton argues the

victim impact evidence presented exceeded the bounds permitted by the Supreme

Court. 3

The OCCA concluded that no jury instruction was required. Hamilton did

not ask for one; the jury moreover received detailed instructions as to how to

consider the aggravating factors in their deliberations. The court then concluded

“[i]n this case, the fact that the jury found four aggravating circumstances is

sufficient to find the error harmless beyond a reasonable doubt.” State v

Hamilton, 937 P.2d at 1011.

We agree with the district court that even if we accept Hamilton’s

contention that the jury inappropriately considered the victim testimony in the

context of finding aggravating circumstances, any error was harmless. At worst,

the evidence characterized the crime in a way that could have influenced a finding

only as to two of the four aggravating factors:

(1) the murders were especially heinous, or

3
For instance, one relative of a victim testified “God only knows the fear
and sheer terror and pain and the intense agony those last few moments of his life
brought him. How . . . cold he must have been in that freezer.” Tr. at 1243.
Another testified “There is no greater crime than murder. It violates very human
right.” Tr. at 1244. A third described one of the killings as “senseless” and
stated one of the victim’s “was shot in the head like an animal and killed in cold
blood without mercy.” Tr. at 1247.

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 (2) Hamilton could constitute a continuing threat to society.

The evidence could not have influenced a finding as to the other two aggravators:

(3) Hamilton knowingly created a great risk of death to more than
one person, and

(4) that he committed the murders for the purpose of avoiding or
preventing a lawful arrest or prosecution.

We therefore cannot conclude the OCCA unreasonably applied federal law.

The absence of a victim impact jury instruction, even if constitutionally

necessary, was harmless.

D. Aggravating Circumstances

Hamilton’s last challenge to the penalty phase of his trial contests the

sufficiency of the evidence presented at trial in support of one of the four

aggravating circumstances found by the jury. Under Oklahoma law, a jury is

entitled to consider the “especially heinous, atrocious or cruel” circumstances of

the crime. Okla. Stat. tit. 21 § 701.12.4. Hamilton asserts the prosecution failed

to present sufficient evidence of conscious physical suffering by the victims or

“extreme mental cruelty” as required by the aggravator. At trial, the jury found

the aggravator with respect to all four victims.

When reviewing the sufficiency of the evidence on a habeas corpus

petition, we ask “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential

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elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S.

307, 319 (1979)(emphasis in original). This standard reflects the “longstanding

principle that it is the jury’s province to weigh the evidence and to draw

reasonable inferences from testimony presented at trial.” Turrentine v. Mullin ,

390 F.3d 1181, 1197 (10th Cir. 2004). Our review under this standard is

“‘sharply limited’ and a court ‘faced with a record of historical facts that supports

conflicting inferences must presume – even if it does not affirmatively appear in

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

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

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

The OCCA rejected Hamilton’s sufficiency challenge on the merits, and we

look to AEDPA for the appropriate degree of deference to the state court

decision. We have not yet settled whether a challenge to the sufficiency of the

evidence on a habeas petition is a question of fact or a question of law, and

therefore whether 28 U.S.C. § 2254(d)(1) or § 2254(d)(2) should apply. See

Turrentine, 390 F.3d at 1197; Moore v. Gibson , 195 F.3d 1152, 1176-77 (10th

Cir. 1999); Torres v. Mullin , 317 F.3d 1145, 1151 (10th Cir. 2003). Section

2254(d)(1) governs questions of law and requires us to determine whether the

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

clearly established Federal Law.” Section 2254(d)(2), in contrast, applies to

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questions of fact and asks whether the state court decision was “based on an

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

Despite the lack of clarity in this area, “we need not decide [the] question here

because [the defendant] is not entitled to habeas relief under either standard.”

Dockins v. Hines , 374 F.3d 935, 939 (10th Cir. 2004).

When applying the Supreme Court’s sufficiency standard in Jackson , we

look to Oklahoma substantive law to determine the elements of the “heinous,

atrocious, or cruel” aggravator. See, e.g., Turrentine , 390 F.3d at 1197. Under

Oklahoma law the aggravator “requires proof that the death was preceded by

torture or serious physical abuse.” Id. The OCCA has determined that the

“torture” element of this aggravating factor “may take any of several forms,”

including “the infliction of either great physical anguish or extreme mental

cruelty.” Berget v. State , 824 P.2d 364, 373 (Okla. Crim. App. 1991). The

OCCA has also concluded there are no “specific, uniform criteria, applicable to

all murder cases, which would make the application of the ‘heinous, atrocious or

cruel’ aggravator a mechanical procedure.” Robinson v. State , 900 P.2d 389, 401

(Okla. Crim. App. 1995). “Rather, the examination of the facts of each and every

case is necessary in determining whether the aggravator was proved.” Id. As we

noted in Turrentine , “[t]his rule necessarily makes the determination a case by

case inquiry.” Turrentine , 390 F.3d at 1197-98 (citations omitted).

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 In its review of this case, the OCCA addressed whether the evidence

supported the death penalty and explained that “the murder was especially

heinous, atrocious or cruel, in that the employees were forced to kneel in the back

room uncertain of their fate, while each but the first listened to his co-workers

being killed.” Hamilton , 937 P.2d at 1014. Accordingly, “[t]he evidence

substantially supports the finding of the four aggravators.” Id. The court also

noted “that [Hamilton] knew some of the workers and the location. He did not

use any cover-up; he intended to kill.” Id. Our independent review of the record

supports the OCCA’s conclusion that Hamilton inflicted extreme cruelty on his

victims before he killed them.

The prosecution in this case did not attempt to argue, through medical

testimony or otherwise, that the victims in this case were subjected to serious

physical abuse. With this limitation, we examine the evidence solely for evidence

of mental torture. We have previously stated that the evidence must support

anguish that goes beyond “that which necessarily accompanies the underlying

killing.” Jones v. Gibson , 206 F.3d 946, 953 (10th Cir. 2000). To that end,

“[e]vidence that the victim was conscious and aware of the attack supports a

finding of torture.” Id. (citing Le v. State , 947 P.2d 535, 550 (Okla. Crim. App.

1997); Hooks v. Ward , 184 F.3d 1206, 1240 (10th Cir. 1999); Neill v. State , 896

P.2d 537, 556 (Okla. Crim. App. 1994). While Oklahoma law regarding the

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element of torture is rather unclear regarding required time frame, 4
Oklahoma

courts do require that “[a]nalysis must focus on the acts of the defendant toward

the victim and the level of tension created.” Cheney v. State , 909 P.2d 74, 80

(Okla. Crim. App. 1995). The OCCA has also held that “conscious[ness] . . . is

the critical inquiry in determining whether a murder was especially heinous,

atrocious or cruel.” Spears v. State , 900 P.2d 431, 443 (Okla. Crim. App. 1995).

See also Jones v. Gibson, 206 F.3d at 953 (10th Cir. 2000) .

The OCCA has also recognized that the presence of fellow victims in a

multiple homicide, with each of the victims realizing they might be the next to

die, satisfied the heinousness requirement. In Neill v. State , 896 P.2d 537, 556

(Okla. Crim. App. 1994), for example, the defendant took three women to the

back of a bank and stabbed each to death. The OCCA found sufficient evidence

for the aggravator in part due to physical suffering, but also because at least two

of the three victims witnessed the brutal attacks on their co-workers before the

killer turned to them. A fourth victim was placed in the same room after the

murders, before he was shot in the head. In finding that the conduct constituted

4
See Jones v. Gibson, 206 F.3d 946, 953 (10th Cir. 2000) (comparing
Turrentine v. State , 965 P.2d 955, 976 (Okla. Crim. App. 1998) (“[t]he length of
time which the victim suffers mental anguish is irrelevant”), with Washington v.
State , 989 P.2d 960, 975 (Okla. Crim. App. 1999) (“[t]he mental torture element
is confined to cases in which the victim is terrorized for a significant period of
time before death”). Ultimately this apparent discord is irrelevant, as the OCCA
itself has interpreted Oklahoma law to determine the application of the aggravator
was appropriate in this case.

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mental torture, the OCCA concluded, “[m]ental anguish includes the victim’s

uncertainty as to his ultimate fate.” Id. at 556. That same uncertainty is fully met

here. Finally, we are instructed by our decision in McCracken v. Gibson , 268

F.3d 970, 982 (10th Cir. 2001). In that decision, we upheld a finding of

aggravation where the third and fourth victims of a quadruple homicide heard two

other victims shot first and likely feared they would be next.

Hamilton counters this authority with the OCCA holding in Davis v. State ,

888 P.2d 1018 (Okla. Crim. App. 1995). In Davis , the court determined the

evidence insufficient where two victims died of gunshot wounds but the

“evidence could not predict either victim’s time of death or the order in which

wounds were inflicted.” Id. at 1021. Along these lines, in Crawford v. State , 840

P.2d 627, 640-41 (Okla. Crim. App. 1992), the OCCA found insufficient evidence

to support the aggravator based on physical abuse where there was no indication

whether blunt force injuries or strangulation occurred first, no evidence as to the

level of suffering, and no evidence whether the victim was alive when put into a

car trunk. The OCCA concluded “[a] record so bereft of evidence leads only to

speculation and not to the rational drawing of reasonable inferences.” Id. at 641.

The murders here require none of the attenuated guesswork necessary in Davis

and Crawford . Although it is true the record does not disclose how much time

passed between the death of each victim, or how long each victim was subject to

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mental torture, what we do know amply supports the aggravator. For example, all

were in the back cooler for at least ten minutes on their knees at gunpoint. At

least two of the victims knew Hamilton’s identity and were therefore aware that

his failure to wear a disguise suggested his intention to kill. Such a natural

suspicion would have been confirmed after Hamilton murdered the first victim.

And three witnessed the execution-style death of at least one other victim. Under

this aggravator, it is not required that every victim know his fate to a certainty .

In fact, uncertainty is often an aspect of cruelty inflicted upon victims. See Neill ,

896 P.2d at 556. It is enough that the evidence of mental cruelty disclose that

each victim likely experienced mental anguish at the hands of the defendant.

On this record, the jury’s finding of the “heinous, atrocious or cruel”

aggravator in this case was reasonable. The OCCA’s decision, therefore, was

neither contrary to nor an unreasonable application of federal law; nor was it

based on an unreasonable determination of the facts in light of the evidence

presented. Habeas relief on this ground is accordingly denied.

E. Cumulative Error

Hamilton’s final argument is that the cumulative effect of trial errors in this

case justifies habeas relief. The OCCA rejected this claim because it found any

errors to be harmless. See Hamilton , 937 P.2d at 1013 (“in as much as we found

all other errors to be harmless beyond a reasonable doubt, we find no cumulative

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error requiring reversal”). The district court agreed, finding that since it rejected

each of Hamilton’s claims, there were no errors to aggregate.

Contrary to the OCCA’s analysis, however, our cases explain that

“[c]umulative-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.” Workman v.

Mullin , 342 F.3d 1100, 1116 (10th Cir. 2003). The OCCA therefore erred by

failing to engage in cumulative error analysis. The very point of such a review, is

to examine all the actual errors which are individually harmless to determine if

together they render the defendant’s trial unfair. See Cargle v. Mullin , 317 F.3d

1196, 1207 (10th Cir. 2003) (explaining that “to deny cumulative-error

consideration of claims unless they have first satisfied their individual substantive

standards for actionable prejudice would render the cumulative error inquiry

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

requiring reversal”) (internal quotations and citations omitted).

Because the OCCA did not consider in the aggregate the prejudicial effect

of the individual errors, we review Hamilton’s cumulative error claim de novo.

See Malicoat v. Mullin, 426 F.3d 1241, 1263 (10th Cir. 2005) (“the OCCA’s

opinion does not clearly indicate that it considered, in the aggregate, the

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prejudicial effect of the individual errors[;] [a]ccordingly . . . we afford [the

defendant] the benefit of the doubt and review his cumulative error claim de

novo”). We thus consider whether the two possible errors we identified in the

trial – (1) whether the “cloak of innocence” statements (a first stage error), and

(2) the lack of instructions on victim impact evidence (a second stage error) –

together rendered the trial unfair. In assessing cumulative error, only first stage

errors are relevant to the conviction, but all errors are relevant to the ultimate

sentence. Darks v. Mullin , 327 F.3d 1001, 1018 (10th Cir. 2003).

Even under the de novo standard, we conclude Hamilton has failed to

demonstrate the cumulative effect of the individual errors deprived him of a fair

trial. In light of the overwhelming evidence against him, we see nothing to

suggest the prosecutor’s remarks influenced the jury’s finding of guilt. The

lawyer’s rhetorical flourish at closing pales in comparison to the physical and

testimonial evidence of guilt introduced at trial. Likewise, the omission of a

victim impact instruction in the context of the instructions as a whole also could

only have minimally affected the jury’s consideration of the aggravated nature of

the quadruple homicide. Moreover, the victim impact evidence bore on only two

of the four aggravating circumstances found by the jury, any one of which was

sufficient to support the death penalty. Even together, the weight of these alleged

errors did not rob Hamilton of a fair trial.

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 We thus conclude Hamilton has failed to establish that individual harmless

errors should collectively justify habeas relief.

IV. Conclusion

Accordingly, for the reasons set forth above, we AFFIRM the district

court’s decision denying Mr. Hamilton’s 28 U.S.C. § 2254 petition for a writ of

habeas corpus.

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